Patrick McCardell v. Regent Private Capital, L.L.C , 520 F. App'x 259 ( 2013 )

Case: 12-31089 Document: 00512266875 Page: 1 Date Filed: 06/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2013
No. 12-31089 Lyle W. Cayce
Summary Calendar Clerk
PATRICK MCCARDELL,
Plaintiff–Appellant,
v.
REGENT PRIVATE CAPITAL, L.L.C.,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-1136
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Patrick McCardell and Defendant–Appellee Regent
Private Capital, L.L.C. (Regent), signed a guaranty related to the sale of an
airship (a “blimp”) owned by McCardell; the guaranty contained an arbitration
clause that provided that the parties “will submit any disputes regarding this
contract” to arbitration. The purchaser of the airship later defaulted, and
McCardell sued Regent in Louisiana state court seeking a declaration that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-31089 Document: 00512266875 Page: 2 Date Filed: 06/07/2013
No. 12-31089
guaranty had not terminated when the airship was returned to McCardell by the
purchaser. Regent removed the case to federal court and filed a motion to
dismiss. Rather than dismissing McCardell’s claim, the district court stayed the
case pending arbitration. Although the court administratively closed the case
“for statistical purposes,” its stay order explicitly retained jurisdiction and
provided that “if circumstances change,” the case could “proceed to final
disposition.”
Before turning to the merits of an appeal, “[t]his court must examine the
basis of its jurisdiction, on its own motion, if necessary.”1 The Federal
Arbitration Act (FAA), under which the guaranty falls,2 provides that “an
interlocutory order granting a stay pending arbitration is not an appealable
order.”3 The stay order here falls squarely within this rule. Though the district
court administratively closed the case, this court has on an least three occasions
held that such an order is not a final decision under the FAA and, in fact,
precludes appellate review.4 We therefore do not have jurisdiction over
McCardell’s appeal.
* * *
APPEAL DISMISSED.
1
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (per curiam).
2
See 9 U.S.C. § 2.
3
Ilva (USA), Inc. v. Alexander’s Daring M/V, 10 F.3d 255, 256 (5th Cir. 1993) (per
curiam) (citing McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.
1993)); see also 9 U.S.C. § 16(b)(1).
4
CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250-51 (5th Cir. 2006) (holding that an
administrative dismissal is not a final decision under the FAA and therefore not appealable);
Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004) (same with respect to
an administrative closure); S. La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 F.3d
297, 302 (5th Cir. 2004) (same).
2