Certain Underwriters at Lloyds v. Cravens Dargan & Co.

MEMORANDUM **

In these consolidated appeals, Certain Underwriters at Lloyd’s London (“Underwriters”) appeal two orders of the district court. The first denied Underwriters’ petition to compel arbitration and stay arbitration. The second granted Cravens Dargan & Company’s (“Cravens Dargan”) cross-petition to compel arbitration, ordering Underwriters to appoint a single arbitrator and present their “multiple arbitrations” theory to the single arbitration panel. Underwriters also contend that the district court did not have jurisdiction over the cross-petition, because its jurisdiction over the matter was divested when a notice of appeal from the order denying the petition was filed. We affirm the orders entered by the district court.

Because the parties are familiar with the factual and procedural histories of this case, we do not review them here. We have jurisdiction under 9 U.S.C. § 16 . We review the district court’s denial of a motion of compel arbitration, like the decision to compel arbitration, de novo. Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152 (9th Cir.2004). The district court’s exercise of subject matter jurisdiction is reviewed de novo. Natural Res.…

concurring.

I concur in the memorandum disposition. I do so with some misgivings based on the theory of arbitration: Because arbitration is a creature of contract, it is odd that certain underwriters of reinsurance should be considered by us bound to arbitrate before an arbitral panel that was not in any way selected by them. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 456 , 123 S.Ct. 2402 , 156 L.Ed.2d 414 (2003) (Rehnquist, C.J., dissenting) (“Just as fundamental to the agreement of the parties as what is submitted to the arbitrator is to whom it is submitted.”). The Appellants did agree in their reinsurance contract to arbitrate any dispute, and in parallel agreements other aggregations of underwriters, at different levels or times, also agreed to arbitrate. The district court probably viewed the issue of one consolidated arbitration as essentially a “procedural” issue to be decided by an arbitrator, and not as a “gateway” issue of arbitrability to be decided by a court, with the arbitrator empowered to address the issue of consolidation.

I have difficulty with this in light of the contractual nature of arbitration, and the fact that different persons or entities wrote…