Az Holding, LLC v. Thomas Frederick ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 08 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AZ HOLDING, LLC, a North Dakota No. 11-15271
limited liability company,
D.C. No. 2:08-cv-00276-LOA
Plaintiff-counter-defendant -
Appellant,
MEMORANDUM*
v.
THOMAS C. FREDERICK, husband; et
al.,
Defendants-counter-claimants
- Appellees.
Appeal from the United States District Court
for the District of Arizona
Lawrence O. Anderson, Magistrate Judge, Presiding
Argued and Submitted May 14, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
AZ Holding, LLC (“AZ Holding”) appeals the district court’s order
confirming the Final Arbitration Award in AZ Holding’s diversity action against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Thomas Frederick, Christine Cobb, RBW Consultants, Inc. and Bumaro, LLC
(collectively, “Frederick”). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm. Because the parties are familiar with the factual and procedural
history of this case, we repeat only those facts necessary to resolve the issues
raised on appeal.
As a preliminary matter, we clarify that the settlement agreement between
AZ Holding and Frederick does not impact our jurisdiction because the agreement
was fairly circumscribed and limited to the calculation of payments owed under the
district court’s judgment and the offset of payments owed under a consulting
agreement.
We review de novo a district court’s confirmation of an arbitral award.
Bosack v. Soward, 586 F.3d 1096, 1102 (9th Cir. 2009). “With respect to the
underlying arbitration decision, however, our review is both limited and highly
deferential.” Coutee v. Barington Capital Grp., L.P., 336 F.3d 1128, 1132 (9th
Cir. 2003) (internal quotation marks and citation omitted). We may vacate an
arbitration award only if the conduct of the arbitrator violated the Federal
Arbitration Act (“FAA”) or if the award itself is “completely irrational” or
“constitutes manifest disregard of the law.” Id. (internal quotation marks and
citation omitted). We have no authority to reweigh the evidence. See id. at 1133.
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Contrary to AZ Holding’s assertion, there is no indication that the Arbitrator
construed § 9.12(d) of the Asset Purchase Agreement (“APA”) as a permissive,
rather than mandatory, provision. The Arbitrator acknowledged that § 9.12(d)
governed, but ultimately concluded that neither AZ Holding nor Frederick was a
“prevailing party” under the section and, as such, were not entitled to attorney’s
fees. “Prevailing party” is not a defined term in the APA and that determination
was within the Arbitrator’s authority. The Arbitrator’s conclusion that AZ Holding
prevailed with respect to some claims, but not others, did not foreclose the
possibility that AZ Holding was not a “prevailing party” within the meaning of
§ 9.12(d). See Lagstein v. Certain Underwriters of Lloyd’s, London, 607 F.3d 634,
643 (9th Cir. 2010) (noting that a reviewing court need only determine whether the
arbitrator’s interpretation was plausible).
AZ Holding’s claim that it is entitled to attorney’s fees under § 9.11 of the
APA is equally unpersuasive. To the extent this argument relies on the meaning of
“prevailing party” in the APA, it fails for the reasons stated above. In addition, the
decision not to award fees under § 9.11 falls within the scope of the Final
Arbitration Award’s statement that “[a]ll claims for relief, costs, expenses or
damages not specifically addressed in this Award are denied.” The Arbitrator’s
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decision drew its essence from the parties’ agreement and was not completely
irrational. See Bosack, 586 F.3d at 1106.
Finally, the district court was not required to award attorney’s fees under
Arizona Revised Statute § 12-341.01. The language of the APA permitted the
Arbitrator to make all determinations relating to court costs, arbitration expenses
and reasonable attorney’s fees, including those incurred in the two years of
litigation that preceded the arbitration. No separate determination by the district
court was required. An award of attorney’s fees under § 12-341.01 is
discretionary. It was within the district court’s discretion to determine that the case
amounted to “a draw” and that AZ Holding was not entitled to attorney’s fees. See
Assoc. Indem. Corp. v. Warner, 694 P.2d 1181, 1184 (Ariz. 1984) (holding that the
phrase “may award” in § 12-341.01 “vest[s] discretion in the trial court to
determine the circumstances appropriate for the award of fees”).
AFFIRMED.
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