Prescott-Follett & Associates, Inc. v. Delasa/Prescott-Follett & Associates , 100 F. App'x 288 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED June 17, 2004
June 7, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-30891
Summary Calendar
PRESCOTT-FOLLETT & ASSOCIATES, INC.;
LATIN AMERICAN ENERGY DEVELOPMENT INC,
doing business as DELASA,
Plaintiffs-Appellants,
versus
DELASA/PRESCOTT-FOLLETT & ASSOCIATES, a
Delaware Limited Liability Company; ALMA
FINANCE GROUP; KRIS N MAHABIR; ARETE LLC;
MARY A WRIGHT,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-3178-I
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Appellants Prescott-Follett & Associates and Latin American
Energy Development filed a declaratory judgment action in district
court alleging that Appellees improperly amended an agreement
governing the operation of certain projects in Nicaragua. Relying
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
on the arbitration clause in the operating agreement, the district
court stayed the proceedings and granted Appellees’ motion to
compel arbitration. Shortly thereafter, Appellants filed a motion
for a new trial. Treating this motion as a Rule 59(e) motion to
alter or amend the judgment, the district court denied Appellants’
motion on August 6, 2003. Appellants lodged this appeal shortly
thereafter. We conclude that we lack jurisdiction to hear this
appeal, and accordingly DISMISS.
Section 16 of the Federal Arbitration Act governs appellate
review of district court orders dealing with arbitration. Section
16(a)(3) allows a litigant to appeal “a final decision with respect
to an arbitration that is subject to this title.”1 Section 16(b),
however, specifies that “an appeal may not be taken from an
interlocutory order compelling arbitration under section 206 of
this title.”2
In the present case, the district court’s order was not a
final decision such that jurisdiction would be proper under §
16(a)(3).3 The district court did not dismiss the action, but
rather stayed judicial proceedings, retained jurisdiction over the
case and the parties, and ordered that they submit to arbitration.
Because the court’s order was an interlocutory decision, § 16(b)
1
9 U.S.C. § 16(a)(3).
2
9 U.S.C. § 16(b)(3).
3
Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307,
309 (5th Cir. 2003).
precludes our review of that decision.4
In an effort to evade the FAA’s limitations on appellate
review, Appellants attempt to classify their appeal not as an
appeal of the district court’s order compelling arbitration, but
rather as an appeal of the court’s order denying their Rule 59
motion for a new trial. Appellants’ argument is unavailing. As a
preliminary matter, Rule 59(e) allows a party to move a district
court to alter or amend a judgment after judgment is entered.5 In
this case, no judgment was entered: the court stayed proceedings
pending arbitration and retained jurisdiction over the matter.
More significantly, Appellants’ argument represents a thinly
veiled effort to circumvent the restriction on interlocutory
appeals contained in § 16(b). In their Rule 59 motion, Appellants
requested “a new trial of the issues involved in the Motion to
Compel Arbitration” because Appellants believed, in essence, that
the district court had reached the wrong conclusion. Appellants’
Rule 59 motion, thus, was simply a request that the court
reconsider its order compelling arbitration. If an order
compelling arbitration is unreviewable under § 16(b), we fail to
see how a request for reconsideration of that order is reviewable.
If a litigant could obtain appellate review of an order compelling
arbitration simply by filing a Rule 59 motion, then § 16(b)(3)
would be reduced to a dead letter.
4
Id. (“An arbitration order entering a stay, as opposed to a
dismissal, is not an appealable final order.”).
5
See FED. R. CIV. P. 59(b), (e).
Accordingly, we conclude that we lack jurisdiction to hear
this appeal. The appeal is DISMISSED for want of jurisdiction.