Finality Of Order Compelling Arbitration Depends On Context, “But Our Review Of That Context Is Weighted Against Finality”, Says Ninth Circuit Panel
The Federal Arbitration Act permits immediate appeal of “a final decision with respect to an arbitration,” 9 U.S.C. section 16(a)(3), which is a decision that “ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000). So what happens when the district court compels arbitration, without explicitly dismissing nor staying the action? Appealable or interlocutory?
“We hold that such an order implicitly stays the action and thus is not ‘a final decision with respect to an arbitration’ . . . We also adopt a rebuttable presumption that an order compelling arbitration but not explicitly dismissing the underlying claims stays the action as to those claims pending the completion of the arbitration.” Appeal dismissed for lack of jurisdiction. MediVas, LLC v. Marubeni Corp., No. 12-55375 (9th Cir. Jan. 27, 2014). (Fisher, Goodwin, Clifton).
PRACTICE TIP: The Court offers its own practice tip: If the appealing party had “requested a clarifying order from the district court before taking this appeal, the substantial time and effort expended on this procedural issue could have instead been spent advancing this litigation toward its ultimate resolution.”