Atsa of California, Inc., Plaintiff/cross-Claimant/appellant v. Cont'l Ins. Co., Etc. v. Cairo Gen. Contracting Co., Cross-Defendant/appellee. Hamed Abulhassan, Counter-Defendant/appellant v. Cairo Gen. Contracting Co., Cross-Defendant/appellee. Atsa of California, Inc. v. United States Dist. Court for the Cent. Dist. of California, Cairo Gen. Contracting Co., Real Party in Interest, 754 F.2d 1394 (9th Cir. 1985). · Go Syfert
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Atsa of California, Inc., Plaintiff/cross-Claimant/appellant v. Cont'l Ins. Co., Etc. v. Cairo Gen. Contracting Co., Cross-Defendant/appellee. Hamed Abulhassan, Counter-Defendant/appellant v. Cairo Gen. Contracting Co., Cross-Defendant/appellee. Atsa of California, Inc. v. United States Dist. Court for the Cent. Dist. of California, Cairo Gen. Contracting Co., Real Party in Interest, 754 F.2d 1394 (9th Cir. 1985). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases · 2 courts · …determining what claims fall within 17 the class of disputes governed by an arbitration agreement is a question of federal law. ⚠ not in text
cited 2× by 1 distinct case, last quoted 1987 · …even at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court. at p. 1396 ✓
cited 2× by 2 distinct cases, last quoted 2002 · …generally, partisan arbitrators are permissible. at p. 1395 ✓
52 citation events (20 in the last 25 years) across 18 distinct courts.
Strongest positive: CMH Homes, Inc., Vanderbilt Mortgage and Finance, Inc., and Bruce Robin Moore, Jr. v. Adam Perez (texapp, 2010-07-28)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
cited Cited as authority (rule) CMH Homes, Inc., Vanderbilt Mortgage and Finance, Inc., and Bruce Robin Moore, Jr. v. Adam Perez
Tex. App. · 2010 · confidence medium
Co., 754 F.2d 1394, 1395-96 (9th Cir. 1985).
cited Cited as authority (rule) CMH Homes, Inc. v. Perez
Tex. App. · 2010 · confidence medium
Co., 754 F.2d 1394, 1395-96 (9th Cir.1985).
discussed Cited as authority (rule) Raymond James Financial Services, Inc. v. Honea (2×)
Ala. · 2010 · confidence medium
Co., 754 F.2d 1394, 1395-96 (9th Cir.1985) (amending original opinion reported at 702 F.2d 172, 175-76 (9th Cir.1983)).
discussed Cited as authority (rule) CBS Broadcasting Inc. v. Echostar Communications Corp.
S.D. Fla. · 2006 · confidence medium
A successful appellant cannot attempt to modify the mandate of the appellate court by its own unilateral action, and “even at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court.” Id. at 1515-16 (quoting Atsa of California, Inc. v. Continental Insurance Co., 754 F.2d 1394, 1396 (9th Cir.1985)).
discussed Cited as authority (rule) In Re Phelps Dodge Magnet Wire Co.
Tex. App. · 2005 · confidence medium
Co., 754 F.2d 1394, 1396 (9th Cir.1985)(parties could appoint two partisan arbitrators and one neutral arbitrator, but if the parties could not agree upon the neutral arbitrator then they would apply to the Internal Chamber of *606 Commerce to appoint the neutral arbitrator per their agreement).
cited Cited as authority (rule) JCI Communications, Inc. v. International Brotherhood of Electrical Workers
1st Cir. · 2003 · confidence medium
Co., 754 F.2d 1394, 1395 (9th Cir.1985) (order); Nationwide Mut.
cited Cited as authority (rule) Nationwide Mutual Insurance v. First State Insurance
D. Mass. · 2002 · confidence medium
Co., 754 F.2d 1394, 1395 (9th Cir.1985).
cited Cited as authority (rule) Delta Mine Holding Company Meadowlark, Inc. v. Afc Coal Properties, Inc.
8th Cir. · 2002 · confidence medium
Co., 754 F.2d 1394, 1395 (9th Cir.1985).
cited Cited as authority (rule) AFC Coal Properties v. Delta Mine Holding
8th Cir. · 2001 · confidence medium
Co., 754 F.2d 1394, 1395 (9th Cir. 1985).
cited Cited as authority (rule) Vizcaino v. United States District Court for the Western District of Washington
9th Cir. · 1999 · confidence medium
Co., 754 F.2d 1394, 1396 (9th Cir.1985) (mandamus issued to compel district court to comply with prior appellate mandate that arbitrator should determine the applicable law in commercial dispute).
discussed Cited as authority (rule) In Re Donna Vizcaino, John R. Waite, Mark Stout, Geoffrey Clubert, Lesley Stuart, Thomas Morgan, Elizabeth Spokoiny and Larry Spokoiny, and the Class They Represent, Plaintiffs-Petitioners v. United States District Court for the Western District of Washington, Microsoft Corporation and Its Pension and Welfare Benefits Plans, Defendants/real Parties in Interest. Donna Vizcaino John R. Waite Mark Stout Geoffrey Culbert Lesley Stuart Thomas Morgan Elizabeth Spokoiny Larry Spokoiny v. Microsoft Corporation, and Its Health and Benefits Plans: Health Benefit Plan, Life Insurance Plan, Short-Term and Long-Term Disability Plans, and Savings (401k) Plan
9th Cir. · 1999 · confidence medium
Co., 754 F.2d 1394, 1396 (9th Cir.1985) (mandamus issued to compel district court to comply with prior appellate mandate that arbitrator should determine the applicable law in commercial dispute). 26 Pointing out that the issuance of a writ is discretionary, see Kerr v. United States Dist.
cited Cited as authority (rule) Cargill Rice, Incorporated v. Empresa Nicaraguense Dealimentos Basicos, (Two Cases) Empresa Nicaraguense Dealimentos Basicos v. Cargill Rice, Incorporated
4th Cir. · 1994 · confidence medium
Co., 754 F.2d 1394, 1395-96 (9th Cir.1985) (amending original opinion reported at 702 F.2d 172 , 175-76 (9th Cir.1983)).
examined Cited as authority (rule) Bernard Litman v. Massachusetts Mutual Life Insurance Company (4×)
11th Cir. · 1987 · confidence medium
“Even at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court.” Atsa of California, Inc. v. Continental Insurance Co., 754 F.2d 1394, 1396 (9th Cir.1985).
cited Cited "see" In Re Louisiana Pacific Corp.
Tex. · 1998 · signal: see · confidence high
See ATSA 754 F.2d at 1396.
discussed Cited "see" Pacific Reinsurance Management Corporation v. Ohio Reinsurance Corporation (2×) also: Cited "see, e.g."
9th Cir. · 1987 · signal: see · confidence high
See ATSA of California v. Continental Insurance Co., 754 F.2d 1394, 1396 (9th Cir.1985). 23 The ATSA cases, contend the appellants, stand for the proposition that courts must give effect to and follow the agreements of the parties regarding the selection of arbitrators.
cited Cited "see" Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp.
9th Cir. · 1987 · signal: see · confidence high
See ATSA of California v. Continental Insurance Co., 754 F.2d 1394, 1396 (9th Cir.1985).
Retrieving the full opinion text from the archive…
Atsa of California, Inc., Plaintiff/cross-Claimant/appellant
v.
Continental Insurance Co., Etc. v. Cairo General Contracting Co., Cross-Defendant/appellee. Hamed Abulhassan, Counter-Defendant/appellant v. Cairo General Contracting Co., Cross-Defendant/appellee. Atsa of California, Inc. v. United States District Court for the Central District of California, Cairo General Contracting Company, Real Party in Interest
84-7565.
Court of Appeals for the Ninth Circuit.
Feb 25, 1985.
754 F.2d 1394
1985 U.S. App. LEXIS 29348
Cited by 30 opinions  |  Published

754 F.2d 1394

ATSA OF CALIFORNIA, INC., Plaintiff/Cross-Claimant/Appellant,
v.
CONTINENTAL INSURANCE CO., etc., Defendant,
v.
CAIRO GENERAL CONTRACTING CO., Cross-Defendant/Appellee.
Hamed ABULHASSAN, Counter-Defendant/Appellant,
v.
CAIRO GENERAL CONTRACTING CO., Cross-Defendant/Appellee.
ATSA OF CALIFORNIA, INC., Petitioner,
v.
UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF
CALIFORNIA, Respondent,
Cairo General Contracting Company, Real Party in Interest.

Nos. 81-6017, 81-6026 and 84-7565.

United States Court of Appeals,
Ninth Circuit.

Submitted Oct. 29, 1984.
Decided Feb. 25, 1985.

[*~1394]1

Robert E. Currie, Stephen J. Sturgill, Latham & Watkins, Newport Beach, Cal., for ATSA of California.

2

Leo J. Vander Lans, Stephen T. Owens, Graham & James, Los Angeles, Cal., for Cairo General Contracting Co.

3

Appeal from the United States District Court for the Central District of California.

4

Petition for Writ of Mandamus to the United States District Court for the Central District of California.

5

Before ANDERSON and PREGERSON, Circuit Judges, and SOLOMON[*], District Judge.

ORDER

6

On the basis of information supplied to the panel and the decision in Fertilizer Corporation of India v. IDI Management, Inc., 530 F.Supp. 542 (S.D.Ohio 1982), we assumed in our previous decision in this case that the International Chamber of Commerce (ICC) would not provide a neutral arbitrator to serve with the parties' partisan arbitrators. ATSA of California, Inc. v. Continental Insurance Co., 702 F.2d 172, 175-76 (9th Cir.1983). Consequently, we concluded that the parties' contractual agreement as to arbitration could not be fully executed. We ordered that, if the parties' partisan arbitrators were unable to agree upon a neutral arbitrator (umpire), the parties would then submit to ICC-supervised arbitration before three neutral arbitrators.

7

Contrary to the information previously available, the papers submitted by the parties on ATSA's petition for a writ of mandamus, filed August 29, 1984, indicate that the ICC will appoint a neutral arbitrator to serve with the parties' partisan arbitrators. The Rules for the ICC Court of Arbitration, art. 2, para. 1, provide that the ICC will appoint or confirm the appointment of neutral arbitrators "[i]nsofar as the parties shall not have provided otherwise...." The ICC Schedule of Conciliation and Arbitration Costs, app. III, para. IV, states: "A registration fee of US $100 is payable by each party if the ICC is called upon to appoint an arbitrator or arbitrators outside the Rules of Arbitration of the ICC." The court is informed that Cairo General Contracting Co. has applied to the ICC for the appointment of a neutral arbitrator to serve with the parties' partisan arbitrators and that the ICC stands ready to provide a neutral arbitrator.

8

As we stated in our previous decision, parties should be allowed "to attempt arbitration as they originally contemplated...." ATSA of California, 702 F.2d at 176; 9 U.S.C. Sec. 5. We previously failed to enforce the parties' contractual agreement--that they would obtain a neutral arbitrator from the ICC to serve with their partisan arbitrators--only because of our misunderstanding about ICC services. We now know that the ICC mechanism exists to carry out the parties' agreement.

9

Accordingly, the petition for a writ of mandamus is denied to the extent that it seeks review of the district court's orders entered May 25, 1983 and July 30, 1984. Moreover, we recall our mandate in Nos. 81-6017 and 81-6026 and amend our decision of March 21, 1983.

10

For paragraph IV of the opinion, we substitute the following:

11

The ATSA-Cairo contract provides that each party will select a partisan arbitrator, who in turn will agree upon a third, neutral arbitrator. If the two partisan arbitrators are unable to agree upon a third, neutral arbitrator, then the parties will apply to the International Chamber of Commerce (ICC) for the appointment of a neutral arbitrator. ATSA correctly contends that the district court exceeded the scope of the arbitration agreement when it ordered nomination of "neutral, disinterested" arbitrators. Under 9 U.S.C. Sec. 5, the parties' method of appointing arbitrators must be followed. Generally, partisan arbitrators are permissible. E.g., Orion Shipping and Trading Co. v. Eastern States Petroleum Corp., 284 F.2d 419, 421 (2d Cir.1960). We conclude that the district court's order must be modified to allow ATSA and Cairo to submit to arbitration as they originally contemplated, i.e., using two partisan arbitrators and one neutral arbitrator. If their partisan arbitrators cannot agree upon a neutral arbitrator, the parties shall then ask the ICC to appoint a neutral arbitrator.

12

For the last paragraph of the opinion, we substitute the following:

13

The district court's order is vacated in part. The case is remanded to the district court for revision of the arbitration order (1) to allow ATSA and Cairo an opportunity to appoint two partisan arbitrators and one neutral arbitrator, provided that if they cannot agree upon a neutral arbitrator, then they shall apply to the ICC for the appointment of a neutral arbitrator, and (2) to remove Abulhassan as a party to the arbitration.

14

The mandate shall issue forthwith in Nos. 81-6017 and 81-6026.

15

The petition for a writ of mandamus is granted with respect to the district court's order entered January 20, 1984. In that order, the district court held that the arbitrators should apply Egyptian law to resolve this commercial dispute. That order is directly contrary to our previous decision in which we stated that "the arbitrator has authority to determine the applicable law." ATSA of California, 702 F.2d at 175. Even at the joint request of the litigants, the district court may not deviate from the mandate of an appellate court. See Commercial Paper Holders v. Hine, 752 F.2d 1334, 1336-38 (9th Cir.1984). Mandamus is an appropriate remedy when such deviation occurs. See General Atomic Co. v. Felter, 436 U.S. 493, 497, 98 S.Ct. 1939, 1941, 56 L.Ed.2d 480 (1978).

16

The district court is directed to vacate its January 20, 1984 order. The arbitrators, and not the district court, have authority to determine the applicable law.

[*~1395]17

OPINION REPORTED AT 702 F.2d 172 AMENDED AS SET FORTH IN THIS ORDER. PETITION FOR WRIT OF MANDAMUS GRANTED IN PART AND DENIED IN PART.

*

The Honorable Gus J. Solomon, United States Senior Judge for the District of Oregon, sitting by designation