Bordelon Marine, L.L.C. v. Bibby Subsea ROV, L.L.C.
685 F. App'x 330
| 5th Cir. | 2017Background
- Bordelon sued Bibby in Louisiana state court over damages and attachment related to an offshore vessel charter; Bibby removed to federal court and moved to compel arbitration under the parties’ contracts.
- A dispute arose over the method of appointment of arbitrators; Bordelon moved to reopen the case to enforce the contract’s arbitrator-appointment method and to challenge Bibby’s appointed arbitrator.
- Bibby opposed and filed a cross-motion to confirm arbitrability and to compel arbitration before Bibby’s selected arbitrators; the district court granted Bibby’s motion and denied Bordelon’s challenge to the arbitrator selection.
- Bordelon appealed the district court’s order as to arbitrator selection (not disputing that arbitration was required) and the Fifth Circuit ordered supplemental briefing on jurisdictional questions.
- The Fifth Circuit examined whether it had appellate jurisdiction under the Federal Arbitration Act (FAA) § 16 and related statutes and concluded it lacked jurisdiction to hear Bordelon’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is a "final decision with respect to an arbitration" under 9 U.S.C. § 16(a)(3) | The district court’s order left nothing for the court to do and thus was final under § 16(a)(3) | Order compelled arbitration but did not finally dispose of the removed state-law claims | No jurisdiction under § 16(a)(3): the order was not a final dismissal and the case remained pending |
| Whether the motion appealed was a § 4 petition allowing interlocutory appeal under § 16(a)(1)(B) | Bordelon characterized its motion as a § 4 petition directing arbitration to proceed, enabling appeal | Bibby and district court treated the dispute as one under § 5 (selection of arbitrators), not a § 4 refusal-to-arbitrate petition | No jurisdiction under § 16(a)(1)(B): the district court acted under § 5, and § 16(a)(1)(B) does not permit interlocutory appeals of § 5 orders |
| Whether the district court’s intervention in arbitrator selection is appealable as an interlocutory admiralty decree (28 U.S.C. § 1292(a)(3)) | (raised late at oral argument) maritime jurisdiction would permit interlocutory appeal | No timely argument below; the district court’s order did not determine party rights on the merits but only where rights would be litigated | Forfeited and substantively inapplicable: § 1292(a)(3) does not cover orders that merely send the merits to arbitration |
| Whether the appellate court may recharacterize the district court’s order to create jurisdiction | Bordelon urged recharacterization of the § 5 order as a § 4 denial to secure appellate review | Appellate jurisdiction depends on the actual category of the order appealed, not the appellant’s preferred label | Recharacterization rejected; jurisdictional inquiry focuses on the category of the order, so no appealable § 4 denial existed |
Key Cases Cited
- MS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. Bd. of Comm’rs of Port of New Orleans, 636 F.3d 161 (5th Cir. 2011) (discussing appellate jurisdiction in arbitration contexts)
- Martin v. Halliburton, 618 F.3d 476 (5th Cir. 2010) (party asserting appellate jurisdiction bears burden to show it exists)
- Green Tree Financial Corp.-Ala. v. Randolph, 531 U.S. 79 (2000) (§ 16 preserves immediate appeal of final decisions with respect to arbitration)
- Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (standard for finality: ends litigation on the merits and leaves nothing more to do)
- S. La. Cement, Inc. v. Van Aalst Bulk Handling, B.V., 383 F.3d 297 (5th Cir. 2004) (stay without dismissal is not a final appealable order)
- BP Expl. Libya Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481 (5th Cir. 2012) (scope of § 5 authority to select arbitrators)
- Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009) (jurisdiction turns on the category of order appealed from)
- Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476 (5th Cir. 2002) (examples when appellate jurisdiction existed where district court explicitly treated order as final)