United States Court of Appeals
For the First Circuit
No. 00-1596
HART SURGICAL, INC.,
Plaintiff/Respondent - Appellee,
v.
ULTRACISION, INC., and
ETHICON ENDO-SURGERY, INC.,
Defendants/Petitioners - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lipez, Circuit Judges.
Margaret M. Zwisler, with whom Richard A. Ripley, Kathryn R.
Colburn, Howrey Simon Arnold & White, LLP, Raymond A. Marcaccio and
Blish & Cavanagh, LLP, were on brief, for appellants.
Michael J. Tuteur, with whom Epstein Becker & Green, P.C., was
on brief, for appellee.
April 5, 2001
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TORRUELLA, Chief Judge. The issue presented in this appeal
is whether, in an arbitration case that is bifurcated into liability
and damages phases, the arbitration panel's award with respect to
liability is a final award under the Federal Arbitration Act ("FAA"),
9 U.S.C. § 1 et seq., that is subject to review by the courts. The
district court correctly noted that this question is yet undecided in
this Circuit and, using the Second Circuit's jurisprudence as a guide,
ruled that an arbitration award concerning only liability is not final
for purposes of appeal to the courts. In an unusual circumstance, both
parties urge us to reach the opposite conclusion. We agree with this
ecumenical stance, and for the reasons set forth below, hold that under
the circumstances of this case, an arbitration award on the issue of
liability in a bifurcated proceeding is a final partial award
reviewable by the district court.
BACKGROUND
On September 30, 1993, plaintiff-appellee Hart Surgical, Inc.
("Hart") entered into a contract with defendant-appellant UltraCision,
Inc. ("UltraCision")1 pursuant to which Hart became the exclusive
Canadian distributor for UltraCision's products. In February 1996,
UltraCision terminated Hart's distributorship for non-performance.
1 UltraCision was acquired by co-defendant-appellant Ethicon Endo-
Surgery, Inc. ("Ethicon") in 1995.
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Pursuant to an arbitration provision in the contract, Hart
commenced arbitration proceedings against UltraCision and Ethicon
challenging the termination. The parties agreed to bifurcate the
arbitration into liability and damages phases, and the arbitration
panel approved the stipulation. Following discovery, a trial on the
issue of liability began in June 1997. On August 19, 1997, the
arbitrators found that appellants wrongfully terminated Hart's
distribution agreement (the "Award").
Appellants moved to vacate the Award in the federal district
court for the District of Rhode Island on October 20, 1997. However,
anticipating either completion of the damages phase or a settlement by
early 1998, appellants filed an unopposed motion to stay consideration
of the vacatur motion. The court granted a six-month stay and, after
this period expired, extended the stay for another six months. When it
became apparent that the damages phase of the arbitration would not be
completed within this time, appellants requested that the court lift
the stay and decide the motion to vacate the Award. On September 26,
1999, the district court issued an order requiring appellants to show
cause why the case should not be dismissed without prejudice on the
ground that the Award was not final under the FAA.
After briefing and a hearing, the district court concluded
that the Award was not appealable under the FAA. Hart Surgical, Inc.
v. UltraCision, Inc., No. 97-594-T (D. Mass. Apr. 25, 2000).
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According to the court, a "final" arbitral award is one that resolves
all of the claims submitted to the panel. Here, the parties asked the
arbiters to determine the issue of liability as well as damages; since
the award at issue in this appeal resolved only one of these issues, it
was akin to an interlocutory decision. Allowing the district court to
review such an award, the court reasoned, would undermine the purpose
of arbitration and waste judicial resources.
Although the district court dismissed appellants' motion
without prejudice, the parties highlight that the one-year statute of
limitations period for vacatur motions runs from the date that an award
is made final. See 9 U.S.C. § 9. Because this Circuit has not yet
addressed the issue decided by the district court, a contrary ruling on
the question after completion of the damages phase could prejudice
appellants' right to appeal the Award in the future. Consequently, we
will confront the question now.
DISCUSSION
This appeal actually raises two distinct, but related,
questions. The first is whether an award concerning a discrete portion
of an arbitration action, or a partial award, is reviewable by the
district court. If so, the second and more specific question is
whether this power to review extends to a partial award on liability in
a bifurcated proceeding. We will address each of these questions in
turn.
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A.
Appellants moved to vacate the arbitrators' liability award
pursuant to Section 10(a)(4) of the FAA. Under this provision, a
district court may
make an order vacating the award upon the
application of any party to the arbitration[,
w]here the arbitrators exceeded their powers, or
so imperfectly executed them that a mutual,
final, and definite award upon the subject matter
was not made.
9 U.S.C. § 10(a)(4). In applying this statute, we have followed the
principle that "[i]t is essential for the district court's jurisdiction
that the arbitrator's decision was final, not interlocutory." El Mundo
Broad. Corp. v. United Steel Workers of America, AFL-CIO CLC, 116 F.3d
7, 9 (1st Cir. 1997). The prerequisite of finality promotes the role
of arbitration as an expeditious alternative to traditional litigation.
See, e.g., Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 414 (2d
Cir. 1980) ("[A] district court should not hold itself open as an
appellate tribunal during an ongoing arbitration proceeding, since
applications for interlocutory relief result only in a waste of time,
the interruption of the arbitration proceeding, and . . . delaying
tactics in a proceeding that is supposed to produce a speedy
decision.") (internal quotations omitted). We have noted that
"[n]ormally, an arbitral award is deemed 'final' provided it evidences
the arbitrators' intention to resolve all claims submitted in the
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demand for arbitration." Fradella v. Petricca, 183 F.3d 17, 19 (1st
Cir. 1999) (emphasis added).
Several circuits have, however, recognized exceptions to this
general rule. See, e.g., Publicis Communication v. True N.
Communications, Inc., 206 F.3d 725, 728 (7th Cir. 2000) (emphasizing
that "[t]he content of [an arbitral] decision -- not its nomenclature
-- determines finality," and noting various interim decisions that
courts have considered final). The Second Circuit's holding in
Mettallgesellschaft A.G. v. M/V Capitan Constante, 790 F.2d 280, 283
(2d Cir. 1986), follows in this trend. In Mettallgesellschaft, the
plaintiff sought damages for the alleged short delivery and fuel
contamination of an oil shipment. The defendant requested arbitration
and counterclaimed for unpaid freight charges. The arbitration panel
rendered a partial award on the counterclaim in favor of the defendant,
and the district court confirmed the award. Plaintiff appealed,
claiming that the arbitral award was not final because the arbitration
panel had not yet resolved all of the issues submitted to it. The
Second Circuit upheld the district court's power to review the award on
the counterclaim, concluding that "an award which finally and
definitely disposes of a separate independent claim may be confirmed
although it does not dispose of all the claims that were submitted to
arbitration." Id. at 283.
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This Court has recently approved the Second Circuit's
approach. In Bull H/N Information Systems, Inc. v. Hutson, 229 F.3d
321 (1st Cir. 2000), we considered the validity of an appeal from a
district court order vacating a partial award. That award, rendered in
the first phase of arbitration, concerned whether plaintiff's claims
for unpaid commissions were time-barred and, if not, how much was due.
Plaintiff's benefits-related claims were to be determined later, in the
second phase of the arbitration proceedings. The district court,
interpreting the finality requirement of § 10(a)(4), cited
Mettallgesellschaft in support of its conclusion that the Phase I award
dealt with "discrete and distinct claims" and was thus final for
purposes of review. Bull H/N Info. Sys., Inc. v. Hutson, 983 F. Supp.
284, 289 (D. Mass. 1997). This was so, the court noted, even though
"the Phase I Award clearly anticipates further proceedings with respect
to the [Phase II] claims." Id. at 290. The issue raised on appeal
concerned appellate, not district court, jurisdiction over partial
awards.2 However, our conclusion that the FAA "contemplates an appeal
when there is [a district court] order vacating . . . partial awards,"
Hutson, 229 F.3d at 328, implicitly affirmed the district court's
power to review such awards under § 10(a)(4). We now hold that the FAA
permits a district court to confirm or vacate a partial award.
B.
2 Consequently, we dealt only with §§ 16(a)(1)(D) and (E) of the FAA.
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We must next determine whether the district court may review
a partial award when that award determines liability, but does not
include damages. Since this particular issue has not yet been decided
by this Circuit, the parties suggest the Second Circuit's opinion in
Trade & Transport, Inc. v. Natural Petroleum Charterers Inc., 931 F.2d
191 (2d Cir. 1991), as a useful starting point for our analysis. In
Trade & Transport, the parties bifurcated the issues submitted to
arbitration, requesting an "immediate" decision on liability and
reserving the damages question for a later date. Id. at 192-93. In
accordance with this request, the arbitration panel issued a final
partial award with respect to liability. The defendant then moved the
panel to reconsider the award, offering additional evidence on the
liability issue, but the panel denied the motion. After both phases of
the arbitration were completed, the defendant unsuccessfully appealed
the panel's decision on liability to the district court. The Second
Circuit affirmed the court's decision that the award was final,
reasoning that "if the parties have asked the arbitrators to make a
final partial award as to a particular issue and the arbitrators have
done so, the arbitrators have no authority, absent agreements by the
parties, to redetermine that issue." Id. at 195.
The court below concluded that Trade & Transport, because of
its focus on the finality of partial awards vis-à-vis arbitrators, was
inapposite and relied instead on the contemporaneous Second Circuit
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decision in Kerr-McGee Refining Corp. v. M/T Triumph, 924 F.2d 467, 471
(2d Cir. 1991). Kerr-McGee had moved in district court to confirm both
a partial award setting contractual liability for short-delivered cargo
as well as a "final" award of treble damages under RICO, punitive
damages, costs, and attorney's fees for a multi-incident scheme of
conversion of chartered cargo. The Second Circuit affirmed the
district court's review of both awards, concluding that the partial
award was not a "separate independent claim" from the "final" award.
Since a party has one year to confirm an arbitral award under the FAA,
9 U.S.C. § 9, a contrary decision would have barred Kerr-McGee from
confirming the partial award which had been decided more than one year
prior.
What runs through the Second Circuit's decisions is a tension
between the desire to effectuate the parties' intent to divide an
arbitration into distinct phases, and making sure that a losing party
does not thereby forfeit an appeal by failing to object after the
completion of a phase. Compare Kerr-McGee, 924 F.2d at 471, with
Mettallgesellschaft, 790 F.2d at 282. Under these circumstances, the
definiteness with which the parties have expressed an intent to
bifurcate is an important consideration. In Michaels, the case most
restrictive about the finality of partial awards, the Second Circuit
was careful to say that " [g]enerally, in order for a claim to be
completely determined, the arbitrators must have decided not only the
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issue of liability . . . but also the issue of damages." Michaels, 626
F.2d at 413-14 (emphasis added). In that case, however, the
arbitration panel decided on its own to issue an "interim" award --
there was no formal bifurcation.
By contrast, the parties here submitted, in a discrete
proceeding, all of the evidence pertaining to the issue of liability.
The arbitrators, in turn, "conclusively decided every point required by
and included in" this submission as their "authority and
responsibility" demanded. Trade & Trans., 931 F.2d at 195. Both the
parties and the panel, then, understood the determination of liability
to be a final award. See McGregor Van de Moere, Inc. v. Paychex, Inc.,
927 F. Supp. 616, 617 (W.D.N.Y. 1996) (concluding that parties'
decision to bifurcate the issue of liability from damages reflects
their agreement that the award on this issue will be final); Corp.
Printing Co. v. N.Y. Typographical Union No. 6 , 93 CIV 6796, 1994 WL
376093 at *4 (S.D.N.Y. July 18, 1994) (citing Trade & Transport as
"persuasive authority" that a bifurcated liability award is final for
review). We therefore hold that the liability determination is final
and subject to district court review.3
3 The district court compared interim arbitral awards to interlocutory
district court orders. While it is true that in ordinary litigation,
a liability determination that had not yet resolved damages would be
non-appealable, we have emphasized previously that "somewhat different
standards govern the finality of judgments and final awards" in
arbitration proceedings. Fradella, 183 F.3d at 19. We believe our
decision here adequately tempers the need to maintain an expedient
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CONCLUSION
The specific issue presented is a complicated one that is
sure to recur in different contexts. There is very little case law in
point and the Second Circuit cases that are most relevant are seemingly
at odds. Though we hold that the district court can review the partial
award in this case, we think it best to limit our holding to the
situation in which there is a formal, agreed-to bifurcation at the
arbitration stage. We reserve judgment on what would happen if, for
example, in the absence of bifurcation the arbitrator issued an initial
decision on liability and one party then sought district review. The
outcome in such a scenario might depend on the circumstances, and we
prefer not to prejudge that result.
Another important consideration is the risk that, in moving
away from the concept of final judgments that prevails when review is
sought of district court decisions, we may create situations at the
arbitration level in which the losing side may forfeit an appeal (e.g.,
as to liability) by waiting until all arbitration proceedings are
complete. One could imagine a rule that would allow the loser to seek
alternative dispute resolution mechanism with an understanding of the
primary policy behind the FAA, which is to resolve issues in the manner
intended by the parties. See Dean Witter Reynolds, Inc. v. Byrd, 470
U.S. 213, 221 (1985) ("The preeminent concern of Congress in passing
the Act was to enforce private agreements into which parties had
entered, and that concern requires that we rigorously enforce
agreements to arbitrate, even if the result is 'piecemeal' litigation
. . . .").
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review at once, but also retain the option of waiting until the
completion of all phases at the arbitrator level. These are not
problems that we must resolve now, but ones that we will no doubt
confront in future cases.
We vacate the order of the district court and remand for
further proceedings.
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