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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2003 Decided November 21, 2003
No. 02-7118
DSMC INCORPORATED,
APPELLEE
v.
CONVERA CORPORATION,
APPELLEE
NGT LIBRARY, INCORPORATED,
APPELLANT
Consolidated with
02-7119
Appeals from the United States District Court
for the District of Columbia
(No. 01cv02284)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Anthony Herman argued the cause for Convera Corpora-
tion and NGT Library, Incorporated. With him on the briefs
were James M. Garland and James S. Kurz.
Peter H. Gunst argued the cause for appellee DSMC
Incorporated. With him on the brief was Julie R. Rubin.
Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.
ROBERTS, Circuit Judge: In these consolidated appeals,
National Geographic Television Library, Incorporated
(NGTL) and Convera Corporation (Convera) (collectively ‘‘ap-
pellants’’) seek interlocutory review of a district court order
denying (1) Convera’s motion to compel arbitration and (2)
NGTL’s motion to stay all litigation pending arbitration.
NGTL and Convera invoke Section 16 of the Federal Arbitra-
tion Act (FAA), 9 U.S.C. § 16, which permits interlocutory
appeal of orders denying motions to stay litigation under
Section 3 of the FAA and of orders denying motions to
compel arbitration under Section 4 of the Act. We conclude
that the underlying motions were not under Sections 3 or 4 of
the FAA, because they did not seek to stay litigation or
compel arbitration between parties subject to a written agree-
ment to arbitrate. The appeals accordingly do not fall within
Section 16, and we dismiss them for lack of jurisdiction.
I. Background
A. Factual History
NGTL is a part of the National Geographic Society respon-
sible for managing, preserving, and distributing the many
hours of archive film footage produced by National Geograph-
ic Television. Appellee DSMC Incorporated (DSMC) uses
proprietary software, architecture, and techniques to provide
digitizing, cataloguing, archiving, and hosting services to me-
dia organizations with extensive audio and video libraries. In
September 2000, NGTL entered into a contract with DSMC
under which DSMC agreed (1) to digitize, catalogue, and
encode two thousand hours of NGTL’s video material; (2) to
create a database for NGTL with archival and retrieval
software; and (3) to provide website hosting services to
3
NGTL, allowing database users to access the digitized footage
from desktop computers. The contract, which contained a
confidentiality provision to protect proprietary material, spec-
ified that DSMC would host NGTL’s website until July 2001,
at which time NGTL had the option to extend the hosting
term. The contract also contained an arbitration clause:
‘‘Any dispute arising out of or in connection with this Agree-
ment including any question regarding its existence, validity
or termination, that can not be resolved through mediation
TTT shall be referred to and finally resolved by arbitration
under the Rules of the American Arbitration Association.’’
Integration Services Agreement Between NGTL and DSMC
(Sept. 13, 2000) ¶ 15c.
NGTL became dissatisfied with DSMC’s performance and,
on July 20, 2001, entered into a contract with Convera — a
direct competitor of DSMC — to perform many of the same
functions previously performed by DSMC. To facilitate the
switch, NGTL provided Convera with a copy of NGTL’s
database — created by DSMC — and gave Convera a user-
name and password to access NGTL’s website.
B. Procedural History
DSMC claims that NGTL breached the September 2000
contract and unlawfully disclosed DSMC’s trade secrets to
Convera when it provided Convera unauthorized access to the
software, architecture, and functionality DSMC employed in
providing services to NGTL. On October 31, 2001, DSMC
referred its claims against NGTL to arbitration, pursuant to
the contract’s arbitration clause. The next day, DSMC filed
suit against Convera in district court. In its complaint,
DSMC alleged that Convera (1) misappropriated DSMC’s
trade secrets, (2) conspired with NGTL to misappropriate
trade secrets, and (3) was unjustly enriched through its
misappropriation of DSMC’s trade secrets. DSMC later
dropped the unjust enrichment claim but added claims of
copyright infringement. Convera responded by filing a mo-
tion to dismiss for failure to state a claim and a motion to
dismiss or transfer on venue grounds. The parties com-
4
menced discovery, with Convera deposing DSMC’s corporate
designee and DSMC producing thousands of documents.
Meanwhile, on December 17, 2001, NGTL filed motions to
intervene and to stay the litigation between DSMC and
Convera pending resolution of the arbitration proceeding
between DSMC and NGTL. NGTL sought to intervene in
the lawsuit between DSMC and Convera for the sole purpose
of seeking the stay. NGTL claimed that the parallel proceed-
ings — the DSMC/NGTL arbitration and the DSMC/Convera
lawsuit — contained the same issues, and that the litigation
threatened to undermine the arbitration. Convera consented
to the motion to stay; DSMC opposed it. On April 9, 2002,
the district court heard oral argument on all pending motions.
Following the hearing, Convera filed a motion to compel
DSMC to arbitrate its claims against Convera. Although
DSMC and Convera were not parties to any agreement to
arbitrate, Convera argued that equitable estoppel and the
federal policy favoring arbitration supported its motion.
By order dated August 29, 2002, the district court denied
NGTL’s motion to intervene for the limited purpose of seek-
ing a stay, but allowed NGTL to intervene for all purposes.
The district court then denied NGTL’s motion to stay the
litigation. Turning to Convera’s motions, the district court
denied the motion to dismiss for failure to state a claim and
the venue motion. Finally, the district court denied Conv-
era’s motion to compel arbitration on the basis of equitable
estoppel.
NGTL appeals the district court’s denial of its motion to
stay the litigation pending completion of arbitration. Conv-
era appeals the district court’s denial of its motion to compel
DSMC to arbitrate. We consolidated the appeals.
II. Analysis
‘‘Jurisdiction is, of necessity, the first issue for an Article
III court.’’ Tuck v. Pan Am. Health Org., 668 F.2d 547, 549
(D.C. Cir. 1981). Generally, this court has appellate jurisdic-
tion over only ‘‘final decisions’’ of the district courts. 28
U.S.C. § 1291; Bombardier Corp. v. National R.R. Passen-
5
ger Corp., 333 F.3d 250, 253 (D.C. Cir. 2003). The Supreme
Court ‘‘long has stated that as a general rule a district court’s
decision is appealable under [§ 1291] only when the decision
‘ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.’ ’’ Gulfstream Aero-
space Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988)
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). A
denial of a motion to compel arbitration obviously fails to end
the litigation on the merits and is not a final judgment. A
denial of a motion to stay litigation pending arbitration is just
as clearly not a final decision under the final judgment rule.
See Adams v. Georgia Gulf Corp., 237 F.3d 538, 541–42 (5th
Cir. 2001).
This court also lacks jurisdiction to hear the appeals under
28 U.S.C. § 1292(a)(1). In Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. at 287, the Supreme Court held
that orders denying stays of litigation are not appealable as
interlocutory orders denying injunctions under Section
1292(a)(1). NGTL’s appeal accordingly cannot be based on
that provision. And this court has long held that orders
denying motions to compel arbitration are not appealable
under Section 1292(a)(1), see John Thompson Beacon Win-
dows, Ltd. v. Ferro, Inc., 232 F.2d 366, 368–69 (D.C. Cir.
1956), so that provision does not help Convera, either.
That leaves Section 16 of the FAA. Section 16 provides for
interlocutory appeals from an order ‘‘refusing a stay of any
action under section 3 of this title,’’ 9 U.S.C. § 16(a)(1)(A),
and from an order ‘‘denying a petition under section 4 of this
title to order arbitration,’’ id. § 16(a)(1)(B). The question
thus becomes whether Convera’s motion was under Section 4
of the FAA and whether NGTL’s motion was under Section 3.
A. Convera’s Motion to Compel
Under Section 4, ‘‘[a] party aggrieved by the alleged failure
TTT of another to arbitrate under a written agreement for
arbitration may petition any United States district court TTT
for an order directing that such arbitration proceed in the
manner provided for in such agreement.’’ 9 U.S.C. § 4.
6
Nothing about Convera’s motion to compel suggests that it
was filed pursuant to Section 4. Convera did not cite Section
4 in the motion, and did not comply with the requirement in
Section 4 that five days’ notice be given of the motion to
compel. Convera’s contention that DSMC should be com-
pelled to arbitrate its claims against Convera was not based
on any alleged failure of DSMC ‘‘to arbitrate under a written
agreement for arbitration’’ — the only such agreement was
between DSMC and NGTL, and Convera acknowledged that
‘‘[t]he DSMC[ ] claims against National Geographic are al-
ready in arbitration.’’ Convera’s Mem. Supp. Mot. to Com-
pel, at 1. Nor did Convera seek an order directing that
arbitration ‘‘proceed in the manner provided for in such
agreement,’’ 9 U.S.C. § 4 — there was no such agreement
between Convera and DSMC. Instead, Convera’s motion to
compel was expressly based on principles of equitable estop-
pel. Convera contended that the relation between DSMC’s
claims against it and DSMC’s claims against NGTL was such
that DSMC should be compelled to arbitrate the former along
with the latter.
Section 4, however, applies only to an ‘‘alleged failure TTT
to arbitrate under a written agreement for arbitration’’ — not
an alleged failure to arbitrate when principles of equitable
estoppel indicate that you should. Convera argued that the
DSMC/NGTL contract ‘‘satisfies the written arbitration
agreement requirement,’’ Convera’s Mem. Supp. Mot. to
Compel, at 6, but Section 4 does not merely require that
there be a written agreement somewhere in the picture. It
requires that the motion to compel be based on an alleged
failure to arbitrate under that written agreement. Convera’s
motion to compel is not based on any alleged failure by
DSMC to arbitrate under the only written agreement at issue
here — the one between DSMC and NGTL. The motion is
instead based on an effort to expand DSMC’s obligation
beyond the terms of that written agreement pursuant to
principles of equitable estoppel. As appellants acknowledge,
‘‘[t]he doctrine of equitable estoppel TTT by definition applies
where there is no written contract between the partiesTTTT’’
Reply Br. at 6.
7
Convera recognizes that there is no precedent from this
court compelling a party to an arbitration agreement to
arbitrate with a non-signatory on the basis of equitable
estoppel, see Appellants’ Br. at 22, but cites cases from other
circuits that have done so. Those cases typically did not
address jurisdiction under Section 16 of the FAA, but instead
simply proceeded directly to consider the propriety of com-
pelling signatories to arbitrate with non-signatories. We
need not and do not decide whether such an effort can ever
succeed. What we do decide is that an effort to compel
arbitration in such circumstances on the basis of equitable
estoppel does not fall within Section 4 of the FAA. Accord-
ingly, we hold that this court has no jurisdiction under
Section 16(a)(1)(B) to hear an appeal of an order denying a
motion to compel arbitration between parties not under a
written agreement to arbitrate.
In doing so we are mindful that ‘‘Section 16 is a limited
grant of jurisdiction,’’ that ‘‘[i]n general, statutes authorizing
appeals should be narrowly construed,’’ and that this is
particularly true with respect to statutes allowing interlocu-
tory appeals. Bombardier, 333 F.3d at 253. We are also
cognizant that jurisdictional rules should be, to the extent
possible, clear, predictable, bright-line rules that can be ap-
plied to determine jurisdiction with a fair degree of certainty
from the outset. See, e.g., Grubart, Inc. v. Great Lakes
Dredge & Dock, 513 U.S. 527, 547 (1995) (rejecting multi-
factor jurisdictional test in part because it ‘‘would be hard to
apply, jettisoning relative predictability for the open-ended
rough-and-tumble of factors’’). Asking whether the parties
are signatories to a written agreement to arbitrate satisfies
these criteria. On the other hand, the application of equitable
estoppel — if permitted in this context — requires a multi-
factor factual and legal inquiry to determine whether the
issues to be litigated by the non-signatory and signatory are
sufficiently intertwined with the issues subject to arbitration.
That type of analysis, in turn, would require this court to
delve deeply into the merits of a case before even deciding
whether we had interlocutory appellate jurisdiction — an
unattractive prospect.
8
B. NGTL’s Motion to Stay
NGTL argues that this court has jurisdiction to hear its
appeal of the district court’s denial of its motion to stay the
litigation pending arbitration under Section 16(a)(1)(A), be-
cause that provision authorizes interlocutory appeals from the
denial of stay motions under Section 3 of the FAA. Section 3
states that district courts shall stay litigation until the com-
pletion of arbitration ‘‘upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration
under TTT an agreement [in writing]TTTT’’ 9 U.S.C. § 3.
NGTL contends that the arbitration agreement in its contract
with DSMC allows it to seek to stay this action under Section
3, because the action involves an issue that is referable to
arbitration under a written agreement. See Reply Br. at 26.
We disagree.
In IDS Life Insurance Co. v. SunAmerica, Inc., 103 F.3d
524 (7th Cir. 1996), the Seventh Circuit faced a similar claim.
Two defendants were parties to an arbitration agreement
with the plaintiff; two defendants were not. The defendants
without an arbitration agreement appealed from the district
court’s denial of their motion to stay the litigation pending
arbitration. The court held that there was no jurisdiction
under Section 16(a)(1) to hear the appeal because the issues
involved were not referable to arbitration ‘‘under an agree-
ment in writing’’ pursuant to Section 3, even though largely
indistinguishable issues involving the other two defendants
were subject to arbitration. See id. at 530.
Similarly in this case, NGTL — which does have an arbi-
tration agreement with DSMC — seeks to stay an action
between parties that have no such agreement. That this is
the focus of NGTL’s effort is clear from its original desire to
intervene in litigation to which it was not a party solely for
the purpose of seeking to stay that litigation. There are no
issues referable to arbitration under an agreement in writing
between Convera and DSMC because there is no arbitration
agreement between those two parties. Even assuming that
the issues involved in the DSMC/Convera litigation and the
DSMC/NGTL arbitration are identical, intertwined, closely
9
related, whatever — a matter of hot dispute — the litigation
may not be stayed under Section 3 because the issues in the
litigation are not ‘‘referable to arbitration under an agree-
ment.’’ See Adams, 237 F.3d at 540 (‘‘The denial of the
benefit of the mandatory stay provision to non-signatories has
been grounded in the recognition that the non-signatory’s
litigation with an arbitrating party cannot be referred to
arbitration.’’); Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 748
(2d Cir. 1991) (holding Section 16 does not provide jurisdic-
tion when the parties to an action had no agreement to
arbitrate, because no issue was referable to arbitration under
an agreement pursuant to Section 3). As the Seventh Circuit
explained in IDS Life, ‘‘[t]he issues in the suits against the
nonmembers may be substantively related to the issues in the
other suits, but they are not referable to arbitration ‘under an
agreement in writing for such arbitration,’ because there is no
such agreement between these partiesTTTT The statute has
no application to ‘issues’ in cases between different parties.’’
103 F.3d at 529.
NGTL is a signatory, to be sure, but its issues with DSMC
are already subject to arbitration. There is no arbitration
agreement between DSMC and Convera, and so Section 3
does not apply in this case. District courts may certainly
consider stays in circumstances such as these as a matter of
discretionary control of their docket. See Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 n.23
(1983); IDS Life, 103 F.3d at 530. We simply conclude that
the mandatory stay provision of Section 3 does not apply to
litigation involving parties not subject to a written arbitration
agreement, and therefore hold that this court lacks jurisdic-
tion under Section 16(a)(1)(A) to hear NGTL’s appeal.
III. Conclusion
We dismiss the appeals for lack of jurisdiction.