Morgan Keegan & Co., Inc. v. Horace Grant , 486 F. App'x 678 ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 25 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    MORGAN KEEGAN & CO., INC., a                     No. 11-56399
    Tennessee corporation,
    D.C. No. 2:11-cv-02915-SJO-FFM
    Plaintiff - Appellant,
    v.                                             MEMORANDUM *
    HORACE GRANT,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    S. James Otero, District Judge, Presiding
    Argued and Submitted October 10, 2012
    Pasadena, California
    Before:       PREGERSON and W. FLETCHER, Circuit Judges, and BENNETT,
    District Judge.**
    Plaintiff Morgan Keegan appeals from the district court’s order compelling
    arbitration and dismissing the case. Defendant Horace Grant won a $1.45 million
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **   The Honorable Mark W. Bennett, United States District Judge for the
    Northern District of Iowa, sitting by designation.
    arbitration award against Morgan Keegan, his former broker, in a previous
    arbitration (“Grant I”). Morgan Keegan unsuccessfully sought to vacate the Grant
    I award in the district court, and that case is now on appeal before the Ninth
    Circuit. See Morgan Keegan & Co., Inc. v. Grant, No. 10-56166. Grant then filed
    a second arbitration claim against Morgan Keegan (“Grant II”) alleging malicious
    prosecution and abuse of process in Grant I. Morgan Keegan sued in the district
    court, alleging that Grant II was not arbitrable and seeking an injunction to stop
    Grant II from proceeding before the resolution of the Grant I appeal. The district
    court granted Grant’s motion to compel arbitration, denied Morgan Keegan’s
    request for a preliminary injunction as moot, and dismissed the case. We have
    jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    The district court’s decision granting a motion to compel arbitration is
    reviewed de novo. Bushley v. Credit Suisse First Boston, 
    360 F.3d 1149
    , 1152 (9th
    Cir. 2004). The de novo standard applies to determining the validity and scope of
    the arbitration agreement as well. Comedy Club, Inc. v. Improv West Assocs., 
    553 F.3d 1277
    , 1284 (9th Cir. 2009).
    First, the district court correctly held that arbitration of the Grant II claims of
    malicious prosecution and abuse of process is not restricted by the Federal
    Arbitration Act (“FAA”). See 
    9 U.S.C. § 10
    . Grant is not seeking to attack or
    2
    change the Grant I award, and so neither the FAA nor the Financial Industry
    Regulatory Authority rules prevent arbitrating his claims.
    Second, Morgan Keegan’s client agreement contains a valid arbitration
    clause that requires arbitrating the Grant II claims. See Chiron Corp. v. Ortho
    Diagnostic Sys., Inc., 
    207 F.3d 1126
    , 1130 (9th Cir. 2000). The arbitration clause
    contains extremely broad language, applying to “all controversies” between the
    parties “which may arise from any account or for any cause whatsoever.” This
    clause is broad enough to encompass the tort claims here, especially since the
    claims arose from litigation between the parties over account-related activities. See
    Merrick v. Writers Guild of Am., West, Inc., 
    181 Cal. Rptr. 530
     (Ct. App. 1982).
    The lack of any limiting language in the arbitration agreement distinguishes this
    case from cases relied on by Morgan Keegan, such as Tracer Research Corp. v.
    Nat’l Envtl. Serv., 
    42 F.3d 1292
    , 1295 (9th Cir. 1994), where the clause applied
    only to claims “arising out of” the agreement. Morgan Keegan drafted the
    arbitration clause, and California law construes ambiguities in form contracts
    against the drafter. Victoria v. Superior Court, 
    710 P.2d 833
    , 835 (Cal. 1985).
    Further, the FAA “resolv[es] ambiguities as to the scope of arbitration in favor of
    arbitration.” Wagner v. Stratton Oakmonth, Inc., 
    83 F.3d 1046
    , 1049 (9th Cir.
    1996). Therefore, the claims in Grant II are arbitrable.
    3
    Finally, since we are issuing the decision in the Grant I appeal concurrently
    with this decision, we conclude that Morgan Keegan’s appeal from the denial of an
    injunction is moot.
    AFFIRMED.
    4