Johnson v. Cach, LLC et al

Filing 57

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion to Reopen Case or, Alternatively, for Appointment of Arbitrators (Dkt. 50 ) is DENIED.2. Plaintiffs Motion to Strike (Dkt. 53 ) is DEEMED MOOT. This motionrelates the briefing on t he Motion to Reopen. However, the Court did not needto review attachments to the briefing on the Motion to Reopen in arriving at its decision and the motion to strike is therefore moot. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CHRISTOPHER E. JOHNSON,
Case No. 1:16-cv-00383-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CACH, LLC, and MANDARICH LAW
GROUP, LLP,
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Motion to Reopen Case or, Alternatively, for
Appointment of Arbitrators (Dkt. 50). Additionally, Plaintiff has filed a Motion to Strike
Defendant’s Response (Dkt. 53). For the reasons discussed below, the Motion to Reopen
is denied, and the Motion to Strike is deemed moot.
BACKGROUND
On December 16, 2016, the Court granted Defendant’s Motion to Dismiss by
ordering all claims to arbitration. (Dkt. 27). The Order enforced the underlying
contractual agreement between Johnson and Bank of America, which contained a
provision stating: “The arbitration shall be conducted by the National Arbitration Forum
(‘NAF’). . . . If the NAF is unable or unwilling to act as arbitrator, we may substitute
another nationally recognized, independent arbitration organization that uses a similar
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code of procedure.” (Dkt. 11-2). On September 25, 2017, the Court denied Johnson’s
motion for reconsideration. Subsequently, Johnson filed his claim for arbitration with the
NAF before learning that the forum no longer arbitrates claims involving private
individuals or consumers. (Dkt. 50-1). Johnson now offers the current unavailability of
NAF as an expansion to the factual record, and argues that such unavailability entirely
voids the arbitration agreement.
ANALYSIS
The Court has “distilled various grounds for reconsideration of prior rulings into
three major grounds for justifying reconsideration: (1) an intervening change in
controlling law; (2) the availability of new evidence or an expanded factual record; and
(3) the need to correct a clear error or to prevent manifest injustice.” Gray v. Carlin, 2015
WL 75263, at *2 (D. Idaho Jan. 6, 2015). Johnson challenges the Court's order on ground
two.
The Federal Arbitration Act (“FAA”) provides that written agreements to arbitrate
disputes arising out of transactions involving interstate commerce “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2. The purpose of the FAA is to “reverse the
longstanding judicial hostility to arbitration agreements . . . and to place arbitration
agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 24 (1991). To that end, the FAA divests the district court of its
discretion and requires it to resolve any doubts in favor of compelling arbitration. Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).
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The parties no longer dispute the application of the FAA. Rather, Plaintiff
contends that the unavailability of the agreement’s designated arbitrator dooms the
arbitration clause in its entirety. Under the FAA, the answer to this question turns on
whether the selected arbitrator is integral to the agreement. Reddam v. KPMG LLP, 457
F.3d 1054, 1061 (9th Cir.2006) overruled on other grounds in Atl. Nat'l Trust LLC v. Mt.
Hawley Ins. Co., 621 F.3d 931, 940 (9th Cir.2010). Section 5 of the FAA provides:
If in the agreement provision be made for a method of naming or
appointing an arbitrator or arbitrators or an umpire, such method shall be
followed; but if no method be provided therein, or if a method be provided
and any party thereto shall fail to avail himself of such method, or if for any
other reason there shall be a lapse in the naming of an arbitrator or
arbitrators or umpire, or in filling a vacancy, then upon the application of
either party to the controversy the court shall designate and appoint an
arbitrator or arbitrators or umpire, as the case may require, who shall act
under the said agreement with the same force and effect as if he or they had
been specifically named therein; and unless otherwise provided in the
agreement the arbitration shall be by a single arbitrator.
Where the arbitration clause selects merely the rules of a specific arbitral forum, as
opposed to the forum itself, and another arbitral forum could apply those rules, the
unavailability of the implicitly intended arbitral forum will not require the court to
condemn the arbitration clause. Reddam, 457 F.3d at 1059-61.
While the Ninth Circuit has not explicitly defined what establishes a chosen
arbitral forum as “integral” within a contract, it suggested that the “integral forum”
determination should be approached similarly to how it approaches forum selection
clauses which choose a particular court as the litigation arena. Id. There, selection of a
specific forum is not treated as exclusive of all other forums unless the parties have
expressly stated it so. Id. at 1061 (citing Pelleport investors, Inc. v. Budco Quality
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Theatres, Inc., 741 F.2d 273, 280 (9th Cir.1984); N. Cal. Dist. Council of Laborers v.
Pittsburgh–Des Moines Steel Co., 69 F.3d 1034, 1036–37 (9th Cir.1995); Hunt Wesson
Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 76–78 (9th Cir.1987)). Thus, the Ninth
Circuit has strongly implied that, at a minimum, for the selection of an arbitrator to be
deemed integral, the arbitration clause must include an “express statement” clearly
indicating that the selection of the arbitral forum is mandatory and exclusive, rather than
permissive. Id.
Applying Reddam, the Washington district court in Carideo v. Dell, Inc. found
that the parties’ selection of the National Arbitration Forum (“NAF”) was expressly
stated as the exclusive forum and, thus, integral to the arbitration agreement. Carideo,
2009 WL 3485933, at *5–6 (W.D.Wash. Oct. 26, 2009). The arbitration clause there
provided that the parties’ claims “[s]hall be resolved exclusively and finally by binding
arbitration administered by the National Arbitration Forum (NAF) under its code of
procedure…” Id. at *6, fn. 2 (emphasis added). Thus, the agreement clearly and
unequivocally limited its selection of arbitral forum to NAF while simultaneously
excluding all other arbitral forums from acting in place of NAF.
In contrast, the Selby v. Deutsche Bank Trust Co. Americas court found that,
although the agreement expressly stated the NAF as the selected forum for arbitration,
there was no evidence suggesting the designation of NAF as exclusive. 2013 WL
1315841 at *11 (S.D.Cal. Mar. 28, 2013). The court noted that while the language of the
agreement did state that arbitration “shall . . . be conducted by the [NAF],” and that “all
aspects of any arbitration . . . shall be conducted under the NAF Code of Procedure,” the
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agreement nonetheless did not include language that designated the NAF as the
“exclusive or sole forum for arbitration.” Id. Similarly, a Michigan district court held that
the NAF’s unavailability to arbitrate the case did not render the agreement unenforceable
as there was no evidence that the choice of the NAF as a forum was “as important a
consideration as the agreement to arbitrate itself.” Adler v. Dell Inc., 2009 WL 4580739,
at *3 (E.D. Mich. 2009).
As previously noted, Johnson’s argument hinges upon the unavailability of the
NAF as the agreement’s chosen arbitrator. Johnson relies heavily upon Carideo in asking
the Court to find that the NAF was designated as the exclusive arbitral forum and thus
integral to the agreement. However, unlike the arbitration clause in Carideo which stated
that disputes would be resolved “exclusively” by the NAF, the arbitration clause at issue
here lacks an express statement denoting exclusivity. On the contrary, the agreement
clearly contemplates a scenario in which the NAF is unavailable and specifically provides
that arbitration may occur through another nationally recognized forum. This compels the
conclusion that the agreement’s choice of the NAF was permissive, rather than expressly
exclusive.
Because the language of the agreement not only contemplates the use of arbitral
forums other than the NAF but also provides guidance for doing so, the Court will neither
reopen its order nor appoint an arbitrator. Accordingly, Johnson’s motion will be denied
in full.

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ORDER
IT IS ORDERED:
1. Plaintiff’s Motion to Reopen Case or, Alternatively, for Appointment of
Arbitrators (Dkt. 50) is DENIED.
2. Plaintiff’s Motion to Strike (Dkt. 53) is DEEMED MOOT. This motion
relates the briefing on the Motion to Reopen. However, the Court did not need
to review attachments to the briefing on the Motion to Reopen in arriving at its
decision and the motion to strike is therefore moot.

DATED: February 9, 2018
_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

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