Parker v. K & L Gates, LLP

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 *863& 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 la*864ter 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)(l) (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 other-

wise 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 Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d *865320, 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, plain*866tiff 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 OffShore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (“it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical *867purposes be deprived of his day in court”); Yazdani v. Access ATM, 941 A.2d 429, 431 n. 2 (D.C.2008) (granting challenges to forum-selection clauses based solely on inconvenience of traveling to remote location would “invalidate most such clauses”). Third, Mr. Parker does not assert that enforcing the forum-selection clause in this case would violate a strong public policy of the District of Columbia, and we see no reason why it would.9 Cf, e.g., Friend v. Friend, 609 A.2d 1137, 1139 (D.C.1992) (District of Columbia has a “well-established preference for arbitration when the parties have expressed a willingness to arbitrate”).

In sum, we conclude that the arbitration and forum-selection clauses are valid and enforceable against Mr. Parker.

IV.

A.

The trial court determined that all of Mr. Parker’s claims come within the scope of the arbitration clause.10 We review this determination de novo, Giron v. Dodds, 35 A.3d 433, 437 (D.C.2012), and we uphold the trial court’s ruling. Upon a finding of a valid agreement to arbitrate, a presumption arises in favor of arbitrability. Lopata v. Coyne, 735 A.2d 931, 936 (D.C. 1999). To determine whether a particular claim is covered by an arbitration clause, we “inquire merely whether the arbitration clause is susceptible of an interpretation that covers the dispute.” Haynes v. Ruder, 591 A.2d 1286, 1289 (D.C.1991) (internal quotation marks omitted).

Mr. Parker asserts that the arbitration clause covers only his contractual claims, not his tort and statutory claims. The broad language of the clause, however, covers “[a]ny controversy, claim or dispute ... directly or indirectly concerning this Agreement or the breach hereof or the subject matter hereof....”11 The clause does not limit coverage to contractual claims or exclude tort and statutory claims; rather, it explicitly covers any claim concerning the subject matter of the partnership agreement. Accordingly, we conclude that any claim — whether sounding in contract, tort, or statute — that arises out of Mr. Parker’s employment relationship with K & L Gates is covered by the arbitration clause. See Woodland Ltd. P’ship v. Wulff, 868 A.2d 860, 865 (D.C.2005) (question whether defendants had waived right to compel arbitration was itself arbitrable; “the parties’ broad agreement to arbitrate ‘any dispute arising under or related to’ the ... partnership *868agreement dictates that this question incidental to their dispute ... under that agreement be submitted to the arbitrator”); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 617, 624-28, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (finding that statutory antitrust claims were covered by agreement that “[a]ll disputes, controversies or differences which may arise between [contracting parties] out of or in relation to Articles I-B through V of this Agreement or for the breach thereof, shall be finally settled by arbitration ... ”); Wolff v. Westwood Mgmt., LLC, 503 F.Supp.2d 274, 281-83 (D.D.C.2007) (agreement to arbitrate “any dispute which may arise during construction and management of the office building complex” covers claim of breach of fiduciary duty and “derivative claims”).

Mr. Parker’s employment relationship with K & L Gates is part of the “subject matter” of the partnership agreement, and all of Mr. Parker’s contractual and non-contractual claims concern that relationship. In fact, Mr. Parker himself describes his claims as “arising from termination of his K & L Gates partnership.” We therefore conclude that the trial court did not err in interpreting the arbitration clause to apply to tort and statutory claims as well as contract claims.

B.

Finally, Mr. Parker asserts that his claim under the Age Discrimination in Employment Act of 1967 (“ADEA”), Pub.L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. § 621 et seq. (2011)), is not arbitrable, because ADEA claims are not explicitly covered by the arbitration clause. Mr. Parker relies, however, on cases that apply only to collectively bargained contracts. See Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79-80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (intent “must be clear and unmistakable” for court to find that union-negotiated contract waives “employees’ statutory right to a judicial forum for claims of employment discrimination”); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 251, 258-59, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) (compelling union member to arbitrate ADEA claims because collectively bargained contract “clearly and unmistakably” required arbitration).

The general rule is that federal statutory claims can be submitted to arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (“It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. Indeed, in recent years we have held enforceable arbitration agreements relating to claims arising under the Sherman Act, ... the Securities Exchange Act of 1934, ... the Racketeer Influenced and Corrupt Organizations Act, and ... the Securities Act of 1933.”) (citations omitted); Cole v. Burns Int’l Sec. Servs., 323 U.S.App. D.C. 133, 146, 105 F.3d 1465, 1478 (1997) (“the Supreme Court now has made clear that, as a general rule, statutory claims are fully subject to binding arbitration, at least outside of the context of collective bargaining”). An individual’s agreement to arbitrate such claims need not be stated “clearly and unmistakably.” See Wright, 525 U.S. at 80-81, 119 S.Ct. 391 (“Gilmer involved an individual’s waiver of his own rights, rather than a union’s waiver of the rights of represented employees — and hence the ‘clear and unmistakable’ standard was not applicable.”); American Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 711 (5th Cir.2002) (“[T]he Supreme Court limited its holding in Wright to the context of a collective bargaining agreement, not to an individual’s waiver of his own rights — a situation in which the ‘clear and unmistakable’ standard is not applicable. Thus, outside the area of collective bargaining, in which a third party (the union) *869seeks to waive contractually the rights of an individual member (the employee), there is no requirement that an arbitration provision must clearly and unmistakably express the waiver of an individual’s rights.”) (citations omitted); Williams v. Imhoff, 203 F.3d 758, 763 (10th Cir.2000) (“Although the Court [in Wright] did not discuss in detail the standard applicable to agreements entered into by individual employees, it left little doubt that the ‘clear and unmistakable’ standard was inapplicable to such agreements.”). The trial court therefore correctly concluded that Mr. Parker agreed to arbitrate his ADEA claims.

V.

The parties raise one potential conflict-of-law issue: whether, under § 1281.2(c) of the California Code of Civil Procedure, the trial court should have stayed arbitration proceedings pending the outcome of the litigation in California state court.12 Mr. Parker contends that the substantive law of California governs this dispute, and that the trial court therefore should have issued a stay pursuant to § 1281.2(c). K & L Gates argues that the trial court was correct to apply District of Columbia law. The trial court applied District of Columbia law, but did not discuss which body of law should be applied. We generally review choice-of-law determinations de novo. See Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 40 (D.C.1989).

The forum state’s choice-of-law rules apply to choice-of-law questions, unless the contract explicitly provides otherwise.13 See Adolph Coors Co. v. Truck Ins. Exch., 960 A.2d 617, 620 (D.C.2008) (applying District of Columbia choice-of-law rules); Restatement (Second) of Conflict of Laws § 186, cmt. b, at 559 (1971) (“Values of certainty of result and of ease of application dictate that the forum should ... not concern itself with the complications that might arise if the forum were to apply [the selected] state’s choice-of-law rules.”). Accordingly, we apply District of Columbia law to resolve whether § 1281.2(c) is applicable to this dispute.

A.

Under District of Columbia choice-of-law rules, procedures of the forum normally apply.14 See Huang v. D’Al *870bora, 644 A.2d 1, 4 (D.C.1994) (“Under customary choice of law principles, the laws of the forum ... apply to matters of procedure(internal quotation marks omitted; initial ellipses in Huang). See generally Restatement (Second) of Conflict of Laws, Introductory Note to Ch. 6, at 350 (1971) (“Commonly, it is said that the forum will apply its own local law to matters of procedure and the otherwise applicable law to matters of substance.”)- We conclude for several reasons that § 1281.2(c) is procedural, not substantive.

First, courts have repeatedly treated § 1281.2 as procedural. See, e.g., Volt Info. Scis., Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (concluding that “[t]here is no federal policy favoring arbitration under a certain set of procedural rules” and that § 1281.2(c) was thus not preempted by procedural rules of FAA); Security Ins. Co. of Hartford v. TIG Ins. Co., 360 F.3d 322, 326 (2d Cir.2004) (“Volt controls the present case. It compellingly tells us that section 1281.2(c)(4) is a procedural rule for arbitration and therefore is not preempted by the FAA.”); Cronus Invs., Inc. v. Concierge Servs., 35 Cal.4th 376, 25 Cal.Rptr.3d 540, 107 P.3d 217, 221 (2005) (describing § 1281.2(c) as part of “California procedural law”). Mr. Parker cites no case — and we are aware of none — describing § 1281.2(c) as substantive.

Second, treating § 1281.2(c) as procedural is consistent with the line between procedure and substance drawn in our previous choice-of-law cases. See Olivarius v. Stanley J. Samoff Endowment for Cardiovascular Sci., Inc., 858 A.2d 457, 463 (D.C.2004) (applying time limits and substantive requirements of District of Columbia Superior Court Civil Rule 60(b) as part of forum procedural law, where Maryland substantive law governed and appellant had argued that Maryland Arbitration Act time limits should apply); Fowler v. A & A Co., 262 A.2d 344, 347-48 (D.C.1970) (applying District of Columbia statute of limitations and Maryland substantive law; “the laws of the forum always apply to matters of procedure”); Miller & Long Co. v. Shaw, 204 A.2d 697, 699 (D.C.1964) (treating as substantive for choice-of-law purposes (1) applicable standard of conduct, and (2) whether plaintiff was licensee or invitee when he entered defendant’s property); Hardy v. Hardy, 197 A.2d 923, 924-25 (D.C.1964) (whether evidence is sufficient to reach jury is procedural issue; standard of conduct for negligent conduct is substantive issue).

Third, classifying § 1281.2(c) as procedural comports with general definitions of the term “procedure.” Although this court has not defined the terms “procedural” and “substantive” in the context of choice-of-law analysis, we have held in a different setting that a rule is procedural if it does not address “rights or liabilities” but merely “outlines the method by which the ... action may proceed....” Nunley v. Nunley, 210 A.2d 12, 14 (D.C.1965). The Supreme Court has described procedural law as relating to “the manner and the means by which the litigants’ rights are enforced”; whereas substantive law “alters the rules of decision by which [the] court will adjudicate [those] rights.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 1442, 176 L.Ed.2d 311 (2010) (citations and internal quotation marks omitted; alterations in original). The court’s authority under § 1281.2(c) to stay arbitration pending the outcome of litigation could affect the order and timing of proceedings, but does not directly alter substantive entitlements or standards of conduct or directly determine the enforceability of the arbitration clause. *871Nor was § 1281.2(c) intended to directly affect substantive matters; the California Supreme Court has explained that § 1281.2(c) is designed to avoid “duplication of effort” and “conflicting rulings on common issues of fact and law amongst interrelated parties.” Cronus, 25 Cal.Rptr.3d 540, 107 P.3d at 228.

Mr. Parker argues that the California Supreme Court, in Cronus, held that “application of California law necessarily include[s] ... § 1281.2.” Even if Mr. Parker’s characterization of the holding of Cronus were accurate, however, this court must apply its own choice-of-law rules. As we have explained, under those rules, forum procedures apply. Therefore the Superior Court would not have been required to apply § 1281.2(c) and stay the arbitration, even if California substantive law were applicable.15

We therefore conclude that the trial court was correct to apply District of Columbia procedural law, and we find it is unnecessary to determine which substantive body of law governs this case.16

B.

Finally, Mr. Parker asserts that the trial court offended the Full Faith and Credit Clause and the Due Process Clause of the United States Constitution by failing to apply § 1281.2(c). We conclude that, even if California substantive law governed this dispute, applying District of Columbia procedures would not violate the Full Faith and Credit Clause. See Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (“The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Since the procedural rules of its courts are surely matters on which a State is competent to legislate, it follows that a State may apply its own procedural rules to actions litigated in its courts”) (internal quotation marks and citation omitted). Nor would application of our procedural law violate Mr. Parker’s rights under the Due Process Clause. See id. at 729-30, 108 S.Ct. 2117 (application of forum state’s statute of limitations does not violate Due Process Clause). The cases which Mr. Parker cites in support of his constitutional claims are unhelpful to Mr. Parker, because they involve either the application of a state’s substantive law or the invalidation of part of a contract.17 The order compelling arbitration did not offend Mr. Parker’s constitutional rights.

The judgment of the trial court is therefore

Affirmed.