___________

         

                                   No. 96-1619

                                   ___________

         

         McLaughlin Gormley King         *

         Company,                        *

                                         *

              Plaintiff - Appellee,      *

                                         *  Appeal from the United States

              v.                         *  District Court for the 

                                         *  District of Minnesota.

         Terminix International          *

         Company, L.P.,                  *

                                         *

              Defendant - Appellant.     *

         

                                   ___________

         

                           Submitted:  November 18, 1996

         

                               Filed:  January 29, 1997

                                   ___________

         

         
Before BEAM, FRIEDMAN,* and LOKEN, Circuit Judges.

                                   ___________

         

         

         LOKEN, Circuit Judge.

         

         

              The main issue on this appeal is whether a court or an

         arbitrator should determine whether the parties' commercial dispute

         is arbitrable.  Agreeing with the district court(1) that the

         contracting parties left that issue to the court, we affirm.

         

              In 1984, McLaughlin Gormley King Company ("MGK") agreed to

         supply fenvalerate, an insecticide, to Terminix International

         Company for repackaging and sale to exterminators.  The written

         contract provided for arbitration of "[a]ny controversy arising out

         of, or relating to this Agreement or any modification or extension

         hereof."  In 1990, the Herb family sued Terminix, alleging personal

         injuries from exposure to fenvalerate.  MGK refused to indemnify or

         defend Terminix against this claim.  

         

              Terminix settled the Herb lawsuit and filed a demand to

         arbitrate its claim against MGK for indemnification and defense

         costs.  MGK refused to arbitrate and filed this declaratory

         judgment action, claiming that the dispute is not arbitrable

         because the 1984 contract expired before the events giving rise to

         the Herb lawsuit.  MGK moved for a preliminary injunction

         prohibiting Terminix "from asserting or further asserting" its

         demand to arbitrate, and for partial summary judgment declaring the

         dispute non-arbitrable.  Terminix responded with a motion to compel

         arbitration.  When these motions came on for decision, the district

         court concluded that it needed further discovery on the issue of

         arbitrability.  Therefore, it granted the requested preliminary

         injunction, denied Terminix's motion to compel arbitration, and

         continued the motion for partial summary judgment for ninety days. 

         Terminix appeals.  

         

                                 I. Appealability.

         

              Terminix argues that we have jurisdiction under 28 U.S.C.

         SS 1292(a)(1) because of the order's "injunctive effect."  However,

         appealability is governed by the specific appeal provisions added

         to the Federal Arbitration Act in the 1988 Judicial Improvements

         and Access to Justice Act.  Those provisions permit an appeal from

         an order "denying an application . . . to compel arbitration," 9 

         U.S.C. SS 16(a)(1)(C), and from "an interlocutory order

         granting . . . an injunction against an arbitration subject to [the

         Act]," SS 16(a)(2).  

         

              In many cases, such as Nordin v. Nutri/Sys., Inc., 897 F.2d

         339 (8th Cir. 1990), the arbitrability issue comes to this court

         after the district court has ruled the dispute non-arbitrable.

         Here, before deciding that question, the court has entered an order

         freezing resolution of the parties' dispute pending discovery

         pertinent to the issue of arbitrability.  Terminix argues that the

         arbitrator, not the court, must initially decide arbitrability.(2) 

         If Terminix is correct, the order being appealed will have

         improperly and unnecessarily delayed the arbitration process. 

         Thus, although temporary in nature, it is "an order that favors

         litigation over arbitration" and is immediately appealable under

         SS 16(a).  Stedor Enters., Ltd. v. Armtex, Inc., 947 F.2d 727, 730

         (4th Cir. 1991).  

         

                           II. Who Decides Arbitrability.

         

              The Supreme Court recently clarified the standard for deciding

         whether the court or the arbitrator determines arbitrability.  The

         issue, the Court explained, turns on whether the parties "agree[d]

         to submit the arbitrability question itself to arbitration."  First

         Options of Chicago, Inc., v. Kaplan, 115 S.Ct. 1920, 1923 (1995). 

         In answering that question,

         

              [c]ourts should not assume that the parties agreed to

              arbitrate arbitrability unless there is `clea[r] and

              unmistakabl[e]' evidence that they did so.  In this

              manner the law treats silence or ambiguity about the

              question `who (primarily) should decide arbitrability'

              differently from the way it treats silence or ambiguity

              about the question `whether a particular merits-related

              dispute is arbitrable because it is within the scope of

              a valid arbitration agreement.' 

         

         Id. at 1924 (citations omitted).  Any other rule would "too often

         force unwilling parties to arbitrate a matter they reasonably would

         have thought a judge, not an arbitrator, would decide."  Id. at

         1925.  Accord Litton Fin. Printing Div. v. N.L.R.B., 
501 U.S. 190,

         208-09
 (1991) ("a party cannot be forced to `arbitrate the

         arbitrability question'"); AT&T Techs., Inc. v. Communications

         Workers, 
475 U.S. 643, 649
 (1986); Local Union No. 884, United

         Rubber, Cork, Linoleum, and Plastic Workers v. Bridgestone/

         Firestone, Inc., 61 F.3d 1347, 1354 (8th Cir. 1995).

         

              In this case, neither the arbitration clause nor any other

         provision in the 1984 contract between Terminix and MGK clearly and

         unmistakably evidenced the parties' intent to give the arbitrator

         power to determine arbitrability.  The arbitration clause made no

         mention of a "controversy" over arbitrability.  Terminix argues

         that the federal policy favoring arbitration requires that the

         arbitrator decide issues of arbitrability if the arbitration clause

         is broadly worded.  The Court in First Options rejected that

         contention, explaining that "the basic objective in this area

         is . . . to ensure that commercial arbitration agreements, like

         other contracts, `are enforced according to their terms.'"  115 S.

         Ct. at 1925 (citations omitted).  Thus, the district court

         correctly undertook to decide the issue of arbitrability.

         

                          III. The Preliminary Injunction.

         

              Terminix further argues that the order preliminarily enjoining

         it from pursuing arbitration was an abuse of the district court's

         discretion under Dataphase Systems, Inc. v. CL Systems, Inc., 640

         F.2d 109, 113 (8th Cir. 1981).  In particular, Terminix argues that

         the monetary cost MGK would incur in arbitration is not legally

         recognized irreparable harm, citing cases such as Emery Air Freight

         Corp. v. Local Union 295, 786 F.2d 93, 100 (2d Cir. 1986), in which

         irreparable injury was discussed only after the court concluded

         that the dispute was, in fact, arbitrable.   

         

              In this case, our decision that the district court has

         properly undertaken to resolve the question of arbitrability makes

         this issue quite easy to resolve.  If a court has concluded that a

         dispute is non-arbitrable, prior cases uniformly hold that the

         party urging arbitration may be enjoined from pursuing what would

         now be a futile arbitration, even if the threatened irreparable

         injury to the other party is only the cost of defending the

         arbitration and having the court set aside any unfavorable award. 

         See PaineWebber Inc. v. Hartmann, 921 F.2d 507, 514 (3rd Cir.

         1990); Nordin, 897 F.2d at 343; U.S. v. Pool & Canfield, Inc., 778

         F. Supp. 1088, 1092 (W.D. Mo. 1991).  If that is so, then the order

         the court issued here, briefly freezing the parties' dispute

         resolution activities until it determines arbitrability, is surely

         appropriate.  See Dean Witter Reynolds, Inc. v. McCoy, 995 F.2d

         649, 651 (6th Cir. 1993).  Cf. Daisy Mfg. Co. v. NCR Corp., 29 F.3d

         389, 392 (8th Cir. 1994) ("before a party may be compelled to

         arbitrate under the Federal Arbitration Act, the court must engage

         in a limited review to ensure that the dispute `is arbitrable'"). 

         Indeed, although the court labeled this portion of its order a

         preliminary injunction, the "injunction" furthers its expeditious

         determination of the arbitrability question and thus looks very

         much like a nonappealable order controlling the conduct and

         progress of litigation before the court.  See Gulfstream Aerospace

         Corp. v. Mayacamas Corp., 
485 U.S. 271, 279
 (1988); Hamilton v.

         Robertson, 854 F.2d 740, 741 (5th Cir. 1988).

         

              The order of the district court is affirmed.     

         

              A true copy.

         

                   Attest:

         

                        CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.


**FOOTNOTES**
*The HONORABLE DANIEL M. FRIEDMAN, United States Circuit Judge
         for the Federal Circuit, sitting by designation.



(1)


            The HONORABLE PAUL A. MAGNUSON, Chief Judge of the United
         States District Court for the District of Minnesota.



(2)


         Terminix also urges us to leap ahead of the district court and
         decide the issue of arbitrability.  We decline to do so.  The issue
         properly before us is whether the district court erred in not
         referring the issue of arbitrability to the arbitrator.