Jones v. Wells Fargo Guard ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVE GARY JONES, JR.,
Plaintiff-Appellant,
v.
No. 98-2704
WELLS FARGO GUARD SERVICES, Borg
Warner Protective Services,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-98-2725-CCB)
Submitted: February 23, 1999
Decided: April 29, 1999
Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Steve Gary Jones, Jr., Appellant Pro Se. Theresa Wirtz Hajost,
PORTER, WRIGHT, MORRIS & ARTHUR, Washington, D.C., for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Steve Gary Jones appeals the district court's order granting a
motion to compel arbitration and a motion to dismiss. Under the Fed-
eral Arbitration Act (FAA), 9 U.S.C. § 16(a)(1) (1994), immediate
appellate review is available for orders refusing to compel arbitration,
however, appellate review is generally not available for orders com-
pelling arbitration "until after the arbitration has gone forward to a
final award." American Cas. Co. v. L-J, Inc. , 35 F.3d 133, 135 (4th
Cir. 1994) (quotation omitted).
An order compelling arbitration is final for purposes of appellate
jurisdiction under the FAA if it is the result of an"independent pro-
ceeding" in which "the sole issue before the district court is the
arbitrability of the dispute." Humphrey v. Prudential Sec. Inc., 4 F.3d
313, 317 (4th Cir. 1993). If the order arises in an"embedded proceed-
ing" and the district court renders all claims subject to arbitration, the
order is not immediately appealable. See In re Pisgah Contractors,
Inc., 117 F.3d 133, 136 (4th Cir. 1997). An embedded proceeding is
one in which the arbitration issue is not the sole issue in the action
but is raised as an incidental issue in an underlying action raising
other claims for relief. See Jeske v. Brooks, 875 F.2d 71, 73 (4th Cir.
1989).
Jones' appeal presents a typical embedded action in which the dis-
trict court ordered arbitration and rendered all of Jones' claims subject
to arbitration. The arbitrability of Jones' suit was not the sole issue
below, rather it arose as an issue incident to an underlying action
claiming employment discrimination. The district court did not
resolve the merits of Jones' claim, but found them arbitrable. Thus,
Jones' appeal of the order compelling arbitration is interlocutory and
should be dismissed.
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An order compelling arbitration in an embedded proceeding is
interlocutory even when "the practical effect of the district court's
actions was to render a final resolution as to all issues before it."
Humphrey, 4 F.3d at 317. The district court's order granted a motion
to compel arbitration in an embedded proceeding, and thus the order
was not final under the FAA.
Accordingly, we dismiss Jones' appeal as interlocutory. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
3