City of Naples v. The Prepakt Concrete Company and American Employers' Insurance Company
Cases that cite this one
27 later published cases cite this decision. The 23 that cite it most often are listed here.
- Administrative Management Services, Ltd., Inc. v. Royal American Managers, Inc., the Omaha Indemnity Company, a Corporation (11th Cir. 1988)
- Jerald A. Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (5th Cir. 1989)
- Mar-Len of Louisiana, Inc. v. Parsons-Gilbane, a Joint Venture (5th Cir. 1984)
- Victoria A. Carleton Jolley v. Paine Webber Jackson & Curtis, Inc. (5th Cir. 1989)
- Donald J. Whyte v. Thinc Consulting Group International, Etc. (7th Cir. 1981)
- Baltin v. Alaron Trading Corp. (11th Cir. 1997)
- Aubie BALTIN; Gwilda Baltin, Plaintiffs-Appellants. v. ALARON TRADING CORPORATION, Defendant-Appellee (11th Cir. 1997)
- James Sams v. United Food & Commercial Workers Union, Afl/cio, Clc, Jimmie Orr v. United Food and Commercial Workers International Union, Afl/cio, Clc (11th Cir. 1988)
- Dorothy Zosky v. Daniel Boyer and Boenning and Scattergood (3d Cir. 1988)
- Arnold v. Arnold Corporation-Printed Communications for Business (6th Cir. 1988)
- General Electric Supply Co. v. Warden Electric, Inc. (Ohio 1988)
- Miller v. Drexel Burnham Lambert, Inc. (11th Cir. 1986)
- Weststar Associates, Inc. v. Tin Metals Company (1st Cir. 1985)
- Motion Picture Laboratory Technicians Local 780 v. McGregor & Werner, Inc. (District Court, S.D. New York 1985)
- The Cincinnati Gas & Electric Company and the Dayton Power and Light Company v. Benjamin F. Shaw Company (6th Cir. 1983)
- Hartford Financial Systems, Inc. v. Florida Software Services, Inc. (1st Cir. 1983)
- Seaboard Coast Line Railroad Company v. Trailer Train Company (11th Cir. 1982)
- Seaboard Coast Line Railroad v. Trailer Train Co. (11th Cir. 1982)
- Coastal Industries, Inc., a Corporation, Cross-Appellee v. Automatic Steam Products Corp., Cross-Appellant (5th Cir. 1981)
- General Atomic Co. v. United Nuclear Corp. (9th Cir. 1981)
- B., Inc. v. Miller Brewing Company (5th Cir. 1981)
- Locals 2222, 2320-2327, International Brotherhood of Electrical Workers, Afl-Cio v. New England Telephone and Telegraph Co. (1st Cir. 1980)
- Stone & Webster Engineering Corp. v. Local Union No. 38 of Oswego, New York and Vicinity, International Brotherhood of Painters & Allied Trades (District Court, N.D. New York 1978)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
The City’s petition for rehearing questions the correctness of the holding that the arbitration order of the District Court for the Southern District of Florida was appealable and that the City is time-barred from now appealing therefrom. The petition relies upon Schoen-amsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1934), for the proposition that an order granting arbitration is interlocutory and reviewable only upon appeal from final decree. Two years after Schoenams-gruber was decided this circuit noted that that decision was in an admiralty case and held that an order denying a § 4 petition to compel arbitration, entered in a suit at law claiming damages for breach of contract, was a final judgment and appealable. La Nacional Platanera v. North American Fruit & Steamship Corp., 84 F.2d 881 (CA5, 1936). For a statement of reasons supporting the correctness of our analysis of Schoenams-gruber see The Sydfold, 25 F.Supp. 662 (S.D.N.Y. 1938). In La Nacional the order denied arbitration while in the instant case it granted arbitration. The latter is an a fortiori situation — the court by deliberative act has set in motion the arbitration, and the arbitrators take over the controversy and dispose of it subject only to possible application to a court to vacate or to enforce the award. For a discussion of the “functional” finality of an arbitration-compelling order see Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 62 F.2d 1004 (CA2, 1933). 1
There are policy reasons pro and con in holding for appealability of orders entered under § 4, and at least one other circuit has held them appealable under neither 28 U.S.C. § 1291 nor id. § 1292(a)(1). Blount Bros. Construction Co. v. Troitino, 127 U.S.App.D.C. 99, 381 F.2d 267 (1967). 2 But in this area of the law where there are “medieval if not Byzantine peculiarities,” New England *513 Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183 at 189 (CA1, 1972), this circuit has spoken.
We, therefore, amend the third from the last paragraph of our opinion [490 F.2d 182] so as to read as follows:
We are not persuaded by the City’s insistence that it will have to appeal in two circuits in order to secure review of all the issues in the case. The arbitration order was an appealable final order within the meaning of 28 U.S.C. § 1291. See La Nacional Pla-tanera v. North American Fruit & Steamship Corp., 84 F.2d 881 (CA5, 1936). Since the time for appealing it has long since run out, the City has lost its right to have it reviewed. The denial of the motion to remand, although it would not have been immediately appealable standing alone, merged with the final arbitration order and became reviewable. Thus time has run out on it, too.
Also we delete footnote 7 [p. 184].
On the basis of our opinion as amended and as supplemented by this order, the petition for rehearing is denied.
. Shanferoke Coal & Supply Corp. v. West-chester Service Corp., 293 U.S. 449, 55 S.Ct. 78, 79 L.Ed. 583 (1935), is not contrary to our holding. There an order denying a stay pending arbitration was held not final, although it was deemed appealable as an interlocutory injunction within the meaning of 28 U.S.C. § 1292(a)(1). The present case concerns not a 9 U.S.C. § 3 stay order alone, but a § 4 arbitration order, which stands on a different footing. See The Syd-fold, 25 F.Supp. at 663; New England Power Co. v. Asiatic Petroleum Co., 456 E.2d 183, 188 (CA1, 1972). Since the arbitration-compelling order was final, all that had gone before, including the stay order and the denial of the motion to remand, merged with it and became mandatorily appealable. See 9 Moore’s Federal Practice If 110.07 at 109, text accompanying note 13.
. See also Standard Chlorine of Delaware v. Leonard, 384 F.2d 304 (CA2, 1967), in which the Second Circuit rationalized its previously inconsistent decisions by distinguishing between the case where the § 4 order is entered in an independent proceeding and that where entered as a collateral matter in a pending case. And see Goodall-Sanford, Inc. v. United Textile Workers, 353 U. S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1953) (order directing arbitration under § 301(a) of the Taft-Hartley Act held appealable as final order).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.