Howard Elec. and Mechanical Co., Inc. v. Frank Briscoe Co., Inc., 84-1878

• Decision Date: 28 February 1985
• Docket Number: No. 84-1878,84-1878
• Citation: 754 F.2d 847
• Parties: HOWARD ELECTRICAL AND MECHANICAL COMPANY, INC., a Colorado Corporation, Plaintiff-Appellee, v. FRANK BRISCOE COMPANY, INC., a New Jersey Corporation, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 847

754 F.2d 847 HOWARD ELECTRICAL AND MECHANICAL COMPANY, INC., a Colorado
Corporation, Plaintiff-Appellee,
v.
FRANK BRISCOE COMPANY, INC., a New Jersey Corporation, et
al., Defendants-Appellants. No. 84-1878. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 16, 1985.
Decided Feb. 28, 1985.

Page 848

William J. Ferguson Jr., McLean, Va., Watt, Tieder, Killian & Hoffar, Vienna, Va., for plaintiff-appellee.

David Riddle, Las Vegas, Nev., for defendants-appellants.

Appeal from United States District Court for the District of Nevada.

Before CHOY, FARRIS and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

A construction subcontractor filed a diversity action in the District of Nevada against a New Jersey-based general contractor for work and materials supplied. The district court granted the subcontractor's request for an order compelling arbitration, and denied the contractor's request to transfer the action to the District of New Jersey. The contractor appeals both decisions. The subcontractor asserts that this court lacks jurisdiction to hear the appeal. We hold that we have jurisdiction to hear the appeal from the arbitration order but not the appeal from the denial of transfer. We affirm the arbitration order.

A. FACTS

In March 1977, the Frank Briscoe Co. ("Briscoe") and the Clark County Sanitation District ("Owner") entered into a contract for the construction of a wastewater treatment plant. Briscoe, as the general contractor for the project, executed a statutory bond to assure the payment of claims for labor and materials used in the construction. See Nev.Rev.Stat. Sec. 339.015 et seq.

Briscoe then entered into a subcontract with the Howard Electrical and Mechanical Co. ("Howard") to perform certain electrical and instrumentation work. The subcontract contained a number of provisions relevant to this action.

First, paragraph 19 of the subcontract required the parties to submit to binding arbitration any "controversy or claim arising out of or relating to" the subcontract.

Second, paragraph 5 provided that if Briscoe or the Owner ordered any work beyond the scope of the original subcontract, "recovery by [Howard] shall be conditioned on a prior recovery therefore by [Briscoe] from the Owner." Similarly, paragraph 7 allowed Briscoe to withhold scheduled monthly payments from Howard "unless said money has actually been received by [Briscoe] from the Owner with respect to [Howard's] branch of work ...."

Third, paragraph 9 purported to absolve Briscoe from any liability to Howard for delays caused by the Owner's or Briscoe's "act, neglect or default." The provision adds, however, that if and only if Briscoe actually receives damages or other...