Theis Research, Inc. v. Brown & Bain

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEIS RESEARCH, INC., an Illinois  No. 02-16839
corporation, D.C. No.
Plaintiff-Appellant, CV-99-20645-RMW
v. ORDER
BROWN & BAIN, a California and AMENDING
Arizona law firm, and such
present and former Brown & Bain  OPINION AND
DENYING
partners, associates, and other REHEARING AND
personnel responsible for the PETITION FOR
management and trial of all REHEARING EN
litigation involving Peter F. Theis BANC AND
and Theis Research, Inc., AMENDED
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
November 5, 2003—San Francisco, California
Filed October 20, 2004
Amended February 18, 2005
Before: David R. Thompson and Stephen S. Trott,
Circuit Judges, and Charles R. Weiner,*
Senior District Judge.
Opinion by Judge Thompson
*Hon. Charles R. Weiner, Senior District Judge for Eastern Pennsylva-
nia, sitting by designation.
1959
THEIS RESEARCH v. BROWN & BAIN 1961
COUNSEL
Paul R. Johnson, Oakland, California, for the plaintiff-
appellant.
Paul Renne, San Francisco, California, for the defendant-
appellee.
ORDER
The opinion in Theis Research, Inc. v. Brown & Bain, pub-
lished at 386 F.3d 1180 (9th Cir. 2004), is amended as fol-
lows:
1. At page 1184, the first sentence of the last beginning
paragraph on that page is deleted. The deleted sentence reads:
Our conclusion that we measure the amount in
controversy by the amount at stake in the underlying
litigation is consistent not only with American Guar-
anty from this circuit, but with decisions from other
circuits as well.
The deleted sentence is replaced by the following sentence:
1962 THEIS RESEARCH v. BROWN & BAIN
Our decision to measure the amount in contro-
versy in this case by the amount at stake in the
underlying litigation is consistent not only with
American Guaranty from this circuit, but with deci-
sions from other circuits as well.
2. At page 1185, the first two sentences of the second
paragraph under III MERITS are deleted. The deleted sen-
tences read as follows:
Theis was required to submit to the arbitrator the
issue whether B&B’s alleged conflicts of interest
rendered the Theis - B&B legal services agreement
void ab initio. Three Valleys Mun. Water Dist. v.
E.F. Hutton, 925 F.2d 1136, 1140 (9th Cir. 1991)
(federal court may consider a defense of fraud in the
inducement of a contract only if the fraud relates
specifically to the arbitration clause itself and not to
the contract generally). The issue was actually sub-
mitted to the arbitrator, who rendered a decision
adverse to Theis.
The two deleted sentences are replaced by the following
two sentences:
Theis submitted to the arbitrator the issue whether
B&B’s alleged conflicts of interest rendered the
Theis-B&B legal services agreement void ab initio.
The arbitrator rendered a decision on this issue
adverse to Theis.
With the foregoing amendments, the panel has voted unani-
mously to deny the petition for rehearing. Judge Trott has also
voted to deny the petition for rehearing en banc, and Judges
Thompson and Weiner recommend denial of that petition.
The full court was advised of the petition for rehearing en
banc and no judge has requested a vote on the petition for en
banc rehearing. Fed. R. App. P. 35.
THEIS RESEARCH v. BROWN & BAIN 1963
The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for panel or en banc
rehearing will be entertained.
OPINION
THOMPSON, Senior Circuit Judge:
This appeal presents the primary question whether, in a
case in which a party seeks to vacate an arbitration award, the
amount in controversy for diversity jurisdiction under 28
U.S.C. § 1332(a) is measured by the amount of the award or
by the amount in dispute in the underlying litigation between
the parties. The arbitration award which Theis Research, Inc.
(“Theis”) moved to vacate was for zero dollars. Contempora-
neously with that motion, Theis filed a complaint that sought
damages from Brown & Bain (“B&B”) in excess of $200 mil-
lion. The claims Theis alleged in this complaint substantially
mirrored the claims it had asserted in the arbitration proceed-
ing, which claims the arbitrator had rejected.
If we measure the amount in controversy for purposes of 28
U.S.C. § 1332(a) by the amount of the arbitration award, the
district court lacked subject matter jurisdiction. If we measure
the amount in controversy by the amount in dispute in the
underlying litigation, the district court had subject matter
jurisdiction.
We conclude that the amount at stake in the underlying liti-
gation, not the amount of the arbitration award, is the amount
in controversy for purposes of diversity jurisdiction, and thus
the district court had jurisdiction under 28 U.S.C. § 1332. The
court denied Theis’s motion to vacate the zero dollar arbitra-
tion award, granted B&B’s motion to confirm the award, and
granted summary judgment in favor of B&B and against
Theis on the claims Theis asserted in its complaint. Theis
1964 THEIS RESEARCH v. BROWN & BAIN
appeals. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
I
FACTS AND PROCEEDINGS
B&B was Theis’s attorney in patent litigation that turned
out badly. Theis demanded arbitration of claims against B&B
for legal malpractice, breach of fiduciary duty, fraud and
breach of contract. The ensuing arbitration resulted in a zero
dollar award to each party. In commenting on the litigation
that spawned the arbitration, the arbitrator stated:
Viewed as a whole, the litigation that is the subject
of this arbitration was an almost unmitigated disaster
both for [Theis] and for B&B. The hopes of [Theis]
and its investors were dashed; years of work by Mr.
Theis and others went unrequited; B&B got no
return on millions of dollars of invested time, and
had to chalk up a major loss on its results chart.
Dissatisfied with the arbitrator’s decision, Theis filed in the
United States District Court a “COMPLAINT FOR BREACH
OF PROFESSIONAL AND FIDUCIARY DUTY, LEGAL
MALPRACTICE, AND FRAUD: APPLICATION AND
NOTICE OF MOTION TO VACATE ARBITRATION
AWARD.” Theis also demanded a jury trial. The claims Theis
set forth in its complaint sought compensatory damages of
$200 million, plus “exemplary and punitive damages.”
After court proceedings which are not relevant to the issues
before us, B&B filed a motion to confirm the arbitrator’s
award. Theis responded with a renewed motion to vacate the
award and a motion for partial summary judgment. The dis-
trict court denied Theis’s motion to vacate and its motion for
partial summary judgment. The court granted B&B’s motion
to confirm the award. Thereafter, the district court granted
THEIS RESEARCH v. BROWN & BAIN 1965
summary judgment in favor of B&B, which judgment rejected
all of the claims Theis asserted in its complaint. This appeal
followed.
On December 16, 2003, we filed a memorandum disposi-
tion affirming the district court’s summary judgment in favor
of B&B. At the time our memorandum disposition was filed,
there did not appear to be any reason to question the existence
of the district court’s subject matter jurisdiction; the parties
were diverse, and neither party suggested, nor did it occur to
us, that the amount in controversy might not meet the $75,000
monetary threshold requirement of 28 U.S.C. § 1332(a).
The question of subject matter jurisdiction was called to
our attention by Luong v. Circuit City Stores, Inc., 256 F.3d
1188 (9th Cir. 2004) (Luong I), an opinion now withdrawn,
which was filed after we had filed our memorandum disposi-
tion. In the Luong I opinion, a panel of this court, with one
member of the panel dissenting, held that the amount in con-
troversy on a petition to vacate an arbitration award should be
measured by the amount of the award rather than the amount
of the claim in the underlying dispute. Id. at 1194. Applying
this measure, Luong I determined that because no monetary
damages had been awarded by the arbitrator, the amount in
controversy requirement for diversity jurisdiction had not
been met. Id. In view of what appeared to be similarities
between Luong I and this case, we recalled our mandate and
awaited finality of the Luong I decision.
The Luong I panel subsequently withdrew its opinion and
replaced it with a new opinion, in which the panel unani-
mously held that the district court had subject matter jurisdic-
tion predicated upon the existence of a federal question under
28 U.S.C. § 1331. Luong v. Circuit City Stores, Inc., 368 F.3d
1109, 1112 (9th Cir. 2004) (Luong II). In the Luong II opin-
ion, the panel did not address the question whether the
amount in controversy in a proceeding to vacate an arbitration
award should be determined by the amount of the award or by
1966 THEIS RESEARCH v. BROWN & BAIN
the amount at issue in the underlying dispute. This case pre-
sents that question. To resolve it, we ordered supplemental
briefing limited to the issue whether the district court had sub-
ject matter jurisdiction. We now conclude that the district
court had diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Our previously filed memorandum disposition is withdrawn,
and we file this opinion affirming the district court’s summary
judgment in favor of B&B.
II
JURISDICTION
In American Guaranty Co. v. Caldwell, 72 F.2d 209 (9th
Cir. 1934), we considered what was the appropriate measure
of the amount in controversy for purposes of diversity juris-
diction under 28 U.S.C. § 1332(a) in the context of proceed-
ings in the district court initially to confirm, and then after re-
arbitration, to vacate an arbitration award. In that case, the
district court had acquired subject matter jurisdiction when
American Guaranty removed to federal court the petitioner’s
application to confirm a $32,500 award. At that time the mon-
etary threshold for diversity jurisdiction under § 1332(a) was
$3,000. The district court vacated the $32,500 award because
the arbitrator was biased, directed the parties to arbitrate their
dispute anew, and retained jurisdiction of the case pending
that arbitration. In the renewed arbitration proceedings, the
plaintiff was shut out with a zero dollar arbitration award
which it then sought to vacate by a motion filed in the pend-
ing district court case.
Eventually, the district court in American Guaranty vacated
the zero dollar arbitration award, and American Guaranty
appealed. On appeal, American Guaranty challenged the dis-
trict court’s subject matter jurisdiction, contending that the
zero dollar award that resulted from the re-arbitration was
insufficient to satisfy the then $3,000 threshold for diversity
jurisdiction under 28 U.S.C. § 1332(a). The American Guar-
THEIS RESEARCH v. BROWN & BAIN 1967
anty court rejected that argument, and held that the district
court had not lost the subject matter jurisdiction it acquired
when the case was first removed to federal court on what was
then the petitioner’s application to confirm the $32,500
award. The court stated “[i]t is the amount in controversy
which determines jurisdiction, not the amount of the award.”
Id. at 211.
It is unclear whether in making this statement the American
Guaranty court was referring to the zero dollar arbitration
award the petitioner eventually sought to vacate, or the
$32,500 arbitration award the petitioner initially sought to
confirm. However, the court’s statement makes sense only if
the court was referring to the zero dollar award — the one
which had the potential of defeating subject matter jurisdic-
tion. That the American Guaranty court measured the
“amount in controversy” by the amount involved in the under-
lying dispute is made clear by the court’s statement:
In addition to the record showing this original
award of $32,500, it further discloses that evidence
had been offered showing [petitioner] had suffered
damages in excess of $100,000, and in one of its
answers [American Guaranty] claims an indebted-
ness by way of offset of $5,525. It is the amount in
controversy which determines jurisdiction, not the
amount of the award.
Id. at 211 (emphasis added).
There is an important difference, however, between the
present case and American Guaranty. In American Guaranty,
the district court initially acquired jurisdiction by the filing of
a motion to confirm the arbitration award of $32,500.
In the present case, the arbitration award was for zero dol-
lars. Theis initially filed in the district court a motion to
vacate that award, coupling that motion with a complaint that
1968 THEIS RESEARCH v. BROWN & BAIN
alleged substantially the same claims Theis had asserted in the
arbitration. Theis’s prayer for relief in its district court com-
plaint was for $200 million plus “exemplary and punitive
damages,” which on the face of the complaint satisfied the
$75,000 monetary threshold for diversity jurisdiction.
Theis argues, however, that we should ignore the claims it
asserted in its district court complaint because those claims
were “non-substantial” as evidenced by the district court’s
eventual dismissal of them as barred by res judicata. We
reject this argument. To treat Theis’s claims as non-
substantial simply because they were eventually dismissed as
being barred by res judicata would retroactively preclude
jurisdiction in any action in which the affirmative defense of
res judicata was asserted and successfully maintained. The
question is not whether B&B was successful in its res judi-
cata defense. The question is whether the amount of damages
Theis claimed in its complaint was asserted in good faith; if
so, that amount controls for purposes of diversity jurisdiction.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
288-89 (1938).
There is nothing on the face of Theis’s complaint, nor in
the record before us, to suggest that the claims Theis asserted
in the district court were not asserted in a good faith belief in
the validity of those claims, notwithstanding that it turned out
Theis’s good faith belief was misplaced. See id.; see also Bud-
get Rent-a-Car, Inc. v. Higashiguchi, 109 F.3d 1471, 1473
(9th Cir. 1997) (dismissal for lack of jurisdiction not proper
if claim exceeding jurisdictional amount is made in the com-
plaint in good faith, even when later events reduce the amount
recoverable).
[1] The question presented to us thus boils down to whether
the $200 million Theis sought to recover by its complaint is
the amount in controversy under 28 U.S.C. § 1332(a), or
whether the amount in controversy must be measured by the
zero dollar arbitration award Theis sought to vacate. We are
THEIS RESEARCH v. BROWN & BAIN 1969
satisfied that the amount in controversy is the amount Theis
sought to recover by its complaint.
Decisions from other circuits support this conclusion,
although the cases have turned upon whether the party seek-
ing to vacate an arbitration award also sought to reopen the
arbitration. See Sirotzky v. New York Stock Exch., 347 F.3d
985, 989 (7th Cir. 2003) (“[T]he amount in controversy in a
suit challenging an arbitration award includes the matter at
stake in the arbitration, provided the plaintiff is seeking to
reopen the arbitration.”); Baltin v. Alaron Trading Corp., 128
F.3d 1466, 1472 n.16 (11th Cir. 1997) (“[T]he [plaintiffs] did
not request an award modification that would provide [them]
with money. Instead, [they] sought merely to reduce or elimi-
nate the arbitration award against them.”); Ford v. Hamilton
Investments, Inc., 29 F.3d 255, 260 (6th Cir. 1994) (“In the
arbitration proceedings [the plaintiff] claimed more than
$50,000 against Hamilton Investments, but he never asked the
district court to order that the arbitrators reopen his claim
. . .”); but see American Guaranty, 72 F.2d at 211 (concluding
that the amount in controversy in the arbitration itself deter-
mines jurisdiction; no apparent request for remand to arbitra-
tion); Bull HN Info. Sys., Inc. v. Huston, 229 F.3d 321, 329
(1st Cir. 2000) (reversing district court decision dismissing
petition to vacate arbitration award based on fact that plaintiff
did not seek remand to arbitration; instead, measuring “the
amount in controversy by the amount at stake in the entire
arbitration”).
Although neither Theis nor B&B asked that the arbitration
proceedings be reopened, Theis sought to obtain by its district
court complaint substantially what it had sought to obtain in
the arbitration. Theis simply chose to “reopen” its claims in
the district court rather than in arbitration. The amount in con-
troversy requirement of 28 U.S.C. § 1332(a) was satisfied.
[2] Our decision to measure the amount in controversy in
this case by the amount at stake in the underlying litigation is
1970 THEIS RESEARCH v. BROWN & BAIN
consistent not only with American Guaranty from this circuit,
but with decisions from other circuits as well. In the Eleventh
Circuit’s decision in Baltin v. Alaron Trading Corp., 128 F.3d
1466 (11th Cir. 1997), the Baltins sought to undo an arbitra-
tion award under which they were required to pay Alaron
Trading $36,284.69. Id. The court held that the then jurisdic-
tional minimum of $50,000 was not met because “[t]he maxi-
mum remedy sought by the Baltins was the vacatur of the
arbitration award of $36,284.69.” Id. Because neither the Bal-
tins nor Alaron Trading sought additional damages, the
amount in controversy was limited to the amount of the arbi-
tration award. See id. & n.16.
Likewise, in Ford v. Hamilton Investments, Inc., 29 F.3d
255 (6th Cir. 1994), the Sixth Circuit held that diversity juris-
diction was lacking because the amount in controversy did not
exceed the $50,000 minimum. Id. at 260. As in Baltin, the
party against whom a $30,524 arbitration award was entered
simply sought to vacate that award, and neither party sought
any additional damages. Id. Indeed, the Sixth Circuit was
quite clear that had the losing party sought to challenge the
arbitrator’s denial of that party’s counterclaims, the amount in
controversy would have been met:
In the arbitration proceedings Mr. Ford claimed
more than $50,000 against Hamilton Investments,
but he never asked the district court to order that the
arbitrators reopen his claim against Hamilton
Investments; all he sought from the district court was
the vacation of an award that fell short of the juris-
dictional amount by almost $20,000.
Id. (emphasis added).
[3] We conclude that in the present case the monetary
threshold of $75,000 for diversity jurisdiction under 28 U.S.C.
§ 1332(a) has been met. There is no dispute as to diversity of
THEIS RESEARCH v. BROWN & BAIN 1971
the parties. The district court, therefore, had subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.
III
MERITS
Theis also appeals the district court’s summary judgment in
favor of B&B by which the court rejected Theis’s claims for
breach of professional and fiduciary duty, legal malpractice,
and fraud. We affirm the district court’s summary judgment.
[4] Theis submitted to the arbitrator the issue whether
B&B’s alleged conflicts of interest rendered the Theis-B&B
legal services agreement void ab initio. The arbitrator ren-
dered a decision on this issue adverse to Theis. The district
court thus did not err when it determined that Theis was
barred from relitigating the same issue as part of its federal
court malpractice claims. Ficek v. S. Pac. Co., 338 F.2d 655,
657 (9th Cir. 1964) (claimant may not voluntarily submit his
claim to arbitration, await the outcome, and if the decision is
unfavorable, challenge the authority of the arbitrator to act).
Having submitted the claim to the arbitrator, Theis could
seek vacatur of the arbitral result only if it was a manifest dis-
regard of the law, First Options of Chi., Inc. v. Kaplan, 514
U.S. 938, 942 (1995) (citing Wilko v. Swan, 346 U.S. 427,
436-37 (1953)), an implausible interpretation of the contract,
Employers Ins. of Wausau v. Nat’l Union Fire Ins. Co. of
Pittsburgh, 933 F.2d 1481 (9th Cir. 1991), the award was pro-
cured by corruption, fraud, or undue means, 9 U.S.C. § 10, or
the arbitrator exceeded his powers, First Options, 514 U.S. at
942. The only argument that fits within any of these catego-
ries which Theis made to the district court, and thus preserved
for appeal, is its argument that the arbitrator’s failure to dis-
close his involvement with B&B’s malpractice carrier
resulted in an award procured by corruption, fraud or undue
means. This argument is wholly unsupported by the record.
1972 THEIS RESEARCH v. BROWN & BAIN
The arbitrator disclosed at the beginning of the hearing that he
had arbitrated other legal malpractice claims involving the
carrier, had recognized the carrier’s representative’s name on
the attendance list, and had dealt with the representative in the
context of prior arbitrations. He then asked the parties if there
were any objections to his proceeding as arbitrator. All parties
consented. By failing to object to the arbitrator proceeding as
arbitrator, and continuing to participate in the hearing after the
arbitrator’s full disclosure, Theis waived any claim that the
arbitrator’s subsequent award should be vacated by reason of
corruption, fraud or undue means predicated upon the arbitra-
tor’s involvement with B&B’s malpractice carrier.
[5] Nor did the district court abuse its discretion when it
refused to permit additional discovery. “We will only find that
the district court abused its discretion if the movant diligently
pursued its previous discovery opportunities, and if the
movant can show how allowing additional discovery would
have precluded summary judgment.” Qualls v. Blue Cross, 22
F.3d 839, 844 (9th Cir. 1994) (emphasis in original). Theis
failed to show how the additional discovery it sought would
have precluded summary judgment. The district court did not
err in denying further discovery.
No other issues raised in this appeal warrant further discus-
sion.
AFFIRMED.