White v. Presidio Fund

*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opinion should not be published and is not precedent except under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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 10, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30629
H. HUNTER WHITE, III,
Plaintiff-Appellee,
versus
KPMG LLP; ET AL,
Defendants,
PRESIDIO FUND ADVISORS LLC,
Defendant-Appellant.
Appeal from the United States District Court for the
for the Eastern District of Louisiana
Before GARWOOD, DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
Presidio Fund Advisors LLC (Presidio), a defendant below,
seeks to appeal the district court’s denial of its motion to stay
proceedings pending the arbitration of the claims of plaintiff-

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1 KPMG likewise had a written arbitration agreement with
White (which did not mention Presidio and to which it was not a
party) and also moved under §§ 3 & 4 to compel arbitration and for
stay of the suit against it; that motion was mooted by White’s
settlement with KPMG.
2
appellee H. Hunter White (White) against other defendants in the
suit, Deutsche Bank AG and Deutsche Bank Securities, Inc.
(collectively Deutsche Bank) and Olson Lemons PC (Olson Lemons).
White originally filed the suit in July 2004 for, inter alia,
alleged violations of section 10(b) and Rule 10b-5 of the
Securities Exchange Act of 1934 and related state law claims,
against KPMG, LLP (KPMG), Deke Carbo, Presidio, and Bayside
Diversification Fund, Ltd. (Bayside); Olson Lemons was subsequently
added as a defendant, as was Deutsche Bank. The suit against KPMG,
and that against Deke Carbo, each had settled by sometime in
January 2005.
Deutsche Bank and Olson Lemons each had separate written
arbitration agreements with White. Deutsche Bank moved under 9
U.S.C. §§ 3 & 4 to compel arbitration of the claims against it and
for stay of the suit against it pending arbitration; Olson Lemons
moved under section 3 for stay of the suit against it pending
arbitration under its arbitration agreement. Presidio was not a
party to or mentioned in any of those arbitration agreements, or in
any other arbitration agreement to which White (or any other party
to the suit) was a party.1 Presidio moved for a stay of the suit
against it under section 3 on the ground that the claims against it

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2 Shortly before oral argument we were informed that all
White’s claims against Olson Lemons had settled.
3
were so interrelated with the claims against Deutsche Bank and with
those against Olson Lemons that the suit against Presidio should be
stayed pending the arbitration of the claims of White against
Deutsche Bank and the arbitration of the claims of White against
Olson Lemons. Presidio does not claim to be a party to any
arbitration agreement or be entitled to arbitrate any claims
against it.
The district court in May 2005 granted the motion of Deutsche
Bank to compel arbitration and for stay and granted the motion of
Olson Lemons for stay,2 but denied Presidio’s motion for stay. As
to Presidio, the court noted:
“. . . I’m not persuaded that there is enough of an
overlap so at this point in time anyway, I’m not going to
grant the stay. And we can – so the motion of Presidio
to stay the proceedings pending arbitration is denied, at
least at this juncture. If something happens further
down the road to further illuminate it, to be raised
again perhaps, but I’m not persuaded at this point.”
We agree with the district court that there is not enough of
an overlap. Presidio has not demonstrated that, as a non-party to
any relevant arbitration agreement, it is entitled to a mandatory
stay under section 3. As we recently stated, “the question is . .
. ultimately . . . whether proceeding with litigation [against a
non-signatory seeking a stay] will destroy the signatories’ right
to a meaningful arbitration.” Waste Mgmt. v. Residuos Industriales

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3 See also id. at 342, n.2 (“litigation would have adversely
affected the signatory’s right to arbitration”); n.3 (“if lawsuit
against non-signatory were allowed to proceed, it would have a
critical impact upon the arbitration”); and n.4 (“permitting suit
to go forward would undermine the arbitration proceeding”).
4 We note that there is nothing to indicate that any of the
parties to the various arbitration agreements – either KPMG, Olson
Lemons or Deutsche Bank – has ever taken the position that the
failure to stay this suit as against Presidio would adversely
affect the rights of that party (i.e., KPMG, Olson Lemons or
Deutsche Bank) to a meaningful arbitration.
4
Multiquim, 372 F.3d 339, 343 (5th Cir. 2004).3 Here, proceeding
with the suit against Presidio will not destroy the right of
Deutsche Bank, or that of Olson Lemons, to a meaningful
arbitration.4
We hold that Presidio is not entitled to a mandatory stay
under section 3. Hence, we have no jurisdiction under 9 U.S.C. §
16(a)(1)(A). Waste Mgmt. at 343; Adams v. Georgia Gulf Corp., 237
F.3d 538, 541-42 (5th Cir. 2001). Although the district court has
discretionary authority to grant a stay in the management of its
docket, denial of such a discretionary stay is a non-appealable
interlocutory order where, as here, the request for stay “does not
fall under the auspices of the FAA.” Adams at 541.
Accordingly, the appeal is
DISMISSED.

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