McCullagh v. Dean Witter Reynolds, Inc.

• Decision Date: 16 June 1999
• Docket Number: Nos. 97-2700,97-2701,s. 97-2700
• Citation: 177 F.3d 1307
• Parties: James McCULLAGH, Loretta J. Varvel, et al., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. DEAN WITTER REYNOLDS, INC., Defendant-Counter-Claimant-Appellant-Cross-Appellee. Vera M. Babicz, Albert DiSalle, et al., Plaintiffs-Counter-Defendants-Appellees, v. Dean Witter Reynolds, Inc., Defendant-Counter-Claimant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1307

177 F.3d 1307

James McCULLAGH, Loretta J. Varvel, et al., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants, v. DEAN WITTER REYNOLDS, INC.,

Defendant-Counter-Claimant-Appellant-Cross-Appellee.

Vera M. Babicz, Albert DiSalle, et al., Plaintiffs-Counter-Defendants-Appellees, v. Dean Witter Reynolds, Inc., Defendant-Counter-Claimant-Appellant.

Nos. 97-2700, 97-2701.

United States Court of Appeals Eleventh Circuit.

June 16, 1999.

Bradford D. Kaufman, Steel, Hector & Davis LLP, West Palm Beach, FL, for Dean Witter Reynolds, Inc.

Joel A. Goodman, Goodman & Nekvasil, P.A., Clearwater, FL, for Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants and Plaintiffs-Counter-Defendants-Appellees.

Stephen Krosschell, Goodman & Nekvasil, P.A., Clearwater, FL, for Plaintiffs-Counter-Defendants-Appellees.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellant Dean Witter Reynolds, Inc., is a member of the American Stock Exchange ("AMEX"). A provision in the AMEX Constitution requires AMEX members, upon the request of a customer, to submit to binding arbitration before the American Arbitration Association ("AAA").

The appellees are disgruntled customers of Dean Witter who, pursuant to the above provision, filed complaints against Dean Witter with the AAA. Concurrent with their AAA filings, the appellees also filed two lawsuits--the "McCullagh" suit, which had three plaintiffs, and the "Babicz" suit, which had sixteen plaintiffs--against Dean Witter in the United States District Court for the Middle District of Florida. ¹ Both suits sought to compel arbitration. ² See 9 U.S.C. § 4 (1994). Dean Witter conceded that it was required to arbitrate, ³ but in each suit filed a counterclaim seeking a declaratory judgment that the AMEX Constitution requires that the arbitration take place in New York City. The appellees, in response, argued that the venue for the arbitrations should be determined by the AAA in accordance with its usual procedures.

Dean Witter moved for summary judgment on its counterclaim in the McCullagh case. The district court denied the motion, and entered an order compelling arbitration. Dean Witter appeals the denial of its motion for summary judgment. ⁴ We review the denial of declaratory relief for an abuse of discretion. See Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1260 (11th Cir.1997).

This case turns on the interpretation of the AMEX Constitution, which states that "the customer may elect to arbitrate before the American Arbitration Association in the City of New York." Specifically, the parties dispute whether the phrase "in the City of New York" modifies "American Arbitration Association" (and thus explains where the AAA is headquartered) or "arbitrate" (and thus explains where the arbitration is to take place). Looking solely at the plain language of the provision, either interpretation is plausible. The former reading fits with the grammatical rule that modifiers should be placed next to that which they modify: ⁵ Because "in the City of New York" is placed next to "American Arbitration Association," that is presumably what it was intended to modify. ⁶ See William Strunk, Jr., & E.B. White, The Elements of Style 28-31 (3d ed.1979). This reading is bolstered by the fact that the AAA is actually headquartered in New York City. The latter reading fits with the interpretative rule that, among alternative readings, the one that does not render any portion superfluous is to be preferred: There is only one AAA (and pinpointing its location is therefore superfluous), but there are numerous places in which an arbitration before the AAA could take place. See PaineWebber, Inc. v. Rutherford, 903 F.2d 106, 109 (2d Cir.1990).

When we turn to logic and common sense, however, we find that the appellees' reading of the provision is clearly superior. What possible reason could there be for AMEX to require every dispute between a member and a customer to be arbitrated in New York City? Dean Witter has not provided a reason, and we cannot think of one. Under Dean Witter's reading of the provision, if an individual in Los Angeles wishes to arbitrate a dispute with an AMEX member headquartered in Los Angeles, and all of the relevant witnesses and documents are in Los Angeles, the arbitration nevertheless must take place in New York. This is an incredibly inefficient result that would benefit none of the parties involved; it is hard for us to imagine that AMEX would have placed a provision in its constitution that would necessarily lead to such a result. In any event, it would be highly illogical for AMEX to confer a benefit on customers, but then (in the same sentence) severely curtail that benefit.

Finally, AMEX's own interpretation of the provision further supports the appellees' reading. The AMEX Constitution is solely the product of AMEX; consequently, AMEX is the best source of information regarding the intended meaning of the disputed provision. See Intercontinental Indus., Inc., v. American Stock Exchange, 452 F.2d 935, 940 (5th Cir.1971) (stating that AMEX "should be allowed broad discretion in the determination of [the] meaning and application" of its own rules). AMEX has spoken to the matter as follows:

[AMEX] has interpreted the words "in the City of New York" as referring merely to the fact that the AAA is headquartered in New York City. This reference is not viewed by [AMEX] as a venue-setting provision, nor as a limitation on the right to have an arbitration submitted to the AAA conducted in any of the various locations outside New York City where the AAA has regional offices or otherwise may choose to allow an arbitration to proceed. Once a matter is before the AAA, any questions regarding the administration of the proceeding, including the location of the hearing, should be resolved pursuant to the AAA's own rules and procedures.

Self-Regulatory Organizations, Exchange Act Release No. 34-27,459, 54 Fed.Reg. 49,374, 49,375 (Nov. 30, 1989). AMEX officials, in a deposition taken in this case, have confirmed...