Free Order on Motion to Stay - District Court of Colorado - Colorado

Case 1:03-cv-02439-EWN-PAC

Document 55

Filed 09/28/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 03­ 02439­ cv­ EWN­ PAC GRANT ROGERS, Plaintiff, v. M ORGAN STANLEY & COM PANY, INCORPORATED; BRUCE KRAFT; and GILBERT " BILLY"HARRISON, Individually, Defendants.

ORDER AND MEMORANDUM OF DECIS ION

This matter is before the court on Plaintiff' M otion to Stay Pending Appeal. On s August 25, 2004, I issued an order and memorandum of decision denying Defendants'motion to compel arbitration. (Order and M em. of Decision [filed August 25, 2004].) I determined that Plaintiff " not contractually required to arbitrate this case." (Id. at 14.) On September 23, is 2004, Defendants filed a notice of appeal of the August 25, 2004 order. (Notice of Appeal [filed Sept. 23, 2004].) On December 3, 2004, Defendants filed a " otion For Stay Pending Appeal." (M ot. For M Stay Pending Appeal [filed Dec. 3, 2004].) Defendants argue that " [f]urther proceedings in the district court must be stayed pending the conclusion of the appeal." (Id. at 2.) On December 23, 2004, Plaintiff filed a response in opposition to Defendants'motion to stay. (Pl.' Resp. to s

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Case 1:03-cv-02439-EWN-PAC

Document 55

Filed 09/28/2005

Page 2 of 2

Defs.'M ot. For Stay Pending Appeal, and, In the Alternative, Plaintiff' Request for Bond [filed s Dec. 23, 2004].) Defendants did not file a reply brief. The Federal Arbitration Act grants a party the right to file an interlocutory appeal from the denial of a motion to compel arbitration. 9 U.S.C. § 16(a)(1)(C). The statute does not specifically address whether a motion to stay proceedings during a section 16(a) appeal should be granted. Recently, the Tenth Circuit, in granting a motion for stay pending an appeal from the denial of a motion to compel arbitration, determined that " upon the filing of a non-frivolous [section] 16(a) appeal, the district court is divested of jurisdiction until the appeal is resolved on the merits." McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1160­ (10th Cir. 62 2005) (citing Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251­ [11th Cir. 2004]; 52 Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d 504, 506 [7th Cir. 1997]). The district court may frustrate the divestiture rule by " taking the affirmative step, after a hearing, of certifying the [section] 16(a) appeal as frivolous or forfeited." Id. at 1162. Here, Plaintiff failed to argue that Defendants'appeal was either frivolous or forfeited. Consequently, the district court was divested of jurisdiction by Defendants'filing of its notice of appeal. Accordingly, Defendants'motion for stay pending appeal is granted. Based on the foregoing it is therefore ORDERED that the motion for stay pending appeal is GRANTED. Dated this 28th day of September, 2005. BY THE COURT: s/Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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