USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1658
KENNETH P. WOLF,
Plaintiff, Appellant,
v.
GRUNTAL & CO., INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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____________________
Before
Cyr and Stahl, Circuit Judges,
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and DiClerico,* District Judge.
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George S. Isaacson, with whom Brann & Isaacson and Peter D. Lowe
__________________ ________________ _____________
were on brief for appellant.
Joseph P. Moodhe, with whom Debevoise & Plimpton, Ariadne D.
_________________ _____________________ __________
Makris, John P. McVeigh, Preti, Flaherty, Beliveau & Pachios and
______ _________________ ______________________________________
Lionel G. Hest were on brief for appellee.
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January 25, 1995
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____________________
*Chief Judge of the District of New Hampshire, sitting by
designation.
CYR, Circuit Judge. Plaintiff Kenneth P. Wolf appeals
CYR, Circuit Judge.
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a summary judgment order dismissing his Rule 10b-5 claim against
defendant-appellee Gruntal & Co. ("Gruntal"), a securities
brokerage firm, for fraudulently mismanaging Wolf's investment
accounts in violation of Section 10(b) of the Securities and
Exchange Act of 1934, 15 U.S.C. 78j(b). As the district court
erred in ruling that Wolf's claim was precluded by an earlier
arbitral award, we vacate the judgment and remand for further
proceedings.
I
I
BACKGROUND
BACKGROUND
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Viewed in the light most favorable to appellant Wolf,
see Velez-Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874-75
___ ___________ _______________________
(1st Cir. 1993), the summary judgment record discloses the
following facts. In March 1988, Wolf opened cash and margin
accounts with Gruntal at its branch office in Portland, Maine.
Wolf signed a Customer Agreement ("Agreement") which contained an
arbitration clause: "[a]ny controversy between [Gruntal] and
[Wolf] arising out of or relating to this contract or the breach
thereof, shall be settled by arbitration. . . . Notwithstanding
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the foregoing, arbitration shall not be mandated on claims
___ _________ ___________ _____ ___ __ ________ __ ______
asserting violation(s) of Federal securities/commodities laws."
_________ ____________ __ _______ ______________________ ____
Agreement 16 (emphasis added). Paragraph 17 further provided
that "th[e] agreement and its enforcement would be governed by
2
New York law without giving effect to external law." Id. 17.
___
Thereafter, between 1988 and 1990, a Gruntal agent fraudulently
mismanaged Wolf's accounts, causing a loss approximating $1
million.
In December 1991, Wolf initiated the present action
against Gruntal in the United States District Court for the
District of Maine. The complaint asserted seven state-law
claims, as well as one federal claim under the Securities and
Exchange Act of 1934, 15 U.S.C. 78j(b); Rule 10b-5, 17 C.F.R.
3
240 (1993).1 Gruntal moved to stay the district court proceed-
ings pending arbitration on all eight claims.
The district court ruled that the arbitration clause in
the Agreement unambiguously permitted Wolf to forego arbitration
_________
and to litigate the Rule 10b-5 claim in district court, but that
the seven state-law claims were arbitrable. Since no party had
sought to compel arbitration, however, the district court refused
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1Rule 10b-5, promulgated pursuant to section 78(j)(b),
provides in pertinent part:
It shall be unlawful for any person, directly or in-
directly, by the use of any means or instrumentality of
interstate commerce, or of the mails, or of any nation-
al securities exchange,
(a) to employ any device, scheme, or artifice to
defraud,
(b) to make any untrue statement of a material fact or
to omit to state a material fact necessary in order to
make the statements made, in the light of the circum-
stances under which they were made, not misleading, or
(c) to engage in any act, practice, or course of busi-
ness which operates or would operate as a fraud or
deceit upon any person,
in connection with the purchase or sale of any securi-
ty.
17 C.F.R. 240 (1993).
The Rule 10b-5 claim alleged that Gruntal's fraudulent
scheme was comprised of three basic components: (1) Gruntal
misrepresented that its investments would comport with Wolf's
low-risk investment objectives; (2) Gruntal fraudulently extended
the one-month term of Wolf's margin account, without Wolf's
knowledge or consent, in order to promote Gruntal's interests
(i.e., by using Wolf's credit to manipulate the price of stock
____
(Secor/Novametrix) in waging its own "trading war"); and (3)
Gruntal repeatedly concealed the unauthorized margin account
activity by using Wolf's investment and "safekeeping" assets
(e.g., treasury bills) as collateral for his burgeoning margin
____
account indebtedness to Gruntal.
4
to stay its proceedings on the Rule 10b-5 claim pending arbitra-
tion and the parties proceeded with discovery.
In March 1993, Wolf submitted a unilateral demand for
arbitration on the seven state-law claims; in December 1993, he
recovered a $200,000 arbitral award against Gruntal. Gruntal
thereafter moved for summary judgment in the district court,
contending that the final arbitral award on the state-law claims
precluded the Rule 10b-5 claim under the doctrine of res judica-
___ _______
ta.
__
The district court granted summary judgment. Wolf v.
____
Gruntal & Co., No. 91-426-P-H, 1994 U.S. Dist. LEXIS 7627 (D. Me.
_____________
May 24, 1994). It correctly concluded that the Rule 10b-5 claim
and the seven state-law claims arose out of the same "operative
nucleus of fact" (i.e., the ongoing account mismanagement by
____
Gruntal). Id. at *4 (citing Kale v. Combined Ins. Co. of Am.,
___ ____ _________________________
924 F.2d 1161, 1166 (1st Cir.), cert. denied, 112 S. Ct. 69
_____ ______
(1991)). As "Gruntal [had] made clear that it would accept
arbitration of the [Rule 10b-5] claim," the district court
envisioned no "jurisdictional obstacle" in the event Wolf had
elected to submit the Rule 10b-5 claim to arbitration. Conse-
quently, the court reasoned, the final arbitral award on the
state-law claims precluded the Rule 10b-5 claim because Wolf
"could have" presented the federal claim to arbitration. Id. at
___
*5, 6-7 (citing Restatement (Second) of Judgments 84 (1982)).
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Wolf argues that he reasonably relied on the district
court's retention of "exclusive" (i.e., sole and indefeasible)
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5
jurisdiction over the Rule 10b-5 claim and, as a consequence,
that he was victimized by an unfair procedural ambush. Although
we reject Wolf's characterization,2 we hold that the district
court erred in ruling that the federal securities claim was
precluded by the arbitral award on the state-law claims.
II
II
DISCUSSION
DISCUSSION
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A. Standards Of Review
A. Standards Of Review
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We review a grant of summary judgment de novo, under
__ ____
the identical legal standards governing the district court, in
order to determine whether "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
___ ______ _____ __ ________ __ ________
as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added); see
__ _ ______ __ ___ ___
Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir. 1994). As the
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preclusive effect of a prior "judgment" is a question of New York
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2The district court did not purport to oust or bar
concurrent arbitral jurisdiction over the Rule 10b-5 claim. See
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Wolf, 1994 U.S. Dist. LEXIS 7627, at *5-6. Rather, its ruling
____
simply recognized that the district court did possess jurisdic-
tion over Wolf's Rule 10b-5 claim.
6
law,3 it too is subject to de novo review. See, e.g., Gonzalez
__ ____ ___ ____ ________
v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir. 1994).
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3Citing instead to federal decisional law addressing certain
generic res judicata concepts, see, e.g., Pujol v. Shearson/
_______ ___ ________ ___ ____ _____ _________
American Express, Inc., 829 F.2d 1201, 1206-07 (1st Cir. 1987)
_______________________
(prior arbitral awards may have preclusive effect), the district
court did not consider which jurisdiction's law should guide a
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federal court in assessing the preclusive effect of a state-law
based arbitral award which has not been confirmed in a judicial
_________
proceeding. Had Wolf's arbitral award been confirmed by a New
York court, the resulting judgment presumably would be entitled
________
to the same preclusive effect in federal court as it would be
accorded by a New York court. See 28 U.S.C. 1738 ("full faith
___
and credit"); see also, e.g., Oliveras v. Miranda Lopo, 800 F.2d
___ ____ ____ ________ ____________
3, 6 (1st Cir. 1986) (citing Migra v. Warren City Sch. Dist. Bd.
_____ __________________________
of Educ., 465 U.S. 75, 81 (1984)); Restatement (Second) of
________ _________________________
Judgments 84(1), 86. As section 1738's "full faith and
_________
credit" provision does not apply to unconfirmed arbitral awards,
___
however, see McDonald v. City of West Branch, 466 U.S. 284, 287-
___ ________ ___________________
88 (1984) (for res judicata purposes, unless an arbitral award
___ ________
has received judicial confirmation, it is not the product of a
"judicial proceeding" as defined in 28 U.S.C. 1738), it afford-
ed no support for the district court's ruling that Wolf's uncon-
firmed arbitral award was entitled to preclusive effect. Cf.
___
Wolf, 1994 U.S. Dist. LEXIS 7627, at *4 (citing Pujol, 829 F.2d
____ _____
1201, 1204 (1st Cir. 1987) (where final arbitral award had been
confirmed by state court)).
_________
Moreover, since it is now settled law that the contracting
parties may accede (or object) to an arbitral submission of
federal securities claims based on Rule 10b-5, see Shearson/Am.
___ ____________
Express, Inc. v. McMahon, 482 U.S. 220, 227-38 (1987) (Rule 10b-5
_____________ _______
claims not presumptively nonarbitrable), we can discern no sound
reason for not according comparable legal effect to the reason-
able expectations of the contracting parties as embodied in the
choice-of-law clause in their Agreement. See Volt Info. Scienc-
___ __________________
es, Inc. v. Board of Trustees of Leland Stanford Junior Univ.,
________ ___________________________________________________
489 U.S. 468, 478 (1989) (arbitration law "simply requires courts
to enforce privately negotiated agreements to arbitrate, like
____
other contracts, in accordance with their terms") (emphasis
_____ _________
added); McCarthy v. Azure, 22 F.3d 351, 356 (1st Cir. 1994)
________ _____
(citing Restatement (Second) of the Conflict of Laws 187 (1971)
____________________________________________
(courts should generally respect contractual choice-of-law
provisions)). We therefore defer to the emphatic choice-of-law
provision in the Wolf-Gruntal Agreement, see supra pp. 2-3
___ _____
(contract "governed by New York law without giving effect to
external law"), which necessarily encompassed New York res
___
judicata principles.
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7
B. Res Judicata
B. Res Judicata
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Res judicata is not implicated if the forum which
___ ________
rendered the prior "judgment" (viz., the arbitral award) lacked
___
"jurisdiction" over the putatively precluded claim (viz., the
___
Rule 10b-5 claim). See, e.g., Fiore v. Oakwood Plaza Shopping
___ ____ _____ _______________________
Ctr., Inc., 592 N.Y.S.2d 720, 720-21 (App. Div. 1993); Handy v.
__________ _____
Westbury Teachers Ass'n, 480 N.Y.S.2d 728, 731 (App. Div. 1984);
________________________
see also Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 34
___ ____ ___________________ _______________
(1st Cir. 1991); Kale, 924 F.2d at 1167; Pasterczyk v. Fair, 819
____ __________ ____
F.2d 12, 14 (1st Cir. 1987).
Unlike collateral estoppel (issue preclusion), res
___
judicata (claim preclusion) normally bars (i) relitigation of
________
claims actually asserted in a tribunal of competent jurisdiction,
see Restatement (Second) of Judgments 26(1)(c) (1982),4 and
___ ___________________________________
(ii) litigation of claims that arose from the same set of opera-
tive facts and could have been raised in the prior proceeding.
_____ ____ ____ ______
See, e.g., Hodes v. Axelrod, 515 N.E.2d 612, 616 (N.Y. 1987)
___ ____ _____ _______
(adopting "pragmatic" transaction test for determining which
claims could have been raised in prior proceeding); see also
___ ____
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4Among the circumstances in which claim preclusion does not
obtain are those in which "[t]he plaintiff was unable to rely on
a certain theory of the case or to seek a certain remedy or form
of relief in the first action because of the limitations on the
_______ __ ___ ___________ __ ___
subject matter jurisdiction of the courts or restrictions on
_______ ______ ____________ __ ___ ______ __ ____________ __
their authority to entertain multiple theories or demands for
_____ _________ __ _________ ________ ________
multiple remedies or forms of relief in a single action, and the
plaintiff desires in the second action to rely on that theory or
to seek that remedy or form of relief . . . ." Restatement
___________
(Second) of Judgments 26(1)(c) (emphasis added).
________ __ _________
8
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
____________________________ ______
C. Arbitral Awards
C. Arbitral Awards
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Final arbitral awards are entitled to the same preclu-
sive effect as state court judgments, at least as concerns claims
and issues actually raised. See Rembrandt Indus., Inc. v. Hodges
___ ______________________ ______
Int'l, Inc., 344 N.E.2d 383, 384 (N.Y. 1976); see also Khandhar
___________ ___ ____ ________
v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991) (N.Y. law); Katz
_________ ____
v. Financial Clearing & Servs. Corp., 794 F. Supp. 88, 94 (S.D.N-
_________________________________
.Y. 1992) (same); cf. Pujol v. Shearson/American Express, Inc.,
___ _____ ________________________________
829 F.2d 1201, 1206-07 (1st Cir. 1987); infra note 6 and accompa-
_____
nying text. By the same token, we conclude that New York recog-
nizes the same "jurisdictional" limitation upon the reach of res
___
judicata coverage with respect to prior arbitral awards as is
________
generally applied to final judgments, cf. Restatement (Second) of
___ _______________________
Judgments 26(1)(c), supra note 4. We explain.
_________ _____
Because arbitral awards are not "judgments" per se, it
___ __
cannot be presumed, as the district court did, that an arbitral
tribunal acquired competent authority over the putative "pre-
cluded" claim for res judicata purposes. Unlike federal courts
___ ________
of limited jurisdiction and state courts of general jurisdiction,
wherein a litigant, with standing, unilaterally may invoke the
____________
appropriate judicial tribunal's jurisdiction based on extrinsic
constitutional, statutory, or common law authority, see Cine-
___ _____
Source, Inc. v. Burrows, 581 N.Y.S.2d 9, 10 (App. Div. 1992),
____________ _______
arbitral tribunals' authority over particular "claims" is for the
9
most part predetermined by contract; that is, by written agree-
_____________ __ ________ _______ ______
ment of the parties. Id. (noting, as basis for limiting res
____ __ ___ _______ ___ ___
judicata effect of arbitral awards, that "the authority of an
________
arbitrator to decide a controversy is derived entirely from the
consent of the parties").
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Arbitral "claims" comprise two subsets for purposes of
the jurisdictional analysis required under the present analogue
to Restatement 26(1)(c). First, where the parties have
contracted to submit all disputes or controversies to
___
arbitration, either party may compel arbitration simply by
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submitting a unilateral "demand for arbitration," relying on the
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broad-based agreement to arbitrate as the sole source of arbitral
______
authority. See, e.g., N.Y. Civ. Prac. L. & R. 7503(c) (1993);
___ ____
Cohen v. Cohen, 233 N.Y.S.2d 787, 791 (App. Div. 1962) (describ-
_____ _____
ing arbitration proceedings which may be commenced on unilateral
"demand"). Second, even where the contract either includes no
arbitration clause or excludes particular kinds of "claims" from
arbitration, the contracting parties later may agree in writing
to arbitrate any or all such otherwise nonarbitrable claims
("uncovered claims"), simply by entering into a joint arbitral
"submission." Id. As arbitral "jurisdiction" is dependent upon
___
a written agreement between the parties,5 however, any exercise
of arbitral authority over uncovered claims absent a "meeting
____________________
5Although there no longer exists an impenetrable extrinsic
"jurisdictional" obstacle to arbitral authority over Rule 10b-5
claims, see McMahon, 482 U.S. at 227-38, supra note 3, arbitral
___ _______ _____
authority over such a claim nonetheless depends upon the mutual
consent of the parties.
10
of the minds" duly memorialized in a joint arbitral submission
would constitute an exces de pouvoir. See N.Y. Civ. Prac. L. &
_____ __ _______ ___
R. 7501 (putative agreements to arbitrate are unenforceable
_____________
unless reduced to writing).
D. The Scope of the Arbitration Clause
D. The Scope of the Arbitration Clause
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The arbitration clause in the Agreement, which provides
that "arbitration shall not be mandated on claims asserting
violation(s) of Federal securities/commodities laws," places
Wolf's Rule 10b-5 claim squarely into the latter category. Cf.
___
Church v. Gruntal & Co., 698 F. Supp. 465, 468-69 (S.D.N.Y. 1988)
______ _____________
(holding that identical contract language excluded Rule 10b-5
_________
claim from arbitration). As the district court recognized, the
Agreement expressly provided that all non-federal securities
___________
disputes were to be arbitrated but conferred no arbitral authori-
ty over the Rule 10b-5 claim. Nor did the Agreement require Wolf
_______
to initiate an arbitral "submission" encompassing the Rule 10b-5
claim. See Rembrandt Indus., Inc. v. Hodges Int'l, Inc., 359
___ _______________________ ___________________
N.Y.S.2d 807, aff'd, 344 N.E.2d at 384 ("Where, however, [a
_____
'compulsory' counterclaim, arising from the same transaction,]
not passed upon by the arbitrators is the subject of a later
action; obviously the [arbitral] award is not a bar to that
action."); Cine-Source, 581 N.Y.S.2d at 10 (rejecting, in the
___________
context of a broad-based arbitration clause, the contention that
"res judicata applies not only to [claims] which were actually
decided in arbitration but also to those which could have been
_____ ____ ____
asserted . . . ."); Lopez v. Parke Rose Management Sys., Inc.,
________ _____ _________________________________
11
526 N.Y.S.2d 156, 158 (App. Div. 1988) ("[T]he doctrines of
collateral estoppel and res judicata apply to arbitration awards,
. . . [h]owever, where an issue not passed upon by an arbitrator
is the subject of a subsequent action, the award is not a bar to
that action . . . ."); Conforti & Eisele, Inc. v. William J.
________________________ __________
Scully, Inc., 469 N.Y.S.2d 400, 400-01 (App. Div. 1983) (holding
____________
no res judicata effect to "limited" arbitral submission, even
___ ________
where plaintiff presented, then withdrew, the same "claims" from
_________ ________
the first arbitrator during arbitration).6
As the proponent of the res judicata defense, Gruntal
___ ________
was charged with the burden of proving, see Rembrandt, 344 N.E.2d
___ _________
at 384 (claim and issue preclusion); see also Kaufman v. Eli
___ ____ _______ ___
Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985) (same, collateral
____________
estoppel); Clark v. Scoville, 91 N.E. 800, 802 (N.Y. 1910)
_____ ________
(same); cf. also Blonder-Tongue Lab., Inc. v. University of Ill.
___ ____ _________________________ __________________
Found., 402 U.S. 313, 350 (1971); Clark v. Bear Stearns & Co.,
______ _____ ___________________
966 F.2d 1318, 1321 (9th Cir. 1992), at a bare minimum, cf. supra
_______ ___ _____
note 6, that the arbitral forum possessed jurisdiction over the
Rule 10b-5 claim at the time Wolf demanded arbitration on the
__ ___ ____ ____ ________ ___________ __ ___
state-law claims. Notwithstanding the prediction indulged by the
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6Indeed, as indicated in the accompanying text, the cir-
cumstances in these New York cases suggest a far narrower appli-
cation of res judicata principles in the context of arbitral
___ ________
awards than need be deployed here. Thus, even in circumstances
where either party could have submitted a particular claim or
______
issue to compelled arbitration pursuant to a broad-based, written
arbitration clause conferring "jurisdiction" upon an arbitral
forum, the governing preclusion principles under New York law
would bar only claims or issues actually submitted to arbitra-
________ _________
tion.
12
district court that Gruntal would have been amenable to
arbitration in March 1993 the Rule 10b-5 claim was mutually
________
withheld from arbitration under the express terms of the
________
Agreement, and no joint arbitral submission was ever attempted or
memorialized between Wolf and Gruntal.
Under New York law, see, e.g., Cine-Source, 581 N.Y.S.
___ ____ ___________
2d at 10, absent a bilateral, written submission, an arbitral
_________ _______
forum (unlike a judicial forum exercising its presumptive juris-
___________
diction) could not acquire "jurisdiction" over Wolf's Rule 10b-5
claim. Consequently, the arbitral award could not preclude later
_____ ___
litigation of the Rule 10b-5 claim in federal district court.
See, e.g., Clark, 966 F.2d at 1321 ("[P]ursuant to the terms of
___ ____ _____
Bear Stearns' [contractual] agreement with Clark . . . the
arbitration panel did not have subject matter jurisdiction over
Clark's federal claims, [and] Clark could not have brought them
in the prior [arbitration] proceeding.").7 Of course, had
____________________
7The district court apparently misapprehended the thrust of
the Clark case citation to Dean Witter Reynolds, Inc. v. Byrd,
_____ __________________________ ____
470 U.S. 213, 220 n.6 (1985), for the overbroad proposition that
enforcement of an arbitration agreement "ousts" a court from
jurisdiction over the entire dispute. See Wolf, 1994 U.S. Dist.
___ ____
LEXIS 7627, at *7 (citing Clark, 966 F.2d at 1321). Viewed in
_____
context, the Clark citation to Byrd merely emphasized that the
_____ ____
Federal Arbitration Act had been enacted to "ensure judicial
enforcement of privately made agreements to arbitrate" even if
____ __
that "require[ed] piecemeal resolution when necessary to give
_________ __________
effect to an arbitration agreement." Byrd, 470 U.S. at 220-21
____
(quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,
_____________________________ ______________________
460 U.S. 1, 24-25 (1983)) (emphasis added). Thus, in Clark, as
_____
here, the district court retained exclusive jurisdiction over the
_________
Rule 10b-5 claim absent a written, bilateral agreement to the
contrary.
Gruntal cites Kelly v. Merrill Lynch, Pierce, Fenner &
_____ __________________________________
Smith, 985 F.2d 1067, 1069-70 (11th Cir.), cert. denied, 114 S.
_____ _____ ______
Ct 600 (1993), to no avail. There, the "precluding" judgment had
13
Gruntal wished to impress the ensuing arbitral award with preclu-
sive effect vis-a-vis the Rule 10b-5 claim, it could have endeav-
ored to persuade Wolf to join an arbitral submission. See Ticker
___ ______
v. Trager, 482 N.Y.S.2d 535, 536 (App. Div. 1984) ("No one is
______
under a duty to resort to arbitration unless by clear language he
has so agreed.") (quoting Lehman v. Ostrovsky, 264 N.Y. 130, 132
______ _________
(1934)).
III
III
CONCLUSION
CONCLUSION
__________
Although Wolf incorrectly represents that the district
court ousted or impeded arbitral jurisdiction over the Rule 10b-5
claim, see supra note 2, the district court nonetheless retained
___ _____
exclusive jurisdiction over the Rule 10b-5 claim absent an
_________
enforceable arbitral submission encompassing the Rule 10b-5
claim. Consequently, Gruntal was not entitled to judgment as a
matter of law, see Jirau-Bernal, 37 F.3d at 3, and the district
___ ____________
court judgment dismissing the Rule 10b-5 claim on claim preclu-
sion grounds must be vacated.
____________________
been rendered by a federal district court presumptively vested
with "federal question" jurisdiction over the plaintiff's uncov-
ered Rule 10(b)(5) claim, as well as with pendent jurisdiction
over his four state-law claims. As the defendant's consent was
_______
not necessary to enable plaintiff Kelly to assert his state-law
claims in the federal district court action, res judicata did
___ ________
indeed preclude later arbitration of the pendent state-law
claims. Id.
___
14
The district court judgment is vacated. The case is
The district court judgment is vacated. The case is
_______________________________________________________
remanded for further proceedings consistent with this opinion.
remanded for further proceedings consistent with this opinion.
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Costs to appellant.
Costs to appellant.
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15