     Case: 11-30068 Document: 00511444901 Page: 1 Date Filed: 04/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 13, 2011

                                     No. 11-30068                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LOUISIANA HEALTH SERVICE INDEMNITY COMPANY, doing business
as Blue Cross Blue Shield of Louisiana,

                                                   Plaintiff – Appellee
v.

DVA RENAL HEALTHCARE, INCORPORATED, formerly known as Gambro
Healthcare, Incorporated,

                                                   Defendant – Appellant




               Appeal from the United States District Court for the
                    Western District of Louisiana, Lafayette
                       District Court Case No. 05-CV-1450


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant, DVA Renal Healthcare, Inc., challenged a district court decision
upholding an arbitration panel’s 2007 “partial final” Clause Construction Award,
which authorized class arbitration despite the arbitration agreement’s silence




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 11-30068 Document: 00511444901 Page: 2 Date Filed: 04/13/2011



                                       No. 11-30068

on the issue.1      DVA asserted that this outcome conflicted with the recent
Supreme Court decision in Stolt-Nielsen, which held that an arbitration panel
exceeded its powers when, for public policy reasons, it allowed a class arbitration
to proceed in spite of the agreement’s silence on the subject. While this appeal
was pending, the arbitration panel denied the appellee’s class certification
motion. Appellant now moves to voluntarily dismiss the present appeal “without
prejudice,” so that it may renew its clause construction objections should the
arbitration panel later decide to certify a class.2
       IT IS ORDERED that appellant’s opposed alternative motion to dismiss
the appeal without prejudice is GRANTED.


       IT IS FURTHER ORDERED that appellant’s opposed motion to dismiss
the appeal as moot is DENIED.




       1
          We note that a circuit split exists as to whether federal courts may hear an
interlocutory appeal from an arbitral tribunal. Compare Dealer Computer Servs., Inc. v. Dub
Herring Ford, 547 F.3d 558 (6th Cir. 2008) (holding that an arbitration panel’s partial ruling
that the contract did not bar class proceedings was not ripe for review because the arbitrators
had not yet determined that class arbitration should proceed), with Hart Surgical, Inc. v.
Ultracision, Inc., 244 F.3d 231, 234 (1st Cir. 2001) (holding that the Federal Arbitration Act
permits a district court to confirm or vacate an arbitration panel’s “partial award”). The
Supreme Court has allowed such an appeal in certain limited circumstances. See Stolt-Nielsen
S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010). Because this order dismisses
the appeal without a decision, we express no opinion as to whether jurisdiction would exist on
the facts presented here.
       2
          See Dealer Computer Servs., 547 F.3d at 562 (“[I]f the arbitrators in this case
ultimately decide to certify [a] class . . . Rule 5(d) would nonetheless provide [the defendant]
ample opportunity to obtain judicial review of any arguments it may have against class
arbitration, including those challenging the soundness of the arbitration panel’s prior Clause
Construction Award.”). If the appellant appealed a later class certification, the future panel
of this court would need to evaluate our jurisdiction as well as the merits of challenging the
clause construction. We express no opinion as to whether the conclusions of the district court
decision appealed here were proper or not.

                                               2
    Case: 11-30068 Document: 00511444901 Page: 3 Date Filed: 04/13/2011



                                  No. 11-30068

      IT IS FURTHER ORDERED that appellee’s opposed motion for summary
affirmance is DENIED.


      IT IS FURTHER ORDERED that appellee’s motion for costs is DENIED.


      IT IS FURTHER ORDERED that appellant’s opposed alternative motion
to extend time to file appellant’s brief for thirty (30) days after disposition of
pending motion is DENIED as moot.




                                        3
