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James Tuminello v. Brian Richards , 504 F. App'x 557 ( 2013 )


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  •                                                                            FILED
NOT FOR PUBLICATION                             JAN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES TUMINELLO and UBS                          No. 12-35259
FINANCIAL SERVICES, INC.,
D.C. No. 3:11-cv-05928-BHS
Plaintiffs - Appellants,
v.                                        MEMORANDUM *
BRIAN RICHARDS and BRICH
HOLDINGS LLC, a Nevis limited liability
company,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted November 5, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raymond J. Dearie, Senior United States District Judge for
Eastern District of New York, sitting by designation.
Appellants James Tuminello and UBS Financial Services, Inc. appeal the
district court’s order granting appellee Brian Richards’ motion to compel
arbitration and stay proceedings and denying appellants’ motion for a preliminary
injunction. We have jurisdiction under
    28 U.S.C. § 1292
    (a)(1), and we affirm.
1. The arbitrator, rather than the district court, should determine whether
this dispute is arbitrable. The parties’ agreement provides that the arbitrator shall
decide “any and all controversies . . . concerning any account(s), transaction,
dispute or the construction, performance, or breach of this or any other
Agreement.” This language provides clear and unmistakable evidence that the
parties intended the question of arbitrability to be decided in arbitration. See
Howsam v. Dean Witter Reynolds, Inc.,
    537 U.S. 79
    , 83 (2002) (“The question
whether the parties have submitted a particular dispute to arbitration, i.e., the
‘question of arbitrability,’ is ‘an issue for judicial determination [u]nless the
parties clearly and unmistakably provide otherwise.’” (quoting AT & T Techs., Inc.
v. Commc’ns Workers,
    475 U.S. 643
    , 649 (1986))); Momot v. Mastro,
    652 F.3d 982
    , 988 (9th Cir. 2011) (“[T]his language, delegating to the arbitrators the
authority to determine ‘the validity or application of any of the provisions of’ the
arbitration clause, constitutes ‘an agreement to arbitrate threshold issues
2
concerning the arbitration agreement.’” (quoting Rent-A-Ctr., W., Inc. v. Jackson,
    130 S. Ct. 2772
    , 2777 (2010))).
2. Even assuming that the parties had not delegated gateway questions of
arbitrability, the district court correctly determined that the dispute was arbitrable.
The court’s role in such an inquiry is “limited to determining (1) whether a valid
agreement to arbitrate exists and, if it does, (2) whether the agreement
encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
    207 F.3d 1126
    , 1130 (9th Cir. 2000). The court should not consider a defense that
touches on the merits of the case. See
    id. at 1134
    . A valid agreement to arbitrate
exists between Richards and UBS, and whether Tuminello and UBS are liable to
Richards for any actions or inactions is a “controversy” within the scope of the
agreement. Appellants’ arguments are intertwined with the merits of whether
Richards is entitled to recover against them. Those arguments should therefore be
addressed by the arbitrator.
AFFIRMED.
3