Beljakovic v Melohn Properties, Inc.
On August 21, 2007, in Beljakovic v Melohn Properties, Inc., 06-cv-4760 (2nd Cir. 2007), the Second Circuit dismissed the defendant-employer’s appeal for purported lack of appellate jurisdiction in the absence of a final order. The Court in error ignored Kucker Marino Winiarsky & Bittens’s compelling arguments: (i) that the Beljakovic appeal was from an order by the district court which denied a motion to compel arbitration pursuant to 9 U.S.C. §§ 3 and 4, and denied a stay of the court action pending the arbitration; thus, jurisdiction for an immediate appeal is provided by the Federal Arbitration Act (9 U.S.C. §1, et seq.), specifically 9 U.S.C. § 16(a)(1)(A) and (B), and by 28 U.S.C. §1292(a)(1); and (ii) that, on the very same day that the Second Circuit, in Beljakovic, dismissed the appeal for purported lack of a final order, the Second Circuit, in the procedurally indistinguishable Pyett case, already had entertained appellate briefs and was on the eve of hearing oral argument.