[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
November 27, 2002
No. 01-15929 THOMAS K. KAHN
CLERK
_____________________________
D. C. Docket No. 99-08624 CV-DMM
BRANDON, JONES, SANDALL, ZEIDE,
KOHN, CHALAL & MUSSO, P.A., a Florida
Corporation, d.b.a. Orthopedic Center of Palm
Beach County,
Plaintiff-Appellee-
Cross-Appellant,
versus
MEDPARTNERS, INC., a Delaware
Corporation, MEDPARTNERS ACQUISITION
CORPORATION, a Delaware Corporation,
MEDPARTNERS PHYSICIAN MANAGEMENT,
L.P., a Delaware Corporation,
Defendants-Appellants-
Cross-Appellees.
_____________________________
No. 01-16079
_____________________________
D. C. Docket No. 01-08748 CV-DMM
MEDPARTNERS, INC., MEDPARTNERS
ACQUISITION CORPORATION,
Plaintiffs-Appellants-
Cross-Appellees,
versus
AMERICAN ARBITRATION
ASSOCIATION,
Defendant-Appellee.
BRANDON, JONES, SANDALL,
ZEIDE, KOHN, CHALAL & MUSSO,
P.A., d.b.a. Orthopedic Center of Palm
Beach County, JOSEPH B. CHALAL,
MARVIN A. KOHN, EMILIO MUSSO,
EDWARD W. SANDALL, MICHAEL S.
ZEIDE,
Defendants-Appellees-
Cross-Appellants.
_________________________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________________________
(November 27, 2002)
Before EDMONDSON, Chief Judge, BLACK and COX, Circuit Judges.
2
PER CURIAM:
The parties to these two separate appeals litigated three different cases
across federal and state courts in two different states. The district court, in which
the different cases were collected, entered an omnibus order that compelled
arbitration. The parties appeal, presenting arbitration-related questions about our
jurisdiction and about the merits of the case.1
BACKGROUND
I. Contract Formation
In 1994, MedPartners, Inc. contracted with Orthopedic Center of Palm
Beach County (a collection of doctors) to manage the Orthopedic Center’s clinic
over the next 20 years. According to the contract between the parties (“the
Agreement”), MedPartners pays the Orthopedic Center a monthly payment that is
based, in part, upon the doctors’ productivity.
The Agreement requires Orthopedic Center (that is, the doctors) to maintain
the same level of productivity -- the contract uses the term “industry” -- as they
1
MedPartners’s motion to file a reply brief in appeal No. 01-16079 is granted.
3
maintained before the Agreement to be eligible for a certain minimum monthly
payment. If Orthopedic Center evidences a “lack of industry,” the Agreement
provides that MedPartners can pay Orthopedic Center less than the minimum
monthly payment required by the Agreement and, eventually, terminate the
Agreement.
The Agreement has two arbitration clauses. The precise scope of the clauses
is hotly debated by the parties. One arbitration clause basically requires the parties
to arbitrate disputes over the amount of any payment.2 And the other arbitration
clause requires the parties to arbitrate disputes over whether the Agreement can be
properly terminated (in other words, whether a party is in breach).3
II. The Dispute and Initial Arbitration
2
Section G of the Agreement requires arbitration to resolve a dispute over any payment amount:
In the event of a dispute as to what amount is owed by MEDPARTNERS in any
situation where a payment is due, including but not limited to monthly payments,
the matter shall be resolved by binding arbitration under the auspices of the
American Arbitration Association . . . . For purposes of the foregoing, if a
majority of the Arbitrators rules (a) that one party owes the other party more than
$50,000, the first party shall be deemed “the losing party;” or (b) that there has
been a breach of this Agreement sufficient to justify termination by the
complaining party, said party shall be deemed “the losing party.”
3
Section 6.2(d)(1) of the Agreement provides for termination of the agreement for breach of
contract:
If [a] party [ ] maintains there is a breach [of the contract], it shall serve a written
demand for arbitration upon the alleged breaching party. The matter shall be
resolved by binding arbitration under the auspices of the American Arbitration
Association . . . .
4
In April 1999, MedPartners started paying Orthopedic Center less than the
minimum monthly payment outlined in the Agreement. And, in May 1999,
MedPartners sent Orthopedic Center a letter notifying Orthopedic Center that
MedPartners intended to terminate the Agreement in six months if the doctors did
not improve their “level of industry.” Not surprisingly, the letter created some
coolness on the doctors’ part.
Orthopedic Center first demanded, and MedPartners agreed, to arbitrate
their dispute over the amount of the April 1999 monthly payment. The parties
began to arbitrate, in Florida, only the issue of the proper amount of the April
payment before the American Arbitration Association (“AAA”). But, after the
May payment was also less than the minimum monthly payment required by the
Agreement, Orthopedic Center modified its arbitration complaint to add claims for
the May payment and for anticipatory repudiation, and requested over $40 million
in damages.
MedPartners objected to the anticipatory-repudiation claim as outside the
scope of the Agreement’s arbitration clauses. The AAA arbitration panel
disagreed. The panel concluded that the anticipatory-repudiation claim was
arbitrable (that is, within the scope of the Agreement’s arbitration clauses) and
5
continued with the arbitration in Florida, both on Orthopedic Center’s claims for
adjustment in the April and May payments and on Orthopedic Center’s
anticipatory-repudiation claim.
III. MedPartners’s Lawsuits (Dist. Case Nos. 01-8747 and 01-8748)
Five days later, MedPartners sued AAA, but not Orthopedic Center, in
Alabama state court, seeking to enjoin the Florida arbitration. In an ex parte
proceeding, the Alabama state court entered a TRO, enjoining AAA from
continuing the arbitration on any issue. And, the Alabama state court issued a
notice of hearing on a preliminary injunction. The AAA, according to its internal
policy not to get involved in litigation over claims they are arbitrating, did not
appear at the preliminary-injunction hearing.
At the one-sided hearing, the Alabama state court converted the hearing
from a preliminary-injunction hearing into a permanent-injunction hearing. The
state court thereafter issued a permanent injunction barring AAA from arbitrating
Orthopedic Center’s claims, except the claim for April’s payment.
After obtaining the TRO from the state court, MedPartners filed suit against
Orthopedic Center in the United States District Court for the Northern District of
6
Alabama and asserted claims of fraud and breach of contract. This suit is district
court case No. 01-8747 (“MedPartners’s breach of contract/fraud lawsuit”).4
Orthopedic Center filed a motion to dismiss, to transfer, or to stay the case in favor
of arbitration.
The parties returned to the arbitration being conducted in Florida. In the
arbitration, MedPartners argued that the Alabama state court injunction against
AAA prevented the arbitrators from continuing the arbitration of the anticipatory-
repudiation claim. In response, Orthopedic Center argued that the injunction was
against AAA only, not the individual arbitrators (who were neither employed nor
controlled by AAA), and that the arbitrators, therefore, were not bound by the
injunction. The arbitrators voted to proceed despite the injunction.
MedPartners immediately got the Alabama state court to issue an order to
show cause. AAA then obtained counsel and removed the Alabama state court
case to federal district court. As removed, the suit became district court case No.
01-8748 (“MedPartners’s injunction lawsuit”).5 The district court ultimately
determined that the arbitrators were in contempt of the injunction, forced them to
4
The number 01-8747 was assigned this case when it was transferred to the Southern District of
Florida. The case had a different number when it was pending before the Northern District of
Alabama.
5
The number 01-8748 was assigned this case when it was transferred to the Southern District of
Florida. The case had a different number when it was pending before the Northern District of
Alabama.
7
purge their contempt by agreeing not to arbitrate the anticipatory-repudiation
claim, and sanctioned them.
Then, MedPartners added Orthopedic Center as a defendant to the injunction
case (No. 01-8748). And, MedPartners’s injunction lawsuit (No. 01-8748) and
MedPartners’s breach of contract/fraud case (No. 01-8747) were consolidated.6
Orthopedic Center then filed -- in September 1999 -- an emergency motion to
dissolve the injunction against AAA. After waiting a year for the district court to
rule on their emergency motion, Orthopedic Center appealed to this Court in
September 2000.
IV. Orthopedic Center’s Lawsuit (Dist. Case No. 99-8624)
In the meantime, Orthopedic Center had filed its own complaint against
MedPartners in Florida state court. Orthopedic Center’s complaint sought an order
compelling arbitration of its anticipatory-repudiation claim. MedPartners removed
the case to the Southern District of Florida; it was assigned to Judge Middlebrooks.
The case became district court case No. 99-8624 (“Orthopedic Center’s lawsuit”).
In November 1999, the district court dismissed Orthopedic Center’s complaint
6
MedPartners filed a motion requesting that the cases be consolidated, and the district court
granted that request.
8
because of the injunction against AAA: the district court believed that the Alabama
injunction bound Orthopedic Center despite the fact that Orthopedic Center was
not named in the injunction and was no party to the case at the time the injunction
was granted. Orthopedic Center then appealed to this Court.
V. Our First Pair of Opinions
We then decided both appeals. After deciding that the Alabama injunction
did not bind Orthopedic Center, we directed Judge Middlebrooks in the Southern
District of Florida to reinstate Orthopedic Center’s complaint seeking to compel
arbitration. And, we directed that MedPartners’s two consolidated cases in the
Northern District of Alabama be transferred to the Southern District of Florida.
MedPartners’s consolidated cases were assigned to Judge Middlebrooks. But,
MedPartners’s consolidated cases (Nos. 01-8747 & 01-8748) were never formally
consolidated with Orthopedic Center’s case seeking to compel arbitration (No. 99-
8624).
VI. The District Court’s Order From Which the Appeal is Taken
9
After briefs and a hearing, Judge Middlebrooks issued an Omnibus Order
that impacted on all three cases. In case No. 99-8624, Orthopedic Center’s suit
against MedPartners seeking to compel arbitration, Judge Middlebrooks entered an
order compelling arbitration on all claims, denying Orthopedic Center’s claim for
attorneys’ fees for frivolous litigation, and purporting to close the case. But, the
order also explicitly notes that Judge Middlebrooks retained jurisdiction to enforce
his orders, to “confirm, modify, amend, or vacate the Arbitrator’s award,” and to
award attorneys’ fees in association with the litigation and arbitration.
In case No. 01-8748, the Order dissolved the injunction in MedPartners’s
first lawsuit, dismissed the complaint, and closed the case.7 Judge Middlebrooks
explicitly retained jurisdiction in case No. 01-8748 only to award costs and
attorneys’ fees. For case No. 01-8747, MedPartners’s suit asserting fraud and
breach of contract claims against Orthopedic Center, Judge Middlebrooks stayed
that case pending arbitration.
MedPartners filed two appeals from Judge Middlebrooks’s Omnibus Order.
MedPartners appeals in district court case No. 99-8624 (the case originally filed by
Orthopedic Center seeking to compel arbitration). This appeal is appeal No. 01-
15929. And, MedPartners appeals in district court case No. 01-8748 (the case in
7
Judge Middlebrooks entered a copy of the Omnibus Order and a separate final judgment in case
No. 01-8748.
10
which Judge Middlebrooks dissolved the injunction). This appeal is appeal No.
01-16079. Orthopedic Center cross-appealed in both appeals and argues that the
district court erred by failing to award attorneys’ fees for frivolous litigation under
Florida Statute § 57.105.
DISCUSSION
I. Jurisdiction
A. The Appeal From Orthopedic Center’s Lawsuit (App. No. 01-15929)
In support of jurisdiction in appeal No. 01-15929, MedPartners argues that
the Omnibus Order resolved all the issues in district court case No. 99-8624 and
that this appeal is an appeal in that case (No. 99-8624) only. Therefore, argues
MedPartners, we have jurisdiction over this appeal as it is an appeal from a “final
judgment.” To analyze this argument, we must first determine from what,
precisely, MedPartners appeals.
MedPartners’s two Alabama lawsuits were consolidated and transferred to
the Southern District of Florida; but, the two lawsuits (Nos. 01-8747 & 01-8748)
11
were never consolidated with Orthopedic Center’s lawsuit (No. 99-8624), seeking
to compel arbitration that was also pending in the Southern District of Florida
before Judge Middlebrooks. Appeal Number 01-15929 is an appeal from district
court case No. 99-8624. Because case No. 99-8624 was never consolidated with
the Alabama cases, we look only to the disposition of case No. 99-8624 in the
district court to decide whether we have jurisdiction over appeal No. 01-15929.
See S+L+H S.p.A. v. Miller-St. Nazianz, Inc., 988 F.2d 1518, 1522-23 (7th Cir.
1993).
To decide if we have jurisdiction over appeal No. 01-15929, we must
determine whether the order appealed from was a “final order.”8 “Final” orders,
regardless of whether they compel arbitration or decline to compel arbitration, are
appealable. 9 U.S.C. § 16; Green Tree Fin. Corp. v. Randolph, 121 S. Ct. 513, 519
(2000). When determining whether an order is final, it does not matter whether the
parties before the district court initially sought substantive relief in addition to an
order compelling arbitration. We focus on the purported “final” order and
determine whether, at the time entered, the “order plainly disposed of the entire
case on the merits and left no part of it pending before the court.” Green Tree, 121
S. Ct. at 520.
8
Unless the order appealed from -- an order that compels arbitration -- is a final order, we do not
have jurisdiction. 9 U.S.C. § 16.
12
Orthopedic Center’s amended complaint (Dist. No. 99-8624) sought an order
(1) compelling arbitration, (2) dissolving the injunction ab initio in district court
case No. 01-8748, (3) staying district court case No. 01-8747 in favor of
arbitration, (4) awarding attorneys’ fees for frivolous litigation under Fla. Stat. §
57.105, and (5) “retaining jurisdiction to enforce the Court’s orders, to confirm the
arbitrators’ award, and to award attorneys’ fees and costs” under the Agreement.
The district court’s Omnibus Order compelled arbitration, dissolved the injunction
in case No. 01-8748, stayed case No. 01-8747, denied attorneys’ fees under Fla.
Stat. § 57.105, but explicitly “retain[ed] jurisdiction to enforce the Court’s orders,
to confirm, modify, amend, or vacate the Arbitrators’ award, and to award or
confirm the award of attorneys’ fees and costs of this litigation and the arbitration,”
and “closed” the case.
The district court, in other words, ruled on all the relief requested by
Orthopedic Center in its complaint and “closed” the case. In most cases, that
conduct would lead us to conclude that the order was final. See Employers Ins. of
Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th Cir. 2001)
(“[G]enerally speaking, a decision of the district court is final when it disposes of
all the issues framed by the litigation and leaves nothing for the district court to do
but execute the judgment.”). But, in this case, part of the relief requested (and
13
granted) was for the district court to retain jurisdiction to confirm the arbitration
award and to award attorneys’ fees associated with the litigation and the
arbitration. This request (and grant) of retained jurisdiction contemplates that more
is yet to come in this litigation.
Because the district court explicitly retained jurisdiction to award attorneys’
fees, we cannot say, as in Green Tree, that the “order plainly disposed of the entire
case on the merits and left no part of it pending before the court.” Id. In this
Circuit, a request for attorneys’ fees pursuant to a contractual clause is considered a
substantive issue; and an order that leaves a substantive fees issue pending cannot
be “final.” See Irena v. Arthur Murray Int’l, Inc., 833 F.2d 1472, 1476 (11th Cir.
1987) (concluding that, when party seeks attorneys’ fees under contract between
parties, an order that does not rule on the award of those attorneys’ fees is not
final). Because we consider Orthopedic Center’s complaint to have raised the issue
of an award of contracted-for attorneys’ fees -- in the context of the litigation
before the district court -- substantive issues are still pending before the district
court.9 Cf. Employers Ins. of Wausau, 251 F.3d at 1322 (finding jurisdiction
9
Both the amended complaint and the Omnibus Order contemplate that the parties soon will
return to litigate attorneys’ fees. It is immaterial that no motion for fees currently is pending in
the district court. Cf. Corion Corp. v. Chen, 964 F.2d 55, 56-60 (1st Cir. 1992) (concluding
district court which retained jurisdiction over arbitration suit may reconsider issues previously
decided, preventing finality of compelled arbitration order).
14
“because the arbitration order disposes of all the issues framed by the litigation and
leaves nothing for the district court to resolve”).
Two additional facets of this case support our conclusion that issues are still
pending before the district court, and, therefore, that the order appealed from is not
“final.” First, the Omnibus Order “closed” the case, instead of dismissing the case.
See Filanto, S.p.A. v. Chilewich Int’l Corp., 984 F.2d 58, 61 (2d Cir. 1993) (“We
see no jurisdictional significance to the docket entry marking the case as ‘closed,’
which we will assume was made for administrative or statistical convenience.”);
see also Campbell v. Dominick & Dominick, Inc., 872 F.2d 358, 360 (11th Cir.
1989)(order closing case for statistical purposes not final order); cf. Bank v. Pitt,
928 F.2d 1108, 1111 (11th Cir. 1991) (order granting motion to dismiss and
directing that case be closed is final order). Second, the district court did not enter
a separate final judgment in case No. 99-8624. Corion Corp, 964 F.2d at 56
(refusing, in arbitration context, to excuse absence of separate final judgment as
mere formality).
The district court’s order -- given the explicit retention of jurisdiction by the
district court over the award of attorneys’ fees, the closing (instead of dismissing)
of the case, and the absence of a separately-filed final judgment -- is no final order.
We, therefore, lack jurisdiction over appeal No. 01-15929, MedPartners’s appeal
15
and Orthopedic Center’s cross-appeal from district court case No. 99-8624. 9
U.S.C. § 16 (interlocutory orders compelling arbitration are not appealable).
B. The Injunction Appeal (App. Case No. 01-16079)
MedPartners argues that we have jurisdiction over appeal No. 01-16079 as it
is an appeal from a “final judgment” because the Omnibus Order resolved all
issues before the district court in case No. 01-8748. Involved in MedPartners’s
argument that the Omnibus Order is a “final judgment” is an assumption that
district court case No. 01-8748 (MedPartners’s injunction lawsuit) was never
consolidated with district court case No. 01-8747 (MedPartners’s breach of
contract/fraud lawsuit). MedPartners’s argument fails because it is based upon an
erroneous assumption.
MedPartners’s injunction lawsuit (No. 01-8748) was consolidated with
MedPartners’s breach of contract/fraud lawsuit (No. 01-8747). Absent
certification pursuant to Fed. R. Civ. P. 54(b), when two cases are consolidated for
all purposes, both cases must be final for either one to be appealed as a “final
judgment.” Bank South Leasing, Inc. v. Williams, 769 F.2d 1497, 1500 n.1 (11th
Cir. 1985), vacated on other grounds, 778 F.2d 704 (11th Cir. 1985). And, when
16
two cases that are closely related and that could have been brought as one action
are consolidated, and when it is unclear whether the consolidation was for all
purposes, the two cases should be treated as consolidated for all purposes. See
Brown v. United States, 976 F.2d 1104, 1107 (7th Cir. 1992) (stating that cases
where extent of consolidation is unclear should be treated as consolidated for all
purposes); see also Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir. 1988)
(declaring “strong presumption” against appealability in consolidated cases not
disposing of all claims even when extent of consolidation not clear).
We treat MedPartners’s two Alabama cases -- cases that are closely related
and could have been brought together and which were later consolidated for
unspecified reasons -- as if they were consolidated for all purposes. Because both
cases (Nos. 01-8747 & 01-8748) must be final for us to have jurisdiction over an
appeal from either one as a final judgment, and because MedPartners’s breach of
contract/fraud lawsuit (No. 01-8747) was merely stayed pending arbitration (and
thus not brought to an end), we cannot take jurisdiction over this appeal from case
No. 01-8748 as an appeal from a “final judgment.”
MedPartners makes an alternative jurisdictional argument. They say that,
even if there has been no “final judgment” in district court case No. 01-8748 by
virtue of the case’s consolidation with district court case No. 01-8747, the
17
Omnibus Order dissolved an injunction in case No. 01-8748; and, therefore, the
Order is immediately appealable under Section 1292(a)(1) because it “dissolv[ed]”
an injunction. See 28 U.S.C. § 1292(a)(1) (granting courts of appeals jurisdiction
over interlocutory appeals from orders dealing with injunctions); Am. Express Fin.
Advisors, Inc. v. Makarewicz, 122 F.3d 936, 939 (11th Cir. 1997)(recognizing that
28 U.S.C. § 1292(a)(1) grants jurisdiction over interlocutory orders “refusing or
dissolving injunctions”). This contention is correct. We exercise jurisdiction over
this appeal to the extent that it seeks interlocutory review of an injunctive order.10
Because we have interlocutory jurisdiction, Orthopedic Center’s motion to dismiss
the appeal for lack of jurisdiction is denied.11
II. Merits
10
According to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 16, an appeal can be taken from
“an interlocutory order granting, continuing, or modifying an injunction against an arbitration.”
9 U.S.C. § 16(a)(2)(emphasis added). Because we have jurisdiction over a “dissolved”
injunction based upon the language of 28 U.S.C. § 1292(a)(1), we need not decide if the
“modifying” language of the FAA applies to these facts.
11
Because no “final judgment” is associated with appeal No. 01-16079, appellate jurisdiction
over the cross-appeal submitted by Orthopedic Center is lacking. See Swint v. Chambers Cty.
Comm’n, 115 S.Ct. 1203, 1210 (1995)(stating that courts of appeals do not have discretion to
review orders that are “neither independently appealable nor certified by the district court”). The
Supreme Court has made clear that courts of appeals should be reluctant to exercise jurisdiction
over “related rulings that are not themselves appealable.” Id. at 1212. In addition, Orthopedic
Center has not argued that the district court’s decisions on attorneys’ fees and on the dissolved
injunction are so “inextricably intertwined” that we must exercise pendant appellate jurisdiction
to review both decisions together. Id. We dismiss the cross-appeal for want of jurisdiction.
18
The appeals brought by MedPartners present two questions on the merits.
Whether the district court erred by compelling arbitration. And, whether the
district court erred by dissolving the injunction. Although we do not have
jurisdiction over appeal No. 01-15929 from district court case No. 99-8624
(Orthopedic Center’s lawsuit in which the district court compelled arbitration), our
review of appeal No. 01-16079 -- an appeal from district court case No. 01-8748
(MedPartners’s injunction lawsuit) over which we do have jurisdiction -- requires
us to address both of the questions presented.
A. Compelling Arbitration
MedPartners does not dispute that arbitration on some of Orthopedic
Center’s claims is appropriate. MedPartners only disputes the arbitrability of the
anticipatory-repudiation claim and argues the district court erred by compelling
arbitration on that claim. MedPartners contends that Orthopedic Center’s
anticipatory-repudiation claim was outside the scope of the Agreement’s
arbitration clauses.
19
The district court noted that section G of the Agreement “calls for arbitration
of any dispute over any payments ‘owed’ or ‘due,’ including but not limited to
monthly payments.” The district court determined a plain reading of section G
included debts “owed” or “due” resulting from a breach of contract. The district
court also concluded that allegations in the amended complaint -- that MedPartners
accused Orthopedic Center of a lack of industry, stopped paying monthly
guaranteed wage payments, threatened unilateral contract termination with its May
1999 letter, and sued Orthopedic Center for fraud and breach of contract -- were
sufficient allegations of breach of contract to invoke the arbitration requirement of
section 6.2(d)(“The [allegations of breach] shall be resolved by binding arbitration
. . . .”). The district court ordered the parties to arbitrate the anticipatory-
repudiation claim in accord with the Agreement.
MedPartners mainly argues on appeal that the district court incorrectly read
the arbitration provisions of the Agreement. MedPartners, in turn, advances a
much narrower reading of those provisions. MedPartners reads section G as
requiring arbitration to resolve a dispute about the “amount” of a past-due monthly
payment. The section contemplates no arbitration for “all” contract claims,
“including claims for future damages.” MedPartners also argues that section 6.2
concerns the arbitration procedures used to determine whether one of the parties
20
has proper grounds upon which to terminate the contract. Because MedPartners
served no demand for arbitration to terminate the contract, section 6.2 compels no
arbitration. The section was not designed, argues MedPartners, to resolve general
contract claims or claims for future damages.
The FAA reflects a “liberal federal policy favoring arbitration agreements”
and “creates a body of federal substantive law establishing and regulating the duty
to honor an agreement to arbitrate.” Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 105 S.Ct. 3346, 3353 (1985)(internal quotation marks and citations
omitted). The Act requires the courts to “rigorously enforce agreements to
arbitrate.” Id. “[Q]uestions of arbitrability must be addressed with a healthy regard
for the federal policy favoring arbitration . . . . The Arbitration Act establishes
that, as a matter of federal law, any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration . . . .” Id. (quoting Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 103 S.Ct. 927, 941 (1983))(emphasis
added).
Where no ambiguity exists in an agreement to arbitrate, “the language of the
contract [ ] defines the scope of disputes subject to arbitration.” Equal
Employment Opportunity Comm’n v. Waffle House, Inc., 122 S.Ct. 754, 762
(2002). And we will compel no arbitration of issues that are outside an agreement
21
to arbitrate. Id. at 764 (“While ambiguities in the language of the agreement should
be resolved in favor of arbitration, we do not override the clear intent of the parties,
or reach a result inconsistent with the plain text of the contract, simply because the
policy favoring arbitration is implicated.”).
We believe the language of the Agreement requires arbitration of the
anticipatory-repudiation claim pressed by Orthopedic Center. MedPartners’s
narrow reading of the Agreement is unpersuasive. Section 6.2(d) of the Agreement
plainly requires arbitration for breach of contract claims. And “[t]he doctrine of
anticipatory repudiation is part of the law of contracts in Florida.” Blue Lakes
Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705, 708 (Fla. 4th DCA
1985)(quoting Southern Crane Rentals, Inc v. City of Gainesville, 429 So.2d 771,
773 (Fla. 1st DCA 1983)). Because the Agreement clearly requires arbitration for
breach of contract claims generally, the Agreement must also require arbitration for
a more specific anticipatory-breach-of-contract claim.
The argument of MedPartners that the Agreement -- under section G --
permits arbitration only of controversies over past due amounts, and not future
amounts, is unavailing. “Where an obligor repudiates a duty before he has
committed a breach by non-performance and before he has received all of the
agreed exchange for it, his repudiation alone gives rise to a claim for damages for
22
total breach.” Id. (quoting Hosp. Mort. Group v. First Prudential Dev. Corp., 411
So.2d 181, 182 (Fla. 1982), itself quoting Restatement (Second) of Contracts § 253
(1979)). If Orthopedic Center prevails on its claim that MedPartners has breached
the agreement, Orthopedic Center will be immediately entitled to all damages
arising from that breach. Nat’l Educ. Center, Inc. v. Kirkland, 635 So.2d 33, 34
(Fla. 4th DCA 1993)(“A non-breaching party is entitled to recover the benefit of its
bargain under a contract. Under the facts of this case, such benefit would include
all damages, past and future.”). Future payments owing from MedPartners to
Orthopedic Center under an anticipatory-breach theory will become presently due
and, thus, embraced by the requirements of section G, which compels arbitration
for disputed amounts then-owing or due.
We can offer no improvement on the district court’s insight on the matter:
“To conclude otherwise would allow MedPartners to avoid arbitration simply
through artful pleading and would seem to require a separate arbitration each
month for the twelve remaining years on the life of the contract.” See also Nat’l
Educ. Center, Inc., 635 So.2d at 34 (where “one [party] notifies the other
unequivocally that he will not perform . . . [that party may be sued] at once for an
entire breach of the contract, without waiting for the expiration of the time it
would take to complete the contract, and can recover as damages the same profits
23
that he would have earned had he entirely performed the contract”)(quoting
Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (Fla. 1890))(emphasis in original).
The district court correctly compelled arbitration -- in accord with the Agreement -
- of the anticipatory-repudiation claim.12
B. Dissolving the Injunction
Because the district court properly compelled arbitration in this case, it
reasonably follows that the district court properly dissolved the injunction
prohibiting AAA from conducting that arbitration. MedPartners argues that
injunctions against specific arbitrators can be permissible, but does not discuss the
critical issue: whether AAA, as a substantive matter, should have been (and should
continue to be) enjoined in this case.
12
The district court also found the parties contracted for the arbitration of arbitrability (or the
determination by the arbitrators whether the parties contractually agreed to arbitrate a particular
claim). The parties agreed to be bound by the procedural rules of the AAA. After making this
agreement, the AAA amended its rules to include a rule allowing the arbitrators to determine
arbitrability. The district court concluded the parties implicitly agreed to this amendment and,
because the arbitrators earlier determined the anticipatory-repudiation claim was within the
arbitration clause of the Agreement, the district court compelled arbitration on this alternative
ground. Because we also determine the anticipatory-repudiation claim was part of the agreement
to arbitrate, we decline to answer whether the parties truly agreed to the amended AAA rule
granting arbitrators authority to determine arbitrability.
We have considered MedPartners’s remaining arguments against compelling arbitration
on the anticipatory-repudiation claim and conclude they are without merit.
24
MedPartners mainly argues that the district court erred by relying on the idea
that arbitral immunity protects arbitrators from suit for injunctive, as well as
monetary, relief. No need exists, however, to decide whether arbitral immunity
protects arbitrators from suits seeking only injunctive relief. Even if arbitral
immunity does not prevent all injunctions against arbitrators, but see Tamari v.
Conrad, 552 F.2d 778 (7th Cir. 1977) (arbitral immunity protects arbiter from
injunctive relief), the injunction in this case was improperly entered and ripe to be
dissolved:13 the Agreement required the parties to arbitrate the anticipatory-
repudiation claim.
We affirm the portion of the district court’s order dissolving the injunction
ab initio.14
Appeal No. 01-15929 – including the cross-appeal – is DISMISSED for
want of jurisdiction and, in Appeal No. 01-16079, the district court’s order is
AFFIRMED, except that the cross-appeal is DISMISSED for want of jurisdiction.
13
MedPartners makes another argument -- that the district court erred by relying on Florida,
instead of Alabama, law when determining whether injunctive relief against arbitrators is ever
allowed -- without explaining how this choice-of-law decision is material to our determination of
whether this injunction is now due to be dissolved. We, therefore, do not address this argument.
14
Because the issue was not raised by the parties, we express no opinion whether the Alabama
injunction was properly dissolved ab initio or, rather, at some later time.
25