Diwan v. EMP Global LLC

• Decision Date: 27 January 2012
• Docket Number: Civil Action No. 11–2041 (RWR).
• Citation: 841 F.Supp.2d 246
• Parties: Rauf DIWAN, Plaintiff, v. EMP GLOBAL LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

841 F.Supp.2d 246

Rauf DIWAN, Plaintiff,

v.EMP GLOBAL LLC, et al., Defendants.

Civil Action No. 11–2041 (RWR).

United States District Court, District of Columbia.

Jan. 27, 2012.

Robert Brian Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, DC, for Plaintiff.

Connie Nora Bertram, Cooley, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiff Rauf Diwan filed an amended complaint against defendants Emerging Markets Partnership Global Administration, LLC (“EMPG”), and Emerging Markets Partnership VI, LLC, alleging he was wrongfully terminated as the CEO of Emerging Markets Partnership Bahrain (“EMP Bahrain”) in violation of public policy. The defendants moved to dismiss or to compel Diwan to pursue his claims in arbitration, arguing that Diwan's claim relates to an arbitration agreement governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. Diwan moved for a preliminary injunction staying the arbitration, and moved under the District of Columbia's Anti–Strategic Lawsuits Against Public Participation Act of 2010 (“anti-SLAPP Act”), D.C.Code § 16–5502, for an order striking or denying the defendants' motion to dismiss or to compel arbitration.¹ (Pl.'s Mem. in Supp. of Mot. for Preliminary Injunction (“Pl.'s Mem.”) at 2.) Because Diwan did not show irreparable harm or a likelihood of success on the merits, Diwan's motion for a preliminary injunction has been denied.²

BACKGROUND

Diwan worked as the Managing Director of EMPG's “Second Asian Fund” from 1997 until 2003, and as the CEO of EMPG's “First Asian Fund” from 2003 until 2007. (Am. Compl. ¶¶ 67, 74–75.) In March 2007, Diwan resigned from EMPG and was immediately hired as the CEO of the Asset Management Division of the Atlantic Capital Group. (Id. ¶ 79.) However, in March 2008, Diwan agreed to return to become the CEO of EMP Bahrain, a subsidiary of EMPG that is managed and controlled by EMPG. EMPG owns 60 percent of EMP Bahrain, paid $350,000 of Diwan's $400,000 annual base compensation, and, according to Diwan, controls the compensation, hiring and firing of personnel of EMP Bahrain. (Am. Compl. ¶ ¶ 6, 39–41, 47, 51, 96.)

In 2010, Diwan was given profit sharing (“conditional carry interest” or “carry”) in one of the funds managed by EMP Bahrain—EMP VI, LLC—and he signed a “Grant Letter” agreement that, under Article 4.6 of the EMP VI, LLC Agreement (“LLC Agreement”), granted him rights as a member of EMP IV, LLC. The LLC Agreement required him to arbitrate all disputes “arising under” that agreement before a panel of arbitrators selected by the International Chamber of Commerce (the “ICC”) under the rules of the United Nations Commission on International Trade Law (“UNCITRAL”). ( See Compl. ¶¶ 1, 28, 35, 178–183; Defs.' Mem. in Supp. of Mot. to Strike or to Compel (“Defs.' Mem.”) at 6–8; Defs.' Notice of Removal, Ex. B.) Section 8.12 of the LLC Agreement provides that “any dispute of the Members, the Manager or the Company hereunder shall be settled by arbitration.” (Defs.' Notice of Removal, Ex. C.) That section also provides that disputes must be “submitted for arbitration to a panel of arbitrators in New York and resolved by final decision pursuant to the provisions of the rules of UNCITRAL,” that Delaware law would be the substantive law governing disputes, and that arbitration should be concluded within 45 days of its submission, unless extended for justifiable cause by the arbitrators. (Defs.' Notice of Removal, Ex. C.)

On November 1, 2010, EMPG issued to Diwan a notice that it was terminating his employment with EMP Bahrain for cause. (Am. Compl. ¶ 171, Ex. E.) Diwan filed his original complaint in the Superior Court of the District of Columbia on October 24, 2011, alleging wrongful termination in violation of public policy and breach of the LLC Agreement. The defendants removed the case to this court in November 2011 under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201–208, and then moved to dismiss or to stay this case and to compel arbitration. On November 21, 2011, the defendants submitted a notice of arbitration to the International Chamber of Commerce (“ICC”). The ICC International Court of Arbitration determined that it was “satisfied that an agreement authorizing it to act as appointing authority may exist,” selected a panel of three arbitrators, and set an initial scheduling conference for January 4, 2011. (Defs.' Opp'n to Pl.'s Mot. for Prelim. Injunction, at 13.) Diwan moved for a preliminary injunction to stay the beginning of the arbitration. The motion was denied by minute order and this opinion explains why.

DISCUSSION

A preliminary injunction is an “extraordinary” remedy. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). A plaintiff carries the burden of persuasion by a clear showing 1) of a substantial likelihood of success on the merits, 2) of irreparable injury if the injunction is not issued, 3) that the injunction would not substantially injure other interested parties, and 4) that the injunction is in the public interest. Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004). “The four factors should be balanced on a sliding scale, and a party can compensate for a lesser showing on one factor by making a very strong showing on another factor.” In re: Navy Chaplaincy, 516 F.Supp.2d 119, 122 (D.D.C.2007) (citing CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C.Cir.2005)); see Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C.Cir.2009).³

I. IRREPARABLE INJURY

Some showing of irreparable injury “is a threshold requirement for a preliminary injunction.” City of Moundridge v. Exxon Mobil Corp., 429 F.Supp.2d 117, 127 (D.D.C.2006). “Irreparable harm is an imminent injury that is both great and certain, and that legal remedies cannot repair.” Id. (citing Wis. Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C.Cir.1985)).

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.

City of Moundridge, 429 F.Supp.2d at 127–128 (quoting Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C.Cir.1958); Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 367 (D.C.Cir.1999)).

Diwan claimed that he would be irreparably harmed by paying $74,000 to the arbitration panel, and that allowing arbitration proceedings to begin before determining arbitrability would constitute “per se” irreparable injury. (Pl.'s Reply at 18.) However, compensable monetary injuries, even if they are substantial, do not constitute irreparable harm. See Nat'l Propane Gas Ass'n v. United States Dep't of Homeland Sec., 534 F.Supp.2d 16, 19 (D.D.C.2008) (citing Wis. Gas Co., 758 F.2d at 674). The defendants asserted, and the plaintiff did not dispute, that the $74,000 is merely a deposit, and thus that Diwan may receive a portion of it back. (Defs.' Opp'n at 23.) “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Bill Barrett Corp. v. U.S. Dep't of Interior, 601 F.Supp.2d 331, 335 (D.D.C.2009) (citing Wis. Gas Co., 758 F.2d at 674).

Diwan did not cite any case from this circuit establishing that allowing a matter to proceed to arbitration constitutes irreparable injury. Instead, Diwan cited PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 515 (3d Cir.1990), for the proposition that allowing arbitration to continue could constitute irreparable injury. In PaineWebber, the Third Circuit held that a district court's decision to grant the plaintiff's motion for a preliminary injunction preventing arbitration from occurring was not an abuse of discretion, where the applicable rules governing the arbitration excluded claims more than six years old from arbitration and the claim was indisputably filed more than six years after the last event involving PaineWebber. Id. at 509–510.

PaineWebber is not persuasive here for two reasons. First, the opinion in PaineWebber was predicated on the principle that “a party cannot be required to arbitrate the threshold ‘dispute,’ as it were, of whether the underlying dispute is itself arbitrable. Hence, the question of arbitrability ... is undeniably an issue for judicial determination.” PaineWebber, 921 F.2d at 514. That principle conflicts with Howsam v. Dean Witter Reynolds, 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) which held that there are numerous situations where the question of arbitrability is determined by an arbitrator, not a court. Second, in PaineWebber, the district court determined that compelling a party to attend arbitration could be irreparable injury where the dispute that potentially would be arbitrated is clearly and indisputably outside of the boundaries of the arbitration agreement. To the contrary, as is discussed below, Diwan was a party to an LLC Agreement that clearly called for arbitration of disputes between the members and the company. Diwan did not make a sufficient showing of irreparable injury to justify a preliminary injunction.

II. SUCCESS ON THE MERITS

It is important for one seeking injunctive relief to demonstrate that he is likely to succeed on the merits, in order to justify the “ ‘intrusion into the ordinary processes of administration and judicial review.’ ” Konarski v. Donovan, 763 F.Supp.2d 128, 132 (D.D.C.2011) (quoting Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 140 (D.D.C.1999)). “Assessing the likelihood of success on the merits ‘does not involve a final determination of the merits, but rather the exercise of sound...