Gulf Guarnt Life Ins v. CT Gen Life Ins Co ( 2002 )


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  •                      REVISED SEPTEMBER 27, 2002
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-60582
    ____________________
    GULF GUARANTY LIFE INSURANCE COMPANY
    Plaintiff - Appellant
    v.
    CONNECTICUT GENERAL LIFE INSURANCE COMPANY; CIGNA
    REINSURANCE COMPANY
    Defendants - Appellees
    _________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Mississippi
    _________________________________________________________________
    August 30, 2002
    Before KING, Chief Judge, and PARKER, Circuit Judge, and ELLISON,
    District Judge.*
    KING, Chief Judge:
    Plaintiff-Appellant Gulf Guaranty Life Insurance Company
    filed an initial claim in the district court in 1996 alleging
    that Defendant-Appellee Connecticut General Life Insurance
    *
    District Judge of the Southern District of Texas,
    sitting by designation.
    Company breached a reinsurance contract between them.    Gulf
    Guaranty subsequently filed claims in the district court in 2000
    alleging that Connecticut General breached an agreement to
    arbitrate the reinsurance dispute, as well as claims for
    conspiracy and malice allegedly committed by Connecticut General
    with respect to Connecticut General's conduct in the arbitration
    process.   The district court consolidated the 1996 and 2000
    actions and compelled arbitration of the consolidated action.
    The district court further denied a motion by Gulf Guaranty to
    re-open discovery and granted a motion by Connecticut General to
    remove a chosen arbitrator, Gary Fagg, from service.    For the
    following reasons, we AFFIRM the district court's order
    compelling arbitration of all disputes between Gulf Guaranty and
    Connecticut General in the consolidated action; we AFFIRM the
    district court's decision dismissing Gulf Guaranty's claims for
    breach of the arbitration agreement and for conspiracy and
    malice; we AFFIRM the district court's decision denying Gulf
    Guaranty's motion to re-open discovery; but we REVERSE the
    district court's decision granting the motion to strike Fagg from
    service as an arbitrator.
    I.   FACTUAL AND PROCEDURAL HISTORY
    In 1981, Plaintiff-Appellant Gulf Guaranty Life Insurance
    Company (“Gulf Guaranty”) entered into a contract with Defendant-
    Appellee Connecticut General Life Insurance Company (“Connecticut
    2
    General”) by which Connecticut General agreed to reinsure Gulf
    Guaranty on certain credit life insurance certificates issued by
    Gulf Guaranty.   Their reinsurance contract contained an
    arbitration provision governing disputes under the contract.1    In
    1991, a third-party holder of one of the insurance certificates
    sued Gulf Guaranty for payment.   Following judgment in favor of
    that certificate holder, Gulf Guaranty sought reimbursement from
    Connecticut General pursuant to their reinsurance contract.
    Connecticut General offered Gulf Guaranty payment in an amount
    that Gulf Guaranty found unsatisfactory.   On or about September
    17, 1996, Gulf Guaranty sued Connecticut General and Defendant-
    Appellee Cigna Reinsurance Company (“Cigna”)2 (collectively, “the
    Defendants”) in Mississippi state court for breach of contract
    and “wrongfully placing conditions on payment.”   This was the
    1996 first-filed suit.
    1
    The arbitration provision in the Gulf Guaranty-
    Connecticut General reinsurance contract reads in relevant part:
    Should a disagreement arise between the two companies
    regarding the rights or liabilities of either company
    under any transaction under this agreement, the same
    will be referred to arbitrators, one to be chosen by
    each company from among the officers of other life
    insurance companies and a third to be chosen by the
    said two arbitrators before entering upon arbitration.
    The arbitrators will regard this document as an
    honorable agreement and not merely as a legal
    obligation, and their decision will be final and
    binding upon both companies.
    2
    Cigna was a non-signatory to the arbitration agreement
    between Gulf Guaranty and Connecticut General that acted as
    Connecticut General’s agent.
    3
    The 1996 first-filed suit was removed to federal court in
    October of 1996.   Connecticut General and Cigna sought to compel
    arbitration pursuant to the Connecticut General-Gulf Guaranty
    reinsurance contract.   In January of 1997, a magistrate judge
    stayed all proceedings in the 1996 first-filed suit against
    Connecticut General and compelled arbitration of the reinsurance
    dispute.   In April of 1997, the district court likewise stayed
    the action against non-signatory Cigna pending arbitration.
    In September of 1999, Gulf Guaranty appointed Gary Fagg as
    its arbitrator of choice.   In January of 2000, the Defendants
    appointed Oscar R. Scofield as their arbitrator of choice.
    It is undisputed that Scofield and Fagg discussed selection of
    Peter Jaynes to serve as the third arbitrator.   Whether the two
    arbitrators agreed upon and appointed Jaynes as the third
    arbitrator, or whether his selection was merely discussed between
    them, is a matter of dispute.3   Based on this dispute over
    selection of arbitrators, on August 23, 2000, Gulf Guaranty filed
    a second lawsuit in Mississippi state court that alleged breach
    of the arbitration agreement by the Defendants, alleged waiver of
    the Defendants’ right to arbitrate, and alleged conspiracy and
    3
    Gulf Guaranty contends that Scofield and Fagg agreed on
    Jaynes's selection and in fact appointed Jaynes to serve.
    Scofield, Connecticut General's chosen arbitrator, counters that
    Jaynes's appointment as the third arbitrator was merely discussed
    between Scofield and Fagg, but that those two arbitrators never
    agreed upon, nor appointed, Jaynes to serve.
    4
    malice and reckless disregard for Gulf Guaranty’s rights.    This
    was the 2000 second-filed suit.
    The 2000 second-filed suit was likewise removed to federal
    court.   On December 14, 2000, the district court re-opened the
    1996 first-filed suit and consolidated it with the 2000 second-
    filed suit.   On June 22, 2001, upon motion by the Defendants to
    compel arbitration and to dismiss the 2000 second-filed suit, the
    district court issued an order finding that the Defendants had
    not waived their right to arbitrate.   In that June 22 order, the
    court also granted the Defendants’ motion to compel arbitration
    and granted the Defendants motion to "Dismiss the lawsuit filed
    by Plaintiff Gulf Guaranty on August 23, 2000," making no mention
    of the status of the 1996 first-filed suit component of the
    underlying consolidated action as stayed or dismissed.   In the
    same June 22 order, the district court further denied Gulf
    Guaranty’s motion to re-open discovery and granted the
    Defendants’ motion to strike Fagg from service as an arbitrator.
    On July 26, 2001, the district court stayed enforcement of
    its June 22 order compelling arbitration pending appeal of that
    order to this court.   On September 18, 2001, the district court
    denied a motion by Gulf Guaranty for relief from the district
    court’s judgment pursuant to FED. R. CIV. P. 60(b).   Gulf
    Guaranty now timely appeals the district court’s order of June
    22, 2001 that compelled arbitration and dismissed Gulf Guaranty’s
    5
    claims for waiver, breach and conspiracy; denied Gulf Guaranty’s
    motion to re-open discovery; and struck arbitrator Fagg.
    II.   THE ORDER COMPELLING ARBITRATION
    A.   This Court's Jurisdiction Over Appeal of the District Court's
    June 22 Order Compelling Arbitration
    The parties agree that this court should have jurisdiction
    over the district court's June 22 order compelling arbitration of
    the consolidated action, but such agreement is insufficient to
    confer jurisdiction on this court.      Due to procedural ambiguity
    within the June 22 arbitration regarding the precise status of
    the 1996 first-filed suit of the consolidated action as stayed or
    dismissed, there is some question as to whether this court has
    jurisdiction subsequent to the Supreme Court's decision in Green
    Tree Fin. Corp. - Ala. v. Randolph, 
    531 U.S. 79
    (2000).         In Green
    Tree, the Supreme Court addressed the appealability of orders
    compelling arbitration under the Federal Arbitration Act, 9
    U.S.C. § 16(a)(3) (1999) ("the FAA").4       The Supreme Court held
    in Green Tree that, when a district court issues an order
    compelling arbitration, that order is appealable as a final
    decision under section 16(a)(3) only if the district court
    dismisses the underlying action.       
    See 531 U.S. at 86-87
    .   The
    court further held in Green Tree that when a district court
    4
    Section 16(a)(3) of the FAA states in relevant part:
    "(a) An appeal may be taken from -- ... (3) a final decision with
    respect to an arbitration that is subject to this title." 9
    U.S.C. § 16(a)(3).
    6
    compels arbitration but "enter[s] a stay instead of a dismissal [
    of the underlying action,] ... that order would not be
    appealable" under the FAA.   
    Id. at 87
    n.2 (citing 9 U.S.C.
    § 16(b)(1) (1999)).5
    It is undisputed that the district court's June 22 order
    explicitly dismissed the underlying 2000 second-filed suit that
    was filed on August 23, 2000.   However, because the district
    court neglected to explicitly address the status of the 1996
    first-filed suit, which 1996 suit that court acknowledged it had
    re-opened for the purpose of consolidating the 1996 suit with the
    2000 second-filed suit, this court must determine, pursuant to
    the dictates of Green Tree, whether we can hear this appeal of
    the June 22 order compelling arbitration.   Because we conclude
    that the record shows clear intent by the district court that its
    June 22 order compelling arbitration be immediately appealable to
    this court pursuant to the Supreme Court's mandate in Green Tree,
    we further conclude that we have jurisdiction to hear appeal of
    that order under § 16(a)(3) of the FAA, and in accordance with
    Green Tree.
    The Supreme Court's decision in Green Tree did not confront
    the circumstance of consolidated actions.   Subsequent to that
    decision, no other court of appeals has yet confronted the
    5
    Section 16(b)(1) of the FAA states: "Except as otherwise
    provided in section 1292(b) of title 28, an appeal may not be
    taken from an interlocutory order -- granting a stay of any
    action under section 3 of this title ...." 9 U.S.C. § 16(b)(1).
    7
    precise circumstance of this case of determining appellate
    jurisdiction over an order compelling arbitration of a
    consolidated action that explicitly dismissed only a portion of
    the claims in that action and neglected to declare the status of
    the remaining claims as stayed or dismissed.   The Supreme Court
    noted in Green Tree that Congress did not define the term "final
    decision" as it is used within the FAA.   
    See 531 U.S. at 86
    .    The
    court thus held that the term final decision should be
    "accord[ed] its well established meaning [,]" as "a decision that
    ends the litigation on the merits and leaves nothing more for the
    court to do but execute the judgment."    
    Id. (citations and
    quotation omitted).
    We recently construed a district court's order compelling
    arbitration that did not precisely conform with the dismissal
    language of Green Tree as providing the functional equivalent of
    the required dismissal of the underlying case, and thus to allow
    for our exercise of jurisdiction over that appeal in accordance
    with Green Tree.   See Am. Heritage Life Ins. Co. v. Orr, 
    294 F.3d 702
    , 706-08 (5th Cir. 2002) (citing Green 
    Tree, 531 U.S. at 89
    ).
    In the order compelling arbitration at issue in that case, the
    district court used the term "clos[ed]" rather than "dismiss[ed]"
    to indicate the status of the underlying case.    See 
    id. We concluded
    that there "is no practical distinction between
    'dismiss' and 'close' for purposes of this appeal," where “the
    application of each word results in a termination on the merits,
    8
    leaving the judgement-rendering [sic] court with nothing more to
    do but execute the judgment" so that we determined "the decision
    [to be] 'final' within the contemplation of § 16(a)(3) of the
    FAA."   
    Id. Thus, we
    have previously inferred that an order that
    did not precisely conform with the Supreme Court's requirement in
    Green Tree that claims be dismissed per se to allow appellate
    jurisdiction nonetheless constituted a final decision for the
    purposes of our jurisdiction in conformance with Green Tree.
    The district court in the instant case took the following
    actions that suggest that court's intent to issue a final
    decision in its June 22 order compelling arbitration that would
    be immediately appealable to this court, in full accord with
    Green Tree.   We note first that the district court lifted the
    stay on the 1996 first-filed suit by re-opening that case when it
    consolidated the actions, so that no stay of the first-filed suit
    remained in effect.   We further note that there was no motion
    before the district court by any party to stay any portion of the
    consolidated action at the time that court issued its June 22
    order compelling arbitration of the entire consolidated action.
    Rather, there was only a motion to dismiss filed by the
    Defendants along with the Defendants' motion requesting the
    district court to re-compel the parties to arbitrate their entire
    9
    dispute.6    In its June 22 order compelling arbitration, the
    district court did dismiss the 2000 second-filed suit in order to
    compel the entire action to arbitration in accord with the
    previous order compelling arbitration of the 1996 first-filed
    suit.
    Additionally, in its subsequent order of July 26, 2001, the
    district court stayed enforcement of its June 22 order compelling
    arbitration pending appeal to this court of that June 22 order,
    referencing the cause numbers of both the 1996 and 2000 filed
    suits in that July 26 stay order.     Moreover, in that July 26
    order, the district court expressly referenced its June 22 order
    compelling arbitration and described that order as follows: "This
    [June 22] Order is considered a final judgment for the purposes
    of appeal.   See 9 U.S.C. § 16(a)(3); Green Tree Fin. Corp. v.
    Randolph, 
    531 U.S. 79
    (2000)."   The district court's express
    reference to Green Tree when describing its June 22 order is very
    compelling evidence that the district court clearly intended to
    issue a final decision compelling arbitration in its June 22
    order for the purposes of this court's jurisdiction to entertain
    immediate appeal of that order fully in accord with Green Tree.
    Last, the district court subsequently entertained and denied
    a motion made by Gulf Guaranty pursuant to FED. R. CIV. P. 60(b)
    6
    We acknowledge that this motion by the Defendants
    seeking an order re-compelling arbitration of the entire dispute
    only requested dismissal of the 2000 second-filed suit.
    10
    for relief from the district court's judgment of June 22.     We
    note that trial courts have no jurisdiction to entertain Rule
    60(b) motions for relief from a judgment except from an order
    that is a "final judgment, order, or proceeding ...."    FED. R.
    CIV. P. 60(b).7   Thus, the district court's acceptance of
    jurisdiction over, and denial of, Gulf Guaranty's Rule 60(b)
    motion further evinces that court's belief that its June 22 order
    constituted a final decision immediately appealable to this
    court.    We conclude from this record that the district court's
    order of June 22 compelling arbitration of the entire instant
    consolidated action constitutes a final decision within the
    meaning of Green 
    Tree, 531 U.S. at 85
    .    The district court’s
    failure to reference explicitly the 1996 first-filed suit as
    dismissed in the court's June 22 order compelling arbitration of
    the entire consolidated action was simply an oversight.      Clearly,
    the intention, as well as the effect, was to dismiss it.
    B.   No Waiver By Connecticut General of Its Right to Arbitrate
    In the 2000 second-filed suit, Gulf Guaranty claimed that
    Connecticut General waived its right to arbitrate based on
    Connecticut General's alleged attempted veto of the selection of
    Jaynes as a third arbitrator by Scofield and Fagg.    Based on this
    dispute over arbitrator selection, Gulf Guaranty alleged that
    7
    Rule 60(b) states in relevant part: "On motion ... the
    court may relieve a party ... from a final judgment, order, or
    proceeding for the following reasons: (1) mistake ...." FED. R.
    CIV. P. 60(b).
    11
    Connecticut General refused to move forward with arbitration,
    took active steps to prevent arbitration, and attempted to
    "counsel or coerce" Scofield into repudiating an agreement that
    Gulf Guaranty alleges was completed between Scofield and Fagg and
    appointed Jaynes as the third arbitrator.   The district court
    granted the Defendants' motion to dismiss the waiver claim.    We
    agree with the district court that, even taking Gulf Guaranty's
    allegations as true at the motion to dismiss stage, such
    allegations regarding Connecticut General's participation in the
    dispute over the composition of the arbitration panel do not
    indicate sufficient overt acts evincing a desire by Connecticut
    General to litigate, instead of arbitrate, the reinsurance
    dispute that would constitute waiver of Connecticut General's
    contractual right to arbitrate.
    This court reviews de novo a district court's dismissal of a
    claim that a party waived its right to arbitrate.   See Subway
    Equip. Leasing Corp. v. Forte, 
    169 F.3d 324
    , 326 (5th Cir. 1999)
    (waiver); Copeland v. Wasserstein, Perella & Co., Inc., 
    278 F.3d 472
    , 477 (5th Cir. 2002) (motion to dismiss).   As the district
    court correctly set forth, a party claiming that another party
    waived the contractual right to arbitrate bears a heavy burden to
    establish the claim.   "There is a strong presumption against" a
    finding that a party waived its contractual right to arbitrate,
    and "any doubts thereabout must be resolved in favor of
    arbitration."   Texaco Exploration & Prod. Co. v. AmClyde
    12
    Engineered Prods. Co., Inc., 
    243 F.3d 906
    , 911 (5th Cir. 2001)
    (citing 
    Subway, 169 F.3d at 329
    ).     Ordinarily a party waives its
    right to arbitrate when it "initially pursues litigation and then
    reverses course and attempts to arbitrate ...."     
    Id. However, waiver
    "can also result from 'some overt act in Court that
    evinces a desire to resolve the arbitrable dispute through
    litigation rather than arbitration.'"     Id. (quoting 
    Subway, 169 F.3d at 329
    ).
    However, "mere delay falls far short of the waiver
    requirements ...."    
    Id. (citing Subway,
    169 F.3d at 326).   In
    Subway, for example, this court rejected a claim of waiver even
    where it was alleged a party sought related judicial bankruptcy
    proceedings involving issues separate from the arbitration in an
    affirmative attempt to delay that arbitration.     
    See 169 F.3d at 329
    .    Similarly, in Texaco Exploration, this court rejected a
    claim of waiver based on a party's seeking litigation of another
    dispute with the same opposing party that was separate from the
    arbitrable dispute, even where this court recognized that the
    unrelated litigation had the effect of delaying the arbitration
    and narrowing its 
    scope. 243 F.3d at 911-12
    .   This court has
    further recognized that, even where a party takes substantial
    steps toward litigation of the arbitral dispute, or participates
    substantially in litigation procedures, it ordinarily will not
    waive the right to arbitrate.    See Tenneco Resins, Inc. v. Davy
    Int'l, AG, 
    770 F.2d 416
    , 420-21 (5th Cir. 1985) (collecting
    13
    cases).   In Tenneco, for example, this court found that a party
    had not waived its right to arbitrate when it waited "almost
    eight months before moving that the district court proceedings be
    stayed pending arbitration, and in the meantime participated in
    discovery."   
    Id. This court
    noted that "this and other courts
    have allowed such actions as well as considerably more activity
    without finding that a party has waived a contractual right to
    arbitrate."   
    Id. at 421
    (citing Southwest Indus. Import & Export,
    Inc. v. Wilmod Co., Inc., 
    524 F.2d 468
    (5th Cir. 1975)); see also
    Gen. Guar. Ins. Co. v. New Orleans Gen. Agency Inc., 
    427 F.2d 924
    , 928-29 (5th Cir. 1970) (finding no waiver although a party
    filed an answer to a court claim denying liability and filed
    counterclaims, as well as attempted to implead parties and
    allowed taking of two depositions before demanding arbitration).
    In contrast, in one of the few cases in which we have
    recognized a party's waiver of the right to arbitrate, we found
    that the party had "demonstrated a clear and unmistakable
    'disinclination' to arbitrate" to "substantial detriment and
    prejudice" of the other party, including the bringing of a state
    court suit that did not "rely on or even mention the arbitration
    clause," and where the parties did not attempt to schedule an
    arbitration hearing until almost three years later.    See Miller
    Brewing Co. v. Fort Worth Distrib. Co., Inc., 
    781 F.2d 494
    , 497
    (5th Cir. 1986); cf. Ernst, Inc. v. Manhattan Constr. Co. of
    Tex., 
    559 F.2d 268
    , 269 (5th Cir. 1977) (finding that "extensive
    14
    postsuit [sic] actions in all phases of this complex litigation
    served as waiver of [a party's] right to demand" that an opposing
    party arbitrate grievances).   Connecticut General did not
    initiate any litigation action in this case; it merely defended
    itself against Gulf Guaranty's court claims.   Gulf Guaranty
    offers no authority supporting its proposition that, even taking
    its allegations as true, Connecticut General's participation in
    the dispute over the composition of the arbitration panel -- even
    if protracted and deliberately causing delay in arbitration --
    rises to the level of the type of overt act that would indicate
    Connecticut General’s desire to resolve the underlying
    reinsurance dispute via litigation rather than arbitration for
    the purposes of waiver.   We find no such authority either.    We
    thus agree with the district court that Connecticut General did
    not waive its right to arbitrate its dispute with Gulf Guaranty.
    III. DISMISSAL OF GULF GUARANTY'S CLAIMS FOR BREACH OF THE
    ARBITRATION AGREEMENT AND CONSPIRACY AND DENIAL OF GULF
    GUARANTY'S MOTION TO REOPEN DISCOVERY
    A. Dismissal of Gulf Guaranty's Remaining Claims for Damages for
    Breach of the Arbitration Agreement, Conspiracy, and a Tort of
    Malicious, Willful, or Reckless Disregard for Gulf Guaranty's
    Rights
    We review a district court's grant of a motion to dismiss
    claims de novo.   See 
    Copeland, 278 F.3d at 477
    .   In Gulf
    Guaranty's August 23, 2000 complaint alleging that Connecticut
    General "refused to move forward with arbitration" based on the
    dispute over selection of Jaynes as a third neutral arbitrator,
    15
    Gulf Guaranty claimed that Connecticut General breached the
    arbitration agreement, conspired to deprive Gulf Guaranty of its
    rights under the reinsurance agreement, and committed malicious,
    willful, or reckless disregard for Gulf Guaranty's rights, which
    latter claim Gulf Guaranty indicated constituted an "independent
    tort."   Gulf Guaranty sought actual damages, attorneys’ fees and
    costs, as well as "punitive damages in an amount sufficient to
    punish these defendants and to deter others from similar
    misconduct ...."   In its June 22 order, once the district court
    found that Connecticut General did not waive its right to
    arbitrate and compelled arbitration, that court granted the
    Defendants' motion to dismiss the entire lawsuit filed on August
    23, thus including Gulf Guaranty's claims for breach, conspiracy
    and malice.   The court did so without any further reference by
    the court to those claims or discussion of their merits.
    The dismissal without discussion suggests that the district
    court declined to reach the merits of those claims.   Gulf
    Guaranty argues that this was an improper dismissal of the claims
    on the merits and further contends that, even if its pleaded
    allegations failed to make out its claim of waiver, Gulf
    Guaranty's allegations of breach and conspiracy and malice, if
    taken as true, are nevertheless sufficient to survive a motion to
    dismiss.   The Defendants contend that the district court properly
    dismissed these three claims on their merits and posit that the
    district court must have done so based on a conclusion by that
    16
    court that such claims were merely reiterative of Gulf Guaranty's
    failed waiver claim.
    We disagree with the parties' assumption that the district
    court dismissed Gulf Guaranty's claims for damages for breach,
    conspiracy and reckless and malicious behavior on the merits.    We
    acknowledge that it is not entirely clear from the June 22 order
    upon which ground the district court based its dismissal of those
    two claims -- whether on the merits or without reaching the
    merits.   However, we are "not restricted to ruling on the
    district court's reasoning, and may affirm a district court's
    grant of a motion to dismiss on a basis not mentioned in the
    district court's opinion."   See In re Comshare, Inc. Sec. Litig.,
    
    183 F.3d 542
    , 548 (6th Cir. 1999) (citation omitted); see also
    Razzoli v. Fed. Bureau of Prisons, 
    230 F.3d 371
    , 376 (D.C. Cir.
    2000) (explaining that an appellate court "can affirm a correct
    decision even if on different grounds than those assigned in the
    decision under review")(internal quotation and citation omitted).
    Consequently, because we conclude that it was proper for the
    district court, when compelling arbitration, to dismiss Gulf
    Guaranty's breach, conspiracy and malice claims without reaching
    the merits of those claims, we affirm the order dismissing those
    claims.
    Gulf Guaranty offers no basis for a court's jurisdiction to
    adjudicate claims for damages of the type made by Gulf Guaranty
    that arise from the alleged failure or breach of the agreed upon
    17
    arbitral process with respect to selection of Jaynes as
    arbitrator, and we find none.   No court appears to have addressed
    the precise instant circumstance in which a party alleges failure
    of the arbitral process and seeks damages, rather than compelled
    arbitration, from the court for breach of a valid arbitration
    agreement, as well as damages for conspiracy and tort.    However,
    review of the applicable principles regarding a court's limited
    authority to intervene in the arbitral process when there is a
    valid and enforceable arbitration agreement indicates that it was
    proper for the district court to dismiss Gulf Guaranty's breach,
    conspiracy, and malice claims without addressing the merits of
    those claims.
    Under the FAA, jurisdiction by the courts to intervene into
    the arbitral process prior to issuance of an award is very
    limited.   See Larry's United Super, Inc. v. Werries, 
    253 F.3d 1083
    , 1085 (8th Cir. 2001).   Courts are limited to determinations
    regarding whether a valid agreement to arbitrate exists and the
    scope and enforcement of the agreement, including the
    arbitrability of given underlying disputes under the agreement.
    See 
    id. at 1085-86
    ("'[A] court compelling arbitration should
    decide only such issues as are essential to defining the nature
    of the forum in which a dispute will be decided.'") (quoting
    Great Western Mtg. Corp. v. Peacock, 
    110 F.3d 222
    , 230 (3d Cir.
    1997)); Republic of Nicaragua v. Standard Fruit Co.,     
    937 F.2d 18
    469, 478 (9th Cir. 1991) ("Our role is strictly limited to
    determining arbitrability and enforcing agreements to arbitrate
    ....").   Section 4 of the FAA provides for a court's role in the
    arbitral process prior to issuance of an award in the event of a
    claimed "default" of that process pursuant to a valid agreement:
    A party aggrieved by the alleged failure, neglect, or
    refusal of another to arbitrate under a written
    agreement for arbitration may petition ... [a] district
    court ... for an order directing that such arbitration
    proceed in the manner provided for in such agreement
    .... The court ... upon being satisfied that the making
    of the agreement for arbitration or the failure to
    comply therewith is not in issue, ... shall make an
    order directing the parties to proceed to arbitration
    in accordance with the terms of the agreement .... If
    the making of the arbitration agreement or the failure,
    neglect, or refusal to perform the same be in issue,
    the court shall proceed ... to the trial thereof ....
    If the jury find that an agreement for arbitration was
    made in writing and that there is a default in
    proceeding thereunder, the court shall make an order
    summarily directing the parties to proceed with the
    arbitration in accordance with the terms thereof.
    9 U.S.C. § 4 (1999).   The FAA does not provide therefore for any
    court intervention prior to issuance of an arbitral award beyond
    the determination as to whether an agreement to arbitrate exists
    and enforcement of that agreement by compelled arbitration of
    claims that fall within the scope of the agreement even after the
    court determines some default has occurred.   Moreover,
    enforcement of an agreement to arbitrate under the FAA does not
    appear to include any mechanism beyond those geared toward
    returning the parties to arbitration, thus appearing not to
    authorize compensation by a court to parties in the form of
    19
    damages prior to issuance of an arbitral award.     Cf. Moses H.
    Cone Hosp. v. Mercury Constr. Corp., 
    460 U.S. 1
    , 22 (1982) ("The
    [FAA] provides two parallel devices for enforcing an arbitration
    agreement: a stay of litigation in any case raising a dispute
    referable to arbitration, 9 U.S.C. § 3, and an affirmative order
    to engage in arbitration, § 4.   Both of these sections call for
    an expeditious and summary hearing, with only restricted inquiry
    into factual issues.").
    We have at least once rejected a claim for damages arising
    from an alleged failure in the arbitral process and ordered the
    parties instead to resume arbitration.     See Folse v. Richard Wolf
    Med. Instruments Corp., 
    56 F.3d 603
    , 604-06 (5th Cir. 1995).       In
    Folse, we found that a district court erred by refusing to compel
    parties to return to arbitration and refusing to stay a court
    action that included a claim for damages from "failure of
    arbitration" arising from an arbitral process that was ongoing
    for more than three years without resulting in an award.     
    Id. In so
    doing, we noted that, although it was "unfortunate" that the
    arbitration "has failed the expectations of at least one, if not
    both, of the parties[,] ... [n]onetheless, ... these facts do not
    permit us to intervene until the parties see this arbitration
    through to a final award."   
    Id. at 606.
    Additionally, this court follows the rule by which
    challenges to the procedural aspects of arbitration are for the
    arbitrator to decide, while challenges to the substantive
    20
    arbitrability of disputes are for the courts to decide.     See
    Smith Barney Shearson, Inc. v Boone, 
    47 F.3d 750
    , 753-54 (5th
    Cir. 1995) (finding that a party's claim that arbitration was
    time-barred was a proper dispute regarding arbitration procedure
    for the arbitrator where rules regarding timeliness were
    incorporated into the agreement to arbitrate and the parties
    agreed to have any dispute between them resolved by arbitration);
    Ala. Educ. Ass'n v. Ala. Prof'l Staff Org., 
    655 F.2d 607
    (5th
    Cir. Unit B Sept. 8, 1981) (citing United Steelworkers v. Am.
    Mfg. Co., 
    363 U.S. 564
    (1960)); see also Livingston v. John Wiley
    & Sons, Inc., 
    313 F.2d 52
    , 62 (2d Cir. 1963) ("[I]ssues of
    compliance with grievance and arbitration procedure ... are
    properly within the competence of the arbitrator.").    As the
    Fourth Circuit has explained, "[g]enerally, objections to the
    nature of arbitral proceedings are for the arbitrator to decide
    in the first instance ... [f]airness objections should generally
    be made to the arbitrator subject only to limited post-
    arbitration judicial review as set forth in section 10 of the
    FAA."   See Hooters of Am., Inc. v. Phillips, 
    173 F.3d 933
    , 940-41
    (4th Cir. 1999).       There are circumstances in which courts will
    intervene in the arbitral process when a challenge goes to the
    making of the agreement or suggests that the agreement is void or
    warrants rescission.    In Hooters of America, for example, the
    Fourth Circuit found that a party "materially breached" its
    21
    arbitration agreement by promulgating rules under that agreement
    that were so biased in favor of an employer that the rules were
    tantamount to unconscionability, thus requiring the extreme
    8
    remedy of rescission of the agreement.   See 
    id. We have
    recently similarly determined that a court may entertain a
    challenge to the enforcement of arbitration agreements based on a
    theory that the agreement is void as against public policy.      See
    Inv. Partners, L.P. v. Glamour Shots Licensing, Inc., No. 01-
    60651, 
    2002 WL 1498721
    , at *3 (5th Cir. July 15, 2002).      However,
    Gulf Guaranty's claims for damages arising from breach of the
    arbitration agreement, and from conspiracy and a tort of malice,
    based on its allegations regarding Connecticut General's
    8
    The Fourth Circuit in Hooters of America strictly
    limited the reach of its decision on the egregious nature of the
    facts of that case, cautioning:
    [O]ur decision[s] [should not] be misunderstood as
    permitting a full scale assault on the fairness of
    proceedings before the matter is submitted to
    arbitration .... This case ... is the exception that
    proves the rule: fairness objections should generally
    be made to the arbitrator subject only to limited post-
    arbitration judicial review as set forth in section 10
    of the FAA. By promulgating this system of warped
    rules, [employer] Hooters so skewed the process in its
    favor that [the employee] has been denied arbitration
    in any meaningful sense of the word. To uphold the
    promulgation of this aberrational scheme under the
    heading of arbitration would undermine, not advance,
    the federal policy favoring alternative dispute
    
    resolution. 173 F.3d at 941
    .
    22
    responsibility for failure in the arbitrator selection process,
    make no such challenges to the making of or validity of the
    arbitration agreement, nor do these claims suggest that the
    agreement is void, unenforceable, or worthy of rescission based
    on public policy or any other ground.    Rather, Gulf Guaranty
    appears improperly to attempt to cast challenges that essentially
    go to the procedure of arbitration, specifically the arbitrator
    selection process, and to the alleged unfairness of that process,
    as claims for damages for breach of contract and tort injury.    We
    find no authority under the FAA for a court to entertain such
    challenges prior to issuance of the arbitral award.
    The parties do not dispute that they have a valid agreement
    to arbitrate and that their underlying reinsurance dispute is
    arbitrable under that agreement.     The district court has already
    provided for enforcement of the valid agreement pursuant to the
    mechanisms outlined in the FAA via that court's June 22 order
    compelling arbitration.   As we indicated in Folse, prior to
    issuance of an arbitral award, a party's prayer for actual and
    punitive damages for any alleged failure of that process does not
    appear to fall within the ambit of a court's authority to enforce
    a valid arbitration agreement under the FAA.     
    See 56 F.3d at 603
    -
    05.   We conclude, therefore, based on a court's limited authority
    under the FAA to intervene in the arbitral process prior to
    issuance of an award, that it was appropriate for the district
    court in this case to dismiss Gulf Guaranty's claims seeking
    23
    damages for breach, conspiracy, and malice without addressing
    their merits when that court issued an order re-compelling the
    parties to arbitration.
    B.   Denial of Gulf Guaranty's Motion to Re-open Discovery
    We review a district court's refusal to re-open discovery
    for abuse of discretion.   See Martin's Herend Imports v. Diamond
    & Gem Trading, 
    195 F.3d 765
    , 775 (5th Cir. 1999).   Gulf Guaranty
    requested that the district court re-open discovery with respect
    to the issue of whether Scofield in fact agreed with Fagg to
    appointment of Jaynes as a third arbitrator.   Once the district
    court disposed of Gulf Guaranty's other claims, that court denied
    the discovery motion in its June 22 order without further
    discussion.   Under this circumstance, we conclude that decision
    was proper.     The district court properly found that any alleged
    coercion regarding the composition of the panel, including
    whether Jaynes was appointed as an arbitrator, was insufficient
    as a matter of law to constitute waiver of Connecticut General's
    right to arbitrate.   Any further evidence regarding the dispute
    over Jaynes' appointment would not alter that finding.
    Additionally, once the district court properly dismissed Gulf
    Guaranty's other claims for breach of the arbitration agreement,
    conspiracy, and malice, and then compelled any remaining disputes
    between the parties to arbitration, no court claims remained
    before the district court for which discovery by Gulf Guaranty
    24
    would have been necessary at that time.   Moreover, in the event
    that arbitration resolved all of the issues between the parties,
    such discovery in pursuit of Gulf Guaranty's court claims would
    have been wasteful.   We conclude, therefore, that the district
    court did not abuse its discretion by denying Gulf Guaranty's
    motion to re-open discovery regarding the dispute over Jaynes's
    appointment as an arbitrator.
    IV.   THE STRIKING OF FAGG AS AN ARBITRATOR BY THE DISTRICT COURT
    PRIOR TO ISSUANCE OF AN ARBITRAL AWARD
    The Defendants filed a motion with the district court to
    strike Gulf Guaranty's chosen arbitrator, Gary Fagg, from
    service.   The district court interpreted the language of the
    arbitration agreement to require that only executives of a "life
    insurance company" may serve as arbitrators.   The court thus
    concluded that, because Fagg is the executive of a reinsurance
    company, which the court concluded is not a "life insurance
    company," then Fagg's "qualifications" fail to satisfy a
    "condition precedent" in the arbitration agreement for Fagg to
    serve as an arbitrator.   The district court thus granted the
    Defendants' motion to strike Fagg from service as an arbitrator.
    Gulf Guaranty appeals that decision on the ground that the
    district court erred in determining that the court had authority
    to remove Fagg from service as an arbitrator prior to issuance of
    25
    an arbitral award based on any qualification of Fagg to serve.9
    We agree.
    As the Supreme Court has acknowledged, the congressional
    purpose of the FAA is to "move the parties to an arbitrable
    dispute out of court and into arbitration as quickly and easily
    as possible."     Moses H. Cone 
    Hosp., 460 U.S. at 22
    .
    Additionally, the FAA does not expressly provide for court
    authority to remove an arbitrator prior to issuance of an
    arbitral award.    Under the FAA, courts may intervene into the
    arbitral process to select an arbitrator upon application of a
    party, if the parties fail to avail themselves of a method for
    arbitrator selection within their agreement or "if for any reason
    there shall be a lapse in the naming of an arbitrator."     See 9
    U.S.C. § 5 (1999).10    However, there is no authorization under
    9
    Because we determine that the district court lacked
    authority to remove Fagg as an arbitrator on the ground of Fagg's
    qualification to serve, we need not address Gulf Guaranty's
    alternative argument that the district court erred in that
    court's interpretation of the arbitration agreement to determine
    that Fagg was not qualified to serve.
    10
    Section 5 of the FAA states in relevant part:
    If in the agreement provision be made for a method
    of naming or appointing an arbitrator ... or an umpire,
    such method shall be followed; but if no method be
    provided ... or if a method be provided and any party
    thereto shall fail to avail [itself] of such method, or
    if for any other reason there shall be a lapse in the
    naming of an arbitrator ... or in filling a vacancy,
    then upon application of either party to the
    controversy the court shall designate and appoint an
    arbitrator or arbitrators or umpire, as the case may
    require ....
    26
    the FAA's express terms for a court to remove an arbitrator from
    service.   Rather, even where arbitrator bias is at issue, the FAA
    does not provide for removal of an arbitrator from service prior
    to an award, but only for potential vacatur of any award.     See 9
    U.S.C. § 10 (1999).11   Thus, the FAA does not expressly endorse
    court inquiry into the capacity of any arbitrator to serve prior
    to issuance of an arbitral award.     More importantly, the FAA
    appears not to endorse court power to remove an arbitrator for
    any reason prior to issuance of an arbitral award.12
    9 U.S.C. § 5.
    11
    Section 10 of the FAA authorizes appeal to the courts
    seeking vacatur of an arbitral award as follows:
    In any of the following cases the United States court
    ... may make an order vacating the [arbitral] award
    upon application of any party to the arbitration - (1)
    Where the award was procured by corruption, fraud, or
    undue means. (2) Where there was evident partiality or
    corruption in the arbitrators .... (3) Where the
    arbitrators were guilty of misconduct in refusing to
    postpone the hearing, upon sufficient cause shown, or
    in refusing to hear evidence pertinent and material to
    the controversy; or any other misbehavior by which the
    rights of any party have been prejudiced. (4) Where
    arbitrators exceed their powers, or so imperfectly
    execute them that mutual, final, and definite award ...
    was not made ....
    9 U.S.C. § 10.
    12
    The district court conceded that if the Defendants
    challenged that Fagg was biased, the court had no power to review
    a challenge to Fagg's ability to serve on that basis prior to
    issuance of an arbitral award.
    27
    As the district court conceded, it is well established that
    prior to issuance of an award, a court may not make inquiry into
    an arbitrator's capacity to serve based on a challenge that a
    given arbitrator is biased.   See Aviall, Inc. v. Ryder Sys.,
    Inc., 
    110 F.3d 892
    , 895 (2d Cir. 1997) ("Although the FAA
    provides that a court can vacate an award 'where there was
    evident partiality or corruption in the arbitrators,' ... it does
    not provide for pre-award removal of an arbitrator.") (quoting 9
    U.S.C. § 10).13   This court has never confronted the question
    whether, prior to issuance of an arbitral award, a court has
    authority to remove an arbitrator, as did the district court,
    based on the type of challenge to the arbitrator's qualification
    to serve under the terms of the arbitration agreement that is
    made here.   The Second Circuit has found that the FAA's
    prohibition on removal of arbitrators prior to issuance of an
    award extends to prohibit "'judicial scrutiny of [either] an
    arbitrator's qualifications to serve,’" or bias "'other than in a
    13
    As the Defendants correctly note, the single unpublished
    district court decision relied upon by Gulf Guaranty in support
    of its argument that the district court lacked authority to
    entertain a challenge to Fagg's qualifications, Nat'l Union Fire
    Ins. Co. v. Holt Cargo Sys., Inc., No. 99 Civ. 3699, 
    2000 WL 328802
    , at *1 (S.D.N.Y. Mar. 28, 2000), involved only a court
    claim filed by a party prior to an arbitral award, which claim
    sought removal of an arbitrator for bias. That case did not
    implicate other qualifications of the arbitrator to serve under
    the terms of the arbitration agreement of the type asserted by
    the Defendants in this case. See 
    id. We agree
    with the
    Defendants, therefore, that National Union Fire is not persuasive
    in this circumstance.
    28
    proceeding to confirm or vacate an award, which necessarily
    occurs after the arbitrator has rendered his service.'"     
    Id. (quoting Florasynth,
    Inc. v. Pickholz, 
    750 F.2d 171
    , 174 (2d Cir.
    1984) (citing Michaels v. Mariforum Shipping, S.A., 
    624 F.2d 411
    ,
    414 n.4 (2d Cir. 1980)); see also Cox v. Piper, Jaffray &
    Hopwood, Inc., 
    848 F.2d 842
    , 843-44 (8th Cir. 1988) ("Appellants
    cannot obtain judicial review of the arbitrators' decisions about
    the qualifications of the arbitrators ... prior to the making of
    an award.") (citing Stroh Container Co. v. Delphi Indus., Inc.,
    
    783 F.2d 743
    , 748-49 (8th Cir. 1986)).   In Aviall, the Second
    Circuit further acknowledged, however, that a court would have
    the power to remove an arbitrator pursuant to section 2 of the
    FAA if "the agreement to arbitrate before a particular arbitrator
    ... is subject to attack under general contract principles 
    ...." 110 F.3d at 895
    (citing 9 U.S.C. § 2 (1999)).14   However, the
    Second Circuit in Aviall indicated that such removal power
    "simply manifest[s] the FAA's directive that an agreement to
    arbitrate shall not be enforced when it would be invalid under
    general contract principles."   
    Id. at 896.
      The Second Circuit
    further suggested that it was appropriate for courts to
    adjudicate claims regarding the capacity of arbitrators to serve
    14
    Section 2 of the FAA provides in relevant part: "A
    written provision ... in any ... contract ... involving commerce
    to settle by arbitration a controversy ... arising out of such
    contract ... shall be valid, irrevocable, and enforceable, save
    upon such grounds as exist at law or in equity for the revocation
    of any contract." 9 U.S.C. § 2.
    29
    only when there is a claim, for example, that there was "fraud in
    the inducement" or some other "infirmity in the contracting
    process" regarding the parties' establishing arbitral
    qualifications, which ground would invalidate the agreement to
    arbitrate.    
    Id. The Aviall
    court thus affirmed a district
    court's summary judgment that it was premature for a court to
    hear a claim requesting a declaratory judgment that an appointed
    arbitrator "could not arbitrate the underlying suit."       
    Id. at 895.
    In Aviall, the terms of the arbitration agreement required
    that arbitral disputes would only be submitted to the designated
    arbitrator if it were an "'independent auditor'" of both parties
    to the agreement.     
    Id. at 894.
      The party seeking removal of the
    arbitrator claimed that the designated accounting arbitrator was
    not "independent" from one of the parties, as required by the
    express terms of the agreement, but partial due to a "business
    relationship" with one of the parties.      
    Id. at 893.
      The Second
    Circuit affirmed the district court's decision not to adjudicate
    the dispute over which arbitrator would hear the underlying
    arbitral dispute because that court of appeals found that the
    dispute over whether the auditor arbitrator was sufficiently
    "independent" to satisfy the terms of the arbitration agreement
    did not constitute a claim "invalidating the contract" or a claim
    of some type of fraud in the inducement that would suggest that
    the validity of the agreement to arbitrate is under attack under
    30
    general contract principles.   See 
    id. at 895-97.
      We agree with
    this approach by the Second Circuit interpreting the FAA to mean
    that a court may not entertain disputes over the qualifications
    of an arbitrator to serve merely because a party claims that
    enforcement of the contract by its terms is at issue, unless such
    claim raises concerns rising to the level that the very validity
    of the agreement is at issue.15
    We further note that, as one district court within the
    Second Circuit correctly pointed out, a "prime objective of
    arbitration law is to permit a just and expeditious result with a
    minimum of judicial interference" and any other such rule could
    "spawn endless applications [to the courts] and indefinite delay"
    and that otherwise "there would be no assurance that [the party
    seeking removal] would be satisfied with [the removed
    15
    We acknowledge that at least two lower courts have
    entertained disputes over the qualifications of arbitrators to
    serve in a manner that arguably supports court intervention into
    the challenge made by the Defendants' to Fagg's qualification to
    serve. See Jefferson-Pilot Life Ins. Co. v. LeafRe Reinsurance
    Co., No. 00-C-5257, 
    2000 WL 1724661
    , at *2(N.D. Ill. Nov. 20,
    2000) (finding by the district judge that "whether a party
    challenges an arbitrator's qualifications - just like a party who
    challenges bias - must wait until the post award stage to
    complain ... I do not think that is necessary"); In re
    Arbitration Between Certain Underwriters at Lloyds, London, 
    1997 WL 461035
    , at *4, 5 (N.D. Ill. Aug. 11, 1997) (arguably
    misconstruing 
    Aviall, 110 F.3d at 895-97
    , to endorse the district
    court's conclusion that it could entertain a party's challenge to
    an arbitrator's qualification to serve based on the arbitrator's
    status as an "executive officer" pursuant to the terms of the
    arbitration agreement in that case). We find however, that these
    decisions conflict with the purpose of the FAA and its policy
    favoring arbitration of disputes prior to court intervention.
    31
    arbitrator's] successor and would not bring yet another
    proceeding to disqualify him or her."     Marc Rich & Co. v.
    Transmarine Seaways Corp., 
    443 F. Supp. 386
    , 387-88 (S.D.N.Y.
    1995) (finding that "this objective can best be achieved by
    requiring an arbitrator ... to declare any possible
    disqualification, and then to leave it to his or her sound
    judgment to determine whether to withdraw ... of course be[ing]
    aware that such a decision would be subject to judicial review
    after the award had been made" pursuant to the limits of section
    10 of the FAA).   We agree with this assessment by that district
    court of the danger prior to issuance of an arbitral award in
    allowing courts to adjudicate a challenge such as that made by
    the Defendants to Fagg's qualification to serve, based on whether
    Fagg is the executive of a reinsurer or an insurer pursuant to
    the terms of the arbitration agreement.     We conclude, therefore,
    that the dispute regarding Fagg's qualification to serve,
    although framed as a request to the court to enforce the
    arbitration agreement by its terms, is not the type of challenge
    that the district court was authorized to adjudicate pursuant to
    the FAA prior to issuance of an arbitral award.    We further
    conclude, therefore, that the district court had no authority to
    strike Fagg from service as an arbitrator and reverse that
    decision.
    V.   CONCLUSION
    32
    For the foregoing reasons, we AFFIRM the district court’s
    order compelling arbitration of the entire dispute between Gulf
    Guaranty and Connecticut General in this consolidated action.    We
    also AFFIRM the district court's decision dismissing Gulf
    Guaranty's claims for breach of the arbitration agreement, and
    dismissing Gulf Guaranty's claims for breach, conspiracy, and
    some tort of malice.   We likewise AFFIRM the district court's
    decision denying Gulf Guaranty's motion to re-open discovery.
    However, we REVERSE the district court's decision granting the
    Defendants' motion to strike Gary Fagg from service as an
    arbitrator.   Costs shall be borne by Gulf Guaranty.
    33
    

Document Info

Docket Number: 01-60582

Filed Date: 9/27/2002

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (21)

Subway Equipment Leasing Corp. v. Forte , 169 F.3d 324 ( 1999 )

Tenneco Resins, Inc., and Tenn-Uss Chemicals Co. v. Davy ... , 770 F.2d 416 ( 1985 )

Martin's Herend Imports, Inc. v. Diamond & Gem Trading ... , 195 F.3d 765 ( 1999 )

Copeland v. Wasserstein, Perella & Co. , 278 F.3d 472 ( 2002 )

United Steelworkers v. American Manufacturing Co. , 80 S. Ct. 1343 ( 1960 )

smith-barney-shearson-inc-v-warren-boone-individually-and-as-trustee , 47 F.3d 750 ( 1995 )

larrys-united-super-inc-bi-lo-market-inc-bobs-united-super-inc , 253 F.3d 1083 ( 2001 )

In the Matter of David Livingston, as President of District ... , 313 F.2d 52 ( 1963 )

Florasynth, Inc. v. Alfred Pickholz , 750 F.2d 171 ( 1984 )

Razzoli, Kevin v. Fed Bur of Prisons , 230 F.3d 371 ( 2000 )

Southwest Industrial Import & Export, Inc., D/B/A ... , 524 F.2d 468 ( 1975 )

Aviall, Inc. v. Ryder System, Inc. , 110 F.3d 892 ( 1997 )

Alabama Education Association v. Alabama Professional Staff ... , 655 F.2d 607 ( 1981 )

Miller Brewing Company v. Fort Worth Distributing Co., Inc. , 781 F.2d 494 ( 1986 )

Great Western Mortgage Corporation v. Michele Peacock , 110 F.3d 222 ( 1997 )

in-the-matter-of-the-arbitration-between-e-b-michaels-and-ralph-michaels , 624 F.2d 411 ( 1980 )

Folse v. Richard Wolf Medical Instruments Corp. , 56 F.3d 603 ( 1995 )

E. C. Ernst, Inc. v. Manhattan Construction Company of ... , 559 F.2d 268 ( 1977 )

In Re: Comshare, Incorporated Securities Litigation. Harry ... , 183 F.3d 542 ( 1999 )

General Guaranty Insurance Company v. New Orleans General ... , 427 F.2d 924 ( 1970 )

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