UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-31026
__________________
CAROL MARIE MCCOY BOOTH,
Plaintiff-Appellee,
versus
BILLY R. HARGISS and ANGELYN RIZZO HARGISS,
Co-Adminstrators of the Succession of Attorney
William A. Hargiss, Deceased,
Plaintiffs-Appellees-
Intervenors,
SAMUEL TIMOTHY MCGRAW, also known as Tim McGraw,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
(93-CV-741)
______________________________________________
November 13, 1997
Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
This appeal arises out of a dispute between country singer
Samuel Timothy McGraw (“McGraw”) and his erstwhile personal manager
Carol Marie McCoy Booth (“Booth”). Booth brought suit against
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
McGraw in Louisiana state court in March 1993, alleging that McGraw
had breached his “personal manager contract” with her. McGraw
timely removed the case to federal district court in Louisiana.
Eventually, the district court ordered the parties to arbitrate
their dispute in Louisiana. McGraw complains on appeal that this
order was contrary to his contract with Booth, which provides that
any dispute between them would be “submitted to arbitration to the
American Arbitration Association in New York City . . . .”
On removal, McGraw filed a motion to stay the proceedings
under Section 3 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §
1 et seq., and sought an order that the matter be arbitrated in New
York City in accordance with the parties’ agreement. Based on the
recommendation of a magistrate judge, the district court granted
the requested stay and ordered the parties to arbitrate the matter
“in the manner provided for in the arbitration agreement between
the parties.”
In the wake of that order, neither party initiated arbitration
in New York. Instead, the matter languished on the district
court’s docket for almost fourteen months. The case was reassigned
to another district judge, who held a status conference in November
1994. Initially, the district court ordered Booth, the plaintiff,
to initiate arbitration proceedings in Louisiana. In the same
order, however, the district court directed McGraw to provide
2
“authority . . . for the proposition that the plaintiff has the
obligation of initiating arbitration.” A minute entry several days
later reflects that the district court found that the authority
McGraw provided was inadequate and accordingly ordered McGraw to
initiate arbitration.
McGraw complied with the district court’s order to arbitrate
without any objection to the location specified in the order, and
the matter proceeded to arbitration in Monroe, Louisiana. An
arbitration panel awarded Booth approximately $321,000 in damages,
$125,000 in attorneys’ fees, and $15,000 for the costs of
arbitration.
Booth made a motion in the district court for confirmation of
the arbitration award. See 9 U.S.C. § 9. Although McGraw opposed
the confirmation, he did not object based on improper venue.
McGraw also moved to vacate the arbitration award. See 9 U.S.C. §
10. Again, he failed to raise improper venue as a basis for
vacating the arbitration award. The district court entered
judgment on the arbitration award. McGraw timely appealed.
In these circumstances, McGraw, by his inaction, forfeited the
right to complain of the district court’s order that the matter be
arbitrated in Louisiana.2 After obtaining a stay of the
2
McGraw argues that Booth’s attempts to settle the case along
with a change in counsel before the November 1994 order to
arbitrate in Louisiana insulate him against a finding of waiver.
Under different circumstances, we might agree, but under the
circumstances presented here, we reject his contention.
3
proceedings, McGraw failed to initiate arbitration in New York for
fourteen months. Under the holding of the district court at the
end of those fourteen months, the burden of initiating arbitration
was on McGraw. McGraw does not challenge this holding on appeal.
Moreover, when the district court finally took action to move the
case in November 1994, McGraw made no objection to arbitration in
Louisiana.
We recognize that McGraw had no obligation to seek
interlocutory review of this order; under the FAA, 9 U.S.C. §
16(b), an interlocutory appeal normally cannot be taken from an
order referring a matter to arbitration. McGraw, however, raised
no objection whatsoever to venue at the time the district court
ordered the arbitration to proceed in Louisiana; nor did he raise
the venue issue in opposition to Booth’s motion to confirm the
arbitration award or in his motion to vacate it. Under these
circumstances, McGraw will not be heard to complain about the venue
for the arbitration and is bound by the arbitration award.
AFFIRMED.
4