Green Tree Servicing, L.L.C., et al v. Ben Dove, et al

Filing

UNPUBLISHED OPINION FILED. [17-60116 Dismissed for Lack of Jurisdiction] Judge: WED, Judge: EBC, Judge: GJC. [17-60116]

Case: 17-60116

Document: 00514237129

Page: 1

Date Filed: 11/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-60116

FILED
November 14, 2017
Lyle W. Cayce
Clerk

GREEN TREE SERVICING, L.L.C.; WALTER INVESTMENT
MANAGEMENT CORPORATION; BEST INSURORS, INCORPORATED;
MID STATE CAPITAL, L.L.C.; MID STATE TRUST II; MID STATE TRUST
III; MID STATE TRUST IV; MID STATE TRUST V; MID STATE TRUST VI;
MID STATE TRUST VII; MID STATE TRUST VIII; MID STATE TRUST IX;
MID STATE TRUST X; MID STATE TRUST XI; WILMINGTON TRUST
COMPANY; MID-STATE CAPITAL CORPORATION 2004-1 TRUST; MIDSTATE CAPITAL CORPORATION 2005-1 TRUST; MID-STATE CAPITAL
CORPORATION 2006-1 TRUST; MID-STATE CAPITAL TRUST 2010-1,
Plaintiffs – Appellees
v.
BEN DOVE; JANIE DOVE,
Defendants – Appellants.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-312
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 17-60116

Document: 00514237129

Page: 2

Date Filed: 11/14/2017

No. 17-60116
This is the second of two separate civil actions involving the same parties
and same dispute. Because we lack appellate jurisdiction, we dismiss the
appeal.
In the first suit, No. 3:16-cv-00319, Ben and Janie Dove (the “Doves”)
brought suit against Green Tree Servicing, L.L.C., Walter Investment
Management Corporation, and other defendants (collectively “Green Tree”) in
Mississippi state court (“Dove I”). Dove I was removed to federal court on the
basis of diversity jurisdiction, where it is currently stayed pending arbitration.
The district court administratively closed the case for statistical purposes,
directing that any party may move to re-open the case and vacate the stay
“following the completion of arbitration or if further judicial intervention is
necessary.” Green Tree then filed this civil action, No. 3:16-cv-00312 (“Dove
II”), to compel the Doves to arbitrate under Section 4 of the Federal Arbitration
Act (the “FAA”). 1 In Dove II, the district court compelled arbitration, and, “as
nothing remain[ed] to be litigated in th[e] lawsuit,” it dismissed the case with
prejudice.
The Doves argue that, as a result of the district court’s ruling in Dove II,
there is a final judgment rendering appellate jurisdiction appropriate.
Conversely, Green Tree argues that because no final decision exists on the
merits of the dispute, we lack appellate jurisdiction.

We conduct an

independent review of the basis of our jurisdiction. 2
This case presents a nearly identical jurisdictional question to that
which we addressed in Green Tree Servicing, L.L.C. v. Charles, 3 which controls
our decision in this case. In Charles, we considered whether a district court

9 U.S.C. §§ 1–16.
See Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000).
3 872 F.3d 637 (5th Cir. 2017).
1
2

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No. 17-60116
order compelling arbitration and dismissing a case with prejudice was final
and appealable when an earlier order in a separate case involving the same
parties stayed the underlying proceedings pending arbitration. 4 We noted
there that under “section 16 of the FAA, ‘[a]n arbitration order entering a stay,
as opposed to a dismissal, is not an appealable order.’” 5 Considering both cases
in tandem, consistent with the “strong federal interest” in favor of arbitration,
we accordingly found that the order staying the underlying case precluded us
from determining that the order of dismissal was final and appealable. 6 As a
result, we concluded that we lacked jurisdiction.
As in Charles, this Court, consistent with the “strong federal interest” in
favor of arbitration, does not consider the orders in the two cases in isolation. 7
Regardless of the district court’s dismissal in the second civil case, the
underlying substantive proceedings remain stayed. Therefore, this appeal does
not stem from a final, appealable order, and we lack appellate jurisdiction.
For the above reasons, we DISMISS the appeal.

Id. at 639–40.
See id. at 639 (alteration in original) (quoting 9 U.S.C. § 16(a)(3)); see also Green Tree
Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 87 n.2 (2000); CitiFinancial Corp. v. Harrison, 453
F.3d 245, 251 (5th Cir. 2006); Apache Bohai Corp., LDC v. Texaco China, B.V., 330 F.3d 307,
309 (5th Cir. 2003).
6 See Charles, 872 F.3d at 639.
7 See id.
4
5

3