FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEDIVAS, LLC, a California limited

liability company,

Plaintiff-Appellant,

and

KENNETH W. CARPENTER; JOSEPH D.

DOWLING; T. KNOX BELL; DARI

DARABBEIGI; LINDY HARTIG;

SACHIO OKAMURA; WILLIAM

SUMMER; PAUL TEIRSTEIN; WILLIAM

G. TURNELL, individuals,

Plaintiffs,

v.

MARUBENI CORPORATION, a

Japanese corporation,

Defendant-Appellee.

No. 12-55375

D.C. No.

3:10-cv-01001-

W-RBB

OPINION

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted

November 7, 2013—Pasadena, California

Filed January 27, 2014
2 MEDIVAS, LLC V. MARUBENI CORP.

Before: Alfred T. Goodwin, Raymond C. Fisher

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Fisher

SUMMARY*

Appellate Jurisdiction

The panel dismissed for lack of jurisdiction an appeal

from an order compelling arbitration where the district court

neither explicitly dismissed nor explicitly stayed the action.

The panel held that such an order implicitly stays the

action and thus is not “a final decision with respect to an

arbitration” under the Federal Arbitration Act. The panel also

adopted a rebuttable presumption that an order compelling

arbitration but not explicitly dismissing the underlying claims

stays the action as to those claims pending the completion of

the arbitration.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MEDIVAS, LLC V. MARUBENI CORP. 3

COUNSEL

Stephen L. Schreiner (argued), Solomon Ward Seidenwurm

&Smith, LLP, San Diego, California, for Plaintiff-Appellant.

Jeffry A. Davis (argued) and Nathan R. Hamler, Mintz Levin

Cohn Ferris Glovsky and Popeo, San Diego, California, for

Defendant-Appellee.

OPINION

FISHER, Circuit Judge:

We address whether an order compelling arbitration is

appealable when the district court neither explicitly dismisses

nor explicitly stays the action. We hold that such an order

implicitly stays the action and thus is not “a final decision

with respect to an arbitration” under the Federal Arbitration

Act, 9 U.S.C. § 16(a)(3). We also adopt a rebuttable

presumption that an order compelling arbitration but not

explicitly dismissing the underlying claims stays the action as

to those claims pending the completion of the arbitration. 

Accordingly, we dismiss this appeal for lack of jurisdiction.

BACKGROUND

MediVas is a small biomedical company based in San

Diego, California, that specializes in developing newmethods

for pharmaceutical drug delivery. Marubeni is a Japanese

multinational trading corporation. Between April 2004 and

October 2007, Marubeni and MediVas executed various

contracts in connection with a $5 million loan from Marubeni

to MediVas. One of these contracts required the parties to
4 MEDIVAS, LLC V. MARUBENI CORP.

submit contractual disputes to international arbitration in

Tokyo, Japan, whereas another designated the courts of San

Diego as the exclusive forum for such disputes. The

contracts also granted Marubeni a security interest in all of

MediVas’ assets.

After MediVas defaulted on the loan, Marubeni

foreclosed on promissory notes held by MediVas and

threatened to foreclose on additional MediVas assets. In

response, MediVas and several individual plaintiffs filed suit

against Marubeni in San Diego Superior Court, raising

numerous state law claims arising out of this series of

transactions. Invoking the contractual arbitration clause,

Marubeni removed the action to federal court under the

Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, also known as the New York Convention,

moved to compel arbitration and initiated arbitration against

the plaintiffs. See 9 U.S.C. §§ 205–06. MediVas opposed

arbitration, relying on the forum selection clause, and moved

to remand the action to state court.

In an August 2011 order, the district court ruled that many

of MediVas’ claims against Marubeni were subject to the

arbitration clause and ordered arbitration of those claims. 

Because it concluded that federal jurisdiction rested solely on

the New York Convention, the court remanded the remaining

claims, including all claims brought by the individual

plaintiffs, to state court.1 Neither the August 2011 order nor

1 The parties did not dispute this jurisdictional conclusion and it is not

at issue in this appeal. We therefore do not decide whether the district

court did have supplemental jurisdiction over these claims under

28 U.S.C. § 1367(a) or whether they were properly remanded under
MEDIVAS, LLC V. MARUBENI CORP. 5

any other order explicitly stayed or dismissed the arbitrable

claims, and no judgment was entered in the action.

The arbitration panel ruled in favor of Marubeni on all

claims save one, which the panel concluded fell outside its

jurisdiction. Marubeni then filed a second action in district

court to confirm the arbitration award, which action was

assigned to the same district judge as the original action. In

February 2012, a few days after Marubeni filed the final

award in the confirmation action, MediVas filed in the

original action its notice of appeal from the district court’s

August 2011 order. Then, also in the original action,

Marubeni moved to remand the unarbitrated claim to state

court. The district court stayed proceedings in both actions

in light of MediVas’ pending appeal, which the court believed

may have divested it of jurisdiction to proceed.

DISCUSSION

A.

The Federal Arbitration Act permits immediate appeal of

“a final decision with respect to an arbitration,” 9 U.S.C.

§ 16(a)(3),2 which is a decision that “ends the litigation on the

§ 1367(c). See ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 393–95

(4th Cir. 2012).

 

2

 The full text of this section provides:

(a) An appeal may be taken from –

(1) an order –
6 MEDIVAS, LLC V. MARUBENI CORP.

merits and leaves nothing more for the court to do but execute

(A) refusing a stay of any action under section

3 of this title,

(B) denying a petition under section 4 of this

title to order arbitration to proceed,

(C) denying an application under section 206

of this title to compel arbitration,

(D) confirming or denying confirmation of an

award or partial award, or

(E) modifying, correcting, or vacating an

award;

(2) an interlocutory order granting, continuing, or

modifying an injunction against an arbitration that

is subject to this title; or

(3) a final decision with respect to an arbitration

that is subject to this title.

(b) Except as otherwise provided in section 1292(b) of

title 28, an appeal may not be taken from an

interlocutory order –

(1) granting a stay of any action under section 3 of

this title;

(2) directing arbitration to proceed under section 4

of this title;

(3) compelling arbitration under section 206 ofthis

title; or

(4) refusing to enjoin an arbitration that is subject

to this title.

9 U.S.C. § 16.
MEDIVAS, LLC V. MARUBENI CORP. 7

the judgment.” Green Tree Fin. Corp.-Ala. v. Randolph,

531 U.S. 79, 86 (2000) (quoting Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 867 (1994); Coopers &

Lybrand v. Livesay, 437 U.S. 463, 467 (1978)) (internal

quotation marks omitted). Thus, an order compelling

arbitration may be appealed if the district court dismisses all

the underlying claims, but may not be appealed if the court

stays the action pending arbitration. See id. at 87 n.2, 89;

Bushley v. Credit Suisse First Bos., 360 F.3d 1149, 1153 n.1

(9th Cir. 2004).

In Green Tree, the district court had ordered the parties to

arbitrate their dispute and dismissed the underlying claims

with prejudice. See 531 U.S. at 83, 86. The Supreme Court

acknowledged that the parties could bring a separate

proceeding to confirm, vacate or modify any award made in

the arbitration, but held that the district court’s order was

final and appealable because it disposed of the entire action

then pending before the district court. See id. at 86–87. 

Significantly, the Court noted that an appeal would not have

been allowed had the district court stayed the action instead

of dismissing it. See id. at 87 n.2 (citing 9 U.S.C. § 16(b)(1)).

In Interactive Flight Technologies, Inc. v. Swissair Swiss

Air Transport Co., 249 F.3d 1177 (9th Cir. 2001), we

extended Green Tree to an order compelling arbitration and

dismissing the underlying claims without prejudice. See id.

at 1179. Because the district court had dismissed the action

without prejudice solely to allow the parties to “bring[] a new

action after completing arbitration,” we held that the

distinction was not sufficient “to show that the dismissal was

interlocutory rather than an appealable final decision.” Id.
8 MEDIVAS, LLC V. MARUBENI CORP.

Since Interactive Flight, we have consistently treated

orders compelling arbitration but not explicitly dismissing the

underlying claims as unappealable interlocutory orders. In

Dees v. Billy, 394 F.3d 1290 (9th Cir. 2005), for example, we

held that a district court order compelling arbitration, staying

the proceedings and administratively closing the case was not

final because the plaintiff’s claim for relief was still pending

before the district court. See id. at 1293–94. Similarly,

Sanford v. Memberworks, Inc., 483 F.3d 956 (9th Cir. 2007),

held that an order directing arbitration, denying the

defendant’s motion to stay and stating that the case would be

terminated if arbitration was not completed within a year was

not final, again because the plaintiff’s claims remained before

the trial court. See id. at 961–62. Most importantly for this

appeal, in Bushley, when the district court ordered several

claims to arbitration, dismissed a nonarbitrable claim for

failure to state a claim and did not enter judgment or rule on

the defendant’s motions to stay or dismiss the proceedings,

we concluded that the order compelling arbitration was not

final because the action was effectively stayed pending the

conclusion of the arbitration. See 360 F.3d at 1151–53.

We have little trouble concluding that Bushley extends to

the facts of this case. In both cases, the district court fully

disposed of the nonarbitrable claims but not of the arbitrable

claims, which were ordered to arbitration and neither

dismissed nor stayed. The claims sent to arbitration therefore

remained pending before the district court, albeit subject to an

implicit stay pending the outcome of the arbitration. Because

those claims were implicitly stayed rather than dismissed, the

August 2011 order compelling arbitration did not constitute

a “final decision with respect to an arbitration” under section

16(a)(3) of the Federal Arbitration Act. See Green Tree,

531 U.S. at 86–87 & n.2; Sanford, 483 F.3d at 962; Dees,
MEDIVAS, LLC V. MARUBENI CORP. 9

394 F.3d at 1294; Bushley, 360 F.3d at 1153; Interactive

Flight, 249 F.3d at 1179.

Our conclusion that the proceedings were implicitly

stayed pending arbitration is bolstered by the procedural

history of this case. The district court’s August 2011 order

ruled on Marubeni’s “motion to compel arbitration and stay

litigation,” which explicitly requested that the district court

stay the proceedings. Because the district court granted the

motion as to the claims it decided were arbitrable, the most

reasonable inference is that the court intended to stay, not to

dismiss, those claims. See McCaskill v. SCI Mgmt. Corp.,

298 F.3d 677, 679 (7th Cir. 2002) (holding that the district

court dismissed the action without prejudice because, among

other facts, “the district court granted [the defendant]’s

motion which actually requested the court to compel

arbitration and dismiss the case”). Indeed, in this sense the

inference of an implicit stay is stronger here than in Bushley,

where the defendant moved to stay proceedings or to dismiss

the action.3

The parties’ actions also support our conclusion that the

August 2011 order implicitly stayed the arbitrated claims. 

MediVas, which asserts that it “anxiously awaited the first

opportunity to appeal” the court’s decision, did not file a

notice of appeal until after the arbitration had finished and the

award had been finalized. Moreover, in its application for

leave to file a motion for reconsideration, MediVas requested

as an alternative an order certifying an appeal under

3 We recognize that the August 2011 order said that “a stay is not

warranted,” but that statement referred only to the nonarbitrable claims. 

This statement therefore did not manifest any intent not to stay

proceedings on those claims it ordered to arbitration.
10 MEDIVAS, LLC V. MARUBENI CORP.

28 U.S.C. § 1292(b), acknowledging that the court’s order

compelling arbitration was an interlocutory order under

9 U.S.C. § 16(b)(3). Because the district court allowed

MediVas to file a motion for reconsideration, it did not

explicitly address this alternative request.

For its part, Marubeni originally argued that this appeal

was premature because the district court had not issued a final

order in either the original action or in the confirmation

action. Only after we ordered supplemental briefing to

address appellate jurisdiction, including “whether the notice

of appeal was timely filed,” did Marubeni argue that the

August 2011 order was a final decision for which the time to

appeal had expired.

Finally, it would be difficult to conclude that the August

2011 order “end[ed] the litigation on the merits and le[ft]

nothing more for the court to do but execute the judgment,”

Green Tree, 531 U.S. at 86, when even now, after the

arbitration has ended, one of MediVas’ claims for relief

remains pending before the district court. Moreover, the

district court will at some point have to rule on Marubeni’s

pending motion to remand that claim to state court. Under

these circumstances, we cannot conclude that the August

2011 order “plainly disposed of the entire case on the merits

and left no part of it before the court.” Id.

B.

We decline MediVas’ invitation to follow the approach

once taken by the Second Circuit by putting this appeal on

hold while the parties request a clarifying order from the

district court. See Cap Gemini Ernst & Young, U.S., L.L.C.

v. Nackel, 346 F.3d 360, 363 (2d Cir. 2003) (per curiam). 
MEDIVAS, LLC V. MARUBENI CORP. 11

The Cap Gemini court itself noted that although the

procedure was necessitated by the ambiguity in the record, it

would not again be permitted. See id. Because the record

here is not ambiguous for the reasons explained above, we

conclude that no clarifying order is necessary.

We fully endorse the Second Circuit’s statement that

“parties and district courts have an obligation to ensure that

the finality of the district court’s decision is evident from the

record, so that no further reconstruction of the district court’s

intent need be attempted on appeal.” Id. We again urge

district courts to be as clear as possible about whether they

intend to dismiss, stay or “do something else entirely” when

they order arbitration. Bushley, 360 F.3d at 1153 n.1 (quoting

Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d

Cir. 2002)). Had MediVas requested a clarifying order from

the district court before taking this appeal, the substantial

time and effort expended on this procedural issue could have

instead been spent advancing this litigation toward its

ultimate resolution.

Moreover, though we decline to follow the SecondCircuit

and “require an official dismissal of all claims before

reviewing an order to compel arbitration,” Cap Gemini,

346 F.3d at 363, we adopt a rebuttable presumption that an

order compelling arbitration but not explicitly dismissing the

underlying claims stays the action as to those claims pending

the completion of the arbitration. This presumption accords

with our preference for staying an action pending arbitration

rather than dismissing it. See Bushley, 360 F.3d at 1153 n.1.4

4 We recognize that the pro-arbitration policies undergirding this

preference are not served by a stay when the practical realities of

arbitration and litigation suggest either that no arbitration will actually
12 MEDIVAS, LLC V. MARUBENI CORP.

Indeed, the wisdom of this preference is underlined here,

where the arbitration panel left undecided a claim that the

district court had ordered to arbitration. Cf. Coopers &

Lybrand, 437 U.S. at 468 (noting that the purpose of the final

judgment rule “is to combine in one review all stages of the

proceeding that effectively may be reviewed and corrected if

and when final judgment results” (quoting Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949))). 

Accordingly, the finality of an order compelling arbitration is

determined by the context in which it was issued, but our

review of that context is weighted against finality.

C.

Finally, we reject the argument that the issuance of the

arbitral award somehow “‘finalized’ the district court order,”

making this appeal both proper and timely. Dannenberg v.

Software Toolworks Inc., 16 F.3d 1073, 1075 (9th Cir. 1994). 

Had the August 2011 order been final, it was “immediately

appealable,” Dees, 394 F.3d at 1292, and this appeal would

not have been timely. See Comedy Club, Inc. v. Improv W.

Assocs., 553 F.3d 1277, 1283–84 (9th Cir. 2009). Because

the order was not final, it did not become final through events

external to the district court proceedings without any further

action taken by the court itself. This court reviews the

judgments and orders of the district courts, not the awards of

arbitration panels. See 9 U.S.C. § 16.

take place or that the arbitration will be so different in character as to

make staying the original action useless. See, e.g., Am. Express Co. v.

Italian Colors Rest., 133 S. Ct. 2304 (2013); AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740 (2011). Under such circumstances, a

dismissal allowing immediate appeal might be appropriate.
MEDIVAS, LLC V. MARUBENI CORP. 13

CONCLUSION

The circumstances surrounding the district court’s August

2011 order show that the arbitrated claims were implicitly

stayed pending the conclusion of the arbitration. To simplify

the analysis in circumstances that are less clear, we adopt a

rebuttable presumption that an order compelling arbitration

but not explicitly dismissing the underlying claims stays the

action as to those claims pending the completion of the

arbitration. Because the district court’s August 2011 order

was not “a final decision with respect to an arbitration,”

9 U.S.C. § 16(a)(3), we are without jurisdiction to review it.

DISMISSED.