McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co.

849 F.2d 761
CourtCourt of Appeals for the Second Circuit
DecidedJune 15, 1988
DocketNos. 366, 369, 370, Dockets 87-7606, 87-7608, 87-7610
StatusPublished
Cited by16 cases

This text of 849 F.2d 761 (McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 849 F.2d 761 (2d Cir. 1988).

Opinion

MESKILL, Circuit Judge:

This is an appeal from an order entered in the United States District Court for the Southern District of New York, Conner, J, denying the motion of defendant-appellant Pennsylvania Power & Light Co. (PP & L) for a stay of proceedings pending compelled arbitration. We must first decide whether, in light of the Supreme Court’s recent decision overruling the so-called En-elow-Ettelson doctrine, see Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S.-,---, 108 S.Ct. 1133, 1136-1143, 99 L.Ed.2d 296 (1988), we still have appellate jurisdiction to review Judge Conner’s order. We conclude that we do not have jurisdiction. Therefore, we dismiss the appeal and remand to the district court to consider whether, in the unique circumstances of this case, the order at issue should be certified for immediate appeal pursuant to 28 U.S.C. § 1292(b) (1982 & Supp. III 1985).

BACKGROUND

This case is a consolidation of three separate lawsuits filed in the district court against PP & L, a public utility that raises capital in part through the issuance of preferred shares of stock. The plaintiffs-ap-pellees are numerous institutional investors who held preferred shares issued by PP & L at the time these actions were initiated. In 1986, PP & L sought to redeem, at par value, thousands of preferred shares that it had issued in previous years. In so doing, PP & L claimed to be acting pursuant to detailed Preferred Stock Purchase Agreements (the Agreements) that had governed the original issuance and subsequent transfers of those shares. The appellees argued that PP & L’s action in calling for the redemption at par value was not authorized by the Agreements. They initiated the instant lawsuits in the district court seeking declaratory relief and damages.

After PP & L answered the appellees’ complaints, a pretrial conference was held before Judge Conner at which the parties disagreed over the extent to which the allegations in the complaints might trigger [763]*763rights under an arbitration clause in the Agreements. Following that conference, Judge Conner granted the appellees additional time to amend their complaints. Soon after those amended complaints were filed, PP & L moved pursuant to section 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (1982), for a stay pending arbitration in accordance with the terms of the Agreements.1 The appellees opposed the motion, arguing that the contract language upon which PP & L relied did not manifest an intention by the parties to submit this particular type of dispute to binding arbitration. Judge Conner agreed and denied PP & L’s motion. See GEICO Corp. v. Pennsylvania Power & Light Co., 669 F.Supp. 590 (S.D.N.Y.1987). A timely notice of appeal was filed and briefing and argument on the merits ensued. However, during the time that the appeal was pending, questions regarding our appellate jurisdiction surfaced. Aided by additional briefing from the parties, we now consider the issue of our jurisdiction.

DISCUSSION

At the time Judge Conner entered the order denying PP & L’s motion, we had routinely exercised appellate jurisdiction over interlocutory orders granting or denying stays pending arbitration under the so-called Enelow-Ettelson doctrine. See, e.g., Gilmore v. Shearson/American Express Inc., 811 F.2d 108, 110-11 (2d Cir.1987) (citing Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935)). See also Poriss v. Aaacon Auto Transport, Inc., 685 F.2d 56, 59 (2d Cir.1982). Under that doctrine, “ '[a]n order refusing to stay proceedings in federal district court pending arbitration is ... an appealable interlocutory order refusing an injunction, 28 U.S.C. § 1292(a)(1) [ (1982) ], if the action in which the order was made is an action which, before the fusion of law and equity, was by its nature an action at law.’ ” Gilmore, 811 F.2d at 110 (quoting Poriss, 685 F.2d at 59).

However, on March 22, 1988, while this appeal was sub judice, the Enelow-Ettel-son doctrine succumbed to the weight of many years of often strident criticism when the Supreme Court overruled the precedents on which the doctrine was based. See Gulfstream, _U.S. at_, 108 S.Ct. 1133, 1136-1143, 99 L.Ed.2d 296. The Court concluded that the Enelow-Ettelson rule “is unsound in theory, unworkable and arbitrary in practice, and unnecessary to achieve any legitimate goals.” Id. at __, 108 S.Ct. at 1140-42. The Court therefore overturned the cases establishing the rule and held that “orders granting or denying stays of ‘legal’ proceedings on ‘equitable’ grounds are not automatically appealable under § 1292(a)(1).” Id. at_, 108 S.Ct. at 1142-43. As for interlocutory orders that traditionally had been appealable under the Enelow-Ettelson doctrine, the Court held that they could still be appealable in appropriate circumstances in one of three ways. First, such orders might, at times, be ap-pealable under the so-called “collateral order” doctrine first established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Gulfstream,_U.S. at_, 108 S.Ct. at 1142-43 (citing Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Second, such orders could be reviewable under the permissive certification procedure provided by 28 U.S.C. § 1292(b). [764]*764See id. at _& n. 12, 108 S.Ct. at 1142-43 & n. 12. Finally, such orders could, in some exceptional circumstances, be reviewable through a petition for a writ of mandamus. See id. at _ & n. 13, 108 S.Ct. at 1142-43 & n. 13.

With the Enelow-Ettelson doctrine now defunct, we cannot exercise jurisdiction over the instant appeal by virtue of that rule. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972) (per curiam) (noting that an appeal must be decided in light of the law existing at the time the appellate court renders its decision, not in light of law existing when the lower court acted); Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per curiam) (same).

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849 F.2d 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonnell-douglas-finance-corp-v-pennsylvania-power-light-co-ca2-1988.