Altman Nursing, Inc. v. Clay Capital, 84 F.3d 769 (5th Cir. 1996). · Go Syfert
Altman Nursing, Inc. v. Clay Capital, 84 F.3d 769 (5th Cir. 1996). Cases Citing This Book View Copy Cite
53 citation events (12 in the last 25 years) across 10 distinct courts.
Strongest positive: Randolph v. Green Tree Financial (ca11, 1999-06-22)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Randolph v. Green Tree Financial (3×) also: Cited as authority (rule)
11th Cir. · 1999 · quote attribution · 1 verbatim quote · confidence high
an order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.
examined Cited as authority (verbatim quote) Randolph v. Green Tree Financial Corp. (3×) also: Cited as authority (rule)
11th Cir. · 1999 · quote attribution · 1 verbatim quote · confidence high
an order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.
discussed Cited as authority (rule) Western Rim Property Services Inc. v. Paula Bazan-Garcia
Tex. App. · 2014 · confidence medium
See, e.g., Seacoast Motors of Salisbury, Inc. v. Chrysler Corp., 143 F.3d 626 , 628–629 (C.A.1 1998); Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (C.A.5 1996); Napleton v. General Motors Corp., 138 F.3d 1209, 1212 (C.A.7 1998); Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (C.A.8 1994); McCarthy v. Providential Corp., 122 F.3d 1242, 1244 (C.A.9 1997).
discussed Cited as authority (rule) American Heritage Life Insurance v. Orr (2×)
5th Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996).
discussed Cited as authority (rule) Amer Heritage Life v. Moore
5th Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996).
discussed Cited as authority (rule) Amer Heritage Life v. Sanford
5th Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996).
discussed Cited as authority (rule) Amer Heritage Life v. Henley
5th Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996).
discussed Cited as authority (rule) Amer Heritage Life v. Martin
5th Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996).
discussed Cited as authority (rule) American Heritage Life Insurance Company v. John D. Orr
1st Cir. · 2002 · confidence medium
An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final." Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir.1996).
discussed Cited as authority (rule) Green Tree Financial Corp.-Alabama v. Randolph (2×)
SCOTUS · 2000 · confidence medium
See, e. g., Seacoast Motors of Salisbury, Inc. v. Chrysler Corp., 143 F. 3d 626, 628-629 (CA1 1998); Altman Nursing, Inc. v. Clay Capital Corp., 84 F. 3d 769, 771 (CA5 1996); Napleton v. General Motors Corp., 138 F. 3d 1209, 1212 (CA7 1998); Gammaro v. Thorp Consumer Discount Co., 15 F. 3d 93, 95 (CA8 1994); McCarthy v. Providential Corp., 122 F. 3d 1242, 1244 (CA9 1997).
discussed Cited as authority (rule) Bustos v. Primerica Financial
5th Cir. · 2000 · confidence medium
An arbitration ruling arises in an “embedded” proceeding when it “arises in a suit in which one party or the other seeks some relief other than an order requiring or prohibiting arbitration.” Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 770-71 (5th Cir. 1996).
discussed Cited as authority (rule) Simmons Co. v. Deutsche Financial Services Corp. (2×)
Ga. Ct. App. · 2000 · confidence medium
Altman Nursing v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir.1996).
discussed Cited as authority (rule) James J. Cook Christiane a.cook v. William C. Erbey Ocwen Financial Corp.
9th Cir. · 2000 · confidence medium
See Seacoast Motors of Salisbury, Inc. v. Chrysler Corp., 143 F.3d 626, 628-29 (1st Cir.), cert. denied, 525 U.S. 965, 119 S.Ct. 410 , 142 L.Ed.2d 333 (1998); Napleton v. General Motors Corp., 138 F.3d 1209 , 1212 (7th Cir.), cert. denied, 525 U.S. 931 , 119 S.Ct. 341 , 142 L.Ed.2d 281 (1998); Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir. 1996); Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8th Cir. 1994).
discussed Cited as authority (rule) Napleton v. General Motors Corporation
7th Cir. · 1998 · confidence medium
See, e.g., In re Pisgah Contractors, Inc., 117 F.3d 133 , 136 (4th Cir.1997) ("The issue of whether an order compelling arbitration may be immediately appealed as a 'final decision,' then, depends on whether the order was issued in an 'independent' action ... or ... an 'embedded' action...."); Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir.1996) ("The appropriate test of finality is whether the order involved an independent or embedded proceeding.
discussed Cited as authority (rule) Seacoast v. Chrysler
1st Cir. · 1998 · confidence medium
Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 46 (3d Cir. 1991) (finding jurisdiction to review an arbitration order on the basis that "the district court's dismissal of [the] action plainly signifies that th[e] arbitration is not a part of any ongoing proceeding"); see also Arnold v. Arnold Corp., 920 F.2d 1269, 1276 (6th Cir. 1990) (discerning in the FAA's legislative history an intention to abrogate the distinction between embedded and independent proceedings and to "allow[] appeals from final decisions affecting arbitration whether or not they direct or refuse to direct arbitration," an…
discussed Cited as authority (rule) Seacoast Motors of Salisbury, Inc. v. Chrysler Corp.
1st Cir. · 1998 · confidence medium
Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 46 (3d Cir.1991) (finding jurisdiction to review an arbitration order on the basis that “the district court’s dismissal of [the] action plainly signifies that th[e] arbitration is not a part of any ongoing proceeding”); see also Arnold v. Arnold Corp., 920 F.2d 1269 , 1276 (6th Cir.1990) (discerning in the FAA’s legislative history an intention to abrogate the distinction between embedded and independent proceedings and to “allow[ ] appeals from final decisions affecting arbitration whether or not they direct or refuse to direct arbitr…
discussed Cited as authority (rule) Napleton v. General Motors Corp.
7th Cir. · 1998 · confidence medium
See, e.g., In re Pisgah Contractors, Inc., 117 F.3d 133, 136 (4th Cir. 1997) (“The issue of whether an order compelling arbitration may be immediately appealed as a ‘final decision,’ then, depends on whether the order was issued in an ‘independent’ action ... or ... an ‘embedded’ ac-tion____”); Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 771 (5th Cir.1996) (“The appropriate test of finality is whether the order involved an independent or embedded proceeding.
examined Cited as authority (rule) INTERDRILL, INC v. BEAR STEARNS SECURITIES CORP.; BEAR STEARNS & CO (3×) also: Cited "see"
unknown court · confidence medium
An arbitration issue arises in an embedded proceeding when it “arises in a suit in which one party or the other seeks some relief other than an order requiring or prohibiting arbitration (typically some relief concerning the merits of the allegedly arbitrable dispute).” Id. at 770-71 (quotations omitted).
examined Cited "see" WESTINGHOUSE POWER GENERATION, A DIVISION OF CBS CORPORATION v. SABAH SHIPYARD SDN. BHD., ET AL (4×)
unknown court · signal: see · confidence high
See id. at 770 .
discussed Cited "see" ANTHONY NICHOLAS GEORGIOU; TILLER INTERNATIONAL LIMITED v. MOBIL EXPLORATION AND PRODUCING SERVICES INC U.S., ETC; ET AL
unknown court · signal: see · confidence high
See Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 770-71 (5th Cir. 1996); McDermott, 981 F.2d at 747-48 ; Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 867 F.2d 1518, 1520-21 (5th Cir. 1989).
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." In Re Pisgah Contractors, Incorporated, Debtor. Pisgah Contractors, Incorporated v. Martin L. Rosen, and Wife, Doris R. Rosen, in Re Pisgah Contractors, Incorporated, Debtor. Pisgah Contractors, Incorporated v. Martin L. Rosen, and Wife, Doris R. Rosen (2×)
4th Cir. · 1997 · signal: see also · confidence medium
Since the district court's order in this case favored arbitration over litigation, by directing that arbitration proceed, our task is to determine whether the district court's order in this case falls within either of these two possible exceptions or bases for jurisdiction. 14 In addressing whether a particular order represents a "final decision" with respect to an arbitration, we have stated that "[a]n order compelling arbitration is final when it results from a proceeding in which the sole issue before the district court is the arbitrability of the dispute." Id. (emphasis added); see also Al…
discussed Cited "see, e.g." Pisgah Contractors, Inc. v. Rosen (2×)
4th Cir. · 1997 · signal: see also · confidence medium
In addressing whether a particular order represents a “final decision” with respect to an arbitration, we have stated that “[a]n order compelling arbitration is final when it results from a proceeding in which the sole issue before the district court is the arbitrability of the dispute.” Id. (emphasis added); see also Altman Nursing, Inc. v. Clay Capital Corp., 84 F.3d 769, 770-71 (5th Cir.1996) (an order concerning arbitration is “independent” and, therefore, “final” where the only issue before the court is the dispute’s arbitrability); Prudential Ins.
Retrieving the full opinion text from the archive…
Altman Nursing, Inc.
v.
Clay Capital
95-10816.
Court of Appeals for the Fifth Circuit.
Jun 7, 1996.
84 F.3d 769
JERRY E. SMITH, Circuit Judge:

Altman Nursing, Inc. (“Altman”), appeals an order requiring arbitration both of its claims against Clay Capital and of Clay’s counterclaims. Concluding that the order is not final, we dismiss the appeal for want of jurisdiction.

I.

Altman and Clay entered into a stock purchase agreement containing an arbitration clause. When a dispute arose concerning Altman’s obligations under the agreement, Altman filed various claims in the district court but did not seek to compel arbitration.

Clay responded by filing various counterclaims and moving to compel arbitration pursuant to the agreement. The district court granted Clay’s motion and ordered all claims submitted to arbitration. Altman appealed.

II.

Clay maintains that we should dismiss the appeal because the motion to compel arbitration was an “embedded” proceeding, and there can be no interlocutory appeal from an embedded proceeding. The Arbitration Act, codified as amended at 9 U.S.C. §§ 1-16, governs appellate jurisdiction over orders compelling arbitration:

(a) An appeal may be taken from—
(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. Thus, an order compelling arbitration is appealable only if it is a final order. Interlocutory orders compelling arbitration are not appealable. 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).

Most courts determine whether an order compelling arbitration is final or interlocutory by looking to whether the arbitration claim is “independent” or is “embedded” in other proceedings. Id. at 747. An independent proceeding is one in which “the only issue before the court is the dispute’s arbitrability.” Id.; see also Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8th Cir.1994) (quoting McDermott). An embedded claim, on the other hand, arises in a suit in which “one party or the other seeks ‘some relief other than an order requiring or pro[*771] hibiting arbitration (typically some relief concerning the merits of the allegedly arbitrable dispute).’” Id. (quoting Filanto, S.P.A., v. Chilewich Int’l Corp., 984 F.2d 58, 60 (2d Cir.1993)).

The claim for arbitration in this case is an embedded one, as Altman concedes: The parties not only seek to compel arbitration, but also seek relief on a number of underlying claims. Altman contends that the arbitration order is nonetheless a final order, because it completely ended litigation and sent all claims to arbitration. Altman relies on Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir.1990), which held that an arbitration order was final, though it involved an embedded claim, because it “dismisse[d] an action in deference to arbitration and enter[ed] a final judgment.” Id. at 1275 (quotations omitted).

We disagree. The appropriate test of finality is whether the order involved an independent or embedded proceeding. An order involving an embedded proceeding is always an interlocutory order; an order involving an independent claim is always final. In reaching this conclusion, we are persuaded both by our own statements in McDermott and by the decisions of our fellow courts of appeals.

McDermott did not explicitly hold that there can never be an interlocutory appeal from an embedded proceeding. It did, however, strongly suggest that conclusion:

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. 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.

981 F.2d at 747 (citations and internal quotations omitted). In fact, a number of other courts have cited McDermott in holding that orders involving embedded proceedings are not appealable under the Arbitration Act. See, e.g., Gammaro, 15 F.3d at 95; Filanto, 984 F.2d at 60.

We are also persuaded by the fact that the overwhelming majority of other circuits to address this issue have concluded that there can be no interlocutory appeal from an embedded proceeding. [1] Only the Sixth Circuit, in Arnold, has reached a different conclusion. [2] But Arnold looked to the legislative history of section 16 of the Arbitration Act to find the meaning of “final decision.” We believe this approach was wrong for the reasons stated by the Seventh Circuit in Perera:

“Final decision” is a legal term of art traditionally used to distinguish appealable and nonappealable lower court decisions under 28 U.S.C. § 1291 — the general provision governing appellate jurisdiction. Judicial decisions have given meaning to this term of art. Section 16 does not define the term “final decision,” nor does it indicate an intent to change the preexist ing judicial interpretation of this term of art. As such, we can assume that by using a term of art Congress intended to retain its preexisting meaning. Moreover, [as][*772] section 16 uses very specific language to change the prior law regarding the appeal-ability of interlocutory decisions disfavoring arbitration, 9 U.S.C. § 16(a)(l)(A-C), it seems that Congress would have been equally specific if it had intended to change the preexisting interpretation of “final decision.”

951 F.2d at 783-84 (citations omitted).

Accordingly, we conclude that an order requiring arbitration in an embedded proceeding is interlocutory and hence not ap-pealable under the Arbitration Act. Because this proceeding is an embedded one, we conclude that we lack jurisdiction to hear the appeal.

The appeal is DISMISSED.

1

. See, e.g., Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir.1994) ("if the motion to compel arbitration is 'embedded' in a substantive suit pending before the court, the district court's decision to compel arbitration ... is not considered to be final, and therefore not reviewable”); Adair Bus Sales v. Blue Bird Corp., 25 F.3d 953, 955 (10th Cir.1994) (adopting view "that an order can only be final within the meaning of § 16(a)(3) and therefore immediately appealable if arbitrability is the sole issue before the district court”); Gammaro, 15 F.3d at 95 (appellate courts do not have jurisdiction to hear appeals from embedded proceedings); Humphrey v. Prudential Sec. Inc., 4 F.3d 313, 317 (4th Cir.1993) ("An order compelling arbitration is final when it results from a proceeding in which the sole issue before the district court is the arbitrability of the dispute.”); Filanto, 984 F.2d at 60 ("If the suit is ‘embedded!)]' • • • orders directing arbitration are not immediately appealable.”); Perera v. Siegel Trading Co., 951 F.2d 780, 785 (7th Cir.1992) (“|T]his court finds arbitration orders final if arbitration is the sole issue before the court and interlocutory if raised in an embedded proceeding.”).

2

. See Arnold, 920 F.2d at 1275 ("[A] final order is one which dismisses 'an action in deference to arbitration’ and enters a final judgment.”).