Samson v. Nama Holdings Llc, s. 09–55835
| Decision Date | 06 December 2010 |
| Docket Number | Nos. 09–55835,09–56394.,s. 09–55835 |
| Citation | 637 F.3d 915 |
| Parties | Shawn SAMSON; Jack Kashani, Plaintiffs–Appellants,v.NAMA HOLDINGS, LLC, Defendant–Appellee.Shawn Samson; Jack Kashani, Plaintiffs–Appellants,v.NAMA Holdings, LLC, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERERoger J. Magnuson, Kent J. Schmidt, Dorsey & Whitney LLP, Irvine, CA; Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, NY; Richard A. Schirtzer, Susan R. Estrich, Quinn Emanuel Urquhart Oliver & Hedges LLP, Los Angeles, CA, for Shawn Samson and Jack Kashani.Howard J. Rubinroit, Ronald C. Cohen, James M. Harris, Sidley Austin LLP, Los Angeles, CA, for NAMA Holdings, LLC.Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:09–cv–01433–MMM–PJW.Before: STEPHEN S. TROTT and KIM McLANE WARDLAW, Circuit Judges, and RUDI M. BREWSTER, Senior District Judge.**
The mandate is recalled. The order filed for publication on December 15, 2010 is amended as follows:
First, delete the sentence that reads:
As to Appeal No. 09–55835, we affirm for the reasons stated by the district court in its May 20, 2009 Order Denying Plaintiffs' Motion to Compel Arbitration.
and replace it with:
As to Appeal No. 09–55835, we affirm for the reasons stated by the district court in its May 20, 2009 Order Denying Plaintiffs' Motion to Compel Arbitration, attached as Appendix A.
Second, attach as Appendix A the May 20, 2009 district court Order Denying Plaintiffs' Motion to Compel Arbitration, which is being transmitted together with this order.
The Clerk is directed to re-issue the mandate immediately upon filing of the amended order and appendix. No petitions for rehearing will be entertained.
IT IS SO ORDERED.
As to Appeal No. 09–55835, we affirm for the reasons stated by the district court in its May 20, 2009 Order Denying Plaintiffs' Motion to Compel Arbitration, attached as Appendix A. Appeal No. 09–56394, challenging the district court's award of prevailing party attorneys' fees to Defendant, is therefore moot.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NAMA HOLDINGS, LLC, Defendant.
On March 30, 2009, plaintiffs Shawn Samson and Jack Kashani filed a motion to compel arbitration against defendant NAMA Holdings, LLC (“NAMA”). Samson and Kashani assert that they are parties to agreements with NAMA that include arbitration provisions. Samson and Kashani do not, however, assert that they are parties to the agreements in their individual capacities. Rather, they contend that they signed the agreements in their capacity “as managers” of an entity known as Alliance Network, LLC (“Alliance”). NAMA's claims against Samson and Kashani in their individual capacities are currently pending in New York state court. Samson and Kashani contend that NAMA's claims against them as individuals should be construed as claims against them in their capacity as managers and be subject to arbitration. They also seek to compel arbitration of claims against NAMA that they wish to assert in their capacity as managers.
This dispute arises from the parties' involvement in Alliance, a Nevada limited liability company that was formed to develop a showroom complex for the home furnishings industry in Las Vegas.1 On August 9, 2000, Prime Associates, LLC (“Prime”) and Evan Realty Group, LLC (“Evan Realty”) entered into an agreement to form Alliance.2 Plaintiffs Samson and Kashani are the members of Prime.3 NAMA is the successor in interest of Evan Realty.4 Samson and Kashani signed the operating agreement on behalf of Prime. Nigel and Mousa Alliance (the “Alliance brothers”), the two members of Evan Realty, signed the agreement on behalf of that entity.5
Samson and Kashani each signed the operating agreement a second time below their signature on behalf of Prime. This second signature block is preceded by the printed word “MANAGER,” followed by a colon.6 The term “co-Manager” appears after Samson and Kashani's printed names.7 Samson and Kashani afford great significance to inclusion of the terms “Manager” and “co-Manager” on the signature page.
The word “Manager” first appears in the first paragraph of the operating agreement, which states that the contract “is executed ... by and among [Prime] and certain other entities or individuals who are admitted to the Company as members (collectively, the ‘Investor Group’) ..., and the Manager as hereinafter defined.” 8 Section 4.01(a) defines “Manager.” It states that “[t]he Company shall be managed by managers who shall be Jack Kashani and Shawn Samson (collectively, the ‘Manager’).” 9 Samson and Kashani contend that this definition, coupled with the signature block labeled “Manager” and the printed word “co-Manager” following their names demonstrates that they did not sign the operating agreement as individuals; rather, they assert, they entered into the contract solely in their separate legal capacity as “the Manager.” 10
The operating agreement contains a broad arbitration provision, which provides, in relevant part:
“SHOULD ANY DISAGREEMENT, DISPUTE, CONFLICT, CLAIM OR CONTROVERSY ARISE BETWEEN ANY OF THE MEMBERS HERETO, OR ... BETWEEN THE COMPANY AND THE MANAGER, OR BETWEEN EVAN REALTY AND THE MANAGER WITH RESPECT TO THIS AGREEMENT OR ANY OF THE PROVISIONS THEREOF, OR AS TO THE INTERPRETATION OR EFFECT THEREOF, OR AS TO A BREACH THEREOF CLAIMED TO HAVE BEEN COMMITTED BY ANY MEMBER OR MEMBERS OR MANAGER, OR AS TO ANY OTHER MATTER, CAUSE OR THING WHATSOEVER RELATING TO THIS AGREEMENT ... [THAT DISPUTE] SHALL BE SUBMITTED TO AND DETERMINED BY ARBITRATION IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA BEFORE AND BY THE AMERICAN ARBITRATION ASSOCIATION....” 11
The operating agreement grants “the Manager” authority, subject to certain conditions, to issue written “Capital Call Notices” requesting that Alliance members to contribute further funds “required for the successful conduct and operation of the purpose of the Company, as determined by the Manager.” 12 In 2003, a dispute arose between Samson and Kashani, on the one hand, and NAMA, on the other, regarding a capital call issued by Samson and Kashani to finance construction of the home furnishings showroom.13 Samson and Kashani assert that “NAMA refused to provide its share of the necessary capital,” 14 forcing them to look for new investors. Samson and Kashani sought to enter into an agreement with The Related Companies, L.P. (“Related”), pursuant to which Related was to provide guarantees and a $10 million investment in exchange for an interest in the showroom project. 15 NAMA objected to the arrangement. The parties resolved their differences, however, and the members of Alliance and Samson and Kashani entered into a settlement agreement.16
The first paragraph of the settlement agreement reflects that the contract was “by and among” Prime; NAMA; Crescent Nevada Associates, LLC (a new member of Alliance); “Shawn Samson ... and Individual;” and “Jack Kashani ... an Individual.” 17 It then states that “Samson and Kashani shall be collectively referred to herein as the ‘Manager.’ ” 18 Samson and Kashani signed the settlement agreement three times, once on behalf of Prime; once on behalf of Alliance; and once in a separate signature block preceded by the word “Manager.” 19 The settlement agreement also contains an arbitration provision:
“ANY DISAGREEMENT, DISPUTE, CONFLICT, CLAIM OR CONTROVERSY ARISING OUT OF THIS AGREEMENT, OR ANY PROVISIONS HEREOF, OR AS TO THE INTERPRETATION OR EFFECT THEREOF, OR AS TO ANY BREACH THEREOF CLAIMED TO HAVE BEEN COMMITTED BY ANY MEMBER OR MEMBERS OR MANAGER (EACH, A ‘DISPUTE’), WHETHER SUCH DISPUTE IS BETWEEN ANY OF THE MEMBERS OF THE COMPANY OR BETWEEN ONE OR MORE MEMBERS OF THE COMPANY AND THE MANAGER OR BETWEEN ONE OR MORE MEMBERS AND THE COMPANY SHALL BE DETERMINED AND RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH ARTICLE XI OF THE ALLIANCE OPERATING AGREEMENT.” 20
The parties' differences continued after execution of the settlement agreement.21 Various disputes arose, and Alliance, two affiliates of Alliance, Samson and Kashani (collectively, the “Alliance parties”) initiated arbitration before the American Arbitration Association (“AAA”), naming NAMA and the Alliance brothers as respondents.22 The caption of the demand for arbitration listed “Shawn Sampson and Jack Kashani, in their capacity as managers of Alliance Network, LLC” as claimants, along with Alliance and its two affiliates.23 The “Parties” section of the Alliance parties' first amended demand for arbitration, filed January 2, 2009, describes Sampson and Kashani as follows:
“4. Claimant/Counter–Respondent Shawn Samson is an individual ... who, along with Jack Kashani, is the co-Manager of Alliance Network.
5. Claimant/Counter–Respondent Jack Kashani is an individual ... who, along with Shawn Sampson, is the co-Manager of Alliance Network.” 24
The first amended demand asserts claims against NAMA for declaratory relief; breach of contract; intentional interference with current and prospective contractual relations; actual or constructive fraud; breach of fiduciary duty; breach of the implied covenant of good faith and fair dealing; intentional interference with prospective contractual relations; and “injunction against claiming any rights obtained via section 11 of the settlement agreement and for rescission of section 11 of...
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