De Fuertes v. Drexel, Burnham, Lambert, Inc., 88-1448
| Decision Date | 05 October 1988 |
| Docket Number | No. 88-1448,88-1448 |
| Citation | 855 F.2d 10 |
| Parties | Isabel Romeu VDA, DE FUERTES, et al., Plaintiffs, Appellants, v. DREXEL, BURNHAM, LAMBERT, INC., Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Manuel E. Romeu, San Juan, P.R., on memorandum to show cause why appeal should not be dismissed, for plaintiffs, appellants.
Jorge A. Miranda, Hato Rey, P.R., on motion in response, for defendant, appellee.
Before COFFIN, BOWNES and SELYA, Circuit Judges.
Plaintiffs brought an action seeking the delivery of securities allegedly illegally detained by defendants. Defendants, relying on a margin agreement calling for arbitration of disputes, moved to refer the controversy to arbitration. Plaintiffs opposed arbitration. They contended the purported margin agreement was not valid for a number of reasons, including forgery of a plaintiff's signature. The parties agreed to trial before a magistrate. (Docket entry 69.) The magistrate then reviewed the evidence and issued an opinion concluding that the margin agreement was valid and binding. Accordingly, he ordered the parties to submit their dispute to arbitration, but retained jurisdiction over the action pending the outcome of arbitration. Plaintiffs now appeal from this order directing arbitration. We conclude we have no jurisdiction.
The order compelling arbitration and retaining jurisdiction is not final in the traditional sense, as no judgment determining the entire controversy between the parties has entered. Contrary to appellant's assertion, the litigation has not ended. Rather, it has moved to another forum with the expectation that it will return to the magistrate for entry of a final judgment. Hartford Financial Systems v. Florida Software Services, 712 F.2d 724, 726 (1st Cir.1983) ().
Nor, in view of the Supreme Court's overruling of the Enelow-Ettelson doctrine, is the order referring the case to arbitration appealable as an injunction under 28 U.S.C. Sec. 1292(a)(1). See Gulfstream Aerospace Corporation v. Mayacamas Corporation, --- U.S. ----, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988).
Appellants contend the order is appealable under the Cohen collateral order doctrine. Adhering to their position that no valid arbitration agreement exists, they argue that this issue is separate from the underlying lawsuit and that unless immediate review is allowed they will be denied the proper forum--a court--and irreparably harmed by having to proceed to arbitration. Consequently, they contend, the arbitration order is effectively unreviewable unless reviewed now.
We disagree. On an appeal from a final judgment entered after the conclusion...
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