* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in 5 TH C IR R. 47.5.4.

2 Westinghouse asked the court to issue writs of garnishment against Industrial Maritime Carriers

(Bahamas), Inc, Intermarine Inc., and L & C III, Ltd. (the “Garnishees”). The Garnishees owe Sabah

approximately $10 millio n as a result of a final judgment in favor of Sabah issued in Sabah Shipyard

SDN BHD. v. M/V Harbel Tapper, et al.

, 984 F. Supp. 569 (S.D. Tex 1997), appeal docketed

, No.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-41004

Summary Calendar

WESTINGHOUSE POWER GENERATION,

A DIVISION OF CBS CORPORATION,

Plaintiff-Appellee,

versus

SABAH SHIPYARD SDN. BHD., ET AL.,

Defendants,

SABAH SHIPYARD SDN. BHD.,

Defendant-Appellant.

Appeal from United States District Court

for the Southern District of Texas

(USDC No. G-98-CV-34)

May 19, 1999

Before POLITZ, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:: *

This case arises from a breach of contract dispute between plaintiff-appellee Westinghouse

Power Generation (“Westinghouse”) and defendant-appellant Sabah Shipyard SDN BHD (“Sabah”).

Westinghouse filed a compla int in federal district court alleging breach of contract and requesting

three forms of relief: (1) monetary damages of approxim at ely $83 million; (2) interest, costs, and

attorney’s fees; and (3) pre-judgment writs of garnishment against three entities indebted to Sabah. 297-41417 (5 th Cir. December 9, 1997).

2

On March 2, 1998, th e dist rict court granted Westinghouse’s application for the writs of

garnishment after holding an ex parte hearing. Westinghouse posted a $1 millio n bond, and the writs

were thereafter issued and served. On July 2, 1998, Sabah filed a mo t ion to dismiss, in which it

objected to the writs of garnishment and to the district court’s jurisdiction. More importantly, in

making this motion Sabah also argued that the district court should stay thi s act ion pending the

outcom e of an arbitration proceeding already occurring in London. On July 10, 1998, Westinghouse

also moved to stay the case pending arbitration.

On July 15, 1998, the district court ordered that the case be stayed and administratively closed

p ending arbitration. The district court did not explicitly rule on Sabah’s objections regarding

jurisdiction or to the writs of garnishment. On July 22, 1998, Sabah moved to set aside the stay. The

district court did not rule on this motion. On August 11, 1998, Sabah filed this appeal. It urges that

we reverse the district court’s decisions to: (1) issue a writ of garnishment against several entities

indebted to Sabah; and (2) to stay the remainder of the case pending arbitration.

As explained below, neither of these interlocutory orders are imme diately appealable.

Therefore, we DISMISS Sabah’s appeal for lack of appellate jurisdiction.

D ISCUSSION

Sabah sets forth two t heories as to why we should have appellate jurisdiction. First, it

contends that we have appellate jurisdiction over final orders under 28 U.S.C. § 1291, and that the

district court’s order staying the case pending arbitration was final. Second, it submits that we have

appellate jurisdi ct io n o ver orders refusing to dissolve or modify an injunction under 28 U.S.C. §

1292(a)(1), and that the writs of garnishment issued in this case were injunctions. We address each

claim in turn.

I3

Init ially, Sabah contends that we have appellate jurisdiction over the distric t court’s order

staying the case pending arbitration because we have appellate jurisdiction over final orders under 28

U.S.C. § 1291. In response, Westinghouse submits the district court’s order staying the case was not

final but was instead interlocutory, and thus not immediately appealable.

We confronted a similar question in Altman Nursing Co. v. Clay Capital Corp.

, 84 F.3d 769

(5 th Cir. 1996). The district court in that case had issued an order compelling arbitration. S ee id. at

770. We observed that, under 9 U.S.C. §16, an order compelling arbitration is appealable only if it

is a final order, and that interlocutory orders compelling arbitration are not appealable. See id ; see

also Sphere Drake Ins. Plc v. Marine Towing

, Inc.

, 16 F.3d 666, 668 (5 th Cir.), cert. denied 513 U.S.

871 (1994) (“We consider an order final if it ends the litigation on the merits and leaves nothing for

the court to do but execute the judgment.”) (citations and internal quotati on marks om itted). To

distinguish between these two sets of claims, we noted that courts loo k to whether the arbi trati on

claim is independent or is embedded in other proceedings. See id.

An independent proceeding is o ne in which the only issue before the court is the

dispute’s arbitrability. An embedded claim, on the other hand, arises in a suit in which

one party or the other seeks some relief other than an order requiring or prohibiting

arbitration (typically some relief concerning the merits of the alle gedly arbitrable

dispute).

Id. at 770-771. (citations and internal quotation marks omitted). Applying this distinction, we held

that the claim for arbitration in that case was an embedded one, and thus not yet appealable, because

the parties sought relief on a number of underlying claims. See id. at 771.

Using this same approach, we find that we do not have appellate jurisdiction over the district

court’s order staying the case. Westinghouse’s complaint, like the one in Altman

, seeks relief on an

underlying claim, i.e. the breach of contract claim.

Sabah’s argument to the contrary is not without force, but is ultimately unpersuasive. Sabah

correctly points out that the only reason we do no t have appellate jurisdiction over the appeal is

because of the breach of contract claim. Sabah insists, however, that the breach of contract claim is3 For this assertion, Sabah relies on a single paragraph in Westingho use’s complaint. There,

Westinghouse explained that it did not mean to delay the arbitration by filing this lawsuit, but rather

to protect its interest in the breach of contract claims it has against Sabah through the initiation of a garnishment proceeding. Westinghouse acknowledged that under Texas law it could not obtain a writ

of garnishment unless a judicial proceeding was pending. Westinghouse further explained that, once

the writs of garnishment were issued and all of the parties had answered the lawsuit, it planned to ask

the court to compel arbitration.

4 a sham, and that the actual reason Westinghouse filed this breach of contract claim was to shelter the

garnishment issue from immediate appellate review. 3 With this background in mind, Sabah complains

that the arbitration

will handle the breach of contract issue in this case, and that there are no real

issues remaining to be litigated in federal court. Sabah exclusively relies upon our decision in S phere

Drake for support of this contention.

We cannot accept this argument for two reasons. First, Sphere Drake provides no support

whatsoever for Sabah’s argument. In S phere Drake

, there were two separate legal actions between

the appellee and the appellant. S ee 16 F.3d at 667. In the first of these actions, Sphere Drake proved

unsuccessful in having the court order arbitration. S ee id. at 667. Consequently, it filed a “separate

action” to stay litigation and compel arbitration. S ee id . The district court granted this relief. See

id. On appeal, we held that we had appellate jurisdiction over the district court’s order staying

litigation and compelling arbitration because “the decision to compel arbitration did not arise from

a motion in an ordinary district court action wherein other claims were stayed pending arbitration.”

Id. at 668. This is in stark contrast to the procedural posture of the instant appeal, which did arise

from a motion in an ordinary distr ict co urt action wherein other claims were stayed pending

arbitration.

Second, our decision in Altman compels us to reject Sabah’s argument that there are no real

issues remaining to be litigated in federal court because the only claim Westinghouse brings has been

sent to arbitration. In Altman

, one of the parties argued that we should have appellate jurisdiction in

cases when the district court sends all of the claims to arbitration. See 84 F.3d at 771. According

to this reasoning, the order to arbitrate in such cases is a final order because it completely ends the

litigation. See id. We rejected this argument, however, because we found it preferable to maintain4 While we d o not need to reach the issue, we cannot help but notice that several of our sister

Circuits have rejected simila r efforts in the past. C f.,e.g., Orange City v. Hong Kong & Shanghai

Banking Corp.

, 52 F.3d 821, 825-27 (9 th Cir. 1995) (holding that lis pendens are not injunctions under

§ 1292(a)(1), and noting that several courts have refused to construe attachments, the category of

relief including pre-judgment writs of garnishment, as injunctions under § 1292(a)(1)).

5 a rigid distinction between independent claims a nd embedded claims. S ee id. Applying this rigid

distinction to the case at bar, we reject Sabah’s analogous attempt to carve out an exception to this

rule.

II

Next, Sabah argues that we have appellat e jurisdiction over the district court’s decision to

deny its motion to vacate the writs of garnishment. It notes that we have appellate jurisdiction under

28 U.S.C. § 1292(a)(1) over a district court’s order refusing to disso lve or modify an injunction.

Sabah contends that the writs of garnishment issued by the district court are, in effect, injunctions,

and therefore fall within § 1292(a)(1). We disagree. Even if we were to hold that a pre-judgment

writ of garnishment is an injunction for purposes of 28 U.S.C. § 1292(a)(1), 4 we would still not find

jurisdiction because Sabah has not satisfied the prerequisites to such review, such as a showing on

irreparable harm.

It is well settled that to obtain appellate jurisdiction over an interlocutory orde r under 28

U.S.C. § 1292(a)(1), the order must have serious, perhaps irreparable consequences which can only

be effectively challenged by immediate appeal. S ee Sierra Club v. Glickman

, 67 F.3d 90, 94 (5 th Cir.

1995). Sabah points to two potential bases for immediate appeal. First, it indicates that it will suffer

serious financial problems due to th e “dire” financial situation throughout Asia and particularly in

Malaysia. Second, it contends that the writs of garnishment have h i ndered its efforts to settle

unrelated cases. This is because the parties served with the writs of garnishment are indebted to Sabah

as a result of a federal lawsuit, now o n appeal before this court, in which Sabah was awarded

damages.6

Neither of these “facts,” however, are sufficient to obtain appellate jurisdiction. Initially, a

vague claim to a market-wide financial crisis is simply not specific enough. Moreover, to the extent

Sabah claims it is strapped for cash in Asia, Sabah’s argument proves that the writs of garnishment

were necessary so that Sabah would not snatch its sole asset in the Southern District of Texas beyond

the jurisdiction of the district court. Next, as Westinghouse points out, the writs of garnishment have

been in place for a year now, and the serious harm predicted by Sabah has yet to materialize. Finally,

Westinghouse has protected Sabah by filing a millio n dollar bond

–making the point that any injury

to Sabah would be financial and not irreparable. As such, we decline to find jurisdiction under §

1292(a)(1).

C ONCLUSION

For the reasons set forth above, we DISMISS Sabah’s appeal.