Necchi Sewing MacHine Sales Corp. v. Necchi, S. P. A. , 369 F.2d 579 ( 1966 )

IRVING R. KAUFMAN, Circuit Judge

(dissenting):

Speed is one of the great advantages of commercial arbitration. By resorting to a professional arbitrator to settle their disputes, the parties to a contract are able to avoid the delays, often measured in terms of years, due to crowded court dockets. But, if one or both of the parties to an arbitration agreement is permitted to engage in the “protracted bickering and the delays,” or the “extravagant anc¹ involved moves and counter-moves in state and federal courts,” such as the majoritj recognizes have occurred in the present case, commercial arbitration loses one of its main virtues. I find distasteful any practice which makes the Court a puppet to the tactics and manipulations of the parties.

Neither of the parties in the present controversy comes before this Court blameless. Both Necchi and Sales have at various times engaged in what appear to me as fancy legalistic “footwork.” Each is at least partially responsible for the sad fact that no arbitration has taken place in the three years since the dispute arose. And while I agree with the majority that “the arbitration should proceed promptly,” ¹1 do not believe that the Court’s holding will further that aim.

This case is no stranger to us. When this ease was first before us a year and a half ago, 348 F.2d 693 (1965), we held that the district court had erred when it ordered arbitration without first determining whether the nine claims made by Sales were arbitrable. Had we intended to leave the scope of the arbitration proceeding open, we would simply have remanded the case to the district court to rule on the propriety of the claims. And, had we acted in that manner, the district judge might then have proceeded to permit Necchi to introduce its own claims into the proceeding. But, instead, in order to “expedite this litigation,” we ruled, sua sponte, that only two of Sales’ nine claims were arbitrable. Having made this determination, we affirmed the district court’s order insofar as it directed Necchi to proceed to the arbitration it has so bitterly opposed and to appoint an arbitrator.

Chief Judge Ryan, in my opinion, therefore, was quite correct when he observed that the arbitration proceeding was before him for the sole purpose of carrying out this Court’s mandate, and that the scope of the proceeding had previously been determined by us. In his discretion, and as an experienced administrator and judge, he properly concluded that Necchi’s motion to compel arbitration of eleven new items, should be denied.

The majority opinion, however, will have the effect of reopening this Court’s prior decision and, of course, it will expand substantially the scope of the arbitration proceeding to include all of Necchi’s claims. With the background of dilatoriness in this case, I fear our decision will only compound the untoward delays. What is to prevent Sales from now proposing additional items to be included in the present proceeding? And may Sales now raise as a defense to Necchi’s counterclaims, some of its own claims that we earlier found to be non-arbitrable when raised affirmatively?

I would affirm Chief Judge Ryan’s decision. Necchi should not be permitted at this late date to introduce new claims in this arbitration proceeding, because the scope of this proceeding has long since been determined. Of course, Necchi is not forever barred from raising its claims and may assert its claims in a new and separate arbitration proceeding. And, while I recognize the Utopian objective of having the parties’ claims consolidated and decided in one proceeding, I believe that this advantage may vanish in cases where the litigants show a propensity not to get on with the litigation and instead put a premium on maneuvers and counter-maneuvers. If there is to be additional arbitration, it should not be at the cost of further delay of this arbitration proceeding sought by Sales- — not when the race for final judgment has been run at a snail’s pace. I believe Chief Judge Ryan exercised his discretion wisely and decided properly.

1 . I certainly agree with the majority’s pronouncement governing cases in futuro that a party seeking to defeat an arbitration proceeding does not waive its objections by simultaneously asserting its counterdemands. Had this procedure been followed in the present case, the piecemeal raising of claims in this litigation would have been avoided.