Sterling Financial Inv. Group, Inc. v. Hammer, 03-15745.
| Decision Date | 16 December 2004 |
| Docket Number | No. 03-15745.,03-15745. |
| Citation | 393 F.3d 1223 |
| Parties | STERLING FINANCIAL INVESTMENT GROUP, INC., Plaintiff-Appellee, v. Bernard D. HAMMER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Alfred A. LaSorte, Jr., Shutts & Bowen, LLP, West Palm Beach, FL, William S. Shepherd, Jr., Shepherd, Smith & Edwards, LLP, Houston, TX, for Defendant-Appellant.
Samantha J. Kavanaugh, Jonathan Goodman, Akerman, Senterfitt & Eidson, P.A., Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BARKETT, HULL and COX, Circuit Judges.
I. INTRODUCTION
Bernard D. Hammer appeals an order entered by the district court in the Southern District of Florida granting Sterling Financial Investment Group Inc.'s motion to stay arbitration in Houston, Texas and compel arbitration in Boca Raton, Florida. We conclude that the district court properly exercised jurisdiction in this case pursuant to section 4 of the Federal Arbitration Act, 9 U.S.C. § 4 (2004). Accordingly, we affirm.
II. BACKGROUND & PROCEDURAL HISTORY
Bernard Hammer, a stockbroker at Morgan Stanley/Dean Witter in Beaumont, Texas, was approached by the Sterling Financial Investment Group, Inc. about possible employment at Sterling's headquarters in Boca Raton, Florida. After several months of negotiations, Hammer accepted Sterling's offer to work as their nationwide supervisor for recruitment of brokers. He resigned his position at Morgan Stanley/Dean Witter in Texas, relocated to Florida, and began working for Sterling in September of 2001.
Hammer entered into two agreements with Sterling in October of 2001, an Employment Agreement and a Representative Agreement. The Employment Agreement states that Hammer is an "at will" employee of Sterling. And, the Employment Agreement contains an arbitration agreement with a forum selection clause, which provides that:
The parties agree that any claim or controversy concerning the terms, conditions or application of this Agreement shall be subject to arbitration pursuant to the National Association of Securities Dealers, Inc. in Boca Raton, Florida.
(R.-1 at Ex. A, ¶ 11.) The Employment Agreement further provides that it "shall be construed, and the validity, performance and enhancement thereof, shall be governed by the laws of the State of Florida." (Id. at ¶ 5.) Similarly, the Representative Agreement contains an arbitration agreement with a forum selection clause, which provides that:
Any disputes between the parties hereto shall be submitted to binding arbitration before the National Association of Securities Dealers with venue being in the State of Florida.
(R.-1 at Ex. B, ¶ 14.) The Representative Agreement also states that it "shall be construed in accordance with and shall be governed by the laws of the State of Florida." (Id. at ¶ 13.)
Not long after beginning his new job, Hammer was fired. Sterling claims that Hammer's job performance was unsatisfactory. Hammer claims that he was not provided with sufficient support staff, office or telephone arrangements, and that there was confusion at Sterling about his position and his responsibilities. Hammer returned to Texas and, in February 2003, commenced arbitration proceedings against the company. Hammer filed a Statement of Claim against Sterling with the National Association of Securities Dealers (NASD), asserting claims for fraudulent inducement and quasi contract, breach of contract and promissory estoppel, and "other claims under statutory and common law." (R.-1 at Ex. C.) Hammer asked that the arbitration be assigned to a panel in Houston, Texas. Sterling objected to the Texas venue and asked that the NASD transfer venue to Florida. The NASD denied Sterling's request, and referred the motion to an arbitration panel in Houston, Texas.
Sterling filed a motion in the United States District Court for the Southern District of Florida, seeking to stay the Texas arbitration and compel arbitration in Florida. The district court granted Sterling's motion, and Hammer appeals.
III. ISSUE ON APPEAL AND STANDARD OF REVIEW
We must determine whether the district court properly enjoined arbitration in Houston, Texas and compelled arbitration in Boca Raton, Florida. We review the district court's decision de novo. Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th Cir.2001).
IV. CONTENTIONS OF THE PARTIES
Hammer contends that the district court improperly enjoined the arbitration and improperly reversed the venue determination made in arbitration. According to Hammer, since both parties agree that arbitration is appropriate, all decisions — including a decision about venue — should be made by the arbitrators. Hammer's position is bolstered by rule 10315 of the NASD's Code of Arbitration Procedure which states that "[t]he Director shall determine the time and place of the first meeting of the arbitration panel and the parties." NASD Code of Arbitration Procedure § 10315 (2003). The rule further provides that "[t]he arbitrators shall determine the time and place for all subsequent meetings...." Id. Hammer asserts that it is inappropriate for federal courts to micro-manage the vast array of issues which arise in arbitration proceedings.
Sterling contends that the district court had the authority under the Federal Arbitration Act to enforce the terms of the Employment and Representative agreements. According to Sterling, the mere fact that both parties consent to arbitration does not divest a federal court of jurisdiction to enforce forum selection and choice of law clauses in the parties' agreements.
V. DISCUSSION
We begin our discussion with section 4 of the Federal Arbitration Act, which provides that:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing...
To continue reading
Request your trial
-
U.S. v. Kaley
...("[A]n argument made for the first time in the court of appeals is generally waived ....") (citing Sterling Fin. Inv. Group, Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir.2004)); Mills v. Singletary, 63 F.3d 999, 1008 n. 11 (11th Cir. 1995) ("The law in this circuit is clear that arguments ......
-
Michel v. NYP Holdings, Inc.
...use his briefing to add new allegations and argue that those new assertions support his cause of action. Sterling Fin. Inv. Grp., Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir.2004) ("The law in our circuit is clear that arguments not presented in the district court will not be considered f......
-
Albra v. Advan, Inc., 06-15969, Non-Argument Calendar.
..."[A]rguments not presented in the district court will not be considered for the first time on appeal." Sterling Fin. Inv. Group, Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir.2004). We therefore do not address these 2. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, ......
-
Ga. Cas. & Sur. Co. v. Excalibur Reinsurance Corp., Civil Action No. 1:13–cv–00456–JEC.
...requirements of the contract may the courts intervene in the procedural decisions of the arbitrators. See Sterling Fin. Inv. Grp., Inc. v. Hammer, 393 F.3d 1223, 1225 (11th Cir.2004) (“[A] federal district court, pursuant to 9 U.S.C. § 4, has jurisdiction to enforce a forum selection clause......