McDermott Int'l, Inc. v. Underwriters at Lloyds Subscribing to Memorandum of Ins. No. 104207, 981 F.2d 744 (5th Cir. 1993). · Go Syfert
McDermott Int'l, Inc. v. Underwriters at Lloyds Subscribing to Memorandum of Ins. No. 104207, 981 F.2d 744 (5th Cir. 1993). Cases Citing This Book View Copy Cite
95 citation events (43 in the last 25 years) across 12 distinct courts.
Strongest positive: Orr v. United States District Court for the Central District of California, Riverside (ca9, 2026-06-09) · Strongest negative: Gammaro v. Thorp Consumer Discount Company (ca8, 1994-01-21)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Gammaro v. Thorp Consumer Discount Company (2×) also: Cited as authority (rule)
8th Cir. · 1994 · signal: but see · confidence high
But see Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir.1990). 9 Independent proceedings have been defined as those in which "the only issue before the court is the dispute's arbitrability," McDermott, 981 F.2d at 747 , while embedded proceedings are, in short, all other proceedings in which the question of arbitration arises.
discussed Cited as authority (rule) Orr v. United States District Court for the Central District of California, Riverside
9th Cir. · 2026 · confidence medium
In this context, therefore, the burden of showing an entitlement to mandamus should be “particularly heavy, because Congress has expressly limited interlocutory review of a district court decision on arbitration.” McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir. 1993).
discussed Cited as authority (rule) Noah S. Bunker, Paul Carrell, Everett Brew Houston, Jr., W. Andrew Buchholz, Scott J. Leighty, Jad L. Davis, and Holly Clause v. Tracy D. Strandhagen
Tex. App. · 2015 · confidence medium
Because arbitration is intended to 104207, 981 F.2d 744, 748 (5th Cir. 1993) ("This court provide a lower-cost, expedited means to resolve disputes, has recognized that [mandamus review of an order com- mandamus proceedings will often, if not always, deprive pelling arbitration] may be available [but] McDermott has the parties of an arbitration agreement's intended benefits failed to satisfy [the] demanding standard."). 1 when a compel-and-stay order is at issue; accordingly, courts should be hesitant to intervene.
discussed Cited as authority (rule) Noah S. Bunker, Paul Carrell, Everett Brew Houston, Jr., W. Andrew Buchholz, Scott J. Leighty, Jad L. Davis, and Holly Clause v. Tracy D. Strandhagen
Tex. App. · 2015 · confidence medium
No. 104207, 981 F.2d 744, 748 (5th Cir.1993) (“This court has recognized that [mandamus review of an order compelling arbitration] may be available [but] McDermott has failed to satisfy [the] demanding standard.”). 1 © 2015 Thomson Reuters.
discussed Cited as authority (rule) Western Rim Property Services Inc. v. Paula Bazan-Garcia
Tex. App. · 2014 · confidence medium
No. 104207, S.W.3d 699, 705 (Tex.App.—Tyler2004) (holding that the 981 F.2d 744, 748 (5th Cir.1993) (“This court has recognized FAA preempts “any public policy underlying the Texas that [mandamus review of an order compelling arbitration] workers' compensation statutes that is contrary to the may be available [but] McDermott has failed to satisfy [the] enforceability of arbitration agreements”).
discussed Cited as authority (rule) Navigators Insurance v. Moncla Marine Operations, L.L.C.
5th Cir. · 2014 · confidence medium
The petitioner’s “burden is particularly heavy in the context of mandamus review of a decision to enter a stay pending arbitration, ‘because Congress has expressly limited interlocutory review of a district court decision on arbitration.’ ” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993)).
discussed Cited as authority (rule) Mosaic Underwriting Service v. Moncla 101
5th Cir. · 2014 · confidence medium
The petitioner’s “burden is particularly heavy in the context of mandamus review of a decision to enter a stay pending arbitration, ‘because Congress has expressly limited interlocutory review of a district court decision on arbitration.’” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir. 6 Case: 13-30975 Document: 00512623455 Page: 7 Date Filed: 05/08/2014 No. 13-30975 1993)).
discussed Cited as authority (rule) Patrick McCardell v. Regent Private Capital, L.L.C
5th Cir. · 2013 · confidence medium
Ilva (USA), Inc. v. Alexander’s Daring M/V, 10 F.3d 255, 256 (5th Cir.1993) (per curiam) (citing McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.1993)); see also 9 U.S.C. § 16 (b)(1). 4 .CitiFinancial Corp. v. Harrison, 453 F.3d 245, 250-51 (5th Cir.2006) (holding that an administrative dismissal is not a final decision under the FAA and therefore not appealable); Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir.2004) (same with respect to an administrative closure); S. La.
discussed Cited as authority (rule) Grant v. Houser
E.D. La. · 2011 · confidence medium
No. 104207, 981 F.2d 744, 747-48 (5th Cir.1993) (quoting Forsythe Int’l, S.A. v. Gibbs Oil Co. of Tex., 915 F.2d 1017, 1020 (5th Cir.1990)); see also Bradford-Scott, 128 F.3d at 506 (“Arbitration clauses reflect the parties’ preference for non-judicial dispute resolution, which may be faster and cheaper.”).
discussed Cited as authority (rule) 3M Co. v. Amtex Security, Inc.
8th Cir. · 2008 · confidence medium
See S+L+H, 988 F.2d at 1522-23 ; McDermott Int'l Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.1993) (cases consolidated under § 42(a) became “single judicial unit,” thus order compelling arbitration and staying other proceedings was not final); Middleby Corp. v. Hussmann Corp., 962 F.2d 614, 615 (7th Cir.1992) (district court confirmation of arbitrator’s award without resolving stayed matters was not appealable because judge had consolidated the two actions for all purposes).
discussed Cited as authority (rule) 3M Company v. Amtex Security, Inc.
8th Cir. · 2008 · confidence medium
See S + L + H, 988 F.2d at 1522-23 ; McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993) (cases consolidated under § 42(a) became "single judicial unit," thus order compelling arbitration and staying other proceedings was not final); Middleby Corp. v. Hussmann Corp., 962 F.2d 614, 615 (7th Cir. 1992) (district court confirmation of arbitrator's award without resolving stayed matters was not appealable because judge had consolidated the two actions for all purposes).
discussed Cited as authority (rule) In Re Poly-America, L.P. (2×)
Tex. · 2008 · confidence medium
No. 101207, 981 F.2d 744, 748 (5th Cir.1993) (“This court has recognized that [mandamus review of an order compelling arbitration] may be available [but] McDermott has failed to satisfy [the] demanding standard.”). 1 Although federal precedent in this area is not uniformly clear, it appears a federal court would be permitted — albeit not compelled — to address the merits of the mandamus arguments in this case.
discussed Cited as authority (rule) Brown v. Pacific Life Insurance
5th Cir. · 2006 · confidence medium
The arbitration order amounts to a final disposition in this context and ends the litigation.”); McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746 (5th Cir.1993) (“Generally, if the only issue before the court is the dispute’s arbitrability, ... a court’s decision on that issue constitutes a final decision.”).
cited Cited as authority (rule) Ansari v. Qwest Communications Corp.
10th Cir. · 2005 · confidence medium
No. 104207, 981 F.2d 744, 746-47 (5th.
examined Cited as authority (rule) Apache Bohai Corp. v. Texaco China, B.V. (3×) also: Cited "see"
5th Cir. · 2003 · confidence medium
This burden is particularly heavy in the context of mandamus review of a decision to enter a stay pending arbitration, “because Congress has expressly limited interlocutory review of a district court decision on arbitration.” McDermott Int% Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993).
discussed Cited as authority (rule) In Re: Apache Bohai (2×)
5th Cir. · 2003 · confidence medium
This warranting mandamus.10 burden is particularly heavy in the context of mandamus review of a decision to enter a stay The appeal in No. 02-20489 is pending arbitration, “because Congress has DISMISSED, and the petition for writ of expressly limited interlocutory review of a dis- mandamus in No. 02-21158 is DENIED. trict court decision on arbitration.” McDer- mott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir. 1993).
discussed Cited as authority (rule) American Heritage Life Insurance Company v. Ellis B. Lang
1st Cir. · 2003 · confidence medium
ANALYSIS 11 This Court has jurisdiction over denials of motions to compel arbitration under the Federal Arbitration Act ("FAA"), 9 U.S.C.A. § 16 (a) (West 1999); McDermott Int'l v. Underwriters at Lloyds, 981 F.2d 744, 746-47 (5th Cir.1993).
discussed Cited as authority (rule) American Heritage Life Insurance v. Lang
5th Cir. · 2003 · confidence medium
ANALYSIS This Court has jurisdiction over denials of motions to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C.A. § 16 (a) (West 1999); McDermott Int’l v. Underwriters at Lloyds, 981 F.2d 744, 746-47 (5th Cir.1993).
discussed Cited as authority (rule) Amer Heritage Life v. Henley
5th Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability 3 Appellate review is permitted under the 28 U.S.C. § 1292 (b) exception if the district court certifies an order for immediate appeal. -18- ruling does not end the litigation on the merits, but is considered interlocutory only.’” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993)).
discussed Cited as authority (rule) American Heritage Life Insurance v. Orr (2×)
5th Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability ruling does not end the litigation on the merits, but is considered interlocutory only.’ ” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.1993)).
discussed Cited as authority (rule) Amer Heritage Life v. Martin
5th Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability 3 Appellate review is permitted under the 28 U.S.C. § 1292 (b) exception if the district court certifies an order for immediate appeal. -18- ruling does not end the litigation on the merits, but is considered interlocutory only.’” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993)).
discussed Cited as authority (rule) Amer Heritage Life v. Moore
5th Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability 3 Appellate review is permitted under the 28 U.S.C. § 1292 (b) exception if the district court certifies an order for immediate appeal. -18- ruling does not end the litigation on the merits, but is considered interlocutory only.’” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993)).
discussed Cited as authority (rule) Amer Heritage Life v. Sanford
5th Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability 3 Appellate review is permitted under the 28 U.S.C. § 1292 (b) exception if the district court certifies an order for immediate appeal. -18- ruling does not end the litigation on the merits, but is considered interlocutory only.’” Id. (quoting McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993)).
discussed Cited as authority (rule) American Heritage Life Insurance Company v. John D. Orr
1st Cir. · 2002 · confidence medium
If, however, the case includes other claims for relief, an arbitrability ruling does not end the litigation on the merits, but is considered interlocutory only.'" Id. (quoting McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.1993)). 60 In Green Tree, the Court established a different analytical framework for determining whether an arbitration order is an appealable "final decision" or an unappealable "interlocutory order." "The Court held that an order dismissing an entire action with prejudice and ordering arbitration is an appealable final decision under § 16(a)(3…
cited Cited as authority (rule) Lebanon Chemical Corp. v. United Farmers Plant Food, Inc.
8th Cir. · 1999 · confidence medium
See id.; Pisgah Contractors, 117 F.3d at 135-36 ; McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993).
cited Cited as authority (rule) United States Court of Appeals, Eighth Circuit
8th Cir. · 1999 · confidence medium
See id.; Pisgah Contractors, 117 F.3d at 135-36; McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993).
cited Cited as authority (rule) M & C Corp. v. Erwin Behr GMBH & Co.
6th Cir. · 1998 · confidence medium
No. 104207, 981 F.2d 744, 747 (5th Cir.1993).
discussed Cited as authority (rule) M & C Corporation v. Erwin Behr Gmbh & Co., Kg
6th Cir. · 1998 · confidence medium
No. 104207, 981 F.2d 744, 747 (5th Cir.1993). 21 Even adopting the approach used by other circuits, the district court's order cannot be said to be "embedded" because the clarification sought by the district court served solely to ensure an accurate execution of the eighth award--the substance of which had already been determined by the arbitrator.
discussed Cited as authority (rule) Ermenegildo Zegna Corporation and Lanificio Ermenegildo Zegna, S.P.A. v. Lanificio Mario Zegna, S.P.A., Sespi Sette Spighe, S.P.A. And Romeo Fashions
2d Cir. · 1998 · confidence medium
See Filanto, 984 F.2d at 60 & n. 2; McDermott Int'l, Inc. v. Underwriters at Lloyds Subscribing to Memorandum of Insurance No. 104207, 981 F.2d 744, 746-48 (5th Cir.) (dismissing appeal of pro-arbitration order in an embedded case), cert. denied, 508 U.S. 951 , 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993); Perera v. Siegel Trading Co., 951 F.2d 780, 784-86 (7th Cir.1992) (same).
discussed Cited as authority (rule) McDermott Inernational, Inc. v. Lloyds Underwriters of London (2×) also: Cited "see"
5th Cir. · 1997 · confidence medium
We rely in part on the statement of facts set forth in McDermott I, 944 F.2d at 1201 and McDermott II, 981 F.2d at 746. 3 .
discussed Cited as authority (rule) Insurance Co. of North America v. NGC Settlement Trust & Asbestos Claims Management Corp.
5th Cir. · 1997 · confidence medium
No. 104207, 981 F.2d 744, 746-47 (5th Cir. 1993) (quoting Forsythe Int’l, S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1020 (5th Cir.1990)); see also American Cas.
cited Cited as authority (rule) Matter of National Gypsum Co.
5th Cir. · 1997 · confidence medium
No. 104207, 981 F.2d 744, 746-47 (5th Cir.1993) (quoting Forsythe Int'l, S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1020 (5th Cir.1990)); see also American Cas.
discussed Cited as authority (rule) Dakota Wesleyan University v. HPG International, Inc. (2×)
S.D. · 1997 · confidence medium
McDermott Int’l, Inc., v. Underwriters at Lloyd’s, 981 F.2d 744, 747 (5thCir.), cert. denied, 508 U.S. 951 , 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993); Filanto, 984 F.2d at 60 ; Stedor Enters.
examined Cited as authority (rule) F.C. Schaffer & Associates, Inc. v. Demech Contractors, Ltd. (4×)
5th Cir. · 1996 · confidence medium
No. 104207, 981 F.2d 744, 747 (5th Cir.) (citations omitted), cert. denied, 508 U.S. 951 , 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993). 9 Demech argues that this court lacks jurisdiction because Schaffer's preliminary injunction motion raised the issue of arbitrability in an embedded proceeding.
discussed Cited as authority (rule) Altman Nursing, Inc. v. Clay Capital (2×)
5th Cir. · 1996 · confidence medium
McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746-47 (5th Cir.), cert. denied, 508 U.S. 951 , 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993).
discussed Cited as authority (rule) Maye v. Smith Barney Inc.
S.D.N.Y. · 1995 · confidence medium
Arnold v. Arnold Corporation, 920 F.2d 1269 , 1274 (6th Cir.1990); See also, American Casualty Company of Reading Pennsylvania v. L-J, Inc., 35 F.3d 133 , 135 n. 3 (4th Cir.1994); Filanto, S.P.A. v. Chilewich International Corp., 984 F.2d at 60 n. 2; McDermott International Inc. v. Underwriters at Lloyds Subscribing to Memorandum of Insurance No. 101207, 981 F.2d 744, 746-747 (5th Cir.1993); Sierra Rutile Limited v. Katz, 937 F.2d 743, 748 (2d Cir.1991); Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 867 F.2d 1518, 1520 (5th Cir.1989).
discussed Cited as authority (rule) Khairy Aref, Dr. And Kea Consulting Engineers, Inc. Knbs Consulting & Civil Engineers v. Arab Republic of Egypt John Bentley Mohammed Sakr Kamel Law Offices, Khairy Aref Knbs Consulting & Civil Engineers Kea Consulting Engineers, Inc. v. Arab Republic of Egypt John Bentley Mohammed Sakr Kamel Law Offices
9th Cir. · 1994 · confidence medium
In the first situation, sometimes referred to as an 'embedded' proceeding[,] ... [t]he statute appears to cover all the various possible 'embedded' situations and allows an immediate appeal only from decisions against arbitration."); Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8th Cir.1994); Humphrey v. Prudential Sec., 4 F.3d 313 , 319 (4th Cir.1993); McDermott Int'l v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993) 2 The district court did not violate our mandate in Aref v. Arab Republic of Egypt, 892 F.2d 1045 (9th Cir.1989) (unpublished memorandum decision at 1989 WL …
discussed Cited as authority (rule) Gathe v. Cigna Healthplan of Texas, Inc. (2×)
Tex. App. · 1994 · confidence medium
Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 476 , 109 S.Ct. 1248, 1254 , 103 L.Ed.2d 488 (1989); McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746 (5th Cir.1993); Jack B.
cited Cited as authority (rule) Freis v. Canales
Tex. · 1994 · confidence medium
McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993).
discussed Cited as authority (rule) Gammaro v. Thorp Consumer Discount Co.
8th Cir. · 1994 · confidence medium
Inc., 4 F.3d 313 , 317, 318 (4th Cir.1993); McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir.), cert. denied, — U.S. ——, 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993); Perera v. Siegel Trading Co., 951 F.2d 780, 784 (7th Cir.1992).
cited Cited as authority (rule) ANTHONY NICHOLAS GEORGIOU; TILLER INTERNATIONAL LIMITED v. MOBIL EXPLORATION AND PRODUCING SERVICES INC U.S., ETC; ET AL
unknown court · confidence medium
No. 104207, 981 F.2d 744, 747 (5th Cir. 1993) (further internal quotation marks omitted)).
cited Cited "see" Sanchez v. Marathon Oil Company
5th Cir. · 2021 · signal: see · confidence high
See McDermott Intern, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir. 1993). 4
cited Cited "see" United States v. Mulderig
5th Cir. · 1997 · signal: see · confidence high
See McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993).
cited Cited "see" Ilva (USA), Inc. v. Alexander's Daring M/V
5th Cir. · 1993 · signal: see · confidence high
See McDermott, 981 F.2d at 747 .
cited Cited "see" Ilva (Usa), Inc. v. Alexander's Daring M/v, Its Engines, Tackle, Radios, Furniture, Fixtures, Gear, Apparel, Appurtenances, Etc.
5th Cir. · 1993 · signal: see · confidence high
See McDermott, 981 F.2d at 747 .
discussed Cited "see" UNITED STATES of America v. William MULDERIG
unknown court · signal: see · confidence high
See McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993). 11 In this case, Mulderig did not seek a writ of mandamus until almost three months after the district court declined to exercise jurisdiction over Mulderig's third, post-conviction motion for judgment of acquittal or new trial and approximately two months after Mulderig was sentenced.
cited Cited "see" UNITED STATES OF AMERICA v. WILLIAM MULDERIG
unknown court · signal: see · confidence high
See McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir. 1993).
cited Cited "see" NATALIE F. HIMES v. DALLAS/FORT WORTH MEDICAL CENTER-GRAND PRAIRIE; ET AL
unknown court · signal: see · confidence high
See McDermott Int’l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746 (5th Cir. 1993), and Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 770 (5th Cir. 1996).
discussed Cited "see, e.g." Sphere Drake Insurance Plc v. Marine Towing, Inc.
5th Cir. · 1994 · signal: see also · confidence medium
The Fed *668 eral Arbitration Act prohibits appeals from interlocutory orders compelling arbitration, but permits appeals from final orders compelling arbitration. 9 U.S.C.A. § 16 (a)(3) & (b)(3) (West Supp.1993); see also McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993).
discussed Cited "see, e.g." Sphere Drake Ins. PLC v. Marine Towing, Inc.
5th Cir. · 1994 · signal: see also · confidence medium
The Federal Arbitration Act prohibits appeals from interlocutory orders compelling arbitration, but permits appeals from final orders compelling arbitration. 9 U.S.C.A. § 16 (a)(3) & (b)(3) (West Supp.1993); see also McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 746 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2442 , 124 L.Ed.2d 660 (1993).
Retrieving the full opinion text from the archive…
McDERMOTT INTERNATIONAL, INC., Plaintiff-Appellant,
v.
UNDERWRITERS AT LLOYDS SUBSCRIBING TO MEMORANDUM OF INSURANCE NO. 104207, Defendant-Appellee
92-3622.
Court of Appeals for the Fifth Circuit.
Jan 6, 1993.
981 F.2d 744
1993 U.S. App. LEXIS 121
1993 WL 1867
Arden J. Lea, Joseph P. Tynan, Lea, Plavnicky & Moseley, John V. Baus, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for plaintiff-appellant., John E. Galloway, Robert C. Corn, Galloway, Johnson, Tompkins & Burr, New Orleans, LA, for amicus curiae., Luther T. Munford, Phelps Dunbar, Jackson, MS, Harry S. Redmon, Jr., Gerardo R. Barrios, Danny Shaw, James H. Roussel, Phelps Dunbar, New Orleans, LA, for Underwriters., Donald Hoffman, Ann Marie LeBlanc, Paul J. Politz, Hoffman, Sutterfield, Ensen-at & Bankston, New Orleans, LA, for Max-on Young., George W. Renaudin, William Harrison, Griggs & Harrison, Houston, TX, for Certain Underwriters.
Jones, Barksdale.
Cited by 65 opinions  |  Published
BARKSDALE, Circuit Judge:

The determinative starting point for this appeal by McDermott International, Inc., is whether the district court orders compelling arbitration of McDermott’s dispute with certain Underwriters at Lloyds and staying litigation pending arbitration are interlocutory, not final. Because we hold that they are the former, and because § 16 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., prohibits appeal from such orders, we DISMISS for lack of jurisdiction. Like[*746] wise, we DENY the alternative application for a writ of mandamus.

I.

McDermott, a Panamanian corporation headquartered in Orleans Parish, had an insurance policy with Underwriters that covered the operations of one of McDer-mott’s subsidiaries. The policy required arbitration of “[a]ll differences arising out of this contract”. In 1989, the subsidiary’s property was damaged; and McDermott submitted a policy claim. Maxson Young Associates, Inc., was retained to adjust the loss. Underwriters denied coverage, and this litigation ensued.

Beginning in late 1990, McDermott filed two actions in Louisiana state court against Underwriters: one for contract damages; the other for a declaratory judgment to block arbitration sought by Underwriters. Invoking the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201 et seq., Underwriters removed both actions to federal district court, where they were consolidated.

The district court remanded the cases to state court, holding that a service-of-suit clause in the policy waived Underwriters’ removal rights; but this court vacated that order. McDermott Int'l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199 (5th Cir.1991). Three additional actions were consolidated into the action: a state court suit, removed through diversity, by McDermott against the adjuster, Young, alleging that an unauthorized coverage letter contractually obligated Young to pay for the loss; and two diversity actions by Underwriters against Young, seeking indemnification for any damages awarded McDermott against Underwriters.

Underwriters’ motion to compel arbitration and stay litigation pending arbitration was granted in February 1992. The stay extended not only to the parties to the arbitration agreement, but also to those parties and claims not subject to arbitration.

II.

A.

Because this appeal turns on jurisdiction, we do not reach the issues raised by McDermott — essentially, whether compelling arbitration was erroneous. Underwriters contends that we lack jurisdiction, maintaining that appeal from the district court’s orders is barred by § 16 of the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. That section, 9 U.S.C. § 16, governs appellate jurisdiction over orders affecting arbitration, whether issued under the FAA or the Convention. [2] See 9 U.S.C. § 208.

The FAA manifests a “liberal federal policy favoring arbitration”. Gilmer v. Interstate/Johnson Lane Corp., — U.S. —, —, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Section 16 promotes this policy “by permitting interlocutory appeals of orders favoring litigation over arbitration and precluding review of interlocutory or[*747] ders that favor arbitration.” Forsythe Int'l, S.A. v. Gibbs Oil Co. of Texas, 915 F.2d 1017,1020 (5th Cir.1990). It “does not solely favor the arbitration process, [however,] because appeals may still be taken from final judgments concerning arbitration or pursuant to a 28 U.S.C. § 1292(b) certificate.” Turboff v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 867 F.2d 1518, 1520 (5th Cir.1989); 9 U.S.C. §§ 16(a)(3) & (b). [3]

The orders staying the litigation and compelling arbitration, if interlocutory, clearly fall under § 16(b), which prohibits appeals from orders “granting a stay of any action under section 3 of this title” and “compelling arbitration under section 206 of this title”. 9 U.S.C. §§ 16(b)(1) & (b)(3). As noted, if final, § 16(a)(3) allows appeal. Therefore, at issue is whether the orders are interlocutory or final.

An order is considered final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). [4] In determining whether an order affecting arbitration is final or interlocutory, most courts distinguish between arbitration actions that are “independent” and those that are “embedded” among other claims. Generally, if the only issue before the court is the dispute’s arbitrability, the action is considered independent and a court’s decision on that issue constitutes a final decision. See, e.g., Matter of Chung and President Enters. Corp., 943 F.2d 225, 228 (2d Cir.1991). If, however, the case includes other claims for relief, an arbitrability ruling does not “end the litigation on the merits”, but is considered interlocutory only. See, e.g., Construction Laborers Pension Trust v. Cen-Vi-Ro Concrete Pipe & Prods. Co., Inc., 776 F.2d 1416, 1420 n. 5 (9th Cir.1985); Wilson Wear, Inc. v. United Merchants. & Mfrs., Inc., 713 F.2d 324, 326 (7th Cir.1983); Langley v. Colonial Leasing Co. of New England, 707 F.2d 1, 4 (1st Cir.1983). Although this circuit has never been called upon to apply the distinction, it has acknowledged its existence. See Jolley v. Paine Webber Jackson & Curtis, Inc., 864 F.2d 402, 405 & n. 3 (5th Cir.) supplemented, 867 F.2d 891 (5th Cir.1989).

McDermott maintains that the decision was final in its own “judicial context”, [5] because the only jurisdictional basis for the original suit’s removal to federal court was the question of arbitrability under the Convention. It denies the relevance of both the state law claims raised in the original suit and the other suits that were later consolidated with it. On the other hand, Underwriters asserts that because the arbitrability issue is embedded among other claims, the district court’s decision cannot be deemed to have ended the litigation on the merits.

We agree with Underwriters. When the cases were consolidated pursuant to Fed. R.Civ.P. 42(a), they became a single judicial unit, as described in Road Sprinkler Fitters Local Union v. Continental Sprinkler Co., 967 F.2d 145, 151 (5th Cir.1992). The consolidation orders broadly indicated that the cases were being consolidated “for disposition” because they grew out of the same factual situation. As in Road Sprinkler, “[tjhere is no indication that the district court consolidated the cases only for limited purposes.” Id. Furthermore, at least some of the suits could have been brought as a single action originally, and all are “based largely on the same operative facts.” See id.

[*748] Because the interpretation urged by McDermott ignores the broad scope of the consolidation orders, we hold that the finality of the arbitration decision depends upon the present posture of the case, not on the narrow context in which the arbitrability question first arose. Accord, Middleby Corp. v. Hussman Corp., 962 F.2d 614, 615 (7th Cir.1992) (stating that where two suits were consolidated for all purposes under Fed.R.Civ.P. 42(a), only a “final decision on the full proceeding” is considered final under 28 U.S.C. § 1291). Therefore, we do not address whether the orders would have been considered final absent the consolidation.

Fifth Circuit precedent firmly establishes that, in pending, nonindependent suits, an order compelling arbitration accompanied by a stay of the proceedings pending arbitration is not a final decision for purposes of § 16(a)(3). See Turboff, 867 F.2d at 1520-21; Purdy v. Monex Int’l, Ltd., 867 F.2d 1521, 1523 (5th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 180, 107 L.Ed.2d 136 (1989). Although presently stayed, the indemnification claims between Underwriters and Young remain pending before the district court, and will have to be addressed following arbitration. And, McDermott’s claim against Young, based on the alleged unauthorized coverage letter, also awaits resolution. Additionally, further proceedings between McDermott and Underwriters will be required not only to confirm an arbitral award, but also to determine the effect of arbitration on McDermott’s original contract claims against Underwriters. See Jolley, 864 F.2d at 405. With these matters still pending, the district court’s orders clearly did not “end[ ] the litigation on the merits and leave[] nothing for the court to do but execute the judgment.” Catlin, 324 U.S. at 233, 65 S.Ct. at 633.

Because the district court’s orders were interlocutory, not final, appeal is barred by § 16(b).

B.

Alternatively, McDermott urges us to review the orders under an application for a writ of mandamus. [6] This court has recognized that such review may be available. See Turboff, 867 F.2d at 1520 n. 5. But, needless to say, the writ is an extraordinary remedy, reserved for extraordinary situations. Gulfstream Aerosyace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988). Traditionally, federal courts have exercised their mandamus power only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Id. at 289, 108 S.Ct. at 1143 (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). The party seeking mandamus has the burden of demonstrating a “clear and indisputable” right to it. See Gulfstream, 485 U.S. at 289, 108 S.Ct. at 1143 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)). Here, that burden is particularly heavy, because Congress has expressly limited interlocutory review of a district court decision on arbitration.

McDermott has failed to satisfy this most demanding standard. The district court did not clearly overstep its authority when it granted the order compelling arbitration and stayed further proceedings pending that arbitration. Moreover, it is more than well settled that a writ of mandamus is not to be used as a substitute for appeal, see In re Cajun Elec. Power Co-Op., Inc., 791 F.2d 353, 365-66 (5th Cir.1986); and we see no reason why all issues presented in this appeal cannot be raised in an appeal after the arbitration is completed and a final judgment entered.

III.

Congress has forbidden the appeal of interlocutory orders favoring arbitration, intending that the parties first submit to[*749] arbitration. Accordingly, this appeal is DISMISSED and the application for a writ of mandamus DENIED.

2

. Section 16 provides:

(a) An appeal may be taken from—
(1) an order—
(A) refusing a stay of any action under section 3 of this title,
(B) denying a petition under section 4 of this title to order arbitration to proceed,
(C) denying an application under section 206 of this title to compel arbitration,
(D) confirming or denying confirmation of an award or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or
(3)a final decision with respect to an arbitration that is subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—
(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.

9 U.S.C. § 16.

3

. Permissive § 1292(b) jurisdiction is not before us. The district court declined to so certify this matter.

4

. Because § 16 does not define "interlocutory" and "final”, we look for guidance to cases interpreting those terms in the context of 28 U.S.C. § 1291. See, e.g., Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 867 F.2d 1518,1520 (5th Cir.1989) (relying on the finality determination reached by “a slightly different path” in a pre-§ 16 case, Jolley v. Paine Webber Jackson & Curtis, Inc., 864 F.2d 402 (5th Cir.), supplemented, 867 F.2d 891 (5th Cir.1989)).

5

.In support of its argument, McDermott quotes Siegel, Appeals from Arbitrability Determinations Under the New § 15 of the U.S. Arbitration Act, 126 F.R.D. 589, 591 (1989). (Section 16 was formerly 15.)

6

. A separate petition for the writ (No. 92-3621) was denied by a motions panel of this court on July 28, 1992. That panel noted, however, that the alternative request for mandamus contained in McDermott's appellate brief would be considered with the appeal. We now consider that request.