Hussmаnn Corporation sold its Foodser-vice Equipment Group to Middleby Marshall Inc. in 1989 for $62.5 million. Like most transactions for the sale of аn ongoing business, this one included rules for adjusting the price to reflect changes in the value of the assets between the datе of agreement and the date of closing. The parties agreed that they would submit any dispute about changes in valuation to an arbitrator, whose decision would be final. After the closing, Middleby claimed entitlement to reduce the price under the аdjustment clause and Hussmann claimed an increase. The Group’s closing balance sheet reflected an increasе of almost $3.2 million, but Middleby contended that the balance sheet did not “fairly present[ ] the financial position of the Group” — a contractual requirement for the determination of the final price. Hussmann and Middleby selected Price Waterhouse as arbitrator. On May 9, 1991, Price Waterhouse awarded Hussmann an extra $2.4 million.
According to the contract, Middleby was supposed to satisfy the arbitrator’s award within three business days. It did not. Although it offered to put the sum into escrow, Middleby told Hussmann that it would not pay until the cоnclusion of a suit Middleby filed in 1990, charging Hussmann with fraud and breach of warranty in the sale of the Group’s assets. Middleby’s suit, No. 90 C 2744, was pending beforе Judge Conlon but had been under stay for almost a year on Hussmann’s representa-, tion that the subject was “inextricably intertwined with” the question the parties were arbitrating. Hussmann replied with its own suit, No. 91 C 3188, seeking enforcement of the award. It .asked the Executive Committеe of the district court to transfer the second case to Judge Conlon as a matter related to Middleby’s suit. Judge Conlon cоnsolidated the two cases for all purposes under Fed.R.Civ.P. 42(a). She promptly confirmed the arbitrator’s award but has not entered judgment on that award, ruling that payment should await decision on Middleby’s claims.
Appellate jurisdiction is the first and only issue we consider. The district judge consolidated the two suits for all purposes, and only the final decision on the full proceeding may be appealed under 28 U.S.C. § 1291.
Sandwiches, Inc. v. Wendy’s International, Inc.,
Hussmann insists that the consolidation was erroneous — that Rule 42(a) may not be. used when the effect is to defer enforcement of an arbitrator’s award. Such a contention comes with ill grace from the party that first delayed Middle-by’s suit, and then obtained a transfer of its own case to the judge handling Middle-by’s, representing each time that the two are but facets of the same thing. If nonetheless it was error to consolidаte the cases, the deed is done. Error is not the same thing as finality. Many an erroneous decision awaits review at the end of the case. E.g.,
Reise v. University of Wisconsin,
The district court did not enter a partial final judgment under Fed.R.Civ.P.
*616
54(b). Hussmann’s belief that we may compel the district court to enter such a judgment is erroneous. Resort to Rule 54(b) lies in the discretiоn of the district judge, reviewable on a deferential standard.
Curtiss-Wright Corp. v. General Electric Co.,
Only 9 U.S.C. § 16(a)(1)(D) of the Arbitration Act offers a glimmer to Hussmann. Enacted in 1988 as § 15 and renumbеred in 1990, § 16 responds to the demise of the
Enelow-Ettelson
doctrine. See
Gulfstream Aerospace Corp. v. Mayacamas Corp.,
Hussmann’s argument depends on three propositions: first, “confirmation” in § 16(a)(1)(D) means the judgment ordering the loser of the arbitration to pay up; second, delay in entering such a judgment is the same thing as “denying” confirmation; third, § 16(a)(1)(D) authorizes an appeal from an interlocutory order denying confirmation as thus defined. Hussmann nеeds to prevail at all three steps of the argument, else we lack jurisdiction. Some support for the first step comes from language in both the legislative history of the Arbitration Act and judicial opinions using “confirmation” and “judgment” interchangeably. But therе is no support for the second step, so we need not consider the third.
Suppose a district judge says: “Before deciding whether to confirm the arbitrator’s award, I want the parties to file briefs on the following question....” Surely the proponent of cоnfirmation may not appeal the next day; delay incident to an orderly process is a far cry from “denying” confirmation. Postponing a judgment of confirmation while the court resolves additional claims — the step Judge Conlon has taken— differs from our hyрothetical in degree but not in kind. In each case the court promises final judgment at the appropriate time; just which time is “appropriate” depends on the nature of the parties’ dispute.
If § 16(a)(1)(D) sometimes authorizes an interlocutory аppeal, and delay sometimes equates to denial, then our situation has a close parallel in 28 U.S.C. § 1292(a)(1), which authorizes appeals from interlocutory orders refusing to issue injunctions. When is delay in issuing an injunction (or acting on the request for one) the same as denial, and thus appealable? The Supreme Court’s answer has been: when the passage of time causes irreparable injury to the person claiming entitlement to relief.
Stringfellow v. Concerned Neighbors in Action,
*617 The appeal is dismissed for want of jurisdiction.