Warren Brothers Company v. Cardi Corporation

• Decision Date: 11 January 1973
• Docket Number: No. 72-1262.,72-1262.
• Citation: 471 F.2d 1304
• Parties: WARREN BROTHERS COMPANY, etc., Plaintiff, Appellee, v. CARDI CORPORATION et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

471 F.2d 1304 (1973)

WARREN BROTHERS COMPANY, etc., Plaintiff, Appellee, v. CARDI CORPORATION et al., Defendants, Appellants.

No. 72-1262.

United States Court of Appeals, First Circuit.

Heard November 9, 1972.

Decided January 11, 1973.

COPYRIGHT MATERIAL OMITTED

Peter Lawson Kennedy, Providence, R. I., with whom Adler, Pollock & Sheehan Inc., Providence, R. I., and John F. Bomster, Philadelphia, Pa., were on brief, for appellants.

Peter F. Davis, Boston, Mass., with whom Davis, Davis, Davis & Levin, Bostion, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

This is an appeal from the district court's denial of a motion to stay proceedings in the present action pending arbitration and of a motion for protective order. The case arises from the following facts.

Appellant, Cardi Corporation, contracted with the Commonwealth of Massachusetts for the construction of a highway in the City of New Bedford, and pursuant to Mass.G.L. ch. 149, § 29, furnished a performance and payment bond, with appellant, United States Fidelity and Guaranty Company, as surety. Shortly thereafter, Cardi entered into a subcontract with appellee, Warren Brothers Company, under which the latter was to provide certain materials and perform certain labor in connection with the project. Under Article XX of this subcontract, which is set forth in full in the margin,¹ all disputes concerning questions of fact arising from the agreement or its performance were to be settled by arbitration.

After work on the project had been completed, Warren brought an action on Cardi's payment bond in Massachusetts Superior Court, alleging that Cardi owed approximately $74,000 for work done and materials supplied in performance of the subcontract, and that in addition Warren was entitled to 12% interest on certain periodic payments made tardily or not at all by Cardi. This action was removed to the district court on diversity grounds. The defendants thereupon moved for a protective order preventing Warren from taking the deposition of one of Cardi's officers, and for a stay of proceedings pending arbitration. Defendants appeal from the denial of these motions, and for the reasons set forth below, we reverse the decision of the district court.

We hold at the outset that the court's denial of a stay pending arbitration was, in this action for money damages, an appealable order under 28 U.S.C. § 1292(a)(1). Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir. 1968). See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583 (1935). It is of no importance that the action in the state court was styled a "petition in equity," see Kirschner v. West Co., 300 F. 2d 133 (3d Cir. 1962), or that the cause of action was statutory in nature, see Ets-Hokin & Galvan, Inc. v. United States for Use and Benefit of Albert S. Pratt, Inc., 350 F.2d 871 (9th Cir. 1965); Signal-Stat Corp. v. Local 475, United Electrical Radio and Machine Workers of America, (UE) 235 F.2d 298 (2d Cir. 1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957).

We also hold, as a preliminary matter, that the motion to stay proceedings was addressed to the inherent power of the district court to control its own docket, see Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Merritt-Chapman & Scott Corp. v. Pennsylvania Turnpike Comm., 387 F.2d 768, 773 (3d Cir. 1967), and was not made pursuant to § 3 of the United States Arbitration Act, 9 U.S.C. § 3.² It follows, therefore, that we must apply state law in deciding whether or not the district court was correct in denying a stay under the facts of this case.³ Cf. Bernhardt v. Polygraph Co. of America, Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956).

The principal question before us concerns the effect of a contractual arbitration clause in an action for labor and materials brought on a statutory payment bond. Appellee argues, inter alia, that since the present action was brought on Cardi's bond rather than on the subcontract, the arbitration provisions of that agreement are inapplicable here. It asserts that the policy of the Massachusetts bond statute is to afford subcontractors a cause of action by which their rights may be speedily determined, and that the submission of its claims to arbitration would be incompatible with that policy. While the Massachusetts statute does evince a concern for expeditious procedures, we are nevertheless unpersuaded by this argument.

Counsel have not cited, and we have not discovered, any Massachusetts cases in point, but there are a number of analogous federal decisions under the Miller Act, 40 U.S.C. §§ 270a-270d. These decisions are, of course, relevant to our determination of what the Massachusetts courts would decide if faced with the issue before us. In Electronic & Missile Facilities, Inc. v. United States for Use of Moseley, 306 F.2d 554 (5th Cir. 1962), rev'd on other grounds sub nom. Mosley v. Electronic Missile Facilities, Inc., 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963), the plaintiff brought an action on a Miller Act payment bond to recover certain sums allegedly owed to him by the defendant. He argued that the Miller Act precluded reference of his claim to arbitration, since that procedure would be in derogation of his right under the Act to bring an action upon the bond and to prosecute the suit to "final execution and judgment." In rejecting this argument, the court stated:

"There is absolutely nothing in the language or legislative history of the Miller Act which indicates that Congress meant to prohibit a laborer or materialman from voluntarily substituting the procedure of arbitration for his right to litigate in a federal court. On the other hand, the United States Arbitration Act expressly and unequivocally gave the parties the right to provide for arbitration of all disputes arising under their contracts." Id. at 557.

Accord, United States for Use and Benefit of Chicago Bridge & Iron Co. v. Ets-Hokin Corp., 397 F.2d 935 (9th Cir. 1968); United States for Use and Benefit of Capolino Sons, Inc. v. Electronic & Missile Facilities, Inc., 364 F.2d 705 (2d Cir. 1966); United States for Use and Benefit of Air-Con, Inc. v. Al-Con Development Corp., 271 F.2d 904 (4th Cir. 1959); United States for Use and Benefit of Frank A. Trucco and Sons Co. v. Bregman Construction Corp., 256 F.2d 851 (7th Cir. 1958).

We find this language completely applicable to the comparable Massachusetts statutes before us. While the appellee argues that the Miller Act and Mass.G.L. ch. 149, § 29 "are separate and distinguishable statutes" it makes no attempt to specifically suggest any substantive differences between the two.⁴ Indeed, the statutes are closely analogous, as are the provisions of the United States and Massachusetts Arbitration Acts. Both of these latter two statutes establish the validity of contractual arbitration clauses, and provide that actions involving arbitrable issues shall be stayed pending their resolution by arbitration. We find nothing in the language of the Massachusetts Arbitration Act suggesting an intent that it not apply in the area of public construction contracts; the practical effect of our adopting the position urged upon us by the appellee, however, would be to carve out precisely such an exception. Moreover, appellee has not suggested any way in which it would be substantially prejudiced by being required to live up to its arbitration agreement with Cardi. For the above reasons, we find that the Supreme Judicial Court of Massachusetts would follow the line of analogous federal cases under the Miller Act, and hold that a contractual obligation to arbitrate cannot be rendered meaningless by the expedient of bringing suit on a statutory payment bond.⁵

The appellee, argues, however, that the decision of the district court may also be sustained on various procedural grounds. First, it is contended that the arbitration clause was not properly put before the district court by appellant's pre-answer motion. It is clear, however, that a request for a stay of proceedings, not being a defense within the meaning of Fed.R.Civ.P. 12(b), may be properly raised by motion. Green v. Gravatt, 35 F.Supp. 491 (W.D.Pa.1940). Cf. Evans v. Hudson Coal Co., 165 F.2d 970 (3d Cir. 1948); Butler v. Judge of United States District Court, 116 F.2d 1013 (9th Cir. 1941); Parker v. Trans-continental & Western Air, Inc., 4 F.R. D. 325 (W.D.Mo.1944). To the extent that appellee claims that the arbitration provision was never brought before the court, we note that the arbitration article was referred to in the motion for stay and that a copy was attached to the motion.

Next, appellee argues that Cardi has failed to establish the existence of a "dispute concerning a question of fact" within the meaning of the arbitration clause, and that the district court was therefore correct in denying its motion for a stay. Pointing to appellant's failure to specify the exact nature of the dispute between the parties, and to certain alleged statements of Cardi's treasurer, appellee contends that there is no genuine dispute of fact involved in this case and that the arbitration clause is therefore inapplicable. We are unable to agree. Appellee asks us, in effect, to consider this motion for a stay pending arbitration in a light similar to that in which we would view a motion for summary judgment. In deciding whether a particular controversy is within the scope of an arbitration clause, however, it is not the function of the court to determine the tenability of the claims presented, or whether the party seeking arbitration will be able to present a meritorious defense. Rather, if the issues presented are on their face referable to arbitration under the parties'...