Charles E. Kennedy Isaac Ford Troy Aiken Ben Burrell v. Uniroyal Pension Plan, Board of Benefits and Awards

875 F.2d 865

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Charles E. KENNEDY; Isaac Ford; Troy Aiken; Ben Burrell,
Plaintiffs-Appellees,
v.
UNIROYAL PENSION PLAN, BOARD OF BENEFITS AND AWARDS,
Defendant-Appellant.

No. 88-2034.

United States Court of Appeals, Sixth Circuit.

May 23, 1989.

Before MILBURN and DAVID A. NELSON, Circuit Judges and CELEBREZZE, Senior Circuit Judge.

ORDER

1

The defendant appeals from an order directing the parties to return to arbitration in this ERISA action. The defendant now moves to stay this appeal. The plaintiffs do not object to the stay but suggest that the appeal should be dismissed for lack of jurisdiction.

2

Because the arbitration has now been completed, the defendants move to hold the appellate proceedings in abeyance until the parties resolve their dispute concerning the arbitrator's award. The plaintiffs do not object but state that they believe the appeal is not within this Court's jurisdiction because it is not from a final, appealable order under 28 U.S.C. Sec. 1291. They request that the appeal be dismissed without prejudice to the parties' right to file a new appeal following the entry of final judgment.

3

There is some question after the Court's holding in Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S. Ct. 1133 (1988), whether an order compelling arbitration yet staying proceedings pending arbitration is appealable. See Zosky v. Boyer, 856 F.2d 554 (3rd Cir.1988), cert. denied, 109 S. Ct. 868 (1989). But see Graphic Scanning Corp. v. Yampol, 850 F.2d 131 (2nd Cir.1988). We need not address that issue, however, because we conclude that the completed arbitration award renders the appeal moot. The parties, who are presently litigating in the district court, may obtain appellate review by appealing the entry of final judgment by the district court.

4

It is therefore ORDERED that the motion to stay the appellate proceedings is denied, and the motion to dismiss the appeal without prejudice is granted.