Westlake Styrene v. PMI Trading Ltd

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 13, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20082
Summary Calendar
WESTLAKE STYRENE CORPORATION,
Plaintiff-Appellant,
versus
P.M.I. TRADING, LTD.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CV-4100)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Westlake appeals an order to compel arbitration, contending
the parties never agreed to arbitrate this dispute. On the other
hand, P.M.I. contends we lack appellate jurisdiction because the
district court’s dismissal without prejudice is not a final
decision, and, alternatively, the parties agreed to arbitration.
On 21 February 2002, the district court granted P.M.I.’s
motion to compel arbitration, staying the action and ordering the

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parties to submit status reports every 30 days. That October, the
district court realized the parties were not complying with its
status report order and ordered the parties to submit reports by 1
November 2002. After receiving those reports, the district court
dismissed the action without prejudice on 27 November, stating:
“Because all of the issues in this action are to be arbitrated,
there is no reason to retain jurisdiction over the case”. Westlake
Styrene Corp. v. P.M.I. Trading, Ltd., No. H-01-CV-4100 (S.D.Tex.
27 November 2002).
The Federal Arbitration Act states, inter alia, that an appeal
may be taken from “a final decision with respect to an arbitration
....” 9 U.S.C. § 16(a)(3). Along this line, the Supreme Court has
applied the “well-developed and long-standing meaning” of “final
decision”: “a decision that ends litigation on the merits and
leaves nothing more for the court to do than execute a judgment”.
Green Tree Financial Corp. – Alabama v. Randolph, 531 U.S. 79, 86
(2000) (internal quotation omitted).
The dismissal without prejudice ended the litigation on the
merits, by sending all the issues to arbitration and leaving the
district court nothing more to do than execute the judgment. Thus,
its order was a final decision, and we have appellate jurisdiction.
Id. at 89 ("where ... the District Court has ordered the parties to
proceed to arbitration, and dismissed all the claims before it,
that decision is ‘final’”); Salim Oleochemicals v. M/V SHROPSHIRE,

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278 F.3d 90, 93(2d Cir.) (“dismissals with and without prejudice
are equally appealable as a final orders”), cert. denied, __ U.S.
__, 123 S. Ct. 696 (2002); Blair v. Scott Specialty Gases, 283 F.3d
595, 602 (3d Cir. 2002) (noting Green Tree decision did not hinge
on whether dismissal was with or without prejudice and holding
dismissal without prejudice was final and appealable); Hirras v.
Nat’l R.R. Passenger Corp., 10 F.3d 1142, 1144 n.2 (5th Cir. 1994)
(holding dismissal without prejudice of Title VII claim immediately
appealable where it was subject to arbitration and “‘[w]ithout
prejudice’ ... simply meant without detriment to [Plaintiff’s]
ability to present the claims to an arbitrator”), vacated on other
grounds, 512 U.S. 1231 (1994).
Based upon our review of the briefs and the record, and
essentially for the reasons given by the district court in its
comprehensive and well-reasoned opinion, the district court
correctly decided that the parties agreed to arbitrate these
disputes.
AFFIRMED

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