Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 82 C 0078 -- Allen Sharp, Judge.
Posner, Coffey, and Flaum, Circuit Judges.
This appeal is from two orders of the district court, 563 F. Supp. 1340, each denying a motion by appellant NCR Corporation to compel arbitration and to stay court proceedings pending arbitration. In No. 82-2371, the district court denied the motion outright. We dismiss this appeal as moot.*fn1 In No. 83-2235, the district court ruled that, pursuant to section 4 of the United States Arbitration Act (USAA), 9 U.S.C. §§ 1-14 (1982), it must conduct a trial on the making of the arbitration agreement. For the reasons stated below, we hold that we lack jurisdiction to decide this appeal, and thus, we dismiss the appeal.
NCR and appellee Matterhorn, Inc., entered into a contract in June 1978 for NCR to sell and Matterhorn to buy certain computer equipment. That contract contained a clause providing for arbitration of disputes.*fn2 Delivery of the equipment was delayed. In January 1980, Matterhorn informed NCR that it wished to change the financing of the contract. On January 18, 1980, Matterhorn submitted a new purchase order for the equipment. The parties disagree as to whether the terms of the June 1978 contract were incorporated by reference into the January 1980 purchase order.
On March 1, 1982, Matterhorn filed a complaint in district court to commence this action. On May 20, 1982, NCR filed a motion for stay of action pending arbitration. The district court denied the motion and NCR appealed. That appeal is No. 82-2371.
Proceedings in the district court were not stayed pending the appeal. Matterhorn filed an amended complaint. NCR filed a second motion to stay proceedings pending arbitration and to compel arbitration. An evidentiary hearing was held on the motion. In its Memorandum and Order of May 31, 1983, the district court denied the motion. It found that there was an issue as to the existence of a valid contract containing an agreement to arbitrate. The court ruled that therefore, it had to conduct a trial on the making of the arbitration agreement. NCR appeals. The crux of NCR's argument is that the district court lacked jurisdiction under the USAA to determine the existence of an arbitration agreement.*fn3
NCR has not argued that the district court's order is a final order and thus appealable under 28 U.S.C. § 1291 (1976). Instead, it argues that the order is appealable under 28 U.S.C. § 1292(a)(1) (1976), allowing appeals from certain interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions. . . ." To be appealable under section 1292(a)(1), an order either must both have the effect of an injunction and have "serious, perhaps irreparable" consequences, or fit within the Enelow-Ettelson doctrine.*fn4 Ohio-Sealy Mattress Manufacturing Co. v. Duncan, 714 F.2d 740, 743 (7th Cir. 1983) (quoting Carson v. American Brands, Inc., 450 U.S. 79, 84, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1980)), cert. denied, 464 U.S. 1044, 104 S. Ct. 712, 79 L. Ed. 2d 176, 52 U.S.L.W. 3450 (1984). Which of these tests is to be applied to determine the appealability of an interlocutory order entered by the court pursuant to the USAA turns on whether the order is one granting or refusing a stay under section 3,*fn5 or one compelling or refusing to compel arbitration under section 4.*fn6 NCR argues that the district court denied a stay and thus this case is governed by the rules governing appealability of section 3 orders.
An order denying a motion to stay under section 3 is appealable if it meets the standards of the Enelow-Ettelson doctrine. Whyte v. THinc Consulting Group International, 659 F.2d 817, 818-19 (7th Cir. 1981). The doctrine makes certain orders granting or denying a stay of proceedings appealable under section 1292(a)(1). The doctrine applies where the action in which the order is entered is an action at law, and the stay is sought to allow the prior determination of an equitable defense. Id. at 819. The doctrine is based on the premise that a district court's order to stay proceedings is considered, for historical reasons, to be an injunction.*fn7
An order granting or denying a motion to compel arbitration under section 4 is appealable if it results in a dismissal of the action. Whyte v. THinc Consulting Group International, 659 F.2d at 818. An order denying a motion to compel arbitration pending a trial on the issue of the existence of an arbitration agreement is a nonappealable interlocutory order. John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 98 U.S. App. D.C. 109, 232 F.2d 366, 369 (D.C. Cir. 1956); see Aberle Hosiery Co. v. American Arbitration Ass'n, 461 F.2d 1005, 1006 (3d Cir. 1972); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 84-86 (2d Cir. 1961). The cases rest on the proposition that a motion seeking to compel arbitration is not a request for an injunction, but for a "unique statutory remedy." John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 232 F.2d at 369. An order to compel arbitration is a unique statutory remedy because prior to the USAA, courts would not enforce arbitration agreements. See Hayes v. Allstate Insurance Co., 722 F.2d 1332, slip op. at 13-14 (7th Cir. 1983) (Posner, J., dissenting). Furthermore, the denial of a motion to compel arbitration pending a trial on the existence of an arbitration agreement does not have serious or irreparable consequences.*fn8 The order also is not appealable under the Enelow-Ettelson doctrine because the order does not stay or refuse to stay proceedings. Ohio-Sealy Mattress Manufacturing Co. v. Duncan, 714 F.2d at 743. Under the Enelow-Ettelson doctrine, it is not the court's interlocutory order to the parties to take some action (here, arbitration) but rather the grant or denial of a stay while the parties take the action that is considered an injunction. See Hayes v. Allstate Insurance Co., 722 F.2d 1332, slip op. at 16-17 (Posner, J., dissenting). Thus, an order denying a motion to compel arbitration pending a trial on the existence of an arbitration agreement is not the refusal of an injunction and is not appealable under section 1292(a)(1). Finally, a denial of a motion to compel arbitration is similar to a denial of a motion for summary judgment. In both cases, the court orders a trial because of the presence of a material issue of fact. See Par-Knit Mills v. Stockbridge Fabrics, 636 F.2d 51, 54 n.9 (3d Cir. 1980). A denial of summary judgment is a nonappealable interlocutory order. See 6 Pt. 2 J. Moore & J. Wicker, Moore's Federal Practice para. 56.21 (1982).
In this case, the district court denied the motion to compel arbitration and to stay proceedings pending arbitration. The denial of the motion to compel pending a trial on the existence of an arbitration agreement clearly was pursuant to section 4. As such, it is a nonappealable interlocutory order.
Although the denial of a motion to stay proceedings is ordinarily pursuant to section 3 and thus appealable according to the Enelow-Ettelson doctrine, in this case the court was acting pursuant to section 4, not section 3. Section 3 governs orders where the district court determines whether to grant or to deny a stay while the court tries the allegedly arbitrable issues on the merits. Here, the stay was not denied pending a trial on the merits; it was denied pending a trial on the existence of an arbitration ...