Ver Dell Cox as Debtor in Possession of the Estate of Ver Dell Cox, Etc. v. Piper, Jaffray & Hopwood, Inc.

848 F.2d 842, 10 Fed. R. Serv. 3d 1345, 1988 U.S. App. LEXIS 7099, 1988 WL 54018

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 21, 1988
• Docket: 88-1395
• Status: Published

Opinions

PER CURIAM.

On March 17, 1988, appellants filed a motion for a temporary stay pending appeal of arbitration proceedings scheduled to begin on March 28, 1988. On March 25, 1988, we granted the temporary stay pending further order of the court and scheduled oral argument by telephone conference call for March 28, 1988. We have heard oral argument and now order the temporary stay vacated and the appeal dismissed for lack of appellate jurisdiction.

Appellants are former investors in commodities futures. In February 1987 they sued their former account executive and brokerage firm, alleging the account executive had “churned” their accounts and committed other unlawful acts. One appellant, Jones, had signed an arbitration agreement, and in April 1987, the district court¹ granted appellees’ motion to compel arbitration of Jones’s claims and stayed the lawsuit with respect to Jones’s claims pending the conclusion of the arbitration proceeding. Litigation of the claims of the two remaining appellants, Cox and Strait, was permitted to continue. Jones commenced arbitration proceedings against ap-pellees.

At some point disputes about the appointment of arbitrators and other matters arose between Jones and the American Arbitration Association. In January 1988 appellants filed a motion in the district court seeking a resolution of the arbitration disputes and a stay of arbitration proceedings pending resolution of the arbitration disputes. In the meantime, in November 1987, a magistrate² had ordered Cox and Strait to answer certain interrogatories. Cox and Strait sought review of the discovery order in the district court. Following a hearing, on March 2,1988, the district court denied the motions for review of the discovery order, for resolution of the arbitration disputes, and for a stay of the arbitration proceedings pending resolution of the arbitration disputes. This appeal followed.

These orders are not appealable as final decisions under 28 U.S.C. § 1291 or as orders granting or denying an injunction under 28 U.S.C. § 1292(a)(1). Appellants have not obtained certification from the district court or this court under Fed.R. Civ.P. 54(b) or 28 U.S.C. § 1292(b).

The order requiring appellants to answer certain interrogatories is an interlocutory order involving discovery matters. See, e.g., Hudak v. Curators of University of Missouri, 586 F.2d 105, 106 (8th Cir. 1978) (per curiam), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979). The propriety of the discovery order can be raised as an issue on appeal following entry of final judgment.

The order denying the motion for resolution of the arbitration disputes is also interlocutory. Appellants cannot obtain judicial review of the arbitrators’ decisions about the qualifications of the arbitrators or other matters prior to the making of an award. See Stroh Container Co. v. Delphi Industries, Inc., 783 F.2d 743, 748-49 (8th Cir.), cert. denied, 476 U.S. 1141, 106 S.Ct. 2249, 90 L.Ed.2d 695 (1986); Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d Cir.1980).

The order denying the motion for a stay of arbitration proceedings pending resolution of the arbitration disputes is not an order denying an injunction appealable under 28 U.S.C. § 1292(a)(1). E.g., Mellon Bank v. Pritchard-Keang Nam Corp., 651 F.2d 1244, 1250 (8th Cir.1981).

Accordingly, we dismiss the appeal for lack of jurisdiction.³ The temporary stay is vacated. Appellees’ motion for attorney’s fees and costs incurred in opposing the appeal and motion for stay and in filing the motion to dismiss is denied.

1 . The Honorable Donald B. O’Brien, Chief Judge, United States District Court for the Northern District of Iowa.

2 . The Honorable John A. Jarvey, Magistrate, United States District Court for the Northern District of Iowa.

3 . We do not agree with the suggestion made in the opinion dissenting in part that we should construe the notice of appeal as a petition for writ of mandamus. Neither party has requested that we do so. Even if we were to construe the notice of appeal as a petition for writ of mandamus, this case does not present the kind of “exceptional circumstances amounting to a judicial ‘usurpation of power’ [that] will justify issuance of the writ.” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (citation omitted).