836 F.2d 47 (1st Cir. 1987), 87-1234, Diskin v. J.P. Stevens & Co., Inc.

Docket Nº:87-1234.
Citation:836 F.2d 47
Party Name:Ben DISKIN d/b/a Mass. State Mfg. Co., Plaintiff, Appellant, v. J.P. STEVENS & CO., INC., Defendant, Appellee.
Case Date:December 31, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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836 F.2d 47 (1st Cir. 1987)

Ben DISKIN d/b/a Mass. State Mfg. Co., Plaintiff, Appellant,


J.P. STEVENS & CO., INC., Defendant, Appellee.

No. 87-1234.

United States Court of Appeals, First Circuit

December 31, 1987

Submitted Sept. 18, 1987.

Rehearing Denied Jan. 22, 1988.

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Ben Diskin, on brief, pro se.

Gary R. Greenberg, P.C., Goldstein & Manello, Boston, Mass., Kurt J. Wolff, and Otterbourg, Steindler, Houston & Rosen, P.C., New York City, on brief, for defendant, appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.


The appellant, who appears pro se, appeals from the district court's order granting appellee's motion for a stay of the court proceedings pending arbitration pursuant to 9 U.S.C. Sec. 3. The district court's decision is reported. See Diskin v. J.P. Stevens & Co., 652 F.Supp. 553 (D.Mass.1987). At the outset, we consider whether the order is immediately appealable.

A stay issued under section 3 of the Arbitration Act is normally not appealable since it qualifies as neither "final" under 28 U.S.C. Sec. 1291 nor as an "injunction" under 28 U.S.C. Sec. 1292(a)(1). See, e.g., Hartford Financial Systems v. Florida Software Systems, Inc., 712 F.2d 724 (1st Cir.1983), and cases cited therein. Nonetheless, an important exception to this rule is embodied in the well-established Enelow-Ettelson doctrine. This exception provides

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that if the underlying suit which is stayed pending arbitration is legal rather than equitable in nature, the stay order will be appealable under 28 U.S.C. Sec. 1292(a)(1). Id. at 726. See also Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935). The original complaint filed by the plaintiff-appellant is quite clearly legal in that he seeks money damages relating to contractual issues. 1 So, the district court's order granting a stay of proceedings pending arbitration is properly appealable under the Enelow-Ettelson exception.

Having established that this court has jurisdiction over the appeal, we now move to the relevant underlying issues. Appellant Ben Diskin, d/b/a Mass. State Manufacturing Co., is a manufacturer of women's clothing. In December 1984, Diskin traveled to the New York offices of appellee J.P. Stevens & Co., Inc., where Diskin selected, ordered, and tendered full payment by check for a quantity of flannel to be delivered by Stevens at some point in the future. On the back of the check, appellant indicated that his tender was "In full payment for 290 pcs. flannel as per contract...." Appellant also requested that Stevens send him a sample of the fabric for further evaluation. The record shows that Stevens subsequently sent Diskin a copy of its confirmation and standard sales contract--which contained quantity and price terms as well as a clause indicating that the document would become a contract between the parties if the buyer received and retained it for ten days without issuing a written objection. 2 The terms of the confirmation specifically provided for resort to arbitration in the event of a dispute between the parties. The district court found that appellant received and retained the form without signing or objecting to it.

In mid-January 1985, appellant received the sample of cloth which he had requested from Stevens and, finding it unsatisfactory, responded by letter dated January 24, 1985 to Stevens. Appellant expressed his dissatisfaction with the sample, and remarked that his "interests are stopped for re-evaluation...." The record shows that appellant refused to assort 3 or give delivery instructions with respect to the ordered goods for a number of months, after which time appellee unilaterally decided to ship the goods to a warehouse to be held for the account of appellant.

On August 25, 1986, appellant filed suit against Stevens, seeking judgment in the amount of his original payment of $151,380 plus interest and costs. Appellee moved...

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