City of DeWitt v. General Baumgartner ( 1997 )

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No. 96-3586
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City of DeWitt, Arkansas, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
General Baumgartner Contractors, *
Inc., * [UNPUBLISHED]
*
Appellee. *
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Submitted: January 16, 1997
Filed: January 29, 1997
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Before McMILLIAN, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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PER CURIAM.
The City of DeWitt, Arkansas (City) appeals from the district
court's1 determination that a construction contract between the City and
Baumgartner General Contractors, Inc. (Baumgartner) was valid, denial of
the City's motion to stay arbitration, and grant of Baumgartner's motions
to compel arbitration and for a stay of proceedings. Baumgartner has moved
to dismiss the City's appeal on the ground that this court lacks
jurisdiction.
After reviewing Baumgartner's motion to dismiss the appeal, the
City's response to that motion, and the district court file, we conclude
this court lacks jurisdiction because the appeal is from an interlocutory
order compelling arbitration. See 9 U.S.C.
1
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
§ 16(b)(3). We agree with Baumgartner that the proceeding below was an
embedded proceeding, as the City sought "relief other than an order . . .
prohibiting arbitration." See Gammaro v. Thorp Consumer Discount Co., 15
F.3d 93, 95 (8th Cir. 1994).
We note that the City will be able to obtain appellate review of the
district court's determination of the contract's validity once the
arbitration is final. See id. at 96 (although court lacked jurisdiction
to review interlocutory appeal regarding alleged unconscionability of
arbitration clause, claim could be reviewed on merits in circuit court
following petition to enforce or vacate arbitrator's award).
Accordingly, we dismiss the City's appeal.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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