Mercury Const. Corp., In re, Nos. 81-1009

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtDONALD RUSSELL; WIDENER; DONALD RUSSELL
Citation664 F.2d 936
PartiesIn re MERCURY CONSTRUCTION CORPORATION, Petitioner. MERCURY CONSTRUCTION CORPORATION, Appellant, v. The MOSES H. CONE MEMORIAL HOSPITAL, Appellee.
Decision Date24 November 1981
Docket NumberNos. 81-1009,81-1042

Page 936

664 F.2d 936
In re MERCURY CONSTRUCTION CORPORATION, Petitioner.
MERCURY CONSTRUCTION CORPORATION, Appellant,
v.
The MOSES H. CONE MEMORIAL HOSPITAL, Appellee.
Nos. 81-1009, 81-1042.
United States Court of Appeals,
Fourth Circuit.
Argued June 1, 1981.
Decided Nov. 24, 1981.
ORDER

DONALD RUSSELL, Circuit Judge.

Upon consideration of the petition for rehearing, and with the concurrence of the active Circuit Judges, except Judge WIDENER and Judge HALL, who dissent from the denial of the petition,

IT IS ORDERED, That the petition for rehearing be, and it is hereby denied.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent to the denial of rehearing in this case.

As I have previously pointed out in dissent, the basic theme of the majority opinion, 4 Cir., 656 F.2d 933, is its lack of confidence in the North Carolina courts to enforce the Federal Arbitration Act. At the time the case was decided and the majority opinion was filed, I thought that lack of confidence was without foundation, and so expressed myself.

Unknown to us at the time the case was decided, but following argument, the Supreme Court of North Carolina had decided the case of Burke County Public Schools, etc. v. Shaver, etc., --- N.C. ----, 279 S.E.2d 816 (1981). Burke was a case on facts indistinguishable from those now before us and is one of the very cases 1 relied on by the majority to illustrate why the North Carolina courts would not try this case under federal substantive law (the Federal Arbitration Act).

The gist of the majority decision here as shown by the opinion itself is as follows:

"This is a case where it can be fairly said to be doubtful whether the rights of Mercury as fixed by 'federal substantive law' will be recognized in the state court." P. 946.

Contrast that statement of North Carolina law as expressed in the majority opinion with North Carolina law as expressed by the North Carolina Supreme Court in Burke:

"This appeal presents two questions. First, whether the contract between plaintiff and defendant is 'a contract evidencing a transaction involving commerce' within the meaning of § 2 of the Federal Arbitration Act. (Footnote omitted) We conclude that it is. Second, whether the Federal Arbitration Act must be applied in state courts. We hold, for reasons given, that it must." 279 S.E.2d at p. 817.

Not only was the holding of the North Carolina Supreme Court that which I have just quoted, the opinion goes on in detail to provide as follows:

"... Parties in a state court to a contract evidencing an interstate transaction should not be permitted to avoid arbitration when, had the action been brought in federal court, they would have been compelled to arbitrate. This much flows from the denomination of compulsory arbitration as a matter of substantive, rather than procedural, law." 279 S.E.2d at 824-825, note 16.

Additionally, the court in Burke not only held, p. 825, that the contract in question "must be submitted to arbitration pursuant to the federal act," as one of the reasons therefor it gave that the...

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7 practice notes
  • Moses Cone Memorial Hospital v. Mercury Construction Corporation, No. 81-1203
    • United States
    • United States Supreme Court
    • February 23, 1983
    ...of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. 656 F.2d 933, rehearing denied, 664 F.2d 936 (CA4 1981). We granted certiorari. 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). We affirm. I Petitioner Moses H. Cone Memorial Hospital (&quo......
  • Cyclone Roofing Co., Inc. v. David M. LaFave Co., Inc., No. 8226DC1229
    • United States
    • March 20, 1984
    ...302 S.E.2d 293 (1983). Waiver of such an agreement is not to be lightly inferred. In re Mercury Const. Corp., 656 F.2d 933, reh. denied, 664 F.2d 936 (4th Cir.1981), affirmed, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). After reviewing the record, I do not believe that appellee, LaFav......
  • RRI Realty Corp. v. Incorporated Village of Southampton, No. 1117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1985
    ...resolution of a concurrent state court suit. The Court of Appeals for the Fourth Circuit reversed the stay, 656 F.2d 933, reh'g denied, 664 F.2d 936 (1981), and the Supreme Court granted certiorari. 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). At issue, for our purposes, was whether......
  • Whiteside v. Teltech Corp., Nos. 90-3144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 31, 1991
    ...action between the parties was pending in the state court. In re Mercury Constr. Corp., 656 F.2d 933, 946 (4th Cir.) (en banc), reh. den., 664 F.2d 936 (1981), aff'd sub nom. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In its affi......
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7 cases
  • Moses Cone Memorial Hospital v. Mercury Construction Corporation, No. 81-1203
    • United States
    • United States Supreme Court
    • February 23, 1983
    ...of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. 656 F.2d 933, rehearing denied, 664 F.2d 936 (CA4 1981). We granted certiorari. 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). We affirm. I Petitioner Moses H. Cone Memorial Hospital ("Hos......
  • RRI Realty Corp. v. Incorporated Village of Southampton, No. 1117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1985
    ...resolution of a concurrent state court suit. The Court of Appeals for the Fourth Circuit reversed the stay, 656 F.2d 933, reh'g denied, 664 F.2d 936 (1981), and the Supreme Court granted certiorari. 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). At issue, for our purposes, was whether......
  • Cyclone Roofing Co., Inc. v. David M. LaFave Co., Inc., No. 8226DC1229
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 20, 1984
    ...302 S.E.2d 293 (1983). Waiver of such an agreement is not to be lightly inferred. In re Mercury Const. Corp., 656 F.2d 933, reh. denied, 664 F.2d 936 (4th Cir.1981), affirmed, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). After reviewing the record, I do not believe that appellee, LaFav......
  • Adams v. Nelsen, No. 833DC359
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 20, 1984
    ...ordered, then the trial judge may find a waiver of arbitration rights. See In re Mercury Const. Corp., 656 F.2d 933, reh. denied, 664 F.2d 936 (4th Cir.1981), affirmed, 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Weight Watch. of Quebec Ltd. v. Weight W. Int., Inc., 398 F.Supp. 1057 (......
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