GRIGSBY & ASSOCIATES, INC., Cаlvin B. Grigsby, Plaintiffs-Appellants, v. M SECURITIES INVESTMENT, Howard Gary & Company, Howard V. Gary, National Association of Securities Dealers, Inc., Defendants-Appellees.
No. 13-15208.
United States Court of Appeals, Eleventh Circuit.
Dec. 28, 2015.
Plaintiff has failed to demonstrate that CSXT owed a duty to relocate the protective devices, as track was removed. Plaintiff‘s claim for negligence fails as a matter of law. See Johnson v. Am. Nat‘l Red Cross, 276 Ga. 270, 578 S.E.2d 106, 108 (2003) (To recover for negligence, a plaintiff must show, among other things, that defendant owed plaintiff a duty).
AFFIRMED.
Calvin Grigsby, Grigsby & Associates, San Francisco, CA, Thomasina H. Williams, Williams & Associates, PA, Maitland, FL, for Plaintiff-Appellant.
Curtis David Carlson, Ronald J. Lewittes, Carlson & Associates, PA, Miami, FL, for Defendant-Appellee.
Before MARCUS and JILL PRYOR, Circuit Judges, and RESTANI,* Judge.
JILL PRYOR, Circuit Judge:
Calvin Grigsby and Grigsby & Associates, Inc. (collectively, “Grigsby“) appeal the district court‘s decision, upon remand from this Court, that M Securities Invest
I. BACKGROUND
As more fully set forth in our previous opinion in Grigsby & Associates, Inc. v. M Securities Investment (“Grigsby I“), 664 F.3d 1350, 1351 (11th Cir. 2011) (depublished),1 this dispute arises out of a municipal bond offering by Miami-Dade County. M Securities and Grigsby agreed to participate in the bond offering. In 1996, they entered into an agreement whereby they co-underwrote the bond while GBR Financial Products (“GBR“), an entity partially owned by Grigsby & Associates, Inc., arranged an interest rate swap for the bond. For its role in the transaction, M Securities was to receive compensation of 25% of the underwriting fees and 50% of the net prоfits from the swap transaction (after deducting expenses). Unfortunately, GBR failed to remit the swap transaction profits to Grigsby. As a result, Grigsby was unable to pay the fees and profits owed to M Securities pursuant to their agreement. Id.
Lawsuits followed. Grigsby sued GBR in an attempt to recover his share of the swap transaction profits while M Securities filed lawsuits against Grigsby and GBR seeking to recover the fees and share of profits it was owed. Id. M Securities filed a total of four lawsuits against Grigsby. It filed the first of these lawsuits in
In 2003, after all of its lawsuits against Grigsby had been dismissed, M Securities filed a malpractice action against its attorney alleging that he had failed to take any action to prevent the dismissal of its claims against Grigsby. M Securities maintained that, because the statute of limitations had run, the claims could not be re-filed.2
Grigsby settled its lawsuit against GBR in 2005. In 2006, upon discovering the settlеment, M Securities initiated an arbitration proceeding against Grigsby before the National Association of Securities Dealers (“NASD“).3 Grigsby filed an action in district court to enjoin the arbitration, arguing that M Securities waived its right to arbitrate. The district court denied Grigsby‘s motion for a temporary injunction on the ground that the issue of waiver was for the arbitrator to decide.
The arbitration proceeded. The arbitrator awarded M Securities compensatory damages of $100,201 plus interest and attorney‘s fees.4 Grigsby filed a motion in district court to vacate the arbitration award, again arguing that M Securities waived arbitration, while M Securities moved to confirm the award. The district court entered an order confirming the award. Id. at 1351-52.
Grigsby appealed the district court‘s orders denying the injunction and confirming the arbitration award.5 In Grigsby I, we concluded that “the district court‘s failure to decide itself the waiver issue was a legal error and ... an abuse of discretion,” vaсated the district court‘s order granting the motion to confirm arbitration, and remanded for the district court to “consider, on the merits, [Grigsby‘s] claim that [M Securities] waived the right to arbitrate.” 664 F.3d at 1354. We instructed the district court that if it concluded no waiver occurred, it may reenter its order confirming the arbitration award.6 Grigsby I, 664 F.3d at 1354-55.
On remand, M Securities again moved to confirm the arbitration award, arguing there was no waiver. Grigsby opposed the motion and requested an evidentiary hearing. The district cоurt instead heard oral argument on the motion. At oral argument, Grigsby reiterated his request for an evidentiary hearing. The court indicated, “[W]e may get to that,” but stated that it
The district court concluded that M Securities did not waive the right to arbitration. Accordingly, the district court reentered its order confirming the arbitration award. Grigsby now appeals.
II. DISCUSSION
A. Waiver
Grigsby contends the district court erred in deciding that M Securities did not waive its right to arbitration. We review de novo a district court‘s legal conclusion that a party has not waived its right to arbitration. Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1316 (11th Cir. 2002). We review for clear error the underlying factual basis for that determination. Id. at 1316 n. 18.
“The ability of parties to agree to аrbitrate their disputes is well-recognized.” Id. at 1315. In fact, “federal policy strongly favors arbitration.” Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1200 n. 17 (11th Cir. 2011). “[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration....” Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
Notwithstanding this strong federal policy, “an agreement to arbitrate, just like any other contract, may be waived.” Ivax Corp., 286 F.3d at 1315 (alteration and internal quotation marks omitted). “A party has waived its right to arbitrate if, under the totality of the circumstances, the party has аcted inconsistently with the arbitration right and, in so acting, has in some way prejudiced the other party.” S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990) (citation, alteration, and internal quotation marks omitted). “There is no set rule ... as to what constitutes a waiver ... of the arbitration agreement.” Burton-Dixie Corp. v. Timothy McCarthy Constr. Co., 436 F.2d 405, 408 (5th Cir. 1971).8 Whether waiver has occurred “depends upon the facts of each case.” Id. Our precedent provides some guidance, however. We have recognized that a party who “substantially invokes the litigation machinery prior to demanding arbitration may waive its right to arbitrate.” S & H Contractors, Inc., 906 F.2d at 1514 (alterations and internal quotation marks omitted). Additionally, in determining whether there is prejudice to the other party, “we may con
Grigsby points us tо a number of factors he contends demonstrated that M Securities acted inconsistently with the right to arbitration, including that M Securities: (1) filed four lawsuits prior to initiating arbitration, (2) sued its prior counsel for malpractice for failing to diligently prosecute its claims within the statute of limitations period, and (3) waited 10 years after the closing of the bond offering before initiating arbitration.
We conclude there was no error in the district court‘s determination that M Securities did not waive the right tо arbitration. First, we reject Grigsby‘s argument that M Securities waived its right to arbitration by filing lawsuits. Granted, M Securities invoked the litigation machinery when it filed four lawsuits against Grigsby. Filing lawsuits prior to initiating arbitration certainly can support a finding of waiver, particularly when the opposing party expends significant time and resources responding to the lawsuits. See S & H Contractors, Inc., 906 F.2d at 1514.
Nonetheless, M Securities’ prior lawsuits were not inconsistent with the right to arbitration because they were insubstantial. See id. (party who “substantiаlly invokes the litigation machinery prior to demanding arbitration may waive its right to arbitrate” (alterations and internal quotation mark omitted)). M Securities never even served Grigsby with three of the lawsuits; they never progressed beyond the filing of the complaints. Two of the cases were dismissed sua sponte before Grigsby could be served, and one settled before summons was issued. In the remaining case, Grigsby filed only a single motion to dismiss, to which M Securities failed to respond, and the case eventually was dismissed for want of prosecution. In contrast, where we have held that a party waived its right to arbitration by substantially participating in litigation, the lawsuits had proceeded much further than those M Securities filed. See, e.g., Garcia v. Wachovia Corp., 699 F.3d 1273, 1278 (11th Cir. 2012) (waiver of arbitration found where party conducted discovery for over a year, including more than 15 depositions and production of approximately 900,000 pages of documents); S & H Contractors, Inc., 906 F.2d at 1514 (eight months of litigation prior to arbitration demand involved two motions and five lengthy depositions).
Second, the fact that M Securities filed a malpractice suit against its former counsel for failing to diligently prosecute its claims does not demonstrate that it waived its right to arbitration. Grigsby fails to explain why M Securities’ act of filing the malpractice suit against a third party, its former counsel, was inconsistent with the right to arbitrate against Grigsby. At most, the malpractice action‘s allegation that the stаtute of limitations had run on M Securities’ causes of action against Grigsby indicates that the statute of limitations may have barred M Securities’ arbitration claim. But the statute of limitations is an issue of procedural arbitrability, not a basis for finding waiver.9 See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002).
Third, although M Securities waited more than 10 years after the transaction at issue before demanding arbitration, the district court did not err in concluding that there was no waiver. As a general matter, a delay in seeking arbitration weighs in favor of finding wаiver. See Morewitz v. W. of Eng. Ship Owners Mut. Prot. & Indem. Ass‘n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995). We acknowledge that M Securities waited a very long time before seeking arbitration. But Grigsby cites no case in which we have held that a party waived its right to arbitrate solely by delay in initiating the proceeding or based on the amount of time that elapsed. Although delay is undoubtedly a factor to be considered, in our precedent where waiver was found, the delay was always coupled with other substantial conduct inconsistent with an intent to arbitrate. See, e.g., id. (defendant insurance company colluded in litigation with insured to injured plaintiff‘s detriment before seeking arbitration); S & H Contractors, Inc., 906 F.2d at 1514 (party participated in extensive, substantial litigation prior to demanding arbitration); E.C. Ernst, Inc. v. Manhattan Constr. Co. of Tex., 551 F.2d 1026, 1040 (5th Cir.) (party demanded arbitration after informing state officials of intent to sue to disallow arbitration), modified, 559 F.2d 268 (5th Cir. 1977).
Grigsby identifies only M Securities’ filing of lawsuits as conduct inconsistent with the intent to arbitrate but, as we discussed above, we disagree that the filing of whаt appear to have been “placeholder” lawsuits—which either were never served or dismissed with little effort required of Grigsby—was sufficiently inconsistent with such an intent to compel a finding of waiver. Although M Securities’ conduct was somewhat inconsistent, it did not involve collusion, Morewitz, 62 F.3d at 1366, extensive litigation, S & H Contractors, Inc., 906 F.2d at 1514, or an express repudiation of arbitration, E.C. Ernst, Inc., 551 F.2d at 1040.
But even were we to conclude that M Securities acted inconsistently with an intent to arbitrate, Grigsby has failed to demonstrate prejudice. Given the extremely limited nature of the proceedings, Grigsby could not have expended more than minimal time and resources in defending M Securities’ lawsuits, and he sub
Grigsby also contends that he was prejudiced by the deаth of a witness and party to the dispute, Howard Gary. But Gary was present and testified at the arbitration. To the extent Grigsby argues he was prejudiced because Gary could not testify at an evidentiary hearing on the issue of waiver, he fails to describe the content of Gary‘s expected testimony and why it was necessary. The mere fact that Gary was unavailable to testify at a hearing—which, as we determine below, was unnecessary due to the non-existence of matеrial disputed issues of fact—is inadequate to demonstrate prejudice. Grigsby also argues that M Securities’ lawsuits damaged his reputation, but he does not explain why this constitutes prejudice for purposes of waiver.
In sum, Grigsby has failed to satisfy his “heavy burden of proof” in demonstrating that M Securities acted so inconsistently with its right to arbitrate as to constitute waiver, or that he was prejudiced as a result of any action or inaction by M Securities. Krinsk, 654 F.3d at 1200 n. 17 (quoting Stone, 898 F.2d at 1543). We therefore find no error in thе district court‘s determination that M Securities did not waive its right to arbitration.
B. Evidentiary Hearing
As a final matter, we address Grigsby‘s contention that the district court erred in refusing to hold an evidentiary hearing to determine whether M Securities waived its right to arbitration. We understand Grigsby to be advancing two arguments: (1) our decision in Grigsby I required the district court to hold an evidentiary hearing, and (2) even if our decision in Grigsby I did not require the district court to hold an evidentiary hearing, it nevertheless should have held one to resolve disputed issues of fact. We reject both arguments.
1) Scope of the Mandate in Grigsby I
We reject Grigsby‘s argument that our decision in Grigsby I required the district court to hold an evidentiary hearing. We review a district court‘s interpretation and application of this Court‘s mandate in a prior case de novo. Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 (11th Cir. 2015). “[A]n appellate decision is binding in all subsequent proceedings in the same case unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510 (11th Cir. 1987) (en banc). Consistent with
Nothing in our decision in Grigsby I required the district court to hold an evidentiary hearing on the issue of waiver. We remanded the case to the district court to “consider, on the merits, [Grigsby‘s] claim that [M Securities] waived the right to arbitrate.” Grigsby I, 664 F.3d at 1354. We did not order the district court to hold a hearing. We merely asked it to determine whether M Securities waived its right to arbitrate. Although the issue of waiver may involve disputed questions of fact, it does not necessarily. The district court was operating well within the boundaries of our mandate in declining to hold an evidentiary hearing.11 See Ivax Corp., 286 F.3d at 1316.
2) Discretion to Hold an Evidentiary Hearing
Having determined that our mandate did not require the district court to hold an evidentiary hearing, we now consider whethеr the court erred in declining to do so. We review a district court‘s denial of an evidentiary hearing for abuse of discretion. Loyd v. Ala. Dep‘t of Corr., 176 F.3d 1336, 1339 (11th Cir. 1999). “The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004). As such, “when employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legаl standard.” Id. We conclude there was no abuse of discretion here.
Although it is true that in cases “where facts are bitterly contested and credibility determinations must be made ... an evidentiary hearing must be held,” in cases “where material facts are not in dispute ... district courts generally need not hold an evidentiary hearing.” McDonald‘s Corp. v. Robertson, 147 F.3d 1301, 1312-13 (11th Cir. 1998) (discussing motions for injunctive relief); see also Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980) (holding that “when there is no genuine issue of fact concerning the formation of the [arbitration] agreement,” the court can “decide as a matter of law [whether] the parties did or did not enter into such an agreement“). Thus, in deciding whether the district court erred in denying Grigsby an evidentiary hearing, we must determine whether the court‘s decision concerning waiver required it to resolve any material disputed issues of fact.
Grigsby contends that the district court was required to hold an evidentiary hearing to give him an opportunity to introduce
Grigsby also argues that he required an evidentiary hearing to present evidence of the legal fees and expenses he incurred in responding to M Securities’ lawsuits. But after oral argument, when he had a chance to submit evidence, he submitted no declarations from witnesses prepared to testify at an evidentiary hearing or other evidence regarding the fees and expenses he claims to have incurred. He opted instead to present a declaration documenting the legal fees incurred by a third party, GBR. Given Grigsby‘s failure to raise an issue of fact, we conclude that there was no abuse of discretion in the district court‘s refusal to hold an evidentiary hearing. See Commerce Park at DFW Freeport v. Mardian Constr. Co., 729 F.2d 334, 340 (5th Cir. 1984) (no evidentiary hearing on issue of arbitrability necessary when district court afforded parties the opportunity to brief the issues and when there were no disputed material factual questions in the record); Par-Knit Mills, Inc., 636 F.2d at 54.
III. CONCLUSION
The district court did not err in declining to hold an evidentiаry hearing on the issue of waiver or in holding that M Securities did not waive its right to arbitration.12 Accordingly, we affirm.
AFFIRMED.