Durham County v. Richards & Associates, Inc.

• Decision Date: 23 August 1984
• Docket Number: No. 83-2189,83-2189
• Citation: 742 F.2d 811
• Parties: COUNTY OF DURHAM, Appellant, v. RICHARDS & ASSOCIATES, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 811

742 F.2d 811

COUNTY OF DURHAM, Appellant, v. RICHARDS & ASSOCIATES, INC., Appellee.

No. 83-2189.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1984.

Decided Aug. 23, 1984.

S.C. Kitchen, Asst. County Atty., Durham, N.C., for appellant.

C. Allen Foster and Richard D. Conner, Greensboro, N.C. (Eric C. Rowe and Foster, Conner & Robson, P.A., Greensboro, N.C., on brief), for appellee.

Before WIDENER, MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

The County of Durham appeals from an order compelling it to arbitrate a dispute with Richards & Associates, Inc. (Richards) and from orders denying its motion to stay arbitration and its motion to disqualify counsel. Durham argued below that it had no duty to arbitrate because its agreement to arbitrate with Richards contained a two year limitation period and that the claim which Richards seeks to arbitrate arose over five years ago. The district court concluded that the question of untimeliness must be resolved by the arbitrator. Arguing that the district court's orders are not at present reviewable, Richards urges dismissal of this appeal. We, however, find that the dispositive order to compel arbitration is appealable, and we affirm the district court's order.

I.

In 1975 Richards contracted to perform the electrical work required for the construction of the Durham County Judicial Building. Richards completed work on May 29, 1979, and four years later submitted a claim for over $200,000 in damages allegedly due to delay and changes in the work caused by Durham. Durham denied the claim, and Richards demanded arbitration. The contract between Durham and Richards contained an arbitration clause, but the agreement to arbitrate was limited to timely claims, that is, claims that, if raised in court, would not be barred by the applicable statute of limitations. In North Carolina there is a two year limitation period for claims against counties. N.C.Gen.Stat. Sec. 1-53.

Over Durham's argument that the agreement to arbitrate this claim was no longer in effect, the district court held that the question of timeliness was a question for arbitration.

II.

The threshold question on appeal is whether this court has jurisdiction to review the district court's orders. Although the district court both denied Durham's motion to stay arbitration and granted Richards' motion to compel arbitration, we consider the order to compel to be the dispositive order in this case. Durham filed its motion to stay in state court under N.C.Gen.Stat. Secs. 1-567.3 and 1-567.16, together with a request for a declaratory judgment barring Richards from seeking arbitration and requests for a temporary restraining order and preliminary injunction. Richards removed the case to federal court on diversity grounds and subsequently filed a motion to compel arbitration under Sec. 4 of the United States Arbitration Act. ¹ Because there was no action pending on the claim underlying the dispute over arbitration, the order to compel pursuant to Sec. 4 resolved the issues presented to the district court, and there is no need for us to address the question of whether the district court properly denied the motion to stay under North Carolina law. It is the order to compel, without consideration of the denial of the motion to stay, that we find appealable. ²

Durham argues that the district court's order to compel is an appealable final order within the meaning of 28 U.S.C. Sec. 1291. Because the order compelling arbitration pursuant to Sec. 4 effectively put the parties out of federal court, we agree. As one well respected treatise has stated, "It has been consistently held that [a Sec. 4] proceeding is an independent action, and that an order directing arbitration or dismissing the petition is appealable as a final order under 28 U.S.C. Sec. 1291." 9 J. Moore and B. Ward, Moore's Federal Practice p 110.20[4.-1] at 246 and n. 3 (2d ed. 1983). Indeed, the eight circuits that have addressed the issue have concluded that an order to compel entered pursuant to Sec. 4 is a final order. E.g., Johnson Controls, Inc. v. City of Cedar Rapids, Iowa, 713 F.2d 370, 372 (8th Cir.1983) (order to compel issued in a Sec. 4 proceeding considered an appealable final order without discussion); Cincinnati Gas & Electric Co. v. Benjamin F. Shaw Co., 706 F.2d 155, 158 (6th Cir.1983) (order which both compels arbitration and stays proceedings pending arbitration satisfies finality requirement of Sec. 1291); University Life Insurance Co. of America v. Unimarc Ltd., 699 F.2d 846, 849-50 (7th Cir.1983) (order compelling arbitration is a reviewable final order even though district court retained jurisdiction to provide any further relief that may become appropriate); Coastal Industries v. Automatic Steam Products, 654 F.2d 375, 377 n. 1 (5th Cir. Unit B 1981) ("an order compelling arbitration is a final, appealable order under 28 U.S.C. Sec. 1291"); Par Knit Mills v. Stockbridge, 636 F.2d 51, 53 (3rd Cir.1980) (order to compel arbitration is a final order under 28 U.S.C. Sec. 1291); Karavos Compania Naviera v. Atlantica Export Corp., 588 F.2d 1, 7 (2d Cir.1978) ("an order under Sec. 4 of the Arbitration Act is appealable as a final order"); New England Power Co. v. Asiatic Petroleum Co., 456 F.2d 183, 188 (1st Cir.1972) (an order compelling arbitration, as opposed to an order to stay court proceedings pending arbitration, is appealable under Sec. 1291); John Thompson Beacon Windows Ltd. v. Ferro, Inc., 232 F.2d 366, 369 (D.C.Cir.1956) (finality is obtained when district court either orders arbitration or dismisses proceeding) (dictum).

Richards contends that there is a split among the circuits concerning whether an order to compel arbitration is appealable and cites as support for its contention two Second Circuit cases, Stathatos v. Arnold Bernstein S.S. Corp., 202 F.2d 525 (2d Cir.1953) and In re Pahlberg Petition, 131 F.2d 968 (2d Cir.1942). In Stathatos, the Second Circuit held that an order vacating an arbitration award and ordering resubmission was not appealable because "it does not finally determine any claim. Both the parties and the court below have treated the proceeding as a continuous one throughout, and all the orders have been entered and docketed on that basis." 202 F.2d at 526. Richards, however, ignores the distinction between an order to arbitrate entered during the course of continuing proceedings and an order to arbitrate such as the one issued below which settles the only question raised by the parties in federal court. ³ It is this distinction that led the Second Circuit in Chatham Shipping Co. v. Fertex Steamship Co., 352 F.2d 291, 294 (2d Cir.1965), to conclude:

that although an order directing arbitration is interlocutory when made in the course of continuing litigation, it is considered a final decision when handed down in an independent proceeding under Sec. 4 of the Arbitration Act. Farr & Co. v. Cia. Intercontinental de Navegacion 243 F.2d 342 (2 Cir.1957); Intercontinental Transportation Co. v. States Marine Lines, Inc., 297 F.2d 249 (2 Cir.1961).

As Judge Friendly went on to note in Chatham, the Supreme Court has held that an order to arbitrate under Sec. 301(a) of the Taft-Hartley Act is appealable as a final judgment, Goodall-Sanford, Inc. v. United Textile Workers, 353 U.S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1953), and although the Court disclaimed passing on the related question under the Arbitration Act, "there is no really tenable ground for distinction." 352 F.2d at 294.

When, as in this case, the only dispute brought before the district court is whether the parties have an obligation to arbitrate, the order compelling arbitration disposes of the whole case on its merits and is, therefore, a final order. See Bostwick v. Brinkerhoff, 106 U.S. 3, 4, 1 S.Ct. 15, 16, 27 L.Ed. 73 (1882) (an order is final when it "disposes of the whole case on its merits"). Cf. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 10, 103 S.Ct. 927, 934, 74 L.Ed.2d 765, 776 (1983) (stay, in deference to parallel litigation in state court, of a suit to compel arbitration under Sec. 4 held appealable as a final order because the stay "meant that there would be no further litigation in the federal forum").

Richards correctly points out that the district court may be called on again to enforce the award. But whether or not the district court will have occasion to make further rulings in this dispute is a matter of speculation and as such it should not bear on the issue of appealability. The possibility that the parties would return to federal court in an enforcement proceeding did not prevent the Supreme Court in Cone Memorial Hospital from holding that the stay of Sec. 4 proceedings in that case was a final order, perhaps because the possibility of return was no more than a possibility. As the Seventh Circuit has stated, "it is possible that no awards will be made--that the arbitrators will resolve all issues against the claimants--in which event judicial enforcement will never be sought," University Life Insurance Co. of America, 699 F.2d at 850. See also 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3914 at p. 554 (1976). ("So long as the order disposes of all the relief actually requested, however, finality is properly found. The party seeking arbitration has chosen not to anticipate disregard of the award, and it may be expected that such awards are ordinarily honored.") Moreover, in this case, as opposed to the case addressed by the Seventh Circuit in University Life Insurance, the district court did not explicitly retain jurisdiction to provide any further relief that might be required. Therefore, in the perhaps unlikely event that enforcement of the award would be requested, the request would have to come through a separate proceeding instituted under Sec. 9 of the Arbitration Act. ⁴

In this case the only issue raised by ...