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Ragab v. Howard

United States Court of Appeals, Tenth Circuit

November 21, 2016

SAMI RAGAB, an individual, Plaintiff - Appellee,
v.
MUHAMMAD HOWARD, individually and in his capacity as owner, partner, and corporate officer, ULTEGRA FINANCIAL PARTNERS, INC., a Colorado corporation; CLIVE FUNDING, INC., a Utah corporation, Defendants-Appellants, and SEED CONSULTING, d/b/a Seed Capital, Defendant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:15-CV-00220-WYD-MJW)

          John Mallonee, Boulder, Colorado, for Defendants - Appellants.

          Todd A. Wells (Theodore J. Gleason, and Coren R. Hinkle, with him on the brief), of Gleason Wells, P.C., Denver, Colorado, for Plaintiff - Appellee.

          Before KELLY, BRISCOE, and GORSUCH, Circuit Judges.

          KELLY, Circuit Judge.

         Defendants-Appellants Ultegra Financial, its CEO Muhammad Howard, (collectively Ultegra Defendants) and Clive Funding, Inc., appeal from the district court's order denying their motion to compel arbitration. Ragab v. Howard, No. 15-cv-00220-WYD-MJW, 2015 WL 6662960 (D. Colo. Nov. 2, 2015). Our jurisdiction arises under 9 U.S.C. § 16(a)(1) and we affirm.

         Background

         In 2013, Mr. Ragab entered into a business relationship with the Ultegra Defendants. The parties had six agreements: a Consulting Agreement, a Membership Interest Purchase Agreement (Purchase Agreement), an Operating Agreement, an Assignment of Limited Liability Company Interest Agreement (Assignment Agreement), an Employment Agreement, and a Non Circumvention, Non Disclosure & Confidentiality Agreement (Non-Circumvention Agreement). Aplt. App. 113-50.

         The agreements contain conflicting arbitration provisions. See Aplt. App. 167-87. Suffice it to say the conflicts involve (1) which rules will govern, (2) how the arbitrator will be selected, (3) the notice required to arbitrate, and (4) who would be entitled to attorneys' fees and on what showing.[1]

         In 2015, Mr. Ragab sued the Ultegra Defendants for misrepresentation and for violating several consumer credit repair statutes. The district court found that Mr. Ragab's claims fell within the scope of all six agreements. Ragab, 2015 WL 6662960, at *4. The Ultegra Defendants moved to compel arbitration. Mr. Ragab added Defendant Clive Funding, Inc., which joined the Ultegra Defendants' motion. The district court denied the motion to compel, concluding that there was no actual agreement to arbitrate as there was no meeting of the minds as to how claims that implicated the numerous agreements would be arbitrated.

         Discussion

         A. Motion to Compel Arbitration

         We review a district court's denial of a motion to compel arbitration de novo and apply the same legal standard as the district court. Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 796 (10th Cir. 1995). We first address whether the inconsistencies across the six arbitration provisions indicate that the parties failed to have a meeting of the minds with respect to arbitration.

         The Supreme Court has "long recognized and enforced a 'liberal federal policy favoring arbitration agreements.'" Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)); see also 9 U.S.C. ยง 2 ("A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in ...


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