Garner Lumber Co. v. Randolph E. Valensi, Lange, Inc.
Decision Date | 03 April 1975 |
Docket Number | No. 74-1715,74-1715 |
Citation | 513 F.2d 1171 |
Parties | GARNER LUMBER COMPANY, Appellant, v. RANDOLPH E. VALENSI, LANGE, INC., Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
William E. Crosswhite, Statesville, N. C. (Sowers, Avery & Crosswhite, Statesville, N. C., on brief), for appellant.
Richard R. Reamer, Salisbury, N. C. (Lewis P. Hamlin, Jr., Salisbury, N. C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
Pursuant to 9 U.S.C. §§ 2-4, arbitration was directed on the application of the defendant by the District Court, together with a stay, of the common law action between the present parties for breach of a contract for the purchase and sale in 1973 of lumber at Wilmington, North Carolina. Garner Lumber Company was the plaintiff-vendee, and Randolph E. Valensi, Lange, Inc., the defendant-vendor. On plaintiff's appeal we affirm, resting decision on the trial judge's opinion. Garner Lumber Company v. Randolph E. Valensi, Lange, Inc., --- F.Supp. --- (W.D.N.C.1974).
Unquestionably, arbitration was compellable under the parties' stipulations written into the purchase and sale papers:
The only issue of substance is made by the defendant's insistence that the stay order is not a "final decision" under 28 U.S.C. § 1291, and is therefore not appealable. We think the stay order is subject to the interlocutory appeal allowed by 28 U.S.C. § 1292(a)(1) as analogous to an injunction. The Enelow-Ettelson rule 1 on the appealability of a stay, restated by several Circuits, 2 is that: the grant or refusal of an order staying proceedings in the District Court is appealable under § 1292(a)(1) only if (A) the action in which the stay motion was made would have been an action at law before the fusion of law and equity; and (B) the stay was sought to permit the prior determination of an equitable defense or counterclaim.
There is no trouble applying this two-pronged test here. Since all that is prayed instantly is damages for breach of contract, clearly a legal action, the first requirement is met. Likewise the second condition is satisfied in that the replication by the defendant-vendor is that the dispute should be submitted to arbitration, an equitable defense. American Safety Equipment Corp. v. J. P. Maguire & Co., Inc., 391 F.2d 821, 824 (2 Cir. 1968); J. S. & H. Construction Co. v. Richmond County Hospital Authority, 473 F.2d 212, 213, n.1 (5 Cir. 1973).
No decision is found in this circuit contrary to the Enelow-Ettelson teaching. The only suspect case is General Construction Co. v. Hering Realty Co., 286 F.2d 641 (4 Cir. 1961), wherein the Court declared interlocutory and unappealable an order staying litigation pending arbitration. Upon scrutiny this case is...
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...or "waiver" in this sense. Garner Lumber Co. v. Randolph E. Valensi, Lange, Inc., 393 F.Supp. 161, 162 (W.D.N.C.1974), aff'd., 513 F.2d 1171 (4 Cir. 1975). It is only the "(s)ubstantially invoking the litigation machinery (which will) qualif(y) as the kind of prejudice ... that is the essen......
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...2, supra.5 See Gavlik Construction Co. v. H. F. Campbell Co., 526 F.2d 777, 781 (3d Cir. 1975); Garner Lumber Co. v. Randolph E. Valensi, Lange, Inc., 513 F.2d 1171, 1172 (4th Cir. 1975); Brannon v. Warn Bros., Inc., 508 F.2d 115, 118 (9th Cir. 1974).6 See note 1, supra.7 See Frances Hosier......
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...to compel arbitration, over which we have jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1). See Garner Lumber Co. v. Randolph E. Valensi, Lange, Inc., 513 F.2d 1171 (4th Cir.1975). The district court denied this motion on the grounds that Merrill Lynch had waived arbitration by its use of......
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