Vincent EMILIO, Individually and on behalf of all others similarly situated, Petitioner-Appellant, v. SPRINT SPECTRUM L.P., d.b.a. Sprint PCS, Respondent-Appellee.
No. 12-1223-cv.
United States Court of Appeals, Second Circuit.
Jan. 18, 2013.
3. Vionis claim against American Capital fails because the only discussions Vioni had with Grunewald about compensation involved potential marketing work for American Capital, work that never materialized. That part of the district courts opinion granting summary judgment in favor of American Capital is therefore AFFIRMED.
4. Vionis claim against Jeffrey and Providence, on the other hand, satisfies the statute of frauds. Writings from March 26, 2007; April 19, 2007; and June 5, 2007 together permit a finding that Jeffrey hired Vioni to introduce him to persons with whom Jeffrey could enter into any mutually beneficial arrangement for his investment business. That part of the district courts opinion granting summary judgment in favor of Jeffrey and Providence is therefore REVERSED.
5. The district court did not abuse its discretion in imposing sanctions on Vionis attorney, Michael Quinn Carey, for taking wasteful depositions. The district courts award was not excessive and was supported by a well-reasoned and thorough accounting of the precise way in which the depositions at issue were frivolous, repetitive, or time-wasting. We therefore AFFIRM the district courts decision to impose sanctions.
For the foregoing reasons, we hereby AFFIRM IN PART and REVERSE IN PART the judgment of the district court. The case is remanded to the district court for further proceedings.
Joseph A. Boyle (Lauri A. Mazzuchetti, Vincent Paul Rao, II, on the brief), Kelley Drye & Warren LLP, Parsippany, NJ, for Appellee.
PRESENT: RALPH K. WINTER, REENA RAGGI, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Petitioner Vincent Emilio appeals from the part of the judgment that denied his petition to confirm and granted respondent Sprint Spectrum L.P.s (Sprint) cross-petition to vacate a partial final arbitral award. In considering a challenge to a district courts partial vacatur of an arbitration award, we review the courts legal rulings de novo and its findings of fact for clear error. See Jock v. Sterling Jewelers Inc., 646 F.3d 113, 118 (2d Cir.2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1742, 182 L.Ed.2d 529 (2012). We assume the parties familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm in part, vacate in part, and remand the case to the district court for further proceedings.
The arbitrator concluded that a provision of the Kansas Consumer Protection Act permitting consumers to bring class actions to enforce the Act, see
A district court may vacate an arbitral award under
Although [t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is presumptively an issue for judicial determination, the matter may be committed to the arbitrator if the parties clearly and unmistakably [so] provide. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (emphasis in original; internal quotation marks and brackets omitted). Amex I did not purport to change this rule; rather, in that case, the parties did not dispute that the district court had erred in holding that the question of the class action waivers enforceability was a matter for the arbitrator. See Amex I, 554 F.3d at 310-11 (noting that plaintiffs argued that question of arbitrability was one for court and that defendant did not posit[] any argument to the contrary).
In this case, however, Emilio argues that the parties clearly and unmistakably delegated questions of arbitrability to the arbitrator. We agree. The arbitration clause in the parties agreement states that the then-applicable rules of JAMS will apply,1 specifically JAMSs expedited procedures. Sprint PCS Terms & Conditions, Mandatory Arbitration of Disputes. With respect to the delegation of questions of arbitrability to the arbitrator, JAMS Comprehensive and Streamlined Arbitration Rules & Procedures state as follows:
Jurisdictional and arbitrability disputes, including disputes over the existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
2003 JAMS Comprehensive Arb. R. & P. 11(c); 2003 JAMS Streamlined Arb. R. & P. 8(c). [W]hen, as here, parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties intent to delegate such issues to an arbitrator. Contec Corp. v. Remote Solution Co., 398 F.3d 205, 208 (2d Cir.2005) (holding that arbitration rule providing arbitrator power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement delegated arbitrability questions to arbitrator (internal quotation marks omitted)); see also T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 344-45 (2d Cir.2010) (same).
Indeed, in our 2009 decision affirming the district courts order compelling Sprint to arbitrate Emilios claim, we relied specifically on this JAMS rule to conclude that the parties had clearly committed gateway questions of arbitrability to the arbitrator. Rejecting Sprints argument that a court, instead of an arbitrator, should decide the preclusive effect of a state court order on the arbitration, we noted that the parties had agreed to arbitrate any and all claims, controversies or disputes ... arising out of or relating to its agreement with Emilio, and we observed that the parties agreement incorporated by reference JAMS rules, which further provided
Sprint does not dispute Emilios argument that the parties clearly and unmistakably delegated questions of arbitrability to the arbitrator. Rather, Sprint argues that the district court did not decide a question of arbitrability at all. Relying on a district court decision, Schatz v. Cellco Pship, 842 F.Supp.2d 594 (S.D.N.Y.2012), Sprint contends that the district court in this case decided the adequacy of the arbitral forum in resolving the enforceability of the class action waiver, an issue that Sprint contends is different from the question of arbitrability. Appellees Br. at 16 (quoting Schatz v. Cellco Pship, 842 F.Supp.2d at 607 n. 11). Schatz drew no such distinction. To the contrary, Schatz opined, in dicta, that the enforceability of a class action waiver clause always presents a question of arbitrability because it necessarily implicates the question whether the arbitral forum is adequate to permit a plaintiff to vindicate substantive rights. See Schatz v. Cellco Pship, 842 F.Supp.2d at 607 n. 11.2 Moreover, Schatz simply does not speak to the issue in this case because the parties in Schatz never argued that they had clearly and unmistakably delegated the question of arbitrability to the arbitrator.
In any event, it is plain from the challenged order that the district court did decide a question of arbitrability. Cor-2rectly recognizing that Amex I decided that the enforceability of a class action waiver rais[ed] a question of arbitrability, the district court proceeded to conclude that the class action preclusion provision in the instant action presents an identical issue to the class action waiver in Amex I. Emilio v. Sprint Spectrum L.P., No. 11 Civ. 3041(BSJ), 2012 WL 917535, at *3 (S.D.N.Y. Mar. 16, 2012) (quoting Amex I, 554 F.3d at 311). In short, the district courts error was not in recognizing that the enforceability of a class action waiver is a question of arbitrability; it was in concluding that the issue in this case arose in the same context as it had in Amex I when, in fact, the parties in this case specifically delegated questions of arbitrability to the arbitrator. Because the parties clearly and unmistakably intended for the arbitrator to decide the gateway issue of the enforceability of the class action waiver, the district court was not free to decide that question for itself. Accordingly, the district court erred in vacating that portion of the arbitration award as ultra vires and deciding the class action waivers enforceability de novo. Because the district court did not address Sprints other arguments for vacatur of the arbitral award, we not only vacate so much of the judgment as vacated the arbitral award in part, but also remand the case to the district court to address Sprints other arguments in the first instance.
No party challenges the judgment confirming so much of the arbitral award as held that Sprint cannot be compelled to proceed with class-wide arbitration, Emilio v. Sprint Spectrum L.P., 2012 WL 917535, at *4, therefore, that portion of the judgment is affirmed.
No. 11-4348-cv.
United States Court of Appeals, Second Circuit.
Jan. 22, 2013.
David W. ROBINSON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, State of New York Department of Insurance, Charles Bardong, Director, in his Individual and Official Capacities, County of Yates, Ronald G. Spike, Michael C. Christensen, Senior Investigator of County of Yates Sheriffs Department, in his Individual and Official Capacities, Village of Penn Yan, Gene Mitchell, Chief of Police, in his Individual and Official Capacities, Defendants-Appellees.*
* The Clerk of the Court is directed to change the caption as set out above.