Ragab v. Howard, No. 15-1444

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: KELLY, Circuit Judge.
• Citation: 841 F.3d 1134
• Parties: Sami Ragab, an individual, Plaintiff–Appellee, v. Muhammad Howard, individually and in his capacity as owner, partner, and corporate officer, Ultegra Financial Partners, Inc., a Colorado corporation; Clive Funding, Inc., a Utah corporation, Defendants–Appellants, and Seed Consulting, d/b/a Seed Capital, Defendant.
• Decision Date: 21 November 2016
• Docket Number: No. 15-1444

841 F.3d 1134

Sami Ragab, an individual, Plaintiff–Appellee,
v.
Muhammad Howard, individually and in his capacity as owner, partner, and corporate officer, Ultegra Financial Partners, Inc., a Colorado corporation; Clive Funding, Inc., a Utah corporation, Defendants–Appellants,
and
Seed Consulting, d/b/a Seed Capital, Defendant.

No. 15-1444

United States Court of Appeals, Tenth Circuit.

Filed November 21, 2016

John Mallonee, Boulder, Colorado, for Defendants–Appellants.

841 F.3d 1136

Todd A. Wells (Theodore J. Gleason, and Coren R. Hinkle, with him on the brief), of Gleason Wells, P.C., Denver, Colorado, for Plaintiff–Appellee.

Before KELLY, BRISCOE, and GORSUCH, Circuit Judges.

KELLY, Circuit Judge.

Defendants–Appellants Ultegra Financial, its CEO Muhammad Howard, (collectively Ultegra Defendants) and Clive Funding, Inc., appeal from the district court's order denying their motion to compel arbitration. Ragab v. Howard, No. 15–cv–00220–WYD–MJW, 2015 WL 6662960 (D. Colo. Nov. 2, 2015). Our jurisdiction arises under 9 U.S.C. § 16(a)(1) and we affirm.

Background

In 2013, Mr. Ragab entered into a business relationship with the Ultegra Defendants. The parties had six agreements: a Consulting Agreement, a Membership Interest Purchase Agreement (Purchase Agreement), an Operating Agreement, an Assignment of Limited Liability Company Interest Agreement (Assignment Agreement), an Employment Agreement, and a Non Circumvention, Non Disclosure & Confidentiality Agreement (Non–Circumvention Agreement). Aplt. App. 113–50.

The agreements contain conflicting arbitration provisions. See Aplt. App. 167–87. Suffice it to say the conflicts involve (1) which rules will govern, (2) how the arbitrator will be selected, (3) the notice required to arbitrate, and (4) who would be entitled to attorneys' fees and on what showing.¹

In 2015, Mr. Ragab sued the Ultegra Defendants for misrepresentation and for violating several consumer credit repair statutes. The district court found that Mr. Ragab's claims fell within the scope of all six agreements. Ragab, 2015 WL 6662960, at *4. The Ultegra Defendants moved to compel arbitration. Mr. Ragab added Defendant Clive Funding, Inc., which joined the Ultegra Defendants' motion. The district court denied the motion to compel, concluding that there was no actual agreement to arbitrate as there was no meeting of the minds as to how claims that implicated the numerous agreements would be arbitrated.

Discussion

A. Motion to Compel Arbitration

We review a district court's denial of a motion to compel arbitration de novo and apply the same legal standard as the district court.

841 F.3d 1137

Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 796 (10th Cir. 1995). We first address whether the inconsistencies across the six arbitration provisions indicate that the parties failed to have a meeting of the minds with respect to arbitration.

The Supreme Court has “long recognized and enforced a ‘liberal federal policy favoring arbitration agreements.’ ” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ); see also 9 U.S.C. § 2 (“A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”). Therefore, “all doubts must be resolved in favor of arbitration.” Armijo, 72 F.3d at 798.

However, whether a party agreed to arbitration is a contract issue, meaning arbitration clauses are only valid if the parties intended to arbitrate. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). No party can be compelled to submit a dispute to arbitration without having previously agreed to so submit. United Steelworkers, 363 U.S. at 582, 80 S.Ct. 1347.

We apply state-law principles in deciding whether parties agreed to arbitrate. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Contract formation in Colorado requires evidence “that the parties agreed upon all essential terms.” I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986). A meeting of the minds is essential. Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1192 (Colo. 2001). This can be demonstrated by the parties' “conduct, their oral statements and their writings, and other evidence illuminating the circumstances surrounding the making of an agreement.” I.M.A., 713 P.2d at 888. Courts cannot create or enforce contracts between parties when the contract itself does not clearly demonstrate the parties' intent. Newton Oil Co. v. Bockhold, 115 Colo. 510, 176 P.2d 904, 908 (1946).

No Colorado court² has addressed whether parties can be compelled to arbitrate given conflicting arbitration provisions, but other courts have. A New Jersey³ court, for example, has concluded that irreconcilable differences across multiple arbitration provisions indicate that the parties did not agree to arbitrate. See, e.g., NAACP of Camden Cty. E. v. Foulke Mgmt. Corp., 421 N.J.Super. 404, 24 A.3d 777, 794 (N.J. Super. Ct. App. Div. 2011). At issue in NAACP were three agreements that each contained an arbitration provision. 24 A.3d at 781–82. The inconsistencies

841 F.3d 1138

across the six arbitration provisions in the case at hand almost mirror the irreconcilable portions of the arbitration provisions in NAACP, including the governing rules, the day by which the parties had to initiate arbitration, and which party was responsible for the arbitration fees. Id. at 794. Based on these inconsistencies, the court found that “the arbitration provisions ... [were] too plagued with confusing terms and inconsistencies to put a reasonable consumer on fair notice of their intended meaning.” Id. The Ultegra Defendants and Clive Funding, Inc. argue that NAACP is distinguishable because it involved an elderly woman who was not well educated. Id. at 781 ; Aplt. Br. at 24–25. This distinction, however, is unavailing. As the court in NAACP explained, even if the case involved a prudent purchaser—one who reads arbitration clauses—the conflicting terms would have prevented her from understanding “what the exact terms and conditions of that arbitration process would be.” 24 A.3d at 794. Relying on AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), the court also recognized that “the FAA does not require an arbitration provision to be enforced if the provision is defective for reasons other than public policy or unconscionability.” Id. at 792. That is the case here.

Courts have granted motions to compel despite the existence of conflicting arbitration provisions when the contracts themselves provide the solution. For example, in Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala. 2001), the parties had executed several agreements each containing a different arbitration clause. Id. The court ordered arbitration according to the arbitration provision in the contract which contained a merger clause, concluding that provision superceded the others.⁴ Id. Here, however, there is no language in the six agreements that suggests one contract overrides the others, and we cannot arbitrarily pick one to enforce because doing so could violate the other five.

The Ultegra Defendants and Clive Funding further argue that the court should compel arbitration here because courts have compelled arbitration based on a single provision that merely requires arbitration, but does not spell out any other arbitration-related terms. Aplt. Br. at 30–31; see Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487, 487 (1975) (upholding an arbitration provision that only stated that claims “shall be submitted to binding arbitration”). But such a scenario is not relevant to this case, which involves multiple, specific, conflicting arbitration provisions, and not one general or vague arbitration clause.

Thus, the conflicting details in the multiple arbitration provisions indicate that there was no meeting of the minds with respect to arbitration. Such a conclusion is fully supported by contract formation requirements in Colorado. See I.M.A., 713 P.2d at 888 (explaining that contract formation requires that parties “agree[ ] upon all essential terms”).

B. Summary Trial

The Ultegra Defendants and...