NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0646n.06

Case No. 16-5270

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MILAN EXPRESS CO., INC.,

Plaintiff-Appellee,

v.

APPLIED UNDERWRITERS CAPTIVE RISK 

ASSURANCE CO., INC.,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE WESTERN 

DISTRICT OF TENNESSEE

MEMORANDUM OPINION

BEFORE: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.

McKEAGUE, Circuit Judge. This appeal stems from an action in contract and tort 

brought in federal court based on the parties’ diversity of citizenship. The district court granted 

the motion of defendant Applied Underwriters Captive Risk Assurance Co., Inc. (“Applied 

Underwriters”), to dismiss the action for forum non conveniens. In so ruling, the district court 

enforced the parties’ contractual forum-selection clause, under which they agreed that the courts 

of Nebraska would have exclusive jurisdiction to enforce any arbitration award and resolve other 

disputes related to the contract. Neither party has challenged the order of dismissal. Rather, 

Applied Underwriters challenges a ruling not made by the district court. 

The district court did not decide Applied Underwriters’ motion to vacate the arbitration 

award, which was filed contemporaneously with its motion to dismiss. In fact, the district court 
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barely mentioned the motion in its opinion and order granting Applied Underwriters’ motion to 

dismiss. Applied Underwriters contends the district court’s non-ruling on a motion pending 

when the case was dismissed is in effect an implied denial of the motion. Applied Underwriters 

further contends the implied denial of its motion to vacate the arbitration award is a ruling that 

merged into the final judgment order of dismissal and is now ripe for appeal. Appellee Milan 

Express Co., Inc. (“Milan”) does not agree with Applied Underwriters’ characterization of the 

non-ruling, but does not contest the notion that we have jurisdiction to rule on the validity of the 

arbitration award. We decline to exercise appellate jurisdiction.

I

This is a second appeal in this protracted litigation. Two years ago, a panel of this court 

vacated the district court’s order granting Milan’s motion to stop arbitration. Milan Express Co., 

Inc. v. Applied Underwriters Captive Risk Assurance Co., Inc., 590 F. App’x 482 (6th Cir. 2014). 

The panel concluded that, under the parties’ contractual agreement, the threshold question of 

arbitrability was for the arbitrator to decide in the first instance, not the court. Id. at 484–86 

(citing Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67–70 (2010)). The case was 

remanded to the district court for further proceedings consistent with the panel’s opinion. On 

remand, the parties agreed to submit the matter to arbitration in Tennessee. Meanwhile, the 

district court stayed further proceedings on Milan’s complaint. The arbitration panel issued its 

award in February 2015, determining that the parties’ arbitration clause was not enforceable 

under the laws of Nebraska, which governed construction of the contract pursuant to the 

contractual choice-of-law provision. R. 64-1, Arbitration Award, Page ID 861; see R. 1-4, 

Reinsurance Participation Agreement (“RPA”) ¶ 16, Page ID 45. 
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Following a status conference in the district court, Applied Underwriters 

contemporaneously filed both its motion to vacate arbitration award and its motion to dismiss. 

The district court granted the motion to dismiss without comment on the arbitration award. 

Milan Express Co., Inc. v. Applied Underwriters Captive Risk Assurance Co., Inc., No. 13-1069-

JDB, 2016 WL 407317 (W.D. Tenn. Feb. 2, 2016). The dismissal, in accordance with Applied 

Underwriters’ motion, was based on enforcement of the parties’ forum-selection clause. Id. at 

*2–4. The court held that the forum-selection clause is valid. In relevant part, the forumselection clause “irrevocably and unconditionally” recognizes “the exclusive jurisdiction of the 

Courts of Nebraska for the purpose of enforcing any arbitration award rendered hereunder and all 

other purposes related to this Agreement.” R. 1-4, RPA ¶ 14, Page ID 45. 

Applied Underwriters’ motion to vacate the arbitration award asserted that the arbitrators 

exceeded their powers and acted with manifest disregard for the law. Applied Underwriters 

argued in the district court and argues now on appeal that the arbitration award is directly 

contrary to the holding of Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995). 

Milan opposed the motion, contending that the teaching of Mastrobuono, which the arbitration 

panel majority distinguished, was and is a matter of reasonable debate. In other words, Milan 

insists that the significance of Mastrobuono is not so clear and unequivocal as to warrant a 

judicial determination, under the narrow standard of review, that the arbitrators exceeded their 

powers or manifestly disregarded the law. 

II

We do not accept Applied Underwriters’ construal of the district court’s silence as an 

implied denial of the motion to vacate the arbitration award. A court’s denial of a motion to 

vacate an award is often treated as equivalent to an order confirming the award. See General 
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Elec. Co. v. Anson Stamping Co., 426 F. Supp. 2d 579, 591–95 (W.D. Ky. 2006) (discussing case 

law). While the district court certainly did not grant the relief requested by Applied 

Underwriters’ motion, it just as certainly did not confirm the award. 

Instead, by its silence, the district court properly remained faithful to the rationale for its 

forum-non-conveniens dismissal. Having recognized and enforced the parties’ contractual 

forum-selection agreement, the court, by its silence on the arbitration award, also abided by the 

parties’ express agreement to litigate the validity of the award in the courts of Nebraska. In this 

nondecision we find no fault, given that neither party has objected to the court’s enforcement of 

the forum-selection clause. 

Indeed, the district court’s nondecision is consistent with the Federal Arbitration Act, 

which provides that judgment on the validity of an arbitration award shall be sought in the court 

specified by the parties in their agreement. 9 U.S.C. § 9. “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.” Id. (emphasis added).1 Here, the parties’

agreement specifies that the arbitration award shall be enforced in the courts of Nebraska. By 

declining to rule on the motion to vacate the award, the district court left the parties to pursue 

their remedies in the forum they contractually agreed to. Inasmuch as the arbitration award was

rendered in Tennessee, the district court arguably had permissive authority under 9 U.S.C. § 10 

to decide the motion to vacate.2 The court declined to exercise this authority, however, in

deference to the parties’ contractual forum-selection and choice-of-law agreements, which it held 

 

1We note that the parties proceeded with arbitration in Tennessee by their own 

agreement, not pursuant to an order of this court or the district court.

 

2 Under § 10 of the Federal Arbitration Act, “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.”
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to be “mandatory” and “indisputable,” respectively. See Milan Express, 2016 WL 407317 at * 

2–3.

Nonetheless, both parties invite us to rule on the pretermitted motion in the first instance. 

They contend the validity of the arbitration award presents a pure question of law and has been 

fully briefed. 

III

Generally, “a federal appellate court does not consider an issue not passed upon below.” 

Singleton v. Wulff, 428 U.S. 106, 120 (1976); Pinney Dock and Transport Co. v. Penn Cent. 

Corp., 838 F.2d 1445, 1461 (6th Cir. 1988). We have discretion to deviate from the general rule 

in “exceptional cases” or to avoid “a plain miscarriage of justice.” Pinney Dock, 838 F.2d at 

1461 (quoting Hormel v. Helvering, 312 U.S. 552, 558 (1941)). But this court has rarely 

exercised this discretion. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615 (6th Cir. 

2014). 

Applied Underwriters filed two motions in the district court. The court granted the relief 

requested in one of the motions, enforcing the parties’ contractual agreement, an agreement 

ostensibly drafted by Applied Underwriters. The district court’s enforcement of the forumselection clause arguably dictated the court’s non-ruling on the motion to vacate the arbitration 

award, which is also contractually subject to enforcement in the courts of Nebraska. In short, in 

both its ruling and its non-ruling, the district court honored the parties’ contractual agreement to 

resolve disputes concerning their contract in the courts of Nebraska under Nebraska law. The 

correctness of this rationale is unchallenged in this appeal. 

So, Applied Underwriters obtained what it asked for in the court’s granting of its motion 

to dismiss, and has no interest in challenging the correctness of that ruling. Yet, rather than 
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pursue its remedies in Nebraska, Applied Underwriters tarries here and asks the court of appeals

to decide the motion the district court was constrained not to decide. Without directly 

challenging the correctness of the ruling that this litigation belongs in Nebraska, Applied 

Underwriters asks us, in effect, to disregard the correctness of the ruling long enough to address

the undecided motion in the first instance. It seems Applied Underwriters, like most, would 

prefer to have its cake and eat it too. We conclude, however, that this is not an exceptional case 

and that no miscarriage of justice will ensue if we abide by the general rule and decline to decide

the validity of the arbitration award in the first instance on appeal.

IV

Accordingly, we decline to exercise appellate jurisdiction and the appeal is DISMISSED.