The opinion of the court was delivered by: Cote, District Judge.
On May 27, 1999, the Court issued an Opinion and Order denying
plaintiff's motion to stay proceedings before this Court pending
arbitration and granting defendant's cross motion to stay
arbitration and to enjoin plaintiff from further proceeding in
arbitration. The next day plaintiff filed a notice of appeal from
that Opinion and Order and filed a motion before this Court "for
an order enjoining any further prosecution of this action during
the pendency of plaintiff's appeal" until the issuance of the
mandate of the court of appeals. On the same day, the Court
declined to decide plaintiff's motion on ripeness grounds since
the defendant had not yet indicated an intent to proceed with
active litigation before this Court during the pendency of the
appeal. On June 4, 1999, defendant wrote the Court indicating its
intent to proceed before this Court by filing a motion for
summary judgment. Plaintiff's motion is therefore ripe for
"[t]he filing of a notice of appeal is an event of
jurisdictional significance — it confers jurisdiction
on the court of appeals and divests the district
court of its control over those aspects of the case
involved in the appeal."
United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996)
(quoting Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982)). The district court
does not regain jurisdiction until issuance of the mandate by the
court of appeals. Id. The divestiture of jurisdiction, however,
is not "automatic" and instead is "guided by concerns of
efficiency. . . ." Id. "`[I]t is a judge made rule originally
devised in the context of civil appeals to avoid confusion or
waste of time resulting from having the same issues before two
courts at the same time.'" United States v. Salerno,
868 F.2d 524, 540 (2d Cir. 1989), (quoting United States v. Claiborne,
727 F.2d 842, 850 (9th Cir. 1984)). As noted by the Second
Whatever the superficial attractiveness of a per se
rule that filing of a notice of appeal automatically
divests the district court of jurisdiction as to
matters covered by the notice, such a rule is subject
to abuse, and our application of the divestiture rule
must be faithful to the principle of judicial economy
from which it springs.
Rodgers, 101 F.3d at 251. Thus, in appropriate circumstances,
the filing of an appeal does not divest the district court of
jurisdiction. For example, the district court retains
jurisdiction if the filing of the notice of appeal was from a
non-appealable order. See Rodgers, 101 F.3d at 252; Burger
King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir.
1990); SEC v. America Bd. of Trade, Inc., 829 F.2d 341, 344 (2d
Cir. 1987); Leonhard v. United States, 633 F.2d 599, 610 (2d
Appellate jurisdiction is defined by statute and "generally is
limited to appeals from final judgments of the district court
pursuant to 28 U.S.C. § 1291 and from certain interlocutory
orders pursuant to 28 U.S.C. § 1292." Kahn v. Chase Manhattan
Bank, N.A., 91 F.3d 385, 387 (2d. Cir. 1996). Where the appeal
is from a final judgment, the district court can take only
limited action during pendency of the appeal. For example, the
district court is free to correct clerical errors in a judgment
or order without leave of the court of appeals prior to the
docketing of the appeal, see Rule 60(a), Fed.R.Civ.P.; Burger
King, 893 F.2d at 527, and to take actions in aid of the appeal,
see Rule 7, 8, Fed. R.App. P. A district court may also,
grant relief to preserve the status quo pending appeal. See
Rule 62(c), Fed. R.Civ.P.; Kidder, Peabody & Co. v. Maxus Energy
Corp., 925 F.2d 556, 565 (2d Cir. 1991); International Ass'n of
Machinists & Aerospace Workers, AFL-CIO v. Eastern Air Lines,
Inc., 847 F.2d 1014, 1018 (2d Cir. 1988). The district court may
deny a Rule 60(b) motion after the filing of the notice of
appeal, although it lacks jurisdiction to grant such a motion.
See Selletti v. Carey, 173 F.3d 104, 109 (2d Cir. 1999) (citing
Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)).
Finally, where the final judgment entered by the district court
does not reach the question of attorney's fees, the district
court may proceed to award fees during pendency of the appeal.
See Toliver, 957 F.2d at 49; 15B Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 3915.6
(2d ed. 1992). See also Compania Espanola de Petroleos, S.A. v.
Nereus Shipping, S.A., 527 F.2d 966, 973 (2d Cir. 1975)
(district may order consolidation unrelated to final order during
pendency of the appeal).
Appeals from interlocutory orders are generally authorized by
the "collateral order" exception to the final order rule and by
28 U.S.C. § 1292(a)-(b). See Rein v. Socialist People's Libyan
Arab Jamahiriya, 162 F.3d 748, 755 (2d Cir. 1998). In such
cases, jurisdiction is divested only with respect to "issues
decided in the order being appealed." Webb v. GAF Corp.,
78 F.3d 53, 55 (2d Cir. 1996). There is no complete divestiture of
jurisdiction where "the judgment appealed from does not determine
the entire action, in which case the district court may proceed
with those matters not involved in the appeal." New York State
Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir.
1989). As a result, an appeal from an interlocutory order
granting or denying a preliminary injunction, which is appealable
under 28 U.S.C. § 1292(a), does not divest the district court of
jurisdiction, and the case proceeds on the merits unless
otherwise ordered. See, e.g., Webb, 78 F.3d at 55; Terry, 886
F.2d at 1350. In addition, in at least some circumstances, the
district court may proceed with the merits where there is a
frivolous appeal from an interlocutory order. See Salerno, 868
F.2d at 540 (frivolous interlocutory appeal on double jeopardy
grounds did not displace jurisdiction to proceed to trial).
As discussed in greater detail in this Court's May 27, 1999
Opinion and Order, the agreements at issue fall within the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards ("Convention"), 9 U.S.C. § 201-208. Enacted in 1988,
Section 16(a) of the Federal Arbitration Act ("FAA") authorizes
an immediate appeal from an interlocutory order "denying an
application under section 206 [of the Convention] to compel
arbitration" and from an "interlocutory order granting . . . an
injunction against an arbitration that is subject to this title.
. . ." 9 U.S.C. § 16(a). The purpose of Section 16 is "`to
promote appeals from orders barring arbitration and limit appeals
from orders directing arbitration.'" Augustea Impb Et Salvataggi
v. Mitsubishi Corp., 126 F.3d 95, 98 (2d Cir. 1997) (quoting
Filanto S.p.A. v. Chilewich Int'l Corp., 984 F.2d 58, 60 (2d
Cir. 1993)). "Section 16 `is a pro-arbitration statute designed
to prevent the appellate aspect of the litigation process from
impeding the expeditious disposition of an arbitration.'" Id.
at 99 (quoting David D. Siegel, Practice Commentary: Appeals from
Arbitrability Determinations, 9 U.S.C.A. § 16, at 352 (West Supp.
the rule urged . . . would allow a defendant to stall
a trial simply by bringing a frivolous motion to
compel arbitration. The system created by the Federal
Arbitration Act allows the district court to evaluate
the merits of the movant's claim, and if, for
instance, the court finds that the motion presents a
substantial question, to stay the proceedings pending
an appeal from its refusal to compel arbitration.
Id. (emphasis supplied). Under the Ninth Circuit approach, the
district court has discretion whether to proceed once a notice of
appeal from a denial of a motion ...