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BAO v. GRUNTAL & CO.
October 2, 1996
EDWARD E. BAO, Plaintiff,
GRUNTAL & CO., INCORPORATED, Defendant.
The opinion of the court was delivered by: PARELL
Upon further review and consideration of the appealability of the Memorandum and Order entered herein on August 19, 1996, as requested by counsel for plaintiff and defendant in their letters to the Court dated September 24 and 26, 1996, respectively; and it appearing that said Order is not appealable as of right because of the provisions of 9 U.S.C. § 16(b)(4) ("except as otherwise provided in Section 1292(b) of Title 28, an appeal may not be taken from an interlocutory order - ...(4) refusing to enjoin an arbitration that is subject to this title"); and this Court being of the view that the issues addressed in said Memorandum and Order do involve a controlling question of law as to which there may be substantial ground for difference of opinion (and which have not to date been presented for review in the Court of Appeals for the Third Circuit), and that an immediate appeal from said Order may materially advance the ultimate termination of this litigation (and/or that an immediate appeal from said Order will address a recurrent issue presented to the District Courts in this Circuit on similar applications for preliminary injunction, which issue is not otherwise likely to reach the Court of Appeals expeditiously due to the enactment in 1988 of said Section 16 of the Arbitration Act, 9 U.S.C. § 16); and good cause appearing,
Where a party to an arbitration agreement files an independent action in a District Court under § 4 of the Arbitration Act, 9 U.S.C. § 4, seeking to enjoin the other party from proceeding in an arbitration pending in a location outside the Circuit of the forum district; and
where plaintiff in the District Court action seeks a declaration of the non-arbitrability of certain claims in the pending arbitration, asserting that such claims are barred by a 6-year limitation contained in the arbitration agreement [NYSE Rule 603 and/or AMEX Rule 605(a)]; and
where the Courts of Appeals for the forum district and for the district in which the arbitration is pending are currently split on the issue of whether the determination of arbitrability under such 6-year rule is for the District Court or for the arbitrator under the arbitration agreement [NYSE Rule 621 and/or AMEX Rule 612(b)],
is it error for the forum District Court to deny without prejudice the application for preliminary injunction (thus declining to decide said issue of arbitrability), and to transfer the action to the District Court in the location where the arbitration is pending?
IT IS FURTHER ORDERED that all other provisions of said Order entered August 19, 1996 shall remain in full force and effect until further order of this Court.
United States District Judge
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