*1 DAVIS, Cir- Before JOLLY United States Court of Judges. cuit May DAVIS, Judge: W. EUGENE Denied Rehearing En Banc Mar-Len of Louisi- 30, 1984. July ana, Inc., against Parsons-Gil- filed suit
bane, seeking reformation or voidance 022 and 039 to contract modifications *2 Platanera, S.C.L. North fire and flush water Nacional the construction of Steamship at Petroleum Reserves American Fruit & facility Strategic (5th Cir.1936) Storage Complex. an Haekberry between the West under section 3 of staying the lawsuit 16, 1983, re- August Parsons-Gilbane compelling Act and order arbi- Arbitration Court, moved the action to the U.S. District 4 of the tration under section Arbitration District of Louisiana. On Western argues that Act. section 4 Parsons-Gilbane motion filed a to Parsons-Gilbane irrespective always appealable orders are proceed- compel stay to arbitration and underlying suit is law or of whether ings. the district On November stay court motion and to denied the to compel the trial of arbitration and ordered interpretation disagree this We validity of modifications 022 and 039. Nacional, the action In La La Nacional. appealed has this interloc- Parsons-Gilbane compel- and the order was at law therefore utory order. The central in the issue suit appealable under the ling was arbitration is to written modifications and Ettelson. teaching of Enelow relating performance contract to “extra” circuit, Langley in v. Colonial The first work Mar-Len should be enforced as England, 707 F.2d Leasing Co. of provisions written or whether should (1st Cir.1983), precise issue. this addressed reformed because of economic duress compel a to Langley, stay motion to and argues it which Mar-Len motivated to in to a suit response arbitration was filed agree the modifications. to equitable filed a traditional caúse on Mar-Len, relying on Enelow v. New York the mo- The district court denied action.' 379, 55 Insurance S.Ct.
Life
appeal followed. The court of
tion and an
Ettelson
concluded
no
Life
3 and
drawn between section
should be
not
that the order was
section orders and
grounds
moves to dismiss the
on
underlying cause of
appealable since the
that the denial of Parsons-Gilbane’s motion
equitable.
action was
stay
compel
to
and to
is
arbitration
appealable
1292(a)(1)
underlying suit in
case
under
28 U.S.C.
be-
Since
contract, the
complained
ruling
cause the order
suit
of was
reformation of
seeks
equitable
on a
asserting
motion
an
defense
Fed.Prac-
equitable in
5 Moore’s
nature.
response
seeking equitable
suit
re-
Standard Chlo-
tice 38.22
lief.
Leonard,
Delaware,
rine
Therefore,
(2nd Cir.1967).
princi-
Enelow and
Ettelson establish
unambiguous teaching of
under the
Ene-
interpose
ple
a party attempts
that when
low,
denial of
the district court’s
Parsons-
equitable
legal
to a
cause of
defense
appealable.1
motion is not
Gilbane’s
ruling
appeala-
action the
on that defense is
jurisdiction
ap-
lack
to hear this
therefore
injunction
grant
ble
aas
or denial of an
§ 1292(a);
peal
it is
DISMISSED.
under
when an
but
interposed
cause
defense is
to traditional
Judge,
B.
ALVIN
dis-
equita-
equity,
ruling
of action
senting:
appealable.
is not
ble defense
merger
respectfully
dissent. The
that a distinction
Parsons-Gilbane asserts
now
equity
court
law and
has
been so
com-
established
La
been
agree generally
with the criticism of the
1. We
Court, however,
character
cited
rule which has been
Ene
Enelow-Ettelson
The
"artificial," "medieval” and "outmoded”.
approval
ized as
low
Ettelson with
as recent as
City Naples
1955 in Baltimore
(5th Cir.1974), cert.
99 L.Ed.
and we
(1974);
Wallace
to follow the rule until the
feel bound
Norman
changes it.
(5th Cir.1972);
and Glen Oaks
considered,
reaffirmed,
pleted
apologetically
cast back a half-
we
century
rule,5
determine whether a suit is in-
legal
and a
herently equitable
defense is
amended 28
for in-
U.S.C.
to allow
genre.
or a different
same
terlocutory appeal
involving
of an order
“a
doctrine of Enelow New York
In-
controlling question of law as to which
*3
Co.,
379,
surance
310,
293 U.S.
55 S.Ct.
79
ground
there is substantial
for difference
(1935),
adoption
440
antedates
L.Ed.
of
opinion,”
“may
of
the resolution of which
Procedure. Et- materially
Rules of Civil
the Federal
advance
ultimate
termina-
6
v.
telson
litigation.”
enacting
In
188,
163,
63
haps indefinitely. As Professor Edward
Cooper observed, on the
“Reliance [to
change requires that the Court rule] room in a docket crowded with
make important is-
vitally issues to resolve an appellate jurisdiction that fair-
sue of can ly picayune. dec- be described Two McGEE, Jr., Petitioner-Appellant, Prado experience with the established ades of pro- rule in the courts of *4 justification for vide sufficient establish- ESTELLE, Jr., Director, Texas W.J. that ing a new rule an area is within Corrections, Department of special knowledge respon- their own Respondent-Appellee. sibility.” No. 81-1498. decades since Enelow was decid- the five ed, the rule has experience with served United States Court defects more to make its obvious. Judge years ago, MacKinnon of Seven May 21, 1984. expressed the of Columbia Circuit District rule “will hope that antiquated its to cast shadow
not continue equity-versus-law test modern
of an practice.
interlocutory appellate The de- away.” mise of that rule cannot be yet has not
Because put an end to the rule’s occasion to life,
unhappy undertake the we should
task. of orders
governed by practical effect, their rather
than by Applying their form.11 Enelow to contravenes policy situation the federal
that favors arbitration a means of dis
pute resolution. See also Southland — -, Corp. Keating,
852, 854-55, The First cling quaint
Circuit chose to Leasing
Langley Colonial Co. New (1st Cir.1983). England,
would clean our closet appeal denying plain- Wright note of an & 9. summary judgment motion for in action 65. tiffs relief; injunctive seeking permanent "the enact- Interlocutory Appeals Act of 1958 ment Hussain v. Bache & ‘intervening (D.C.Cir.1977). to be the sort of devel- would seem law,’ frequently justifies opment ... prior rulings, Tours, a court’s Gray Line Motor Act, Orleans, which allows Miller, supra much of the ini- persuasive [sic] removes generally most decisions.”). justification for our earlier tial