Smith v. The Equitable

• Decision Date: 04 April 2000
• Docket Number: No. 99-1031,99-1031
• Citation: 209 F.3d 268
• Parties: (3rd Cir. 2000) C. LEON SMITH, Appellant v. THE EQUITABLE, Appellee
• Court: U.S. Court of Appeals — Third Circuit

Page 268

209 F.3d 268 (3rd Cir. 2000)

C. LEON SMITH, Appellant v. THE EQUITABLE, Appellee

No. 99-1031

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

ARGUED NOVEMBER 1, 1999

Filed April 4, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, (D.C. No. 98-cv-01264) District Judge: Honorable J. Curtis Joyner

Joseph T. Wright, Jr., Esq. Danielle M. Mulcahey, Esq. (Argued) Wright & Associates 148 Adams Avenue Scranton, PA 18503 Attorneys for Appellant

Larry Besnoff, Esq. Obermayer, Rebmann, Maxwell & Hippel 1617 John F. Kennedy Boulevard One Penn Center, 19th Floor Philadelphia, PA 19103, William L. Kandel, Esq. (Argued) John D. Giansello, III, Esq. Orrick, Herrington & Sutcliffe 666 Fifth Avenue New York, NY 10103-0001 Attorneys for Appellee BEFORE: NYGAARD, McKEE, and ROSENN, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I.

This appeal arises from appellant C. Leon Smith's attempt to secure employment with appellee, The Equitable. He alleges that The Equitable refused to hire him because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq.; 42 U.S.C. S 1981; and the Pennsylvania Human Rights Act, 43 P.S. 955, et seq. The District Court found that the parties had entered into an arbitration agreement that covered Smith's claims. It granted The Equitable's motion to compel arbitration, and dismissed Smith's claims without prejudice. The District Court reasoned that arbitration was the only relief Smith was allowed under the Federal Arbitration Act ("FAA"), 9 U.S.C. SS 3-4. Smith now appeals, arguing that the District Court should not have applied or enforced the arbitration agreement. Because we lack appellate jurisdiction to hear an appeal of this type of interlocutory order, we will dismiss.

II.

In late 1996, Smith applied for a position selling"Series 6" annuities for The Equitable, a registered broker-dealer of securities. Joseph McDonough, a District Manager for The Equitable, interviewed Smith and forwarded his resume to an Agency Manager named Joel Albert. Allegedly, McDonough wanted to hire Smith but Albert stated he did not want Smith to work for The Equitable because he is African-American. However, in mid-January of 1997 McDonough offered Smith a pre-employment contract to sell securities as a "prospective agent" of The Equitable.

As a prospective agent, Smith could attempt to qualify for regular employment with The Equitable by selling securities for the company during a trial period. The Equitable considered prospective agents to be independent contractors, and allowed them to solicit offers for the sale of securities products on its behalf in order to evaluate them. To become a prospective agent, however, Smith was first required to register with the National Association of Securities Dealers ("NASD"). The NASD in turn required him to sign and submit an application called a U-4 "Uniform Application for Securities Industry Registration or Transfer." This application stated that Smith agreed "to arbitrate any dispute, claim or controversy that may arise between [him] and [his] firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws" listed on the form.

The NASD Code of Arbitration Procedure, incorporated into the U-4 agreement, made the following matters eligible for arbitration:

[A]ny dispute, claim or controversy arising out of or in connection with the business of any members of the [NASD], or arising out of or in connection with the employment or termination of employment of associated person(s) with any member . . .:

(a) between or among members;

(b) between or among members and associated persons;

(c) between or among members or associated persons and public customers, or others.

NASD Manual Code of Arbitration Procedure Rule 10101 (1997).

Of the disputes that are eligible for arbitration, the NASD Code requires that several types always be submitted to arbitration. These categories include disputes involving "a person associated with a member against a member" and vice-versa. NASD Code, Rule 10201(a). A person associated with a member is defined as "a natural person registered under the Rules of the [NASD] . . . or a natural person engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by a member." NASD By-Laws, Art. 1 (ee).

At the outset, the District Court correctly noted that the strong federal policy favoring arbitration required it to resolve all ambiguities in the U-4 agreement in favor of arbitration. See Smith v. The Equitable, 27 F. Supp. 2d 565, 568 (E.D. Pa. 1998) (citing Seus v. John Nuveen & Co., Inc., 146 F.3d 175, 178 (3d Cir. 1998), cert. denied , 119 S. Ct. 1028, 143 L. Ed. 2d 38, and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S. Ct. 1647, 1652, 114 L. Ed. 2d 26 (1991)). The District Court held that the scope of the U-4 agreement did cover Smith's claims, because they arose out of his pre-employment contract with The Equitable:

Accordingly, we find that Plaintiff 's current claims either arise out of or in connection with the business of a NASD member or arise out of the employment or termination of employment of an associated person with any member. Therefore, Plaintiff 's claims constitute the type of claims anticipated by the language of the U-4 Application and the NASD Code of Arbitration Procedure.

Smith v. The Equitable, 27 F. Supp. 2d at 568.

Smith argued that the U-4 agreement should not apply in his case. He claimed that The Equitable fraudulently induced him to sign the agreement, when it knew that it would not hire him. Smith claims The Equitable thus tricked him into waiving his rights under Title VII, and the arbitration agreement should not be enforced as a result. The District Court agreed that the arbitration agreement would not be binding if Smith could demonstrate that it was based on fraud, duress, mistake, "or some other ground recognized by the law applicable to contracts generally." Id. (citing Seus, 146 F.3d at 184 (quotation marks omitted)). However, the District Court also correctly noted that the Federal Rules of Civil Procedure require allegations of fraud to be pleaded with particularity. See Smith v. The Equitable, 27 F. Supp. 2d at 569; Fed. R. Civ. P. 9(b). It concluded that Smith had failed to do so.

The District Court granted The Equitable's motion to compel arbitration. It also granted The Equitable's alternative motion to dismiss the litigation. The District Court reasoned that because all of Smith's claims were subject to arbitration, "retaining jurisdiction would serve no purpose." Smith v. The Equitable, 27 F. Supp. 2d at 569. It therefore dismissed Smith's claims without prejudice. Smith appeals on the grounds that the District Court misconstrued the applicability of the arbitration agreement, that he should have been allowed to plead his allegations of fraud with greater particularity, and that he did not make a knowing and voluntary waiver of his civil rights when he signed the arbitration agreement.

III.

Before we can consider Smith's arguments on the merits, we must address The Equitable's assertion that we lack appellate jurisdiction to hear this appeal. See Zosky v. Boyer, 856 F.2d 554, 555 (3d Cir. 1988), cert. denied, 488 U.S. 1042, 109 S. Ct. 868, 102 L. Ed. 2d 992 (1989) (examining appellate jurisdiction to review order compelling arbitration sua sponte). Our jurisdiction depends on whether or not the District Court's order compelling arbitration was a final (and thus appealable) order, or whether it was an interlocutory (and thus non-appealable) order.

Generally, a federal Court of Appeals may not hear an appeal from a non-final decision of a District Court. See 28 U.S.C. S 1291.¹ Subject to a limited exception,² Section 6(b) of the F.A.A., 9 U.S.C. S 16(b), specifically prevents appeal of a District Court's interlocutory order compelling arbitration. This section provides that:

[A]n appeal may not be taken from an interlocutory order granting a stay of any action under section 3 of this title; directing arbitration to proceed under section 4 of this title; compelling arbitration under section 206³ of this title; or refusing to enjoin an arbitration that is subject to this title.

9 U.S.C. S 16(b)(1)-(4) (format altered). Section 16(b) of the F.A.A. reflects "the strong federal policy favoring arbitration." Seus, 146 F.3d at 179. Because the District Court did compel arbitration under Section 4 of the F.A.A., Section 16(b) prohibits us from hearing Smith's appeal if that order was interlocutory. Whether the order was interlocutory or not depends on whether it arose from an independent or an embedded proceeding.

Independent proceedings are those which have been brought initially for the sole purpose of compelling arbitration pursuant to Section 4 of the FAA, 9 U.S.C. S 4. These proceedings arise independently of any other lawsuit, and the District Court's resulting order is immediately appealable as the final relief sought. As the United States Court of Appeals for the Second Circuit has explained,

[i]f the suit is "independent," i.e., the plaintiff seeks an order compelling or prohibiting arbitration or a declaration that a dispute is arbitrable or not arbitrable, and no party seeks any other relief, a final judgment ending such litigation is appealable at once . . . . If arbitration has been ordered, the objecting party need not await the outcome of the arbitration before challenging the order to arbitrate.

Filanto, S.P.A. v. Chilewich Int'l Corp., 984 F.2d 58, 60 (2d Cir. 1993) (citations omitted and format altered); see also Zosky, 856 F.2d at 557-59 (citing Rogers v. Schering Corp., 262 F.2d 180, 182 (3d Cir. 1959) (in banc) (recognizing distinction between independent proceedings to compel arbitration and those arising as a defense to other claims)...