Commercial Litigation and Arbitration

Arbitration — Order Compelling Arbitration and Administratively Closing, But Not Dismissing, Action Is Appealable As a “Final Decision” within FAA § 16(a)(3)

Montero v. Carnival Corp., 2013 U.S. App. LEXIS 14141 (11th Cir. July 12, 2013):

As an initial matter, Carnival contends that we lack jurisdiction because the district court's order compelling arbitration was a non-appealable interlocutory order, instead of an appealable final decision, because it did not dismiss Montero's claims. A "final decision with respect to an arbitration" is immediately appealable, 9 U.S.C. § 16(a)(3), but an "interlocutory order . . . compelling arbitration" is not, id. § 16(b)(3). A district court order directing that arbitration proceed and dismissing a plaintiff's claims, with or without prejudice, is "a final decision with respect to an arbitration" that is immediately appealable. Green Tree Financial Corp. -- Ala. v. Randolph, 531 U.S. 79, 86-87, 121 S.Ct. 513, 519-20 (2000) (dismissal with prejudice); Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir. 2005) (dismissal without prejudice). By contrast, an order that compels arbitration but stays the proceedings is an interlocutory order that is not immediately appealable. Am. Express Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 939 (11th Cir. 1997).

In this case, the district court's order that compelled arbitration did not specifically state that Montero's claims were dismissed. It did state, however, "that for administrative purposes this case is hereby CLOSED." Notably, the district court's order did not stay the proceedings, nor did it contemplate any further action on this case. It effectively "end[ed] the litigation on the merits and [left] nothing more for the [district] court to do but execute the judgment." Green Tree, 531 U.S. at 86-87, 121 S.Ct. at 519. Accordingly, the district court's order was a "final decision with respect to an arbitration" and we have appellate jurisdiction. 9 U.S.C. § 16(a)(3); Green Tree, 531 U.S. at 86-87, 121 S.Ct. at 519.

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