On Appeal From the United States District Court For the District of the Virgin Islands (D.C. Civil Action Nos.05-cv-00174 and 05-cv-00199) District Judge: Hon. Raymond L. Finch.
The opinion of the court was delivered by: Stapleton, Circuit Judge
BEFORE: FISHER, JORDAN and STAPLETON, Circuit Judges.
Forty-nine individual plaintiffs brought this employment discrimination and retaliation case against appellants Plant Performance Services, LLC ("PPS"), and Fluor Corporation ("Fluor"), as well as others. Appellants moved to stay the case under Section 3 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 3, alleging "on information and belief" that all of the plaintiffs at the initiation of their employment had entered into written agreements committing themselves to arbitrate disputes of this kind. Forty-one plaintiffs responded with affidavits averring that they had not entered into such agreements. Appellants produced written agreements signed by eight of the plaintiffs containing arbitration clauses sufficiently broad to cover this case. The District Court granted the motion to stay pending arbitration with respect to the eight plaintiffs who had entered into arbitration agreements. It denied the motion to stay with respect to the remaining plaintiffs, however, "because there [was] no evidence that any of the other plaintiffs agreed to arbitrate their disputes." App. at 3. PPS and Fluor filed this appeal.
We must first address our jurisdiction to entertain this appeal. As a general rule, a district court's order is appealable under our final order jurisdiction, 28 U.S.C. § 1291, only when the decision "'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988) (citing Catlin v. United States, 324 U.S. 229, 233 (1945)); see Michelson v. Citicorp Nat'l Serv., Inc., 138 F.3d 508, 513 (3d Cir. 1998). Stay orders normally are not appealable final orders because they merely delay proceedings in the suit. Marcus v. Twp of Abington, 38 F.3d 1367, 1370 (3d Cir. 1994) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983)). However, Section 16(a)(1)(A) of the FAA provides that an "appeal may be taken from . . . an order . . . refusing a stay of any action under section 3 of" the FAA. 9 U.S.C. § 16(a)(1)(A). We have held that this section "confers appellate jurisdiction to review a denial of a motion for a stay pending arbitration which alleges a prima facie case of entitlement thereto under Section 3 of the FAA." Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 213 (3d Cir. 2007).
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 referable 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.
While the District Court was correct in concluding that the record contained no admissible evidence of a written agreement with respect to the forty-one plaintiffs whose cases were not stayed and while that fact gives rise to the sole issue for resolution on the merits of this appeal, PPS's and Fluor's motion clearly alleged a prima facie showing of entitlement to a Section 3 stay with respect to all plaintiffs. Accordingly, PPS and Fluor ...