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CORPMAN v. PRUDENTIAL-BACHE SECURITIES (05/30/90)

argued: May 30, 1990.

CORPMAN, LYNN C. AND CORPMAN, CATHERINE B.
v.
PRUDENTIAL-BACHE SECURITIES, INC., APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 88-2531.

Hutchinson, Cowen and Seitz, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

Per Curiam

I.

This is an appeal by Lynn C. Corpman and Catherine B. Corpman ("the Corpmans"), two customers of Prudential-Bache Securities, Inc. ("Prudential"). On March 26, 1987 the Corpmans signed a "Joint Account Agreement" with Prudential for the purpose of investing their money in securities. The agreement contained an arbitration clause stating that all controversies that might arise between the parties concerning any transaction, or the construction, performance or breach of the agreement would be determined by arbitration.

On April 7, 1989, the Corpmans filed a complaint in the District Court for the Eastern District of Pennsylvania. The Corpmans alleged that Prudential recommended unsuitable securities to them and mismanaged their funds. On May 5, 1989, the parties filed a stipulation that extended Prudential's time to respond to the complaint to May 31, 1989. On May 31, Prudential served the Corpmans with a motion to stay the district court proceedings pending arbitration, pursuant to section 3 of the Federal Arbitration Act.*fn1 Prudential filed the motion with the Clerk the following day. By order entered July 25, 1989, the district court directed the parties to complete discovery by November 30, 1989 and scheduled jury selection for December 5, 1989. By letter dated July 25, 1989, the Corpmans made an "informal" request for discovery. Prudential did not respond. On August 11, 1989, the Corpmans sent Prudential written interrogatories, a formal request for production and a request for admissions. That same day, August 11, the district court granted Prudential's motion and stayed all proceedings in district court pending arbitration.

The Corpmans submitted their claim to the National Association of Securities Dealers ("NASD") on September 27, 1989. On October 16, 1989, the Corpmans received a memorandum from the NASD stating their case would be decided in approximately twelve to fourteen months. That same day, the Corpmans requested that Prudential provide them with discovery in arbitration. Prudential did not respond.

On November 20, 1989, the district court phoned the parties' counsel regarding the status of the case. The district court expressed its concern that "the arbitration procedure envisioned by the securities industry is too slow" and stated its intention to reinstate the case on the district court's trial calendar. App. at 18-19. At Prudential's request, the district court conducted a conference on the record the following day. Each side was permitted to submit evidence and argue for or against the district court's proposal. On November 27, 1989 the district court entered an order vacating the stay and reinstating the case on its trial calendar. Prudential timely filed this appeal. We have jurisdiction pursuant to 9 U.S.C. § 15(a)(1)(A) (1988), since the district court's order is in essence an order refusing to stay an action under section 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (1988).

II.

The district court assumed it had the power to vacate the stay it had granted under section 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (1988), if Prudential either sought the stay of legal proceedings in district court or conducted arbitration in bad faith. Neither the district court nor the Corpmans cite any authority for this proposition. Prudential vigorously contests its validity, arguing that under the Federal Arbitration Act the district court has no power to vacate a stay, even if one party seeks the stay or conducts arbitration in bad faith.

We resolve this appeal without deciding the issue of the authority of the district court to vacate the stay. We will assume, without deciding or expressing any opinion, that a district court has discretion, in certain circumstances, to vacate a stay under section 3 of the Federal Arbitration Act if a party acts in bad faith in seeking or conducting arbitration. Even assuming this to be the law, however, there is insufficient evidence to support the Corpmans' contention that Prudential in any manner conducted itself in bad faith. We therefore conclude that the district court abused its discretion in vacating the stay.

As evidence of bad faith, the Corpmans point to Prudential's failure to file an answer to their complaint. Prudential did not file an answer on May 31, 1989. The parties stipulated, however, that Prudential-Bache could "answer, plead or otherwise respond" by May 31, 1989. Although Prudential did not file an answer to the Corpmans' complaint, it did serve the motion to stay that day and filed the motion one day later. This type of motion was clearly permissible under the stipulation. The fact that Prudential filed its motion one day late is not evidence of bad faith.

The Corpmans argue that Prudential proceeded to arbitrate in bad faith because they failed to respond to discovery requests (1) in the district court and (2) during the arbitration proceedings. The Corpmans made an "informal" request for discovery in district court on July 25, 1989. Prudential did not respond by August 11, 1989, but this is barely evidence of footdragging, let alone bad faith. On August 11, the Corpmans made their first formal request for discovery in district court, however, on the same day the district court ordered a stay of all proceedings in district court. Where an action has been stayed pending arbitration, a district court may not permit the parties to conduct discovery under the ...


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