863 F.2d 639 (9th Cir. 1988), 87-5644, PMS Distributing Co., Inc. v. Huber & Suhner, A.G.

Docket Nº:87-5644.
Citation:863 F.2d 639
Party Name:PMS DISTRIBUTING CO., INC., a California corporation; Polymembrane Systems Inc., a California corporation; Edward J. Stevenson, a California citizen, Plaintiffs-Appellants, v. HUBER & SUHNER, A.G., A Swiss corporation, Defendant-Appellee.
Case Date:August 19, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 639

863 F.2d 639 (9th Cir. 1988)

PMS DISTRIBUTING CO., INC., a California corporation;

Polymembrane Systems Inc., a California

corporation; Edward J. Stevenson, a

California citizen,

Plaintiffs-Appellants,

v.

HUBER & SUHNER, A.G., A Swiss corporation, Defendant-Appellee.

No. 87-5644.

United States Court of Appeals, Ninth Circuit

August 19, 1988

Argued and Submitted June 8, 1988.

Dissenting Opinion Amended Dec. 27, 1988.

Robert E. Gentino, Los Angeles, Cal., for plaintiffs-appellants.

Michael G. Yoder, Davis P. Goodman, Gibson, Dunn & Crutcher, Newport Beach, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before TANG, FARRIS and KOZINSKI, Circuit Judges.

FARRIS, Circuit Judge:

Plaintiffs, PMS Distributing Co., Inc., Polymembrane Systems, Inc., and Edward J. Stevenson appeal an order from the United States district court for the central district of California granting Huber & Suhner, A.G., a writ of possession. We hold

Page 640

that such orders are not appealable final orders and dismiss.

Huber & Suhner filed a complaint against plaintiffs-appellants in the Superior Court of the County of Los Angeles on February 25, 1986. Three days later Huber & Suhner submitted an Ex Parte Notice of Application for Writ of Possession and Hearing. Before the hearing on the Writ of Possession, plaintiff-appellants filed a Petition to Compel Arbitration in federal district court under Section 4 of the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. (1970), as well as Motion for Stay of all Proceedings in the State Court. The state court granted the motion for the stay and denied the original Writ of Possession due to the "inadequacy of the declaration and the frustration of pending federal arbitration." The Petition to Compel Arbitration was granted by the federal district court on June 26, 1986.

The initial arbitration conference was held on August 25, 1986. Counsel for PMS Distributing indicated that his client was in serious financial difficulty and could be forced out of business by a protracted arbitration. On November 24, 1986, Huber & Suhner filed an application for issuance of Writ of Possession in federal district court. The district court granted the order for issuance of the Writ of Possession and denied PMS Distributing's motion to vacate the order. PMS Distributing filed an appeal of these two rulings on February 24, 1987 and obtained an emergency stay against enforcement of the Writ of Possession from the court of appeals.

I.

In Perpetual American Bank, FSB v. Terrestrial Systems, Inc., 811 F.2d 504 (9th Cir.1987), we held that the grant of a writ of attachment was not an appealable order. We relied upon the Supreme Court's rationale in Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950) which involved the attachment of a vessel. The Supreme Court distinguished between the appealability of an order vacating attachment and an order upholding attachment. Appeal of an order vacating attachment is proper because review at a later date, after the vessel's release, would be an "empty rite." Id. at 688-89, 70 S.Ct. at 865. However, appeal of an order upholding an attachment mandates a different conclusion because "[in] such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds." Id at 689, 70 S.Ct. at 865.

We find no rational basis for distinguishing between the grant of a writ of attachment and the grant of writ of possession for purposes of the appealability of the order. Both writs are provisional remedies which, when granted, protect both parties involved in the underlying dispute. The only substantive difference under California law between a writ of attachment and a writ of possession is that when a writ of attachment is granted a...

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