106 F3d 405 City of Dewitt v. General Baumgartner Contractors Inc

106 F.3d 405

CITY OF DEWITT, Arkansas, Appellant,
v.
GENERAL BAUMGARTNER CONTRACTORS, INC., Appellee.

No. 96-3586.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 16, 1997.
Filed Jan. 29, 1997.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Appeal from the United States District Court for the Eastern District of Arkansas.

Before McMILLIAN, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.


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1

The City of DeWitt, Arkansas (City) appeals from the district court's1 determination that a construction contract between the City and Baumgartner General Contractors, Inc. (Baumgartner) was valid, denial of the City's motion to stay arbitration, and grant of Baumgartner's motions to compel arbitration and for a stay of proceedings. Baumgartner has moved to dismiss the City's appeal on the ground that this court lacks jurisdiction.

2

After reviewing Baumgartner's motion to dismiss the appeal, the City's response to that motion, and the district court file, we conclude this court lacks jurisdiction because the appeal is from an interlocutory order compelling arbitration. See 9 U.S.C. § 16(b)(3). We agree with Baumgartner that the proceeding below was an embedded proceeding, as the City sought "relief other than an order ... prohibiting arbitration." See Gammaro v. Thorp Consumer Discount Co., 15 F.3d 93, 95 (8th Cir.1994).

3

We note that the City will be able to obtain appellate review of the district court's determination of the contract's validity once the arbitration is final. See id. at 96 (although court lacked jurisdiction to review interlocutory appeal regarding alleged unconscionability of arbitration clause, claim could be reviewed on merits in circuit court following petition to enforce or vacate arbitrator's award).

4

Accordingly, we dismiss the City's appeal.

1

The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas