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Parker v. K & L Gates, LLP

Court of Appeals of Columbia District

September 19, 2013

Robert Ted PARKER, Appellant,
v.
K & L GATES, LLP, et al., Appellees.

Argued Jan. 8, 2013.

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Robert Ted Parker, Washington, DC, pro se.

Mark W. Foster, with whom Michael R. Smith, Washington, DC, and Susan Dudley Klaff were on the brief, for appellees.

Before Easterly and McLeese, Associate Judges, and Ferren, Senior Judge.

McLEESE, Associate Judge:

Robert Parker filed suit in California state court against several defendants, including his former employer, law firm K & L Gates, LLP, and two of its partners. Invoking arbitration and forum-selection clauses in the firm's partnership agreement, the K & L Gates defendants moved in the District of Columbia Superior Court to compel arbitration. The Superior Court ordered the parties to arbitrate their dispute, and Mr. Parker appealed. We affirm.

I.

Kirkpatrick & Lockhart Nicholson Graham, LLP and Preston Gates & Ellis, LLP merged in 2006 to form K & L Gates. The new firm required all former partners of Preston Gates & Ellis who wished to become partners at K & L Gates to sign a supplement to the firm's partnership agreement. Mr. Parker had been a partner at Preston Gates & Ellis, and he chose to join K & L Gates as a partner. Mr. Parker signed the supplement.

The supplement states that new partners agree to be bound by K & L Gates's partnership agreement " as amended." One of the amendments to the partnership agreement contains an arbitration clause. That amendment had been added to the partnership agreement before Mr. Parker signed the agreement.

A dispute later arose between Mr. Parker and K & L Gates. As a result of the dispute, Mr. Parker stopped working at K

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& L Gates and filed a lawsuit in California state court against K & L Gates, two partners of K & L Gates, and other parties. Mr. Parker's complaint alleges breach of contract, breach of fiduciary duty, wrongful termination, age discrimination, and other claims.

The K & L Gates defendants (referred to hereinafter as " K & L Gates" ) filed a motion to compel arbitration in Superior Court. The Superior Court directed the parties to proceed to arbitration. Mr. Parker filed a motion to alter or amend the judgment, pursuant to Super. Ct. Civ. R. 59(e). The trial court denied the motion, and this appeal followed.[1]

II.

At the outset, we address two jurisdictional issues: the timeliness of the appeal and the finality of the order on appeal. We conclude that the appeal was timely and that the order on review was final.

A.

We first address whether Mr. Parker's appeal was timely. The answer to that question depends on whether Mr. Parker's post-judgment motion to alter or amend pursuant to Super. Ct. Civ. R. 59(e) was timely and therefore tolled the time to appeal. We conclude that Mr. Parker's Rule 59(e) motion was timely, and that the appeal was timely as well.

The trial court's order compelling arbitration was issued on September 6, 2011. The order was served both electronically and by mail. Mr. Parker submitted his Rule 59(e) motion to alter or amend electronically eleven days later, on September 21, 2011, and received an electronic confirmation. Although Mr. Parker's motion was subsequently rejected but then apparently accepted and docketed, we conclude that Mr. Parker's motion is properly understood to have been filed on September 21, 2011, the date that the electronic confirmation initially showed it as having been filed. Super. Ct. Civ. R. 5(e)(2)(A) (" Filing by electronic means is complete upon transmission, unless the party making the transmission learns that the attempted transmission was undelivered or undeliverable." ).

Mr. Parker's Rule 59(e) motion therefore was timely. Allowing ten days for filing, adding three days because the order compelling arbitration was not served by hand, and excluding weekends and holidays, Mr. Parker could have timely filed his Rule 59(e) motion as late as September 23, 2011. See Super. Ct. Civ. R. 6(a), 6(e), 59(e); Wallace v. Warehouse Emps. Union # 730, 482 A.2d 801, 806-10 (D.C.1984) (three-day extension provided by Rule 6(e) applies to Rule 59(e) motions; three-day period under Rule 6(e) and ten-day period under Rule 59(e) are calculated separately and exclude weekends and holidays). Finally, because Mr. Parker filed the notice of appeal on December 5, 2011, thirteen days after the trial court denied the timely Rule 59(e) motion, the notice of appeal was also timely. See D.C.App. R. 4(a)(1); Frain v. District of Columbia, 572 A.2d 447, 450 (D.C.1990).

B.

K & L Gates filed a motion to dismiss Mr. Parker's appeal as having been taken from a non-final and non-appealable order. A motions division of this court denied the motion to dismiss, but directed the parties to address in their briefs " whether this court has jurisdiction over an appeal from a trial court order compelling arbitration." K & L Gates later

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changed its position, and the parties now agree that the order compelling arbitration was an appealable order. We nonetheless must independently verify that we have jurisdiction. See Murphy v. McCloud, 650 A.2d 202, 203 n. 4 (D.C.1994).

The Council of the District of Columbia adopted a version of the Revised Uniform Arbitration Act (" RUAA" ) in 2007.[2] See Arbitration Act of 2007, D.C. Law 17-111, 55 D.C.Reg. 1847 (Feb. 29, 2008); Menna v. Plymouth Rock Assurance Corp., 987 A.2d 458, 462-63 (D.C.2010). As enacted, the RUAA provides that orders compelling arbitration are appealable. D.C.Code § 16-4427(a)(1) (2012 Repl.) (" An appeal may be taken from ... [a]n order ... granting a motion to compel arbitration." ). The Home Rule Act, however, prohibits the Council from legislating " with respect to any provision of Title 11." D.C.Code § 1-206.02(a)(4) (2012 Repl.); Pub.L. No. 93-198, 87 Stat. 774, 813 (1973). Among other things, Title 11 defines the scope of this court's jurisdiction over appeals from Superior Court. See D.C.Code § 11-721(a) (2012 Repl.) (authorizing this court to review final orders and judgments of Superior Court). If the RUAA conferred jurisdiction to review orders that otherwise would not be appealable under Title 11, a potential issue would arise under the Home Rule Act. This court has already held, however, that orders compelling arbitration in the circumstances of this case are final and appealable under Title 11. Carter v. Cathedral Ave. Coop., Inc., 658 A.2d 1047, 1051 n. 5 (D.C.1995) (per curiam); see also Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86-89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (holding that order compelling arbitration and dismissing other claims was final because it " plainly disposed of the entire case on the merits and left no part of it pending before the court" ).[3] Because such orders are final and appealable under both Title 11 and the RUAA, we need not address the Home Rule Act issue that would arise in the event of a conflict between Title 11 and the RUAA. Thus, under this court's decision in Carter, the order compelling arbitration in this case is final and appealable.[4]

III.

We review de novo the trial court's determination that the arbitration and forum-selection clauses at issue were valid and enforceable. See

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Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 327 n. 8 (D.C.2001) (" Whether a contract is enforceable is a legal issue that this court considers de novo. " ); Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 936 (9th Cir.2001) (" We review de novo a district court's order denying a petition to compel arbitration, including its interpretation of the validity and scope of the arbitration clause." ). We uphold the trial court's ruling.

The supplement to the partnership agreement binds its signatories to K & L Gates's partnership agreement " as amended." One of the amendments, added before Mr. Parker signed the partnership agreement, contains the arbitration and forum-selection clauses. Therefore, by signing the supplement, Mr. Parker assented to those provisions. Davis v. Winfield, 664 A.2d 836, 838 (D.C.1995) (" Mutual assent to a contract ... is most clearly evidenced by the terms of a signed written agreement...." ).[5] Mr. Parker has not asserted that he was ever denied an opportunity to review the full partnership agreement; rather, Mr. Parker testified that after his separation from K & L Gates he requested a copy of the full partnership agreement and K & L Gates gave him a copy. Mr. Parker thus had an opportunity to read the arbitration and forum-selection clauses, and he received adequate notice of them. " The general rule is that absent fraud or mistake, one who signs a contract is bound by a contract which he has an opportunity to read whether he does so or not." Nickens v. Labor Agency, 600 A.2d 813, 817 n. 2 (D.C.1991).[6] Accordingly, Mr. Parker is bound by those terms. See Brown v. Dorsey & Whitney, LLP., 267 F.Supp.2d 61, 80-81 (D.D.C.2003) (applying District of Columbia law, finding agreement to arbitrate enforceable where law firm's dispute-resolution policy contained an arbitration clause and where " plaintiff was presented with an employment agreement which called for her to agree to be bound by the law firm's dispute resolution policy. Not knowing what the exact policy was, and without requesting a copy of the policy even though she was told she could have access to it, plaintiff

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signed the Employment Agreement." ); cf. Forrest v. Verizon Commc'ns, Inc., 805 A.2d 1007, 1010 (D.C.2002) (enforcing forum-selection clause where clause had been reasonably communicated to objecting party). Moreover, the trial court found that Mr. Parker is a seasoned attorney, which further supports holding Mr. Parker to his agreement. See Brown, 267 F.Supp.2d at 73-74.

Mr. Parker also argues on appeal that the trial court erred by failing to consider evidence that K & L Gates committed fraud at the time of contract formation. Because Mr. Parker alleged fraud for the first time in his Rule 59(e) motion, he has forfeited that defense. See, e.g., Pacific Ins. Co. v. American Nat'l Fire Ins. Co., 148 F.3d 396, 404 (4th Cir.1998) (upholding trial court's determination that party could not assert new legal theory in opposition to opponent's Rule 59(e) motion and describing " overwhelming authority that a party should not be permitted to raise new arguments or legal theories of liability on a motion to alter or amend the judgment under Rule 59(e)" ); cf. Nuyen v. Luna, 884 A.2d 650, 655 (D.C.2005) (Rule 59(e) motion " does not provide a vehicle for a party to undo its own procedural failures" ) (quoting United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165 n. 9 (1st Cir.2004)). Therefore, even though the trial court did not explicitly address Mr. Parker's allegations of fraud in its order denying Mr. Parker's Rule 59(e) motion, that is not a basis for reversal.[7]

Mr. Parker further asserts that enforcement of the forum-selection clause is unreasonable under the circumstances of this case. [8] To establish unreasonableness, Mr. Parker must show either (1) that his consent was obtained through fraud; (2) that requiring Mr. Parker to arbitrate and to defend the motion to compel in the District of Columbia would be so unfair as to deprive him of a remedy or deprive him of his day in court; or (3) that enforcement of the clause would violate a strong public policy of the state where the action was filed. Forrest, 805 A.2d at 1011-12.

Mr. Parker fails to make any of these three showings. First, we have already explained that Mr. Parker forfeited any claim of fraud. Second, although Mr. Parker asserts that arbitrating in the District of Columbia would be inconvenient, because he and most of the potential witnesses live in California, he makes no effort to explain why that inconvenience would prevent him from obtaining a remedy or effectively deprive him of his day in court. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (" it should be incumbent on the party ...


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