United States Court of Appeals
Fifth Circuit
F I L E D
February 10, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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No. 03-10585
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POSITIVE SOFTWARE SOLUTIONS, INC.,
Plaintiff - Appellee,
versus
NEW CENTURY MORTGAGE CORP., et al.,
Defendants - Appellants.
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Appeal from the United States District Court
For the Northern District of Texas
(No. 3:03-CV-257)
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Positive Software Solutions, Inc. (“Positive”) offers two arguments for this Court to exercise
jurisdiction. Both fail. Positive first argues that this Court has jurisdiction under 28 U.S.C. §
1292(a)(1). The district court, Po sitive contends, refused its motion for an injunction. Section
1292(a)(1) pro vides—among other things—that courts of appeals shall have jurisdiction over
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
interlocutory orders “refusing . . . injunctions . . . .” 28 U.S.C. § 1292(a)(1). To determine whether
an order is refusing an injunction, this Court examines whether the district court specifically denied
the injunctive relief. E.E.O.C. v. Kerrville Bus Co., Inc., 925 F.2d 129, 132 (5th Cir. 1991). Where
a district court fails to specifically state that it is denying injunctive relief, “there must be some
additional, substantial indication—whether from the language of the order, or the grounds on which
it rests, or the circumstances in which it was entered—that the district court was acting specifically
to deny injunctive relief.” Id.
Here, the district court did not specifically deny Positive injunctive relief. Instead, the court
sent the matter to arbitration, noting that the arbitrator had authority to grant injunctive relief.
Deferring the injunction issue to arbitration does not satisfy the Kerrville standard of showing that
the district court was “acting specifically to deny injunctive relief.” Accordingly, jurisdiction is
lacking under § 1292(a)(1).1
Positive next argues that jurisdiction is proper because Positive seeks legal damages. This
argument is without merit. Section 16 of Title 9 prohibits an appeal from interlocutory orders
(1) granting a stay of any action under [ 9 U.S.C. § 3];
(2) directing arbitration to proceed under [9 U.S.C. § 4; and]
(3) compelling arbitration under [9 U.S.C. § 206] . . . .
9 U.S.C. § 16(b). This Court has interpreted this provision to mean that a district court’s order to
stay proceedings pending arbitration is not appealable unless the order is certified. Turboff v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 867 F.2d 1518, 1519-21 (5th Cir. 1989). This rule applies even
if the order compelling arbitration concerns an action at law. Id. Because the district court here did
1
Finding a lack of jurisdiction under the injunctive-relief issue disposes of any issues
“inextricably intertwined” with it.
2
not certify its order, this Court cannot consider whether the district court properly sent the matter to
arbitration until the district court enters a final judgment.
We therefore DISMISS this appeal without prejudice for lack of jurisdiction.2
2
As this Court lacks jurisdiction to hear this appeal, we need not rule on Positive’s motion
to supplement the record because the issue is moot.
3