Petition — Gevyn Construction Corp. v. Limbach Co.

Supreme Court, U. &

FILED

JAN 17 1977

In the MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

Oocroser Term, 1976

No. " 6 . QO R 5 %

GEVYN CONSTRUCTION CORP.

PETITIONER,

Vv.

LIMBACH COMPANY,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Cornetius J. MornrHan, JR.

Peasopy, Brown, Rowiey & Srorey

One Boston Place

Boston, Massachusetts 02108

Tel. No. (617) 723-8700

Counsel for Petitioner

Of Counsel:

Lesu A. Hynes

Hynes & Diramonp

25 Broadway

New York, N. Y. 1004

January 18, 1977

| esses |

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Page

RR EN ER hg ae ROI AS rae erst ea, 1

RS a ey a iret ia ak eae 2

ae a rae a

Statutory Provisions Involved ..................... 3

te Cee re ee ae a ous eee res 5

Se ena cate « haere vae. —

Background Facts ...... EER Pe 7

Reasons for Granting the Writ | 8

Point I1— The Role of the Courts Hes Boon To

Enforce Arbitration Agreements and Not To

Fashion Orders Which Fundamentally Inter-

fere With the Conduct of the Arbitration Pro-

ceedings Pursuant to Rules Which the Parties

Have Previously Agreed Upon 3

Port II — The Decision of the Court of Appeals

Dismissing the Appeal Clearly Frames Ques-

tions Concerning the Construction of 28 U.S.C.

§ 1292(a)(1) Which Are, With Respect to Arbi-

tration Proceedings in General, Currently Sub-

ject to Confusion and Conflict Among Various

Courts of Appeal and Which Should Be Settled

by This Court |

Conelusi 1

Appendix A (Judgment and Opinion of Court of Ap-

peals) . cas

Appendix B ( Memorandum and ‘Order of District

Court, dated May 24, 1976)

Appendix C (Lengthy Statutory Provisions)

TABLE OF AUTHORITIES

Cases

Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289

I hE TIE ba ee nrg BEC emia ee eb Nae re wee my,

12

15

16

24

28

il Table of Contents

Page

Cohen v, Beneficial Industrial Loan Corp., 337 U.S. 541

cee at lit Sin Sa, 8 AOE: Cay aes 9 Mare Ramla 12

International Longshoremen’s Assoc., Local 1291 v.

Philadelphia Marine Trade Association, 389 U.S. 64

EE A aha Een by set Bs PU RT le lt

1/S Stavborg v. National Metal Converters, hee. 500

F.2d 424 (2nd Cir. 1974) ........... 12

Limbach Co. v. Gevyn Construction Corp., American

Arbitration Association No. 110-0060(13)-70 —_. 6

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388

U.S. 395 ... 10

Scherk v. Alberto-Culver Co. 417 U. S. 506 9

Swift & Co. Packers v. Compenia Columbiana Del

Caribe, 339 U.S. 684 (1950) | 12

Statutes and Regulations

Massachusetts General Laws,

e. 251, Section 8(b) 5, 7, 10

ce. 149, Section 29 : 4, 6

United States Code:

28 U.S.C., Seetion 1253 : 13

Section 1254(1) 2

Section 1291 | 3

Section 1292(a)(1) 3, 12, 13

Section 1292(b) 8

Federal Rules of Civil Procedure:

F.R.C.P. Rule 65(d) 14

Federal Arbitration Act of 1925:

9 U.S.C., Section 1 4,9

Section 2 4, 19

Section 3 4, 10

Section 4 4, 10, 11

Section 10(e) 4, 10

Section 13(a) 4, 11

In the

Supreme Court of the United States

Ocroser Term, 1976

No.

GEVYN CONSTRUCTION CORP.

PETITIONER,

v.

LIMBACH COMPANY,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner, GEVYN CONSTRUCTION CORP., re-

spectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the First Circuit rendered in these proceedings

on October 20, 1976.

Opinions Below

The opinion of the Court of Appeals, as yet unreported,

appears at Appendix A, infra, pp. 17-23. The Memo-

randum and Order of the District Court, dated May 24,

1976, denying petitioner’s application for approval of a

supersedeas bond and for a stay of the April 2, 1976 Order

of the District Court, is unreported and appears at Appen-

dix B, infra, pp. 24-27.

Jurisdiction

The judgment of the United States Court of Appeals for

the First Circuit dismissing petitioner’s appeal was en-

tered on October 20, 1976. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Questions Presented

Pursuant to several agreements to arbitrate, which re-

quired arbitration in accordance with the Rules of the

American Arbitration Association, disputes between a

public awarding authority, its general contractor and sub-

contractors were submitted to consolidated arbitration.

Filed federal cases involving the various parties were

stayed pursuant to the United States Arbitration Act

pending the outcome of the consolidated arbitration. The

arbitration hearings, which at the time of the decisions in

the courts below had not yet been completed, have been

extensive and have continued for over five vears. A Federal

District Court, concerned about the statistical ‘‘black eve”?

which these stayed federal cases were creating on its docket,

issued an Order isolating one such case out of the consoli-

dated arbitration and directing that a final award thereon

be made within sixty (60) days of its Order, which time

limitation plainly contravened the agreement between the

parties and the Federal Arbitration Act. The arbitrators

were not parties to the action nor were they in any way

joined as parties before the District Court made the Order.

This Order was not based on the Court’s inherent power

to control its docket or any federal statute. It was, rather,

purportedly based on a procedural provision of state law.

3

The questions presented here relate to the appealability of .

such an order. Those questions are:

1. Whether the District Court’s order was appealable

as a final order under 28 U.S.C. § 1291 because it involved

an important claim of right and issues fundamental to

the further conduct of the case.

2. Whether the District Court’s order was appealable

as an interlocutory order modifying an injunction under

28 U.S.C. § 1292(a)(1).

3. Whether the District Court’s order was appeal-

able as an order granting an injunction under 28 U.S.C.

§ 1292(a)(1).

Statutory Provisions Involved

Usrrep Srates Cope, Trrie 28

§ 1291. Final decisions of district courts

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States. the United States District Court for the District of

the Canal Zone, the District Court of Guam, and the District

Court of the Virgin Islands, except where a direct review

may be had in the Supreme Court.

§ 1292. Interlocutory decisions

(a) The courts of appeals shall have jurisdiction of

appeals from:

(1) Interlocutory orders of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, or of the

judges thereof, granting, continuing, modifying, refusing

or dissolving injunctions, or refusing to dissolve or modify

injunctions, except where a direct review may be had in

the Supreme Court;...

(b) When a district judge, in making in a civil action

an order not otherwise appealable under this section, shall

+

be of the opinion that such order involves a controlling

question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from

the order may materially advance the ultimate termination

of the litigation, he shall so state in writing in such order.

The Court of Appeals may thereupon, in its discretion,

permit an appeal to be taken from such order, if application

is made to it within ten days after the entry of the order:

Provided, however, That application for an appeal here-

under shall not stay proceedings in the district court unless

the district judge or the Court of Appeals or a judge

thereof shall so order.

Unrrep States Cope, Tirte 9

£3. Stay of proceedings where issue therein referable to

arbitration

If any suit or proceeding be brought in any of the courts

of the United States upon any issue referable to arbitration

under an agreement in writing for such arbitration, the

court in which such suit is pending, upon being satisfied

that the issue involved in such suit or proceeding is refer-

able to arbitration under such an agreement, shall on

application of one of the parties stay the trial of the

action until such arbitration has been had in accordance

with the terms of the agreement, previding the applicant

for the stay is not in defanlt in proceeding with such

arbitration.

July 30, 1947, ¢. 392, 61 Stat. 670.

‘4. Fuilure to arbitrate under agreement; petition to

United States court having jurisdiction for order to

compel arbitration; notice and service thereof; hear-

ing and determination

... The court shall hear the parties, and upon being satis-

fied that the making of the agreement for arbitration or

5

the failure to comply therewith is not in issue, the court

shall make an order directing the parties to proceed to

arbitration in accordance with the terms of the agreement.

The hearing and proceedings, under such agreement, shall

be within the district in which the petition for an order

directing such arbitration is filed. .. .

§§ 1-14. Appear in full at Appendix C.

Massacuvusetts GENERAL Laws, ec. 149, 429 .-

appears in full at Appendix C.

MassacuvceT?s GENERAL Laws, e. 251, § 8(b)

(b) An award shall be made within the time fixed

therefor by the agreement or, if said time is not so fixed,

within such time as the court orders upon application of

a party. The parties may by an agreement in writing extend

the time either before or after the expiration thereef. A

party shall be deemed to have waived the objection that

an award was not made within the time required unless he

notifies the arbitrators of his objection prior to the delivery

of the award to him. Added St.1960, e. 374, § 1.

Statement

Introductory

The decision of the Court of Appeals concluded that the

Court of Appeals was without jurisdiction to entertain

petitioner’s appeal from an Order, dated April 2, 1976, of

the District Court which commanded that:

‘Upon application of Limbach Company, pursuant

to Massachusetts General Laws e. 251, §8(b), it is

hereby ordered than an award be made in the matter

6

ot Limbach Company v. Gevyn Construction Corpora-

tion, American Arbitration Association No. 110-0060

(13)-70 within 60 days from the date of this Order.”’

In 1970, Middlesex County terminated the general con-

tract of Gevyn Construction Corp. (hereinafter referred

to as ‘‘Gevyn’’) to build a courthouse in Cambridge,

Massachusetts, which contract contained an agreement to

arbitrate. The subcontract of Limbach Company (herein-

after referred to as ‘‘Limbach’’), which contained an

agreement to arbitrate, was terminated as a result of the

cancellation of Gevyn’s general contract.

Gevyn, pursuant to its contract and Limbach’s subcon-

tract, commenced a consolidated abitration seeking dam-

ages from Middlesex County. It also sought indemnification

from its subcontractors, including Limbach, with separate

findings as to the rights of each of the subcontractor parties

pertaining to all claims, including any by Limbach, flowing

from the termination of the general contract.

In 1971, after the consolidated arbitration had been initi-

ated, Limbach filed in Superior Court in Massachusetts a

petition pursuant to Mass. Gen. Laws e. 149, 629 seeking

to recover from Gevyn or its surety on the bond which that

statute requires for the benefit of subcontractors. Gevyn

removed the case to the Distriet Court on the grounds of

diversity of citizenship, and then moved that the proceed-

ing be stayed pursuant to ‘3 of the Federal Arbitration Act

pending the outcome of the consolidated arbitration.

Gevyn’s motion to stay the proceedings was allowed.

Ry early 1976 the arbitration proceedings which involved

more than 20 parties, had resulted in 158 hearings with

3,000 exhibits and testimony from almost 100 witnesses.

The hearings at the time of the decisions of the courts

below had not vet been completed. At this point, the Dis-

trict Court called counsel in this case and other related sub-

7

contractor cases, then pending on its docket but stayed,

before it for a ‘‘conference’’.

Basis For April 2, 1976 Order

The ‘‘conference’’ was held on February 9, 1976. The

District Court began by expressing its acute concern with

the effect of the stayed cases on its statistical record.

‘“*The Court: The purpose of this conference is to

find out what, if anything, is ever going to happen to

these cases. They have been pending since ’70. We are

now in °76. They are succeeding in giving this Court

a very black eye, in terms of its statistical median time

for the pendency of civil cases, which is a matter, un-

fortunately, that the Court gets rated on by great

minds in Washington and elsewhere.’’

The conference concluded with a direction by the Court

that counse! explore the possibility of some form of stipu-

lation which might resolve the problem. Such an exploration

was made to no avail and on March 15, 1976 another con-

ference was held by the Court.

At the March 15, 1976, conference, counsel for Limbach

submitted a ‘‘sample’’ form of Order Compelling An Im-

mediate Award solely with respect to the Limbach portion

of the consolidated and incomplete arbitration, pursuant

to Massachusetts General Laws c. 251, §8b. Gevyn opposed

the ‘‘sample’’ order, emphasizing that the benefits of the

requested expedition were far outweighed by the confusion,

prejudice and violations of previously agreed upon arbi-

tration procedure that would result from such an order.

Limbach itself recognized that no important policy of

expedition would be served or resolved by the order in

question when it stated to the Court:

8

‘*At the outset it should be pointed out that Lim-

bach submitted the memorandum and sample order as a

possible aid to the Court in its attempt to resolve the

administrative problems occasioned by the long pen-

dency of this action. Limbach did not submit a formal

motion or application. If the Court were to leave the

present stay of proceedings in effect and await a final

award in the conglomerate arbitration, this would not

entail denying any motion of Limbach’s. Having

agreed to the arbitration originally and having, for

several years now, abided by the schedule, the timing

of the hearings, and the various rulings of the Arbi-

trators on procedural matters, Limbach is fully re-

conciled to await the conclusion of that arbitration.”’

Nevertheless, the District Court entered the Order, as

proposed, on April 2, 1976. Gevyn then submitted to the

District Court a motion for reconsideration of, or, alter-

natively, amendment of the Order to inelude the state-

ment prescribed by 28 U.S.C. §1292(b), which motion was

denied.

Gevyn then filed a notice of appeal and an application

for approval of sunersedeas bond for stay of order pending

appeal. This application was also denied by the District

Court in the Memorandum and Order which appears in

Appendix B, infra, pp. 24-27.

Limbach then submitted a motion to the Court of Appeals

to dismiss Gevyn’s appeal, which motion was denied, and

the case was fully briefed and argued.

Reasons for Granting the Writ

The Court of Appeals has (i) decided an important ques-

tion of federal law which has not been, but should be,

directly settled by this Court, and (ii) has decided a federal

9

question in a way that contravenes the Federal Arbitration

Act, 9 U.S.C. §1 et seq. and the concept of independent

arbitration proceedings.

Insofar as the effect of the decision of the Court of Ap-

peals has been to insulate federal trial courts from a full

review with respect to their orders concerning the timing

of arbitration awards, the decision will have great impact

upon the role of the federal courts in al! arbitrations in

cases subject to federal jurisdiction.

I. THe Rote or tHe Covrts Has Been to Enrorce

ARBITRATION AGREEMENTS AND Not To FasHion OrpeERS

Wuicu FunpaMeNntTALLy INreERFERE With tHE Con-

DUCT OF THE ARBITRATION PROCEEDINGS PURSUANT TO

Rutes Wuicu THe Parties Have Previousty AGREED

Upon.

The courts have consistently held that arbitration is a

creature of contract between the parties, who have agreed

to a specific method of resolving their disputes, and the

role of the courts is simply to enforce the arbitration

agreement made by the parties. In Scherk y. Alberto-Culver

Co., 417 U.S. 506, 510, 519, (1974), this Court held, in part,

as follows:

‘The United States Arbitration Act, now 9 U.S.C.

§$1 et seq., reversing centuries of judicial hostility to

arbitration agreements, was designed to allow parties

to avoid ‘the costliness and delays of litigation, and

to place arbitration agreements upon the same footing

as other contracts.’. . .’’

* * & *#

‘*An agreement to arbitrate before a specified tri-

bunal is, in effect, a specialized kind of forum-selec-

tion clause that posits not only the situs of suit but

also the procedure to be used in resolving the dispute.’’

10

In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388

U.S. 395, 400, 403, (1967), this Court held, in part, as

follows:

‘‘The key statutory provisions are §§2, 3, and 4 of

the United States Arbitration Act of 1925... . Section

3 requires a federal court in which suit has been

brought ‘upon any issue referable to abitration under

an agreement in writing for such arbitration’ to stay

the court action pending arbitration once it is satisfied

that the issue is arbitrable under the agreement. . . .

‘‘We hold, therefore, that in passing upon a $3 applica-

tion for a stay while the parties arbitrate, a federal

court may consider only issues relating to the making

and performance of the agreement to arbitrate. In so

concluding, we not only honor the plain meaning of the

statute but also the unmistakably clear congressional

purpose that the arbitration procedure, when selected

by the parties to a contract, be speedy and not subject

to delay and obstruction in the courts.”’

The instant case was staved pending arbitration pursu-

ant to a motion for stay that was expressly based upon

Section 3, and it is submitted that such a stay was plainly

necessitated by Section 8 sinee the United States Arbitra-

tien Act clearly applicd in light of the facts.

What is significant here as a preliminary matter is that -

the United States Arbitration \et provided no warrant for

the court order of April 2, 1976, directing a final award

within 60 davs. While the federal act is similar in some

respects to the Massachusetts version of the Uniform

Arbitration Act, it does not contain any provision similar

to ‘8(b) of Massachusetts General Laws, Chapter 251, as

amended, pursuant to which the District Court purpsried

to make its Order. The only provisions in the federal act

dealing with the timing of an award are 9 U.S.C, §10(e) and

11

§13(a), each of which address the question of the time

within which the award was to be made in the context of

post-award proceedings before the court. This rather clearly

implies that the matter of the timing of the award is one

which the court may concern itself only after the rendition

of an award and the matter has been returned, so to speak,

to the jurisdiction of the District Court.

Furthermore, the Order in question effectively directs

the manner in which the parties are to arbitrate. It carves

the Limbach arbitration claims out of the conglomerate and

interdependent arbitration proceedings and orders separate

treatment of them. It effectively directs that Limbach’s

claims be arbitrated in a manner inconsistent with the Con-

struction Industry Rules of the American Arbitration

Association which were part and pareel of Limbach’s

arbitration agreement. It effectively orders arbitration to

‘*proceed’’ other than ‘‘in the manner provided for in such

agreement’’ as mandated by ‘4 of the United States Arbi-

tration Act.

There are, thus, grave doubts that the District Court had

any authority under Massachusetts law or otherwise to

make its unprecedented order of April 2, 1976 (doubts

which the Court of Appeals failed to address), and what is

most significant here is that the questions raised may never

again be subject to effective appellate review, Indeed, if the

Order is permitted to stand, Gevyn is exposed to the risk

of inconsistent arbitration awards. There is the possibility

that the arbitrators may make an award in favor of Lim-

bach against Gevyn which, among other things, may not

reflect the claims made by the County against Gevyn that

Limbach’s work as a subcontractor of Gevyn was defec-

tive or that Limbach’s right to recovery, if any, is a vicar-

ious one and conditioned first upon recovery by Gevyn

from the County. If Limbach were to obtain a favorable

award pursuant to the District Court’s April 2, 1976, Order

12

it would likely be a blind, lump sum award without any

explanation as to its rationale since ‘‘the AAA apparently

discourages the practice of written arbitral opinions. .. .’’

I/S Stavborg v. National Metal Converters, Inc., 500 F.2d

424, 429 (2nd Cir. 1974). Thus, Gevyn may be deprived of

a coordinated, consistent result in the arbitration which it

sought by its original Demand for Arbitration of the rela-

tive rights and liabilities of the various parties and which

the arbitrators must have been attempting to achieve by

refusing to close the hearings until all the evidence was

concluded as to all parties to the multiparty, consolidated

arbitration proceeding.

Under these circumstances, c.reumstances that are likely

to reappear whenever complex and protracted arbitration

proceedings arise in federal cases, it is submitted that the

District Court’s Order is appealable as a final order be-

cause it effectively disposes of an important claim of

right ‘‘separable from, and collateral to’’ rights asserted

in the main cause of action which may be lost if appellate

consideration is delayed for a decision on the whole case,

Cohen v. Bencficial Industrial Loan Corp., 337 U.S. 541,

546-547 (1949): Swift d& Co. Packers vy. Compania Colum-

biana Del Caribe, 339 U.S. 684, 688-689 (1950).

Il. Tre Dectsion or tHe Court or Appeats DismMisstna

THE AppEAL Ciearty Frames Qvestions CONCERNING

rne Conxsrrverion or 28 U.S.C. §1292(a) (1) Wricr

Ane, Wirn Resvect ro Arprrreation PROCEEDINGS IN

GENERAL, CurnrentLy Supsecr to Conruston AND

Coxriurer Amona Various Courts or APPEAL AND

Wuicn Snovuwip pe Setriep py Tats Court.

As the interface between arbitrators and District Court

judges becomes more pronounced with the increasing use

of arbitration proceedings, it is vitally important to clearly

establish the extent to which 28 U.S.C. §1292(a) (1) makes

13

orders of the District Court issued during the pendency of

arbitration proceedings appealable interlocutory orders.

In this regard, it is submitted that the decision of the

Court of Appeals that the Order of April 4, 1976 was not

an appealable interlocutory under 28 U.S.C. 1292(a) (1)

was erroneous in two respects.

First, it seems plain that the order in question clearly

constitutes a modification of a prior injunction. In this re-

gard, the Court of Appeals acknowledged that the original

stay order constituted an injunction under 28 U.S.C.

§1292(a)(1), ( .ppendix A, wmfra, p. 21), but it then held

that the Order of April 2, 1976, which materially and sub-

stantially modified the injunction by directing that Lim-

bach’s claims be arbitrated in a manner inconsistent with

Limbach’s arbitration agreement and therefore the man-

date of the United States Arbitration Act, did not amount

to a modification under the statute. It is submitted that in

light of the confusion and potential prejudice such an order

creates and especially in light of the added expense and

inconvenience, acknowledged by the Court of Appeals (Ap-

_pendix A, infra, p. 20), which such a holding creates, this

Court should formally rule on the matter.

Second, it seems plain that the Order of April 2, 1976

was in injunctive terms and in light of its intended coercive

effect on the arbitrators, it must be construed to be an

order granting an injunction within the meaning of 28

U.S.C. §1292(a) (1). This analysis is supported by the

recent decision of the Supreme Court in Aberdeen & Rock-

fish R. Co. v. SCRAP, 422 U.S. 289 (1975) in which the

Court held that it had appellate jurisdiction under 28 U.S.C.

§1253 (the language of which is substantially the same as

that of 28 U.S.C. §1292(a) (1) ) to review a District Court

order to the I.C.C. as an order granting an injunction. In

that case the Court said, 422 U.S. at 307-308:

14

‘*But the District Court’s order not only declared

that the ICC had failed to comply with NEPA, it also

directed the LCC to perform certain acts. ‘The order

was plainly cast in injunctive terms. The order ‘directs’

the ICC to reopen Ex parte 281 and to conduct fur-

ther proceedings which ‘must’ include preparation of

an impact statement dealing with enumerated issues.

In declining to restrain collection of the rates, the court

said it was declining to grant ‘to plaintiffs additional

injunctive relief’ (emphasis added). Were the order of

the District Court left undisturbed, the ICC would

hardly be free to decline to prepare a new impact siate-

ment or to conduct further proceedings. The order

would have as coercive an effect on the ICC, its mem-

bers, and its staff, as could any order of a district

court in a proceeding to review an order of the court

below within the meaning of the word ‘injunction,’ as

used in §1253.’’ (emphasis in original; footnote omit-

ted.)

Similarly, the District Court’s Order of April 2, 1976 pur-

ported to direct the arbitration tribunal to perform

certain acts, i.e. to render an award as to Limbach and,

perforee, to close and terminate the arbitration hearings

with respect to Limbach’s elaim.

The classification of the District Court’s Order of April

2, 1976 as an injunctive order is also supported by the

ease of Juternational Lonashoremen’s Association, Local

1291 v. Philadelphia Marine Trade Association, 389 U.S.

64 (1967) in which the Court held, at page 75, that a District

Court deeree ordering that an arbitrator’s award ‘‘be

specifically enforced”? and ordering a union ‘‘to comply with

and abide by the said Award’’ was an ‘‘order granting an

injunction’’ for purposes of F.R. Civ. Pro. 65(d).

15

Conclusion

It is respectfully suggested that if the issues presented

herein are allowed to remain unresolved, the validity of

approximately thirty arbitration awards in the immediate

case will be needlessly called into question and the propriety

of countless future awards in different cases may well be

subject to dispute whenever there is judicial interference

in arbitration proceedings. Accordingly, and for the reasons

stated above, a writ of certiorari should issue to review the

judgment and opinion of the United States Court of Ap-

peals for the First Circuit.

Respectfully submitted,

Cornetius J. Moynrnan, Jr.

Prasopy, Brown, Row.tey & Srorey

One Boston Place

Boston, Massachusetts 02108

Tel. No. (617) 723-8700

Counsel for Petitioner

Of Counsel:

Lest A. Hynes

Ilynes & Diamonp

25 Broadway

New York, N. Y. 1004

January 18, 1977

16

APPENDIX A

United States Court of Appeals

For the First Circuit

No, 76-1247.

LIMBACH COMPANY,

PLAINTIFF, APPELLEE,

Vv.

GEVYN CONSTRUCTION CORPORATION,

DEFENDANT, APPELLANT,

JUDGMENT

Entered October 20, 1976

This cause came on to be heard on appeal from the

United States District Court for the District of Massachu-

setts, and was argued by counsel.

Upon consideration whereof, It is now ordered, adjud-

ged and decreed as follows:

The appeal is dismissed. Costs to appellee.

By the Court:

Dana H. GaLiup

Clerk

lee: Messrs. Moynihan and Fox]

a

17

United States Court of Appeals

For the First Circuit

No. 76-1247

LIMBACH COMPANY,

PLAINTIFF, APPELLEE,

v.

GEVYN CONSTRUCTION COMPANY,

DEFENDANT, APPELLANT,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Anprew A. Carrrey, U.S. District Judge)

Before Corrix, Chief Judge,

Cuiark,* Associate Justice, U.S. Supreme Court (Ret.),

McEnter, Circuit Judge.

Cornelius J. Moyniian, Jr., with whom Leslie A. Hynes, Hynes

& Diamond, and Peabody, Brown, Rowley & Storey were on brief,

for appellant.

Francis H. For, with whom James F. O’Brien and Bingham,

Dana & Gould were on brief, for appellee.

October 20, 1976

McEyxrer, Circuit Judge. In 1970 Middlesex County

terminated the Gevyn Construction Corporation’s contract

to build a courthouse in Cambridge, Massachusetts. This

case marks yet another step in the protracted litigation

stemming from that event.’

After the Couaty’s action, Gevyn, the general contractor,

sucessfully demanded arbitration of all claims flowing

* Sitting by designation

1 Eg., Pioneer Industries v. Gevyn Construction Corp., 458 F.2d

582 (Ist Cir. 1972); County of Middlesex v. icomm & nstruction

Corp., 450 F.2d 53 (1st Cir.), cert. denied, 405 U.S. 955 (1972).

18

from the contract termination.2? In addition to Gevyn,

parties to the consolidated arbitration proceeding were

the County, which Gevyn accused of wrongful breach, and

Gevyn’s subcontractors, including appellee Limbach Com-

pany. Limbach sought damages for breach of its subcon-

tract which was terminated as a result «. the eancellatiou

of the principal contract. Gevyn claimed damages from

the County; alternatively, in the event Gevyn were held

liable to the County, Gevyn sought indemnification from

its subcontractors.

In 1971, after arbitration had begun, Limbach sued

Gevyn in Superior Court in Massachusetts to preserve its

claim under Mass. Gen. Laws ec. 149, §29. Limbach filed

a ‘‘petition in equity’’ seeking to recover from Gevyn or

its surety on the bond which that statute requires for the

benefit of subcontractors. Gevyn removed the case to the

district court on grounds of diversity of citizenship, and

the proceeding was stayed pending the outcome of the con-

solidated arbitration.

By early 1976 the arbitration hearings had not been

completed? The district court summoned the attorneys

for all parties to suits that had been stayed pending the

outcome of the consolidated arbitration to explore ways

of removing the cases from the court’s docket. The judge

expressed concern that the cases had continued on the

docket for so long, stating that they were ‘‘giving this

Court a very black eve, in terms of its statistical median

time for the pendency of civil cases....’’ While other

2 In 1971, this court affirmed the distriet court’s stay of judicial

proceedings and order that the County submit to arbitration.

County of Middleser vo Gevyun Construction Corp., supra.

3 The record indicates that *‘there have been conducted 158 hear-

ings, there is a stenographie transcript of over 35,000 pages om!

in exeess of 3.000 exhibits have been received and testimony of

almost 100 witnesses have been heard by the Arbitrators in this

case invelving over 20 parties.’’

19

litigants were able to agree on some method for disposing

of their cases, Limbach and Gevyn were not. After a fruit-

less exploration of possibilities such as a stipulated dis-

missal without prejudice or an agreed remand to state

court, the judge on April 2, 1976 ordered that an award

be entered as to Limbach’s claim in the consolidated ar-

bitration proceeding within 60 days.* This appeal followed.

Appellant Gevyn challenges the propriety of the judge’s

order, on various grounds. At this time, however, we need

not reach the merits, for we conclude that we are without

jurisdiction to entertain this appeal.

The jurisdictional bases for this appeal are to be found,

if at all, in 28 U.S.C. §§1291, 1292. Under 41291, this

court may review only ‘‘final decisions’’ of the district

court. And, §1292(a)(1) confers jurisdiction for appeals

from ‘‘[i]nterloeutory orders of the district court ...

granting, continuing, modifying, refusing or dissolving

injunctions, or refusing to dissolve or modify injunce-

Pa

In this case the order of the district court requiring the

prompt conclusion of arbitration of the Gevyn-Limbach

portion of the courthouse claims does not terminate the

litigation and therefore is not a ‘‘final decision’’ with-

in the traditional meaning of that term. E.g., Baetjer v.

Garzot Fernandez, 329 F.2d 798 (1st Cir. 1964). The source

of this litigation, Limnbach’s action under Mass. Gen. Laws

ec. 149, §29, which was stayed pending arbitration, will not

he concluded until the accelerated arbitration has resolved

Limbach's claim against Gevyn and the court has disposed

of the stayed judicial proceeding.

Having determined that the order in this case is in-

terlocutory in nature, we must consider whether it dis-

poses of an independent or collateral claim of right which

* At the time of oral argument, we were informed that no award

had yet been made.

20

will evade review if not immediately appealable. New

England Power Co. y. Asiatic Petroleum Corp., 456 F.2d

183, 185 (1st Cir. 1972) See Cohen v. Beneficial Indus-

trial Loan Corp., 337 U.S. 541, 546-47 (1949); 9 J. Moore,

Federal Practice $110.10, at 133 (2d ed. 1975). Appellant

Gevyn asserts that this case fits within the Cohen excep-

tion since the district court’s order exposes Gevyn to the

‘risk of inconsistent arbitration awards.’’ Gevyn evidently

fears that the arbitrators, if they are required to rule at

an early stage on Limbach’s claim for the balance due for

its services, will fail to include this early ruling in their

caleulations when making an award on Gevyn’s counter-

claim for indemnification. Gevyn’s fears in this regard

are heightened by the allegedly commen practice of arbit-

rators to enter lump-sum awards without written explan-

ation.

Assuming that Gevyn’s fears are well-founded, we do

not believe that the assertedly prejudicial impact of the

district judge’s order of April 2 will escape our review if

enforcement by the court of an unfavorable arbitral award

is ultimately appealed. Rather, it seems clear to us that

Gevyn’s ability to assert the alleged error of the April 2

order will not be vitiated at all by requiring appellant to

await appeal of a final decision. It may well be that the

error asserted by Gevyn will be insufficiently prejudicial

to defeat enforcement of an arbitral award, an assumption

on which we intimate no opinion. See generally, 5 Am. Jur.

2d ‘‘Arbitration and Award,’’ §§163, 167 (1962). The in-

sufficiency of the defense in such a case, however, would

result, not from the timing of Gevyn’s appeal, but from

the standard of review to be applied uniformly to arbitral

awards,

As a result of our failure to entertain this appeal on

the merits, Gevyn will be put to the added expense and

inconvenience of seeing to its end an arbitral proceeding

cc

21

which Gevyn asserts was fatally infected by error at an

early stage. This unfortunate consequence does not bring

the case within the Cohen exception to §1291, however.

Rather, this is the price which litigants must pay if the

federal judicial system is to be protected from piecemeal

appeals from the erroneous interlocutory orders, even

those which ultimately result in reversible error. See New

England Power Co. vy. Asiatic Petroleum Corp., supra. The

wisdom of the policy requiring litigants to defer appeals

until the end of the case is particularly clear in this case

where the ultimate effect of the trial judge’s unusual order

is largely, speculative, suggesting that the hindsight is the

better tool for examining its allegedly prejudicial impact.®

Gevyn asserts in the alternative that the 1971 stay of

judicial proceedings was an ‘‘injunction’’ within the mean-

ing of §1292(a)(1) and that the district judge’s order of

April 2 was a ‘‘modification’’ of that injunction and there-

fore appealable under §1292(a)(1). We agree with appel-

lant’s characterization of the 1971 stay.° However, we do

5 Gevyn cites a recent second circuit case. Compania Espanola

de Petroleos v. Nereus Shipping, 8.A., 527 F.2d 966 (2d Cir. 1975),

cert. denied __ U.S. __ (June 14, 1976), for the proposition that

an order directing the manner of arbitration is appealable. We are

not convinced that the seéond circuit’so held. The court in Com-

pania Espanola was faced with ‘‘a mass of confusion and pro-

eedural effluvia,’’ 527 F.2d at 968, that makes it difficult to deter-

mine exactly what kind of an order was appealed, but the opinion

indicates that the court was moved to consider the order not

because it mandated the procedural step of consolidation, but

because it ‘‘obligated the parties to arbitrate, thereby affecting

substantive rights."’ Jd. at 973. In any event, this cireuit’s position

on the appealability of orders affecting the right or duty to arbi-

trate is set forth in New England Power Co. vy. Asiatic Petroleum

Corp., 456 F.2d 183 (1st Cir. 1972). The reasoning of that case

indicates that an order affecting the manner of arbitration is not

appealable.

® At first blush the 1971 stay might appear more properly to be

termed an exercise by the district court of control of its own docket

than an ‘‘injunction.’’ However, for purposes of determining

appealability under § 1292(a)(1) of stays of proceedings, the

22

not agree that the 1976 order can be said to have ‘‘modi-

fied’’ the earlier decree.

It is true that the judge’s order of April 2, 1976 is re-

lated to the 1971 stay in the sense that both affect the

progress of the same case. And the speedy arbitration

ordered in 1976 will presumably result in an earlier dis-

solution of the 1971 stay than would otherwise be the

case. However, this interrelationship of the two orders

is too attenuated for the 1976 order to be termed a ‘‘mod-

ification’’ of the 1971 stay. The 1971 order remains in

fiction persists that law courts and equity courts retain separate

identities. Baltimore Contractors, Inc. vy. Bodinger, 348 U.S. 176,

184-85 (1955); New England Power Co. vy. Asiatic Petroleum

Corp., 456 F.2d 183, 189 (1st Cir. 1972). Where a court stays

proceedings at law to permit the progress of another action at

law, the law/equity distinction does not come into play, for the

action is viewed simply as a court’s control of its own docket.

Since the stay in such a case is not equitable in origin, the order

is not regarded as an injunction. Sec Enclow v. New York Life

Insurance Co., 293 U.S. 379, 381-82 (1935). Where. however, a

court stays an action ‘‘at law’’ in order to hear an equitable

defense or counterclaim, the stay is viewed as akin to the tm per-

svnam injunction of an equity court prohibiting a litigant from

pursuing an action in a law court. Sec Baltimore Contractors, Ine,

vr. Bodinger, supra at 182-84; Ettelson v. Metropolitan Life Ins. Co.,

317 U.S. 158, 191-92 (1942); Enclow v. New York Life Ins. Co.,

supra at 382.

In this case the action stayed by the 1971 order was *‘at law.’

To be sure, the Massachusetts statute creating the action sued upon

calls for it to be brought ‘‘in equity”’ in Massachusetts courts.

However, once the case is removed to federal court, the nomen-

clature of the action is determined by federal law. Warren Bros.

Co. v. Cardi Corp., 471 F.2d 1304, 1306 (1st Cir. 1973) ; Kirschner

vy. West Co., 300 F.2d 133, 134 (3d Cir. 1962) (en bane.). See

Stern v. South Chester Tube Co., 390 U.S. 606, 610 (1968);

Guaranty Trust Co. v. York, 326 U.S. 99, 105-07 (1945). An action

under Mass. Gen. Laws c. 149, § 29, seeking money damages from

the principal or its surety is characterized for purposes of federal

law as ‘‘at law.’’ See Warren Bros. Co. v. Cardi, supra. When

such an action at law is stayed to permit arbitration to proceed,

the order is characterized as an injunction for purposes of § 1292.

Baltimore Contractors, Inc. vy. Bodinger, supra at 184. See gener-

ally Annot., 11 A.L.R. Fed. 640 (1972).

’

23

full force and effect and it cannot be said to have been

modified until its explicit terms have been changed.

Appellant next argues that if the order of April 2 is

not a ‘‘modification’’ of an injunction, it is an ‘‘interlocu-

tory order ... granting . . . an injunction’’ within the

meaning of §1292(a)(1). (Emphasis supplied.) The Sup-

reme Court has narrowly defined the class of ‘‘interloc-

utory’’ injunctions, the granting of which may be appealed.

The Court has read into §1292(a)(1) a requirement that

the injunction dispose of a substantive issue:

‘‘Orders that in no way touch on the merits of the

claim but only relate to pretrial procedures are not

in our view ‘interlocutory’ within the meaning of

§1292(a)(1).”’

Switzerland Cheese Ass’n vy. E. Horne’s Market, Inc.,

385 U.S. 23, 25 (1966). See also International Products

Corp. v. Koons, 325 F.2d 403, 406 (2d Cir. 1963); 9 J.

Moore, Federal Practice 110.20[1] (2d ed. 1975). Cf.

Cohen vy. Benifical Indus. Loan Corp., supra. The order

in this case does not touch the merits of any claim of

right. Rather, we believe, it relates only to ‘‘pretrial pro-

cedures’’ and is therefore not an ‘‘interlocutory order...

granting...an injunction’’ within the meaning of 41292

(a)(1). Switzerland Cheese Ass’n y. E. Horne’s Market,

Inc., supra.

For these reasons we conclude that we have no juris-

diction to entertain this appeal.

Appeal dismissed.

24

APPENDIX B

Unrrep Srares Districr Court

District oF MAssacHUSETTS

C.A. No, 71-342F

LIMBACH CO. AND

POWERS REGULATOR CO.

v.

GEVYN CONSTRUCTION CORP. AND

THE TRAVELERS INDEMNITY CO.

MEMORANDUM AND ORDER

May 24, 1976

Carrrey, Cu.J.

This matter arises on an application of the Gevyn Con-

struction Corp. (Gevyn) pursuant to Rule 8(a), F.R.A.P.

and Rule 62(d), F.R. Civ. P., for approval of a supersedeas

bond and for a stay of an order of this Court pending au

appeal by Gevyn to the Court of Appeals. For the reasons

hereinafter articulated the application for approval of the

bond and for a stay is denied.

This case is merely one of cleven cases presently pending

before this Court involving the disputes arising from con-

strnetion of the Middlesex County Courthouse (the Court-

house). This action was originally brought by the Limbach

Company (Limbach), a subcontractor in the Courthouse

project, in Suffolk Superior Court against Gevyn, the gen-

eral contractor, in which Limbach sought payment for

labor and materials furnished by it in the construction of

the Courthouse pursuant to a contract executed about nine

years ago between Limbach and Gevyn, dated November

6, 1967. Defendants subsequently removed this action to

this Court on the basis of diversity of citizenship.

Rtas se en

25

Arbitration in the Courthouse litigation commenced on

May 28, 1970. On May 4, 1972 this Court ordered a stay in

the Limbach ease pending the completion of arbitration.

By agreement of the parties, Limbach’s claim was consoli-

dated for hearing in arbitration with the claims of the other

sub-contractors of Gevyn, and the claims of Gevyn against

Middlesex County, the owner of the project. After nearly

five years of arbitration Limbach moved in March 1976 for

an order of this Court compelling an immediate award in

its case against Gevyn. Affidavits in support of the motion

and opposition thereto were filed by both parties and the

matter was briefed and argued. On April 2, 1976 this Court

entered an order compelling the arbitrators to make an

award in the matter of Limbach Co. v. Gevyn Construction

Corp., American Arbitration Association No. 11-0-0069

(13)-70 within 60 days.

The Court based its order on M.G.L. e¢. 149, © 29 whieh

provides that a subcontractor may bring suit against its

general contractor and the general contractor’s bonding

company to enforce its claims for labor and materials fur-

nished to a general contractor for the construction of a

publie building. The statutory purpose of this section is

to afford subcontractors such as Limbach an EXPEDI-

TIOUS resolution of their claims against general econtract-

ors. Warren Bros. vy. Cardi, 471 F.2d 1304 (1 Cir. 1973).

The Court looked to state law on the basis of the principles

enunciated in Frie v. Tompkins, 304 U.S. 64 (1988) direet-

ing that a federal court sitting in diversity should apply

the substantive law of the state, and may not act in dero-

gation of rights of the parties as conferred by the state.

Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S.

198, 203 (1956).

On April 13, 1976, Gevyn moved for reconsideration of

the Court’s April 2, 1976 order or, in the alternative, for

an amendment of that order to include a statement under

26

28 U.S.C.A. § 1292(b) which would have allowed an appeal

of an otherwise unappealable order. On May 10, 1976 the

Court denied Gevyn’s motion for reconsideration and de-

clined to amend its April 2, 1976 order pursuant to 28

U.S.C.A. § 1292(b).

The defendant Gevyn now moves under Rule 8(a),

F.R.A.P. and Rule 62(d), F.R. Civ. P. for a stay of the

April 2, 1976 order of this Court pending an appeal. Pur-

suant to the direction of the United States Supreme Court

in Virginia Ry. v. U. S., 272 U.S. 658 (1926) (see also

9 Moore, Federal Practice, { 208.07, p. 1424) the Court

states the following as its reasons for denying the instant

application:

1. The consolidation of subecontractor’s claims was to

facilitate the taking of evidence before the arbitrators.

(‘laims by individual subcontractors, nonetheless, retain

their separate character and require the entry of separate

awards ;

2. All, or virtually all, evidence with respect to the

claim of Limbach and Gevyn’s defenses thereto have been

presented to the arbitrators and thus Limbach’s claim is

ripe for decision and award within the time ordered by

this Court;

3. The incomplete state of the evidence in the claims

of Gevyn against Middlesex County and the County’s

counterelaim against Gevyn is not a compelling reason to

further delay a resolution of Limbach’s 5 year old claim

against Gevyn, see A. J. Wolfe v. Baltimore Contractors,

355 Mass. 361 (1969) ;

4. There is no controlling question of law as to which

there is a substantial difference of opinion;

5. An immediate appeal from the April 2, 1976 order

compelling an arbitration award will not materially ad-

vance the ultimate termination of this litigation but will,

27

on the contrary, further delay these already protracted

proceedings ;

6. This Court’s April 2, 1976 order compelling an

arbitration award is not an appealable order; and,

7. There is a policy in the federal courts of long

standing duration, grounded in sound logic, against piece-

meal appeals. Switzerland Cheese Ass’n, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 1041 (1966); In re Sylvania Elec.

Products, 220 F.2d 423 (1 Cir. 1955).

Accordingly, the application for approval of a super-

sedeas bond and for a stay of the April 2, 1976 order is

denied.

s/ Anprew A. Carrrey

Andrew A. Caffrey, Ch.J.

28

APPENDIX C

U.S. CODE, TITLE 9

(Unirep Staves Arsrrration Acv, CHapTer 1)

§1. ‘‘Maritime transactions’’ and ‘‘commerce’’ defined;

exceptions to operation of title

‘‘Maritime transactions’’, as herein defined means char-

ter parties, bills of lading of water carriers, agreements

relating to wharfage, supplies furnished vessels or repairs

to vessels, collisions, or any other matters in foreign com-

merce which, if the subject of controversy, would be em-

braced within admiralty jurisdiction; ‘‘commerce’’, as

herein defined, means commerce among the several States

or with foreign nations, or in any Territory of the United

States or in the District of Columbia, or between any such

Territory and another, or between any such Territory and

any State or foreign nation, or between the District of

Columbia and any State or Territory or foreign nation,

but nothing herein contained shall apply to contracts of

employment of seamen, railroad employees, or any other

class of workers engaged in foreign or interstate commerce.

July 30, 1947, ¢. 392, 61 Stat. 670.

<2. Validity, irrevocability, and enforcement of agree-

ments to arbitrate

A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce to

settle by arbitration a controversy thereafter arising out

of such contract or transaction, or the refusal to perform

the whole or any part thereof, or an agreement in writing

to submit to arbitration an existing controversy arising

out of such a contract, transaction, or refusal shall be

valid, irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any

contract.

July 30, 1947, ce. 392, 61 Stat. 670.

29

§3. Stay of proceedings where issue therein referable to

arbitration

If any suit or proceeding be brought in any of the courts

of the United States upon any issue referable to arbitration

under an agreement in writing for such arbitration, the

court in which such suit is pending, upon being satisfied

that the issue involved in such suit or proceeding is refer-

able to arbitration under such an agreement, shall on

application of one of the parties stay the trial of the

action until such arbitration has been had in accordance

with the terms of the agreement, providing the applicant

for the stay is not in default in proceeding with such

arbitration.

July 30, 1947, ce. 392, 61 Stat. 670.

§4. Failure to arbitrate under agreement; petition to

United States court having jurisdiction for order

to compel arbitration; notice and service thereof;

hearing and determination

A party aggrieved by the alleged failure, neglect, or re-

fusal of another to arbitrate under a written agreement for

arbitration may petition any United States district court

which, save for such agreement, would have jurisdiction

under Title 28, in a civil action or in admiralty of the

subject matter of a suit arising out of the controversy

between the parties, for an order directing that such

arbitration proceed in the manner provided for in such

agreement. Five days’ notice in writing of such applica-

tion shall be served upon the party in default. Service

thereof shall be made in the manner provided by the

Federal Rules of Civil Procedure. The court shall hear

the parties, and upon being satisfied that the making of

the agreement for arbitration or the failure to comply

therewith is not in issue, the court shall make an order

directing the parties to proceed to arbitration in accord-

ance with the terms of the agreement. The hearing and

30

proceedings, under such agreement, shall be within the

district in which the petition for an order directing such

arbitration is filed. If the making of the arbitration agree-

ment or the failure, neglect, or refusal to perform the

same be in issue, the court shall proceed summarily to the

trial thereof. If no jury trial be demanded by the party

alleged to be in default, or if the matter in dispute is

within admiralty jurisdiction, the court shall hear and

determine such issue. Where such an issue is raised, the

party alleged to be in default may, except in cases of

admiralty, on or before the return day of the notice of

application, demand a jury trial of such issue, and upon

such demand the court shall make an order referring the

issue or issues to a jury in the manner provided by the

Federal Rules of Civil Procedure, or may specially call

a jury for that purpose. If the jury find that no agreement

in writing for arbitration was made or that there is no

default in proceeding thereunder, the proceeding shall be

dismissed. If the jury find that an agreement for arbi-

tration was made in writing and that there is a default in

proceeding thereunder, the court shall make an order sum-

marily directing the parties to proceed with the arbitration

in accordance with the terms thereof.

July 30, 1947, ¢. 292, 61 Stat. 671;

Sept. 3, 1954, ¢. 1263, « 19, 68 Stat. 1233.

‘5. Appointment of arbitrators or umpire

If in the agreement provision be made for a method of

naming or appointing an arbitrator or arbitrators or an

umpire, such method shall be followed; but if no method

he provided therein, or if a method be provided and any

party thereto shall fail to avail himself of such method,

or if for any other reason there shall be a lapse in the

naming of an arbitrator or arbitrators or umpire, or in

filling a vacancy, then upon the application of either party

31

to the controversy the court shall designate and appoint an

arbitrator or arbitrators or umpire, as the case may

require, who shall act under the said agreement with the

same force and effect as if he or they had been specifically

named therein; and unless otherwise provided in the agree-

ment the arbitration shall be by a single arbitrator.

July 30, 1947, e. 392, 61 Stat. 671.

§ 6. Application heard as motion

Any application to the court hereunder shall be made

and heard in the manner provided by law for the making

and hearing of motions, except as otherwise herein ex-

pressly provided.

July 30, 1947, ¢. 392, 61 Stat. 671.

§7. Witnesses before arbitrators; fees; compelling at-

tendance

The arbitrators selected either as prescribed in this title

or otherwise, or a majority of them, may summon in

writing any person to attend before them or any of them

as a witness and in a proper case to bring with him or

them any book, record, document, or paner which may be

deemed material as evidence in the ease. The fees for such

attendance shall be the same as the fees of witnesses before

masters of the United States courts. Said summons shall

issue in the name of the arbitrator or arbitrators, or a

majority of them, and shall be signed by the arbitrators,

or a majority of them, and shall be directed to the said

person and shall be served in the s»me manner as sub-

poenas to appear and testify before the court: if any

person or persons so summened to testify shall refuse or

neglect to obey said summons, upon petition the United

States district court for the district in which sneh arbi-

trators, or a majority of them, are sitting may compel the

attendance of such person or persons before said arbitrator

32

or arbitrators, or punish said person or persons for con-

tempt in the same manner provided by law for securing

the attendance of witnesses or their punishment for neglect

or refusal to attend in the courts of the United States.

July 30, 1947, c. 392, 61 Stat. 672;

Oct. 31, 1951, c. 655, § 14, 65 Stat. 715.

§8. Proceedings begun by libel in admiralty and seizure

of vessel or property

If the basis of jurisdiction be a cause of action otherwise

justiciable in admiralty, then, notwithstanding anything

herein to the contrary, the party claiming to be aggrieved

may begin his proceeding hereunder by libel and seizure

of the vessel or other property of the other party accord-

ing to the usual course of admiralty proceedings, and the

eourt shall then have jurisdiction to direct the parties to

proceed with the arbitration and shall retain jurisdiction

to enter its decree upon the award.

July 30, 1947, e. 392, 61 Stat. 672.

$9. Award of arbitrators; confirmation; jurisdiction;

procedure

If the parties in their agreement have agreed that a

judgment of the court shall be entered upon the award

made pursuant to the arbitration, and shall specify the

court, then at any time within one vear after the award

is made any party to the arbitration may apply to the

court so specified for an order confirming the award, and

thereupon the court must grant such an order unless the

award is vacated, modified, or corrected as prescribed in

sections 10 and 11 of this title. If no court is specified in

the agreement of the parties, then such application may be

made to the United States court in and for the district

within which such award was made. Notice of the appli-

cation shall be served upon the adverse party, and there-

33

upon the court shall have jurisdiction of such party as

though he had appeared generally in the proceeding. If

the adverse party is a resident of the district within which

the award was made, such service shall be made upon the

adverse party or his attorney as prescribed by law for

service of notice of motion in an action in the same court.

If the adverse party shall be a nonresident, then the notice

of the application shall be served by the marshal of any

district within which the adverse party may be found in

like manner as other process of the court.

July 30, 1947; ¢. 392, 61 Stat. 672.

§10. Same; vacation; grounds; rehearing

In either of the following cases the United States court

in and for the district wherein the award was made may

make an order vacating the award upon the application of

any party to the arbitration—

(a) Where the award was procured by corruption,

fraud, or undue means. _

(b) Where there was evident partiality or corruption

in the arbitrators, or either of them.

(ce) Where the arbitrators were guilty of misconduct

in refusing to postpone the hearing, upon sufficient cause

shown, or in refusing to hear evidence pertinent and ma-

terisl to the controversy; or of any other misbehavior by

which the rights of any party have been prejudiced.

(d) Where the arbitrators exceeded their powers, or

so imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not

made,

(e) Where an award is vacated and the time within

which the agreement required the award to be made has

not expired the court may, in its discretion, direct a re-

hearing by the arbitrators.

July 30, 1947, ¢. 392, 61 Stat. 672.

34

611. Same; modification or correction; grounds; order

In either of the following cases the United States court

in and for the district wherein the award was made may

make an order modifying or correcting the award upon the

application of any party to the arbitration—

(a) Where there was an evident material miscaleu-

lation of figures or an evident material mistake in the

description of any person, thing, or property referred to

in the award.

(b) Where the arbitrators have awarded upon a mat-

ter not submitted to them, unless it is a matter not affecting

the merits of the decision upon the matter submitted.

(c) Where the award is imperfect in matter of form

not affecting the merits of the controversy.

The order may modify and correct the award, so as to

effect the intent thereof and promote justice between the

parties,

July 30, 1947, e. 392, 61 Stat. 673.

‘12. Notice of motions to vacate or modify; service; stay

of proceedings

Notice of a motion to vacate, modify, or correct an award

nust be served upon the adverse party or his attorney

within three months after the award is filed or delivered.

If the adverse party is a resident of the district within

which the award was made, such service shall be made

upon the adverse party or his attorney as preseribed by

law for service of notice of motion in an action in the

same court. If the adverse party shall be a nonresident

then the notice of the application shall be served by the

marshal of any district within which the adverse party

may be found in like manner as other processes of the court.

For the purposes of the motion any judge who might make

an order to stay the proceedings in an action brought in

the same court may make an order, to be served with the

ee rae a ee ee

35

notice of motion, staying the proceedings of the adverse

party to enforce the award.

July 30, 1947, ec. 392, 61 Stat. 673.

§13. Papers filed with order on motions; judgment;

docketing; force and effect; enforcement

The party moving for an order confirming, modifying, or

correcting an award shall, at the time such order is filed

with the clerk for the entry of judgment thereon, also file

the following papers with the clerk:

(a) The agreement; the selection or appointment, if

any, of an additional arbitrator or umpire; and each writ-

ten extension of the time, if any, within which to make

the award.

(b) The award.

(c) Each notice, affidavit, or other paper used upon

an application to confirm, modify, or correct the award,

and a copy of each order of the court upon such an

application.

The judgment shall be docketed as if it was rendered

in an action.

The judgment so entered shall have the same force and

effect, in al! respects, as, and be subject to all the provisions

of law relating to, a judgment in an action; and it may be

enforced as if it had been rendered in an action in the

court in which it is entered.

July 30, 1947, e. 392, 61 Stat. 673.

§14. Contracts not affected

This title shall not apply to contracts made prior to

January 1, 1926.

July 30, 1947, ¢. 392, 61 Stat. 673.

36

MASSACHUSETTS STATUTE

MassaCHUSETTs GENERAL Laws ¢. 149, §29

Officers or agents contracting in behalf of the common-

wealth or in behalf of any county, city, town, district or

other potential political subdivision of the commonwealth or

other instrumentality for the construction, reconstruction,

alteration, remodeling, repair or demolition of publie build-

ings or other public works when the amount of the contract

in the ease of the commonwealt!i is more than five thousand

dollars, and in any other case is more than two thousand

dollars, shall obtain security bond in an amount not less

than one half of the total contract price, for payment

by the contractor and subcontractors for labor performed

or furnished and materials used or employed therein, in-

cluding lumber so employed which is not incorporated

therein and is not wholly or necessarily consumed or made

so worthless as to lose its identity, but only to the extent

of its purchase price less its fair salvage value, and inelud-

ing also any material specially fabricated at the order of

the contractor or subcontractor for use as a eomponent

part of said public building or other public work so as to

be unsuitable for use elsewhere, even though such material

has not been delivered and incorporated into the public

building or public work, but only to the extent of its

purchase price less its fair salvage value and only to the

extent that such specially fabricated material is in con-

formity with the contract, plans and specifications or any

changes therein duly made; for payment of transportation

charges for materials used or employed therein which are

consigned to the contractor or to a subcontractor who has

a direct contractural relationship with the contractor; for

payment by such contractor and subcontractors of any sums

due for the rental or hire of vehicles, steam shovels, rollers

propelled by steam or other power, concrete mixers, tools

37

and other appliances and equipment employed in such con-

struction, reconstruction, alteration, remodeling, repair or

demolition ; for payment of transportation charges directly

related to such rental or hire; and for payment by such

contractor and subcontractors of any sums due trustees or

other persons authorized to collect such payments from

the contractor or subcontractor, based upon the labor per-

formed or furnished as aforesaid, for health and welfare

plans, supplementary unemployment benefit plans and other

fringe benefits which are payable in cash and provided for

in gollective bargaining agreements between organized

labor and the contractor or subcontractors; provided, that

any such trustees or other persons authorized to collect

such payments for health and welfare plans, supplementary

unemployment benefit plans and other fringe benefits shall,

subject to the following provisions, be entitled to the benefit

of the security only in an amount based upon labor per-

formed or furnished as aforesaid for a maximum of one

hundred and twenty consecutive calendar days.

In order to obtain the benefit of such security the claimant

shall file, with the county treasurer in the case of a contract

with a county, with the city er town clerk in the ease of a

contract with a city or town, and with the contracting officer

or agent in the case of a contract with the commonwealth,

a district or other political subdivision or other publie

instrumentality, a sworn statement of his claim prior to

the expiration of ninety days after the claimant ceases to

perform labor or furnish labor, materials, appliances and

equipment or transportation as aforesaid, for which claim

is made, and for payments due health and welfare plans,

supplementary unemployment benefit plans and other fringe

benefits, prior to the expiration of ninety days after the

date of the furnishing of the last of the labor for which

such payments are made and claimed, and for specially

fabricated material prior to the expiration of ninety days

38

afier delivery, or if delivery is refused by the contractor

or subcontractor prior to the expiration of ninety days

after the date of such refusal; provided, that no such claim

shall be valid for specially fabricated material ordered by

a subcontractor unless written notice of the placement of

the order and the amount thereof has been given to the

contractor principal on the bond within twenty days after

such placement; and provided, that no such claim shall be

valid for transportation charges, other than demurrage

charges, unless written notice of the amount of the claim

has been given to the contractor principal on the bond

within twenty days after the date of delivery of the ma-

terials, appliances or equipment, and in the case of demur-

rage charges, unless written notice of the amount of the

claim has been given to the contractor principal on the bond

within sixty-three days after the date of release of the

transportation equipment; and if such claim is not paid

or satisfied, shall file, within one year after the filing of

such claim, a petition in equity in the superior court for

the proper county to enforce his claim or intervene in a

petition already filed.

After the filing of any such petition, a claimant may

move for a decree on his claim in accordance with the pro-

cedure set forth in section fifty-nine and in section fifty-

nine B of chapter two hundred and thirty-one. On motion

of any party, the court shall advance such petition for

speedy trial. Before making final disposition of such peti-

tion, the court may examine all claims which may arise

under this section and which have been duly filed in accord-

ance herewith, and determine the respective amounts due

such claimants and their right to participate in the security

and apply the security to the claimants held entitled thereto.

Any claimant whose claim has been duly filed shall have

the right to appear at hearings on any petition without

formally intervening by any pleadings, and may object,

39

except or appeal from any ruling or decision adversely

affecting his claim to the same extent and in the same man-

ner as though he had intervened by formal pleadings.

A copy of a sworn statement of claim filed pursuant to

this section, authenticated by a certificate of the official

having custody thereof that such copy is a true copy of

a sworn statement of claim filed on a date specified with

a board or officer named, shall be admissible as evidence of

such sworn statement of claim and of the filing thereof.

Any person employing persons on any public works here-

inbefore referred to shall post conspicuously, at such place

or places as will provide reasonable opportunity for all

employees to read the same, a correct copy of this section.

The department shall enforce this paragraph.

Amended by St. 1935, ¢. 217, § 2; St. 1935, e. 472,§ 2;

St. 1938, ¢. 361; St. 1955, ¢. 702, § 2; St. 1957, e. 682, § 1

St.1962, ¢. 696; St.1964, . 609, §§ 4, 5.

.

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