TechnoSteel, LLC v. Beers Construction

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TECHNOSTEEL, LLC, formerly known 
as Alco Lite Industries, LLC,
Plaintiff-Appellant,
v.  No. 00-1658
BEERS CONSTRUCTION COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-99-3924-3-19)
Argued: April 3, 2001
Decided: October 10, 2001
Before TRAXLER and GREGORY, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Gregory and Judge Thornburg joined.
COUNSEL
ARGUED: Daniel Tompkins Brailsford, ROBINSON, MCFADDEN
& MOORE, P.C., Columbia, South Carolina, for Appellant. David
Ryan Hodnett, ALSTON & BIRD, L.L.P., Atlanta, Georgia, for
Appellee. ON BRIEF: Charles H. McDonald, ROBINSON,
2 TECHNOSTEEL v. BEERS CONSTRUCTION
MCFADDEN & MOORE, P.C., Columbia, South Carolina, for
Appellant. C. Allen Gibson, Jr., BUIST, MOORE, SMYTHE &
MCGEE, P.A., Charleston, South Carolina, for Appellee.
OPINION
TRAXLER, Circuit Judge:
This case arises out of an alleged breach of contract between Tech-
noSteel, LLC ("TechnoSteel") and Beers Construction Company
("Beers"). TechnoSteel appeals the district court’s order denying its
petition to compel arbitration of its dispute with Beers pursuant to 9
U.S.C.A. § 4 (West 1999). Beers filed a motion to dismiss Techno-
Steel’s appeal for lack of jurisdiction based upon the district court’s
simultaneous decision granting Beer’s motion to transfer the case pur-
suant to 28 U.S.C.A. § 1404(a) (West 1993) to the Northern District
of Georgia for litigation.
We hold that the physical transfer of the litigation aspects of this
case to the Northern District of Georgia does not divest this court of
jurisdiction to review the district court’s immediately appealable deci-
sion to deny TechnoSteel’s petition to compel arbitration. Therefore,
we have jurisdiction to hear TechnoSteel’s appeal from that portion
of the district court’s order and we deny Beer’s motion to dismiss this
appeal for lack of jurisdiction. We affirm, however, the district
court’s decision denying TechnoSteel’s petition to compel arbitration
under § 4 of the Arbitration Act.
I.
Health Management Associates d/b/a Hartsville HMA (the
"Owner" or "Hospital") awarded Beers the general contract to con-
struct a hospital in Hartsville, South Carolina. Beers, in turn, subcon-
tracted the project’s structural steel fabrication and erection to
TechnoSteel. When a dispute arose concerning TechnoSteel’s perfor-
mance on the project and its entitlement to full payment, the parties
disagreed as to whether the dispute was subject to arbitration or litiga-
tion and as to whether the proper forum was in Georgia or South Car-
TECHNOSTEEL v. BEERS CONSTRUCTION 3
olina. TechnoSteel filed a demand for arbitration against Beers with
the American Arbitration Association, seeking arbitration in South
Carolina, and litigation was commenced by the parties in both states.
This appeal arises out of the action originally commenced in South
Carolina state court by TechnoSteel seeking to compel arbitration of
the dispute, which was subsequently removed by Beers to the federal
district court in South Carolina. After removal, TechnoSteel filed a
petition to compel arbitration with the district court pursuant to § 4 of
the Arbitration Act. See 9 U.S.C.A. § 4. Beers filed a motion to dis-
miss the case, or alternatively, to transfer the action pursuant to 28
U.S.C.A. § 1404(a) to the United States District Court for the North-
ern District of Georgia, asserting that it was the forum agreed upon
by the parties in their subcontract.
On May 5, 2000, the district court denied TechnoSteel’s petition to
compel arbitration based upon its interpretation of the parties’ con-
tractual agreement and granted Beers’ motion to transfer the action to
the Northern District of Georgia. On May 10, 2000, the transferred
action was received and docketed in the Northern District of Georgia.
TechnoSteel filed a notice of appeal from the district court’s denial
of its petition to compel arbitration under § 4 of the Arbitration Act
on May 18, 2000.1
II.
We begin with Beers’ motion to dismiss TechnoSteel’s appeal for
lack of jurisdiction. As noted, the district court denied TechnoSteel’s
petition to compel arbitration of its construction dispute with Beers,
filed under 9 U.S.C.A. § 4, and then transferred the balance of the
action, specifically TechnoSteel’s causes of action for breach of con-
tract and quantum meruit, to Georgia where similar litigation was
pending. TechnoSteel does not appeal the portion of the district
court’s order transferring the litigation to Georgia; such a decision is
1
At oral argument, the parties represented that the United States Dis-
trict Court for the Northern District of Georgia has granted Techno-
Steel’s motion to stay the proceedings pending this court’s decision on
appeal.
4 TECHNOSTEEL v. BEERS CONSTRUCTION
interlocutory and not immediately appealable.2 Rather, TechnoSteel
seeks only to exercise its right under § 16 of the Arbitration Act to
challenge the district court’s denial of arbitration, which is an imme-
diately appealable decision. See 9 U.S.C.A. § 16(a)(1)(B) (West
1999) ("An appeal may be taken from . . . . an order . . . denying a
petition under section 4 of this title to order arbitration to proceed.").
In its motion to dismiss, however, Beers draws no distinction
between the reviewability of interlocutory decisions which are imme-
diately appealable and those which are not. Relying on precedent
which holds that a transferor circuit court loses jurisdiction to review
interlocutory decisions of its district courts that are not immediately
appealable once the file is physically transferred under § 1404(a), see,
e.g., Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 250 (4th Cir.
1991); Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d
1509, 1516-17 (10th Cir. 1991), Beers asserts that we are likewise
divested of jurisdiction to review immediately appealable decisions of
our district courts if the district court file is physically transferred to
a district court embraced within another circuit before a notice of
appeal is filed here. We find the proposed application of the general
§ 1404(a) transfer principles applicable to interlocutory decisions that
are not immediately appealable to be unsuitable in the quite different
context of timely filed appeals from immediately appealable decisions
of our district courts. We therefore deny Beers’ motion to dismiss.
A.
Generally, courts of appeal have jurisdiction over appeals from all
"final decisions" of the district courts under 28 U.S.C.A. § 1291
(West 1993), including: limited types of interlocutory decisions speci-
fied under 28 U.S.C.A. § 1292(a) (West 1993); decisions certified for
immediate appeal by the district court and accepted by the circuit
court under 28 U.S.C.A. § 1292(b) (West 1993); decisions which are
2
Immediate challenges to a § 1404(a) transfer are limited to the filing
of a petition for writ of mandamus with the transferor circuit court prior
to the physical transfer of the file or, once the file is transferred, to the
filing of a motion with the transferee district court to retransfer the case.
See Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir.
1991); In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984).
TECHNOSTEEL v. BEERS CONSTRUCTION 5
subject to immediate mandamus review under 28 U.S.C.A. § 1651
(West 1994); decisions, such as the one before us today, which are
otherwise immediately reviewable by virtue of another congressional
act; and decisions treated as final under the "collateral order" doctrine
of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546
(1949).
The directive of where such appeals must be taken is governed by
28 U.S.C.A. § 1294(1) (West 1993), which provides that:
appeals from reviewable decisions of the district and territo-
rial courts shall be taken to the courts of appeals as follows:
(1) From a district court of the United States to the court of
appeals for the circuit embracing the district. . . .
Id. (emphasis added). The statute seems clear enough. But, the issue
of what constitutes a "reviewable decision" under § 1294(1) is less
clear when viewed in the context of deciding whether a circuit court
has jurisdiction to review a decision of a district court that was issued
prior to or simultaneously with an order transferring a case or some
portion of it to another circuit under § 1404(a). Several views have
emerged.
First, at least two circuits have held that "reviewable decisions"
under § 1294(1) "applies to all ‘reviewable’ decisions of the district
courts, not just to those which are immediately appealable." Mc-
George v. Continental Airlines, Inc., 871 F.2d 952, 954 (10th Cir.
1989) (emphasis added); see Roofing & Sheet Metal Servs., Inc. v. La
Quinta Motor Inns, Inc., 689 F.2d 982, 986 n.5 (11th Cir. 1982).
Under this view, a transferee circuit court has no jurisdiction to
review any decision, immediately appealable or not, issued by a trans-
feror district court. Although aware of the "jurisdictional hiatus"
caused by its interpretation of § 1294(1) — the nonappealable, inter-
locutory decision traveled with the case when transferred, rendering
it unreviewable in the transferor circuit court as well — the Tenth Cir-
cuit held that "the unequivocal language of [§ 1294(1)] leaves no
room for doubt that we do not have jurisdiction over" an appeal from
the transferor district court’s decision. McGeorge, 871 F.2d at 954;
see also Roofing & Sheet Metal Servs., 689 F.2d at 986 (noting that
"Congress has not given us jurisdiction to review decisions of district
6 TECHNOSTEEL v. BEERS CONSTRUCTION
courts outside this Circuit.").3 However, these cases do not speak to
the issue of whether the appellate court in the transferor circuit retains
jurisdiction over an immediately appealable decision of its district
court following a § 1404(a) transfer, at least during the time period
allowed for the filing of such an appeal.
The Second Circuit, in contrast, held early on that "[t]he review of
any order of the district court in a transferred cause, made before
transfer, is within the jurisdiction of the court of appeals of the circuit
to which the cause has been transferred." Magnetic Eng’g & Mfg. Co.
v. Dings Mfg. Co., 178 F.2d 866, 870 (2d Cir. 1950) (emphasis added)
(refusing to review a § 1404(a) transfer by its district court to another
circuit, and noting that the transferee circuit court would have juris-
diction to decide whether the transfer was erroneous and the power
to direct its district court to retransfer the action to the transferor dis-
trict).4 However, the court only recently addressed the jurisdictional
limitations imposed by § 1294(1) on its view. See Songbyrd, Inc. v.
Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). Noting that under
§ 1294(1) "a court of appeals normally has no jurisdiction to review
the decision of a district court in another circuit, but may review a rul-
ing by the transferee court denying retransfer," the court followed the
lead of other circuits and held "that in order to preserve the opportu-
nity for review of a transfer order in the transferee [c]ircuit, a party
3
Thus, in McGeorge, the Tenth Circuit refused to review an interlocu-
tory decision issued by a district court in another circuit prior to the dis-
trict court’s transferring the balance of the action to a district court within
the Tenth Circuit. See 871 F.2d at 954. And, in Roofing & Sheet Metal
Services, the Eleventh Circuit refused to review an interlocutory
§ 1404(a) transfer order of a district court located within another circuit.
See 689 F.2d at 986. While not addressing § 1294(1) specifically, we
have also refused to review a § 1404(a) transfer order entered by a dis-
trict court in another circuit. See, e.g., Brock, 933 F.2d at 1257; Preston
Corp. v. Raese, 335 F.2d 827, 828 (4th Cir. 1964).
4
See also 15A Charles A. Wright et al., Federal Practice and Proce-
dure § 3914.12 (3d ed. 1992) (noting the Tenth and Eleventh Circuit
view that the transferee circuit court cannot review decision of a trans-
feror court in another circuit, but opining that "it would be better to rec-
ognize that the rules assigning district courts to geographical circuits
were not drafted for the purposes of denying review" of orders issued by
a transferring court in another circuit).
TECHNOSTEEL v. BEERS CONSTRUCTION 7
must move for retransfer in the transferee district court." Id. at 177
(citing Roofing & Sheet Metal Servs., 689 F.2d at 986). And, like the
Tenth and Eleventh Circuits, the Second Circuit only addressed the
reviewability issue in the context of determining whether a circuit
court has jurisdiction over interlocutory decisions which are not
immediately appealable. See Songbyrd, 206 F.3d at 176-78; Magnetic,
178 F.2d at 870; Chapple v. Levinsky, 961 F.2d 372, 374 (2d Cir.
1992).
The D.C. Circuit, on the other hand, has considered the question of
when a transferor circuit court retains jurisdiction over decisions that
are immediately appealable. See Hill v. Henderson, 195 F.3d 671
(D.C. Cir. 1999). In addressing the claim that it should view an inter-
locutory decision of its district court as one immediately appealable
and, therefore reviewable in the D.C. Circuit notwithstanding a trans-
fer, the court followed the Second Circuit’s view that the reviewa-
bility of interlocutory decisions which are not immediately appealable
flows to the transferee circuit court of appeals. See id. at 674-75.
However, the D.C. Circuit declined to interpret § 1294(1) as broadly
as the Tenth Circuit had in McGeorge, holding that "reviewable deci-
sions" in § 1294(1) refers not to "every ruling of a district court that
might in due course ultimately pass under the scrutiny of an appellate
court," id. at 675, but only to those that are immediately appealable
in the circuit encompassing the district court that issued the decision:
We think Congress’s distinction between "final decisions" in
§ 1291 and "reviewable decisions" in § 1294 is consistent
with our view that the appealability of the claim dismissal
here flows to the transferee circuit. The Tenth Circuit seem-
ingly understood "reviewable decisions" to encompass every
ruling of a district court that might in due course ultimately
pass under the scrutiny of an appellate court. But the term
is susceptible to a narrower reading: decisions subject to
review at the time they are entered, namely, (a) final deci-
sions, (b) non-final decisions embraced by § 1292’s provi-
sion for review of certain types of interlocutory orders, (c)
decisions treated as final under the "collateral order" doc-
trine of Cohen v. Beneficial Loan Corp., 337 U.S. 541
(1949), and (d) (perhaps) non-final decisions subject to
immediate mandamus.
8 TECHNOSTEEL v. BEERS CONSTRUCTION
Id. at 675 (second emphasis added).5 Thus, under the D.C. Circuit’s
view, "reviewable decisions" under § 1294(1), which are limited to
those issued by the transferor district court that are "subject to review
at the time they are entered," may only be appealed to the circuit court
embracing the transferor district court, id. at 675, whereas all other
pretransfer, interlocutory decisions "shift" or "flow" to the transferee
circuit where they become appealable upon final judgment there, see
id. at 675-77.
B.
Applying these precedents to the case before us, we note that the
decision of our district court denying TechnoSteel’s petition to com-
pel arbitration was immediately appealable, see 9 U.S.C.A.
§ 16(a)(1)(B), and that it was immediately appealable only to us, see
28 U.S.C.A. § 1294(1). The Eleventh Circuit Court of Appeals would
not entertain an appeal from the South Carolina district court’s denial
of TechnoSteel’s petition to compel arbitration. See 28 U.S.C.A.
§ 1294(1); Roofing & Sheet Metal Servs., 689 F.2d at 986 & n.5. And,
because the decision was immediately appealable, the time for appeal
began to run in our circuit upon issuance of the decision. See Fed. R.
App. P. 4(a)(1)(A).
Indeed, this does not appear to be in dispute. Rather, Beers asserts
that, because § 1404(a) transfers are normally considered to be "ple-
nary," see Chrysler, 928 F.2d at 1518, and a transfer of jurisdiction
is normally considered to be complete when the file is received by the
transferee district court, see Wilson-Cook, 942 F.2d at 250, we are
divested of jurisdiction to review both pretransfer, interlocutory deci-
sions issued by our district courts and immediately appealable deci-
sions issued by our district court. To preserve jurisdiction over the
immediately appealable pretransfer decision, the argument goes, the
district court was required to formally sever the arbitration aspects of
the case from the balance of the case under Federal Rule of Civil Pro-
5
The D.C. Circuit ultimately refused to exercise jurisdiction over its
district court’s interlocutory dismissal of one count of a plaintiff’s com-
plaint after the case had been transferred to a district court outside the
circuit because it was not immediately appealable. See Hill, 195 F.3d at
674.
TECHNOSTEEL v. BEERS CONSTRUCTION 9
cedure 21 prior to the transfer, or TechnoSteel was required, notwith-
standing the normal time allowed for an appeal under our rules, to file
an appeal in our circuit before the district court file was physically
transferred to the transferee district.
We disagree. While it is true that courts have adhered to the gen-
eral rule that a § 1404(a) transfer "contemplates a plenary transfer of
the entire case," Chrysler, 928 F.2d at 1518 (internal quotation marks
omitted), and that a transferor court loses jurisdiction over a case once
the file is physically transferred to the transferee district, see id. at
1516-17, the courts have done so in the context of interlocutory deci-
sions that are not immediately appealable when entered. In contrast,
and under any view of the jurisdictional limitations imposed by
§ 1294(1) and its interplay with a § 1404(a) transfer, precedent simply
does not dictate the holding that we lose jurisdiction to review imme-
diately appealable, and timely appealed, decisions of our district court
denying a petition to compel arbitration simply because the district
court simultaneously chose to transfer the balance of the case for liti-
gation elsewhere.
1.
As an initial premise, we note that courts have not blindly applied
the rules governing the transfer of jurisdiction to strip circuit courts
of jurisdiction to review every decision issued by their district courts
prior to transfer, nor have courts advanced the view proffered by
Beers that a formal Rule 21 severance order is the only method by
which jurisdiction over a particular decision can remain in the trans-
feror circuit. Indeed, in the Chrysler case relied upon by Beers, the
Tenth Circuit recognized that the reviewability of judgments entered
under Rule 54(b) would remain in a transferor circuit court notwith-
standing a § 1404(a) transfer. Id. at 1517 n.7 (noting that "where the
transferor court has entered partial judgment under Rule 54(b) prior
to transfer, the court of appeals in the transferor circuit has jurisdic-
tion to review the question, irrespective of whether other issues in the
case have been transferred out-of-circuit"); see also McGeorge, 871
F.2d at 954 (noting that "[t]he jurisdictional hiatus" created by its
interpretation of § 1294(1) "could have been avoided had the [trans-
feror district court] entered a Rule 54(b) partial judgment on the
claims it dismissed," vesting jurisdiction to review the claims in the
10 TECHNOSTEEL v. BEERS CONSTRUCTION
transferor circuit court). And, while noting that a district court may
sever claims under Rule 21, thereby creating two separate actions, and
"transfer one action while retaining jurisdiction over the other,"
Chrysler, 928 F.2d at 1519, the court did not opine that a formal Rule
21 severance order is outcome-determinative of the question of
whether the transferor circuit court retains jurisdiction over a decision
issued by its district court.
Additionally, other circuits have specifically declined to impose the
formal entry of judgment under Rule 54(b) or a Rule 21 severance
order as a condition precedent to holding that reviewability of a par-
ticular decision remains in the transferor circuit. For example, the
Third Circuit has noted that a transferor district court can effectively
sever claims, even though it neglects to explicitly invoke Rule 21, and
thereby preserve an appeal from such orders in its own circuit not-
withstanding the completion of the physical transfer, so long as there
is "a strong indication that the judge intended to effect a severance."
White v. ABCO Eng’g Corp., 199 F.3d 140, 145 n.6 (3d Cir. 1999).
Like the Tenth Circuit, the court acknowledged the general premise
that "[a] transfer is typically deemed to be complete when the files of
a case are lodged in the transferee court," but declined to apply it
blindly because "shifting papers cannot validate an otherwise invalid
transfer, or extend the scope of a limited transfer." Id. at 143 n.4.
The D.C. Circuit has held that a district court’s dismissal of plain-
tiffs’ claims against a defendant based upon a lack of personal juris-
diction was a "final" decision ripe for immediate appellate review by
the transferor circuit court, even though the district court had not for-
mally directed entry of final judgment under Rule 54(b) and had
transferred the remainder of the case to the district court in Maryland.
See Reuber v. United States, 773 F.2d 1367, 1368 (D.C. Cir. 1985).
We held in a similar context that the physical transfer of a case to a
transferee court did not deprive us of appellate jurisdiction over an
interlocutory, but immediately appealable, Cohen order. See Gower v.
Lehman, 799 F.2d 925, 927 (4th Cir. 1986). And, of course, in Hill,
195 F.3d at 675, the D.C. Circuit specifically addressed the issue of
immediately appealable decisions of a transferor court, noting that a
transferor circuit court does retain jurisdiction over such immediately
appealable decisions issued by its district courts, even though other
TECHNOSTEEL v. BEERS CONSTRUCTION 11
non-appealable, interlocutory decisions issued by the transferor dis-
trict court "flow" to the transferee circuit.6
2.
The present situation is all the more clear from a jurisdictional
standpoint. Under Rule 54(b), a district court order dismissing one of
several claims or parties is not typically viewed as a "final decision"
qualifying for immediate appeal unless the district court determines
that "there is no just reason for delay" and enters final judgment as
to the claim, thereby creating an immediately appealable or final deci-
sion. Fed. R. Civ. P. 54(b). Consequently, when the transferor district
court enters partial judgment under Rule 54(b), the entry of judgment
creates an immediately appealable decision which easily falls outside
the normal "plenary transfer" principle of § 1404(a). See Chrysler,
928 F.2d at 1517 n.7; McGeorge, 871 F.2d at 954. If partial judgment
is not entered under Rule 54(b), the interlocutory decision of the dis-
trict court remains unappealable, "subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties." Fed. R. Civ. P. 54(b). Thus, the
"entry of judgment adjudicating all the claims and the rights and lia-
bilities" of the parties will likely occur in the transferee district court,
Fed. R. Civ. P. 54(b), where the party can secure at least some form
of review of the transferor district court’s interlocutory rulings by
moving the transferee district court either to retransfer the case or
reconsider the pretransfer decision and, therefrom, seek review by its
6
Like our circuit, the D.C. Circuit had previously refused to review
transfer orders entered by a district court from another jurisdiction. See
In re Briscoe, 976 F.2d 1425, 1426 (D.C. Cir. 1992); Starnes v. McGuire,
512 F.2d 918, 924 (D.C. Cir. 1974) (en banc). However, the Hill court
felt unconstrained by these holdings because "transfer orders themselves
have engendered a complex and somewhat conflicting pattern of
reviewability," Hill, 195 F.3d at 677, and because "such orders are usu-
ally effectively subject to immediate review via mandamus in the circuit
of the transferring court" or to "at least partial review . . . in the trans-
feree circuit by filing a motion for retransfer, the denial of which is
clearly reviewable by the court of appeals of the transferee district," id.
12 TECHNOSTEEL v. BEERS CONSTRUCTION
circuit court of appeals, see, e.g., Brock v. Entre Computer Ctrs., Inc.,
933 F.2d 1253, 1257 (4th Cir. 1991); Chrysler, 928 F.2d at 1518.7
In contrast, a "judgment" under Rule 54(a) of the Federal Rules of
Civil Procedure is defined as "any order from which an appeal lies."
Fed. R. Civ. P. 54(a). It embraces "any ‘final decision’ from which
an appeal is permitted under [§] 1291," as well as "any appealable
interlocutory order." 10 Charles A. Wright et al., Federal Practice
and Procedure § 2651 (3d ed. 1998); NBA v. Minnesota Prof’l Bas-
ketball, Ltd. P’ship, 56 F.3d 866, 872 (8th Cir. 1995). Thus, it differs
from Rule 54(b), which "generally does not apply to orders that are
not final under [§] 1291 . . . but nevertheless are appealable, either as
a result of some other statutory provision [such as § 1292 or § 1651]
or as a judicially created exception to the final-judgment rule," such
as the collateral order doctrine of Cohen. 10 Charles A. Wright et al.,
Federal Practice and Procedure § 2658 (3d ed. 1998).
Because we are presented with a decision which is immediately
appealable solely by operation of § 16(a)(1)(B) of the Arbitration Act,
in contrast to partial judgments entered under Rule 54(b), the decision
is appealable without need for any action by the parties or the court.
7
Thus, unlike here, a party opposing an interlocutory decision which
is not immediately appealable is not stripped of its right to appellate
review by virtue of a § 1404(a) transfer. For transfer orders, the party
may petition the transferor circuit court for a writ of mandamus or, once
transferred, move the transferee court to retransfer the case and secure
appellate review of its decision in the transferee circuit. See Brock, 933
F.2d at 1257 (holding that a party opposing a transfer from another juris-
diction to ours may move for retransfer of the action in our district court,
which will then vest jurisdiction in us to review the matter). In the case
of other interlocutory orders, the party is not precluded from arguing, and
the transferee circuit court is not precluded from reviewing on appeal
from the final judgment, the question of whether the transferor district
court’s interlocutory decision was a correct application of the law of the
case in the transferred action. See, e.g., Chrysler, 928 F.2d at 1518 (not-
ing that while direct review of an interlocutory decision issued by a dis-
trict court outside of its jurisdiction is not available, "[r]eview of the
transferee court’s application of law of the case provides a limited ave-
nue through which the transferee appellate court may address the merits
of the underlying issue").
TECHNOSTEEL v. BEERS CONSTRUCTION 13
In other words, when a transferor district court decision adjudicates
fewer than all the claims or adjudicates the rights and liabilities of
fewer than all the parties, but nonetheless creates a decision from
which an immediate appeal lies by virtue of a separate statute (such
as § 16 of the Arbitration Act), it has no less created an immediately
appealable decision; but, it need not act to enter judgment under Rule
54(b) at all prior to transferring the file in order to preserve its
reviewability in the transferor circuit court. Of course, such a decision
equally falls outside the normal "plenary transfer" principle of § 1404
because, as in the case of a partial adjudication entered as final under
Rule 54(b), the district court has issued a decision which is effectively
severed from the balance of the case and immediately appealable in
the transferor circuit court. And, because the reviewability of the
immediately appealable decision does not transfer with the physical
file, at least not until the time for appeal expires under our rules, the
timing of the physical transfer of the file to another district has no
effect upon our jurisdiction to entertain the appeal.
3.
Finally, the practicalities of the situation also compel us to reject
Beers’ attempt to extend the general rules concerning jurisdiction
over pretransfer decisions which are not immediately appealable to
decisions which are immediately appealable.
The transfer statute provides that "[f]or the convenience of parties
and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have
been brought." 28 U.S.C.A. § 1404(a). Thus, "[a] section 1404(a)
transfer merely involves a discretionary change to another district
where the action could have been brought." Gower, 799 F.2d at 927.
It contemplates that the transfer of a case from one district court to
another district court for the conveniences of the parties and witnesses
— the only difference being locale — without substantially affecting
the rights of the parties. See e.g., Magnetic, 178 F.2d at 868 (noting
that "when an action is transferred, it remains what it was; all further
proceedings in it are merely referred to another tribunal, leaving
untouched whatever has been already done"); Chrysler, 928 F.2d at
1516.
14 TECHNOSTEEL v. BEERS CONSTRUCTION
The general rule that the transfer of jurisdiction is plenary and
occurs when the record is physically transferred to the transferee court
is, therefore, premised upon the commonsense and workable principle
that "some court should have jurisdiction over a case at all times."
Wilson-Cook, 942 F.2d at 250. Such a bright line is necessary to mark
the transfer of jurisdiction, and the docketing of a transferred case in
the transferee circuit is the one most courts have adopted. See, e.g.,
Chrysler, 928 F.2d at 1516-17; In re Sosa, 712 F.2d 1479, 1480 (D.C.
Cir. 1983) (per curiam). While apt when applied to an interlocutory
ruling handed down by a transferor district court that is not immedi-
ately appealable to any court, extension of this principle to immedi-
ately appealable decisions of a transferor district court renders the rule
unworkable and unfair.
An interlocutory decision issued by a transferor district court that
is not immediately appealable does not start any appeal clock running,
nor does the subsequent transfer leave the aggrieved party with no
remedy, as the party may act to preserve the ruling and the right to
appeal from it upon final judgment in the transferee circuit court.
Thus, the view that nonappealable, interlocutory decisions necessarily
travel with the case when transferred, with jurisdiction transferring
when the file is received by the transferee court, is an appropriate one.
In contrast, an interlocutory decision issued by a transferor district
court which is immediately appealable does start the appeal clock run-
ning and starts it running in the transferor circuit court. Thus, hardly
a reflection of the commonsense and workable rule that has been
applied in the context of nonappealable, interlocutory decisions,
extension of the principle to an immediately appealable decision of a
transferor court operates only to deprive the transferor circuit court of
jurisdiction over an appeal as of right from an immediately appealable
decision issued by its district court even though the transferee circuit
court has, under § 1294(1), no jurisdiction to review the decision
either.
Under Beers’ argument, in order to obtain direct appellate review
of the denial of a petition to compel arbitration or other immediately
appealable decision entered by a district court in our circuit prior to
or concurrent with a § 1404 transfer, the aggrieved party would have
to race to file an appeal in our court before the clerk of the district
TECHNOSTEEL v. BEERS CONSTRUCTION 15
court could send the file to the transferee district court, eliminating
any time for reflection by the losing party, as our thirty-day time
period for filing an appeal in civil cases will be rendered meaningless.
See Fed. R. App. P. 4(a)(1)(A). Or, if he loses the footrace, the party
would be relegated to seeking retransfer from the transferee district
court in order to pursue the appeal, hopeful that he can file the
motion, get the requested relief, and get the file physically re-
transferred before the thirty-day time for appeal runs in the transferor
circuit court. Neither the intent of § 1294(1), nor the general rules pre-
viously espoused by the courts regarding § 1404(a) transfers, dictates
such a frantic appellate procedure.8
In sum, we find no impediment to our exercising jurisdiction over
TechnoSteel’s timely filed appeal from the district court’s decision.
The district court’s decision denying the petition to compel arbitra-
tion, which is immediately appealable under 9 U.S.C.A. § 16, is sub-
ject to review in our circuit notwithstanding the concurrent § 1404(a)
transfer of the balance of the action, rendering the fact that the trans-
fer was complete before the appeal was actually filed irrelevant.
III.
Having determined that we have jurisdiction to entertain Techno-
Steel’s appeal from the district court’s denial of its petition to compel
arbitration under § 4 of the Arbitration Act, we turn to the merits of
TechnoSteel’s appeal. Section 4 provides that "[a] party aggrieved by
the alleged failure, neglect, or refusal of another to arbitrate under a
written agreement for arbitration may petition any United States dis-
trict court . . . for an order directing that such arbitration proceed in
the manner provided for in the agreement." 9 U.S.C.A. § 4. Techno-
Steel contends that its subcontract agreement with Beers mandated
arbitration of the construction dispute between them. Beers disagrees.
8
Obviously, the better practice would be for the district court to stay
any transfer for the thirty-day appeal period and, if an appeal is filed,
during the time the appeal from the denial of arbitration is pending in our
court. According to representations made during oral argument, the same
outcome was achieved in this case by obtaining a stay of the litigation
in the transferee forum. However, a stay entered by our district court
would be the better and easier course.
16 TECHNOSTEEL v. BEERS CONSTRUCTION
The Federal Arbitration Act, 9 U.S.C.A. §§ 1-16 (West 1999)
"does not mandate the arbitration of all claims, but merely the
enforcement . . . of privately negotiated arbitration agreements." Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219 (1985); see Volt Info.
Sci., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S.
468, 474-75 (1989). Although federal policy favors arbitration and
any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration, see Dean Witter, 470 U.S. at 221, "ar-
bitration is a matter of contract and a party cannot be required to sub-
mit to arbitration any dispute which he has not agreed so to submit,"
Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809,
812 (4th Cir. 1989) (internal quotation marks omitted). The Federal
Arbitration Act "simply requires courts to enforce privately negoti-
ated agreements to arbitrate, like other contracts, in accordance with
their terms." Volt Info. Sci., 489 U.S. at 478. We review the district
court’s interpretation and construction of the Subcontract between
TechnoSteel and Beers de novo. See American Recovery Corp. v.
Computerized Thermal Imaging, Inc., 96 F.3d 88, 91 (4th Cir. 1996);
Nehi Bottling Co. v. All-American Bottling Corp., 8 F.3d 157, 162
(4th Cir. 1993).
Article 2 of the Subcontract Agreement between Beers and
TechnoSteel incorporates "the Agreement between the Owner [the
Hospital] and Contractor . . ., [and] all Conditions to the Agreement
between the Owner and Contractor" as part of its Subcontract Agree-
ment. J.A. 30. Article 4.5.1 of the General Conditions of the Agree-
ment between the Owner and Beers, in turn, provides that "[a]ny
controversy or Claim arising out of or related to the Contract, or the
breach thereof, shall be settled by arbitration." J.A. 108. However,
Article 5.3.1 of the General Conditions of the Agreement between the
Owner and Beers also mandates that Beers "require each [of its] Sub-
contractor[s] . . . to assume toward the Contractor all the obligations
and responsibilities which the Contractor . . . assumes toward the
Owner" and, further, that:
[e]ach subcontract agreement . . . shall allow to the Subcon-
tractor, unless specifically provided otherwise in the subcon-
tract agreement, the benefit of all rights, remedies and
redress against the Contractor that the contractor, by the
Contract Documents, has against the Owner.
TECHNOSTEEL v. BEERS CONSTRUCTION 17
J.A. 110 (emphasis added). TechnoSteel contends that the dispute
between it and Beers is required to be arbitrated pursuant to the incor-
poration of the arbitration terms of the Owner/Beers Contract into the
Beers/TechnoSteel Subcontract Agreement. We disagree.
In the absence of any contrary provision contained within the Sub-
contract Agreement, the Subcontract Agreement would indeed have
required, by virtue of its incorporation of the Owner/Beers Contract,
that all controversies or claims between Beers and TechnoSteel be
submitted for arbitration. However, while Article 4.5.1 of the General
Conditions would, if read in isolation, impose an arbitration require-
ment upon the Subcontract Agreement, Article 5.3.1 of the General
Conditions must be read as providing a Subcontractor with the right
to demand arbitration "unless specifically provided otherwise in the
subcontract agreement." J.A. at 110 (emphasis added). TechnoSteel’s
argument fails because the Subcontract Agreement between it and
Beers provides otherwise.
Article 14 of the Subcontract Agreement governs claims and dis-
putes which arise under the Agreement. Article 14.d provides that
"[a]ny claim, dispute or other matter in question between the Contrac-
tor and the Subcontractor relating to this Agreement, or the Work per-
formed hereunder, shall be governed by the laws of the State of
Georgia." J.A. 39. And, Article 14.h. of the Subcontract Agreement
quite clearly provides that:
To the extent Contractor does not elect to arbitrate a claim
or dispute hereunder, Contractor and Subcontractor each
hereby agree that the claim or dispute shall be submitted for
resolution to the United States District Court for the North-
ern District of Georgia or, if that court does not have subject
matter jurisdiction, to the Superior Court of Fulton County,
Georgia. Both parties hereby consent to and waive any
objections to the jurisdiction and venue of these courts, and
stipulate that they shall be the sole fora for litigating dis-
putes hereunder.
J.A. 40 (emphasis added). Thus, under the plain language of the Sub-
contract Agreement, the parties "otherwise" provided that disputes
18 TECHNOSTEEL v. BEERS CONSTRUCTION
which arise under the Subcontract Agreement must be submitted to
litigation in Georgia unless Beers elects arbitration.
Despite this contractual provision, however, TechnoSteel asserts
that we should ignore the language of Article 14.h requiring the litiga-
tion of such disputes because, during negotiations, the parties agreed
to delete a portion of Beers’ standard Subcontract Agreement, specifi-
cally Article 14.e. See J.A. 26. Article 14.e, had it been included in
the final Subcontract Agreement, would have provided that:
All disputes or claims between Contractor and Subcontrac-
tor arising out of this Agreement, or the performance of any
work hereunder, shall be decided by litigation unless the
Contractor, at its sole opinion, advises the Subcontractor
within 30 days of the dispute or claim arising that Contrac-
tor elects to have the dispute or claim decided or resolved
by way of arbitration. In such event, the Contractor shall
provide the Subcontractor written notice of its election, the
Subcontractor shall be bound by the election, and the arbi-
tration proceeding shall be conducted pursuant to the Con-
struction Industry Arbitration Rules as issued by the
American Arbitration Association then in effect. All such
arbitration proceedings shall be held in Atlanta, Georgia,
and judgment upon the arbitration award may be entered by
any court having jurisdiction.
J.A. 39. By agreeing to delete this provision, TechnoSteel asserts, the
parties intended to remove litigation as an accepted method of dispute
resolution altogether and, instead, to have the arbitration provision of
Article 4.5.1 of the General Conditions of the Owner/Beers Contract
control the resolution of all disputes by virtue of its incorporation into
the Subcontract Agreement. TechnoSteel further asserts that we
should also ignore the seemingly unilateral right of Beers to demand
arbitration, which quite clearly remained by virtue of the first clause
of Article 14.h, because it was also contrary to the intent of the parties
evidenced by the deletion of Article 14.e to preserve the mutual right
to demand arbitration which would be afforded by the General Condi-
tions.
TECHNOSTEEL v. BEERS CONSTRUCTION 19
We find TechnoSteel’s argument to be strained at best. While
TechnoSteel argues that the parties intended to eliminate Beers’ abil-
ity to unilaterally request arbitration by virtue of its deletion of Article
14.e and to eliminate resort to litigation as a means of dispute resolu-
tion altogether, it offers no satisfactory explanation as to why the par-
ties simultaneously neglected to seek any modifications to the clause
requiring litigation found in Article 14.h. Beers, on the other hand,
persuasively argues that the removal of Article 14.e from the Subcon-
tract Agreement was consistent not only with the intent to eliminate
Beers’ right to unilaterally demand arbitration, but arbitration alto-
gether, thereby leaving litigation in Georgia as the sole method by
which disputes arising out of the Subcontract Agreement would be
resolved.9
In any event, under the plain language of the dispute resolution
portion of the Subcontract Agreement, the parties agreed that "[t]o the
extent Contractor does not elect to arbitrate a claim or dispute" under
the agreement, all claims or disputes "shall be submitted for resolu-
tion to the United States District Court for the Northern District of
Georgia or, if that court does not have subject matter jurisdiction, to
the Superior Court of Fulton County, Georgia" and agreed that these
courts "shall be the sole fora for litigating disputes hereunder." J.A.
40. Accordingly, we agree with the district court’s conclusion that
TechnoSteel failed to establish that an agreement to arbitrate claims
and disputes under the Subcontract Agreement exists between Beers
and TechnoSteel. We therefore affirm the district court’s order deny-
ing TechnoSteel’s petition to compel arbitration under § 4 of the
Arbitration Act.
IV.
For the foregoing reasons, we deny Beers’ motion to dismiss
9
Under either argument, the reference to Beers’ "elect[ion] to arbitrate
a claim or dispute hereunder" in the first phrase of Article 14.h only calls
into question whether Beers had the remaining right to demand arbitra-
tion unilaterally, not whether TechnoSteel ever had a right to do so.
Because Beers did not attempt to unilaterally demand arbitration, we
need not decide whether the parties’ decision to delete Article 14.e indi-
cates a mistaken failure to also delete the first phrase of Article 14.h.
20 TECHNOSTEEL v. BEERS CONSTRUCTION
TechnoSteel’s appeal for lack of jurisdiction and affirm the district
court’s decision denying TechnoSteel’s motion to compel arbitration.
AFFIRMED