     Case: 09-10424     Document: 00511039061          Page: 1    Date Filed: 03/02/2010




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

                                                  FILED
                                                                            March 2, 2010

                                       No. 09-10424                    Charles R. Fulbruge III
                                                                               Clerk

JOHN AMESER,

                                                   Plaintiff - Appellant
v.

NORDSTROM INC,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                   (09-CV-395)


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
CARL E. STEWART, Circuit Judge:*

        John Ameser brought an arbitration claim alleging that Nordstrom, Inc.
fired him from his job in violation of the Family and Medical Leave Act (FMLA),
Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act
(ADA), and Title VII, and the arbitrator ruled in favor of Nordstrom on all
counts. Ameser then filed a Motion to Vacate the arbitration decision in Texas
state court. Nordstrom removed to federal court. The district court then entered



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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an order denying all motions pending prior to removal, subject to refiling.
Ameser timely appealed. We conclude that the district court did not enter a final,
appealable order and we therefore dismiss for lack of appellate jurisdiction.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Beginning in April 2001, Nordstrom employed Ameser full-time as a
salesperson at its department store in Frisco, Texas. Ameser was fired by
Nordstrom on July 23, 2007. Soon thereafter, Ameser presented an arbitration
claim to the American Arbitration Association (AAA) pursuant to the mandatory
Dispute Resolution Program incorporated in his pre-employment agreement
with Nordstrom. He alleged that Nordstrom wrongfully fired him in violation of
the FMLA, the ADA, the ADEA, Title VII, and 42 U.S.C. § 1981.
      AAA chose Melva Harmon to act as arbitrator in the matter. Harmon’s
initial disclosures revealed no conflicts of interest or prior dealings with the
parties. However, Nordstrom’s counsel notified the AAA that he had previously
arbitrated a matter before Harmon. In response, Ameser’s counsel requested
additional information concerning the prior representation and reserved the
right to object to Harmon’s appointment pending receipt of the information.
Nordstrom objected to production of the information, and the information was
never formally provided by the AAA. Ameser stood on the reservation of rights
in his letter, but did not formally object to Harmon’s selection.
      Harmon conducted a two-day hearing and issued an award on November
3, 2008, finding in favor of Nordstrom on every claim.
      On February 2, 2009, Ameser filed in Texas state court a Motion to Vacate
the arbitration award against him on numerous grounds, including bias on the
part of the arbitrator. Before filing a response to the Motion to Vacate in state
court, Nordstrom removed the case to federal court. Ameser then filed a Request
for Entry of Default with the clerk of the district court on the grounds that
Nordstrom had not timely responded to the Motion to Vacate. The clerk declined

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to enter a default, and referred the matter to the judge. Upon being advised it
had failed to timely answer, Nordstrom sought leave of court to file a response
to the Motion to Vacate. On April 1, 2009, the district court entered an order
denying as moot Nordstrom’s Motion for Leave to File a Response to Ameser’s
Motion to Vacate. The district court then entered an order on April 6, 2009,
which stated in its entirety:
      On March 3, 2009, this case was removed from the 134th Judicial District
      Court, Dallas County, Texas. All motions pending prior to that removal
      are hereby DENIED subject to refiling in this court.
      SO ORDERED.
The order included by its terms the Motion to Vacate. At that time, the three-
month period for filing a motion to vacate an arbitration award had expired
pursuant to 9 U.S.C. § 12.
                                II. DISCUSSION
      Ameser appeals on the grounds that the district court erred in denying his
Motion to Vacate the arbitration award, and erred by refusing to grant the
Motion for Default Judgment. But “before addressing the merits of this case, we
must first examine our appellate jurisdiction.” In re Pratt, 524 F.3d 580, 584 (5th
Cir. 2008).
      A. Motion to Vacate
      Ameser claims that the April 6 order is an appealable final judgment with
respect to an arbitration under 9 U.S.C. § 16(a)(3) because the order disposed of
all issues in an independent action to enforce rights under the Federal
Arbitration Act (FAA). He notes that despite the “subject to refiling” language
in the order, the three-month period for filing a motion to vacate had expired at
the time of the order and it is unclear whether a re-filed motion to vacate would
comply with the statute of limitations. He further argues that the district court
gave no indication of what defects might be present in the existing pleading, nor
provided a time frame for refiling. Ameser also characterizes the order as the

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denial of a petition under § 4 of the FAA that would provide jurisdiction under
9 U.S.C. § 16(a)(1)(b).
      Nordstrom avers that this court lacks appellate jurisdiction because the
April 6 order merely required Ameser to refile his claims, and was neither a
denial of a petition for purposes of 9 U.S.C. § 16(a)(1)(B) nor a final judgment
under 9 U.S.C. § 16(a)(3). Nordstrom characterizes the order as simply requiring
Ameser to refile his Motion to Vacate under Federal Rule of Civil Procedure
81(c)(2).1 According to Nordstrom, the refiled Motion to Vacate ordered by the
court would relate back to the time the original Motion to Vacate was filed
pursuant to Rule 15(c)(1)(B).2
             1. Denial of a Section 4 Petition
      The FAA provides that “an appeal may be taken from . . . an order . . .
denying a petition under section 4 of this title to order arbitration to
proceed . . . .” 9 U.S.C. § 16(a)(1)(b). Section 4, in turn, provides:
      A party aggrieved by the alleged failure, neglect, or refusal of
      another to arbitrate under a written agreement for arbitration may
      petition any United States district court which, save for such
      agreement, would have jurisdiction under Title 28 . . . for an order
      directing that such arbitration proceed in the manner provided for
      in such agreement. . . If no jury trial be demanded by the party


      1
       (c) Removed Actions.
           (1) Applicability. These rules apply to a civil action after it is removed
           from a state court.
           (2) Further Pleading. After removal, repleading is unnecessary unless the
           court orders it . . . .
      Fed. R. Civ. P. 81(c).
      2
       (c) Relation Back of Amendments.
          (1) When an Amendment Relates Back. An amendment to a pleading
          relates back to the date of the original pleading when:
             . . . (B) the amendment asserts a claim or defense that arose out of the
             conduct, transaction, or occurrence set out--or attempted to be set out--in
             the original pleading . . . .
      Fed. R. Civ. P. 15(c)(1)(B).


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      alleged to be in default . . . the court shall hear and determine such
      issue.
9 U.S.C. § 4.
      Section 16(a)(1)(b) typically applies to denials of motions to compel
arbitration. See, e.g., Agere Sys., Inc. v. Samsung Elec. Co., 560 F.3d 337 (5th
Cir. 2009); Eman-Henshaw v. Park Plaza Hosp., 129 F.3d 610 (5th Cir. 1997).
Although Ameser does seek a new arbitration in his Motion to Vacate, that
request for relief alone does not place his motion within the jurisdictional
parameters of § 16(a)(1)(b). In support of his § 16(a)(1)(b) jurisdictional
argument, Ameser cites only Republic Insurance Co. v. PAICO Receivables, LLC,
383 F.3d 341, 344 (5th Cir. 2004). In Republic, a party to litigation proceeded
through the pre-trial process and asserted the right to arbitration just days
before trial; the district court concluded that the party had waived its right to
arbitrate. Id. Here, in stark contrast to Republic, Nordstrom and Ameser have
already arbitrated the claim at issue.
      Ameser additionally argues that under § 16(a)(1)(b) Nordstrom has refused
to arbitrate under the terms of the written arbitration agreement, as required by
§ 4. Ameser asserts that Harmon did not “disclose any information that may . .
. create an appearance of bias” as required by the Nordstrom Dispute Resolution
Program arbitration agreement, and therefore the arbitration did not “proceed
in the manner provided for in [the] agreement.” But Nordstrom never refused an
arbitrator that satisfied the requirements of the agreement; at the time of the
arbitration Ameser did not formally object to Harmon or request a different
arbitrator—it is only post-decision that Ameser has objected.
      2. Final Decision with Respect to an Arbitration
      The FAA additionally provides that “[a]n appeal may be taken from . . . a
final decision with respect to an arbitration that is subject to this title.” 9 U.S.C.
§ 16(a)(3). The term “final decision” has a “well-developed and longstanding


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meaning. It is a decision that ‘ends the litigation on the merits and leaves
nothing more for the court to do but execute the judgment.’” Green Tree Fin.
Corp. v. Randolph, 531 U.S. 79, 86 (2000) (quoting Catlin v. United States, 324
U.S. 229, 233 (1945)). “Because the FAA does not define ‘a final decision with
respect to an arbitration’ or otherwise suggest that the ordinary meaning of
‘final decision’ should not apply,” the Supreme Court accords the term its
well-established meaning. Id. (citing Evans v. United States, 504 U.S. 255,
259-60 (1992)).
      This court has not previously addressed a “final decision” determination
in the § 16(a)(3) context, but Green Tree’s reliance on its well-established
meaning suggests that discussions of what constitutes a final decision for
purposes of appellate jurisdiction under 28 U.S.C. § 1291 are instructive. See id.
Under § 1291, however, this court’s determination of its jurisdiction over a
dismissal or denial without prejudice to refile varies depending on the
circumstances of each case. See, e.g., Exxon Mobil Corp. v. Turner Indus. Group,
LLC, 339 F. App’x 441, 443 (5th Cir. 2009) (unpublished) (exerting appellate
jurisdiction over Rule 12(b)(6) dismissal without prejudice of a declaratory
action); Telles v. City of El Paso, 164 F. App’x 492, 495 (5th Cir. 2006)
(unpublished) (no appellate jurisdiction over denial of a motion without prejudice
to refile, where district court did not reach the merits of the motion or dispose
of any substantive issues). Each case requires an examination of the finality of
the underlying order.
      Ameser asserts that the district court’s denial was a final judgment
because any “refiling” would be futile as barred by the statute of limitations,
correctly noting that it is uncertain whether a refiled Motion to Vacate would
comply with Rule 15 or would be time-barred. Although Ameser cites cases for
the premise that courts have been unforgiving of any failure to timely make a
Motion to Vacate, none deal with an Amended Motion to Vacate where the initial

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Motion to Vacate was timely filed. See Pfannenstiel v. Merrill Lynch, 477 F.3d
1155, 1158 (10th Cir. 2007) (failure to file within three months waived judicial
review, and loss of evidence did not toll deadline); Taylor v. Nelson, 788 F.2d 220,
225 (4th Cir. 1986) (due diligence and tolling arguments were “questionable,”
and party could not extend the deadline by filing a late motion to vacate in
response to a motion to confirm arbitration award); Florasynth, Inc. v. Pickholz,
750 F.2d 171, 174 (2d Cir. 1984) (no common law exceptions to deadline, and
motion to confirm did not extend deadline). At least one court has held that an
amended motion to vacate an arbitration may in some instances relate back
under Rule 15, but we decline to decide the Rule 15 question at this time. See
Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1381-82 (11th Cir. 1988)
(resolving that “an amended motion to vacate an arbitration award, filed outside
of the three month period and raising additional grounds for vacation, is deemed
timely if the original motion to vacate was timely”). The speculative nature of
Ameser’s arguments underscore that the district court has not yet had the
opportunity to rule on this issue. Remand is therefore appropriate, so that
Ameser may file an Amended Motion to Vacate and the district court will have
an opportunity to rule on whether the amended motion relates back under Rule
15.
      The district court’s April 6 order gives us very little help in evaluating its
finality, and we appreciate that in an abundance of caution Ameser appealed the
order to preserve error.3 We conclude, however, that the order did not constitute
a final decision, and this court therefore lacks jurisdiction over the appeal. The
district court’s order, denying Ameser’s claims without prejudice to refile, did not
conclusively adjudicate the substance of Ameser’s claims and did not preclude
further litigation of those issues in district court. See Cohen v. Beneficial Indus.

      3
        In the usual case, denying all motions pending prior to removal would not finally
determine the case on its merits, thus it is unlikely that the judge intended to do so.

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Loan Corp., 337 U.S. 541, 546 (1949) (stating that “as long as the matter
remains open, unfinished or inconclusive,” the appellate court is without the
power of review). Thus, the order is not a final judgment because all relief was
not denied.
      B. Motion for Default
      The law of this circuit clearly establishes that a district court’s order
denying a motion for default judgment is not an appealable final order. Adult
Film Ass’n, Inc. v. Thetford, 776 F.2d 113, 115 (5th Cir. 1985) (“We find that the
district court’s order denying a default judgment under Fed. R. Civ. P. 55(b)(2)
is not an appealable final order within the meaning of 28 U.S.C. § 1291.”).
Therefore, we lack appellate jurisdiction to review the April 1 order denying
default judgment.
                              III. CONCLUSION
      We conclude that we lack appellate jurisdiction and we DISMISS the
appeal. Ameser may return to district court to refile his claims.




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