                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 11, 2009
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT




    GEORGE GUZZARDO and JILL
    GUZZARDO, individually and on
    behalf of a class of similarly situated
    persons and entities,                               No. 09-4111
                                               (D.C. No. 2:08-CV-00204-BSJ)
                 Plaintiffs-Appellees,                    (D. Utah)

    MONAVIE, a Utah limited liability
    company,

                 Plaintiff,

    v.

    AMWAY CORPORATION,
    a Delaware corporation, now known
    as Amway International, Inc.,

                 Defendant-Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McCONNELL, Circuit Judge.




*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
      This matter is before the court on Amway Corporation’s appeal from the

district court’s purported refusal to grant Amway’s motion under section 3 of the

Federal Arbitration Act (FAA), 9 U.S.C. § 3, to stay judicial proceedings

instituted by the Guzzardo plaintiffs. 1 The district court certified Amway’s

appeal as frivolous, explaining:

             The Amway Defendants’ notice of appeal—filed in the midst
      of an ongoing pretrial conference—refers to a “refusal to grant
      Defendants’ motion to stay.” Such “refusal” simply did not occur.
      No order has been entered by this court . . . and no “order . . .
      refusing a stay of any action under section 3” exists on this record
      that may be appealed from under § 16 of the Federal Arbitration Act.
      This court having made no ruling and having entered no order, the
      notice of appeal is obviously premature.

R., Doc. 502 at 5. Amway then filed an emergency motion for stay, arguing that

the district court’s refusal to decide the motion to stay deprives it of its

bargained-for right to avoid litigation, a decision that, it contends, is immediately

appealable. We disagree.

      Under § 16(a)(1)(A) of the FAA, an interlocutory appeal may be taken from

“an order . . . refusing a stay of any action under section 3.” But the district court

in this case has not entered “an order . . . refusing a stay.” Id. (emphasis added).

Rather, it has scheduled a hearing to determine whether to grant Amway’s

motion, which the FAA explicitly empowers it to do. See 9 U.S.C. § 6 (“Any

application to the court hereunder shall be made and heard in the manner provided

1
    The Guzzardo plaintiffs filed suit to enjoin arbitration proceedings that
Amway has commenced.

                                          -2-
by law for the making and hearing of motions, except as otherwise herein

expressly provided.”).

      Because there is no order for this court to review, we are without

jurisdiction to entertain Amway’s appeal. Accordingly, Amway’s appeal is

DISMISSED for lack of jurisdiction, and its emergency motion for stay is

DENIED as moot, see Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755,

756-57, 760 (10th Cir. 1993) (stating that where there is no jurisdiction over an

underlying appeal, “the motion for stay must be denied”).

      We GRANT Amway’s motion to exceed page limitation for its emergency

motion for stay, the Guzzardo plaintiffs’ motion to exceed page limitation for its

response to Amway’s emergency motion, and Amway’s motion to exceed page

limitation for its reply in support of its emergency motion for stay.


                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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