# Petition — Gevyn Construction Corp. v. Limbach Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1165%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 916 ## Text 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. . J --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1165%3A1. Public record. Not legal advice.