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COR Clearing, LLC v. Jarvis

United States District Court, Eighth Circuit

January 9, 2014

COR CLEARING, LLC, Plaintiff,
v.
DAVID H. JARVIS, Defendant.

ORDER

THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on the defendant's Motion to Stay Proceedings and Compel Arbitration (Filing No. 16) and Motion to Stay Discovery and Other Pretrial Proceedings, and For a Protective Order, Pending Resolution of Defendant's Motion to Stay Proceedings and Compel Arbitration (Filing No. 18). The defendant filed a brief (Filing No. 17) with evidence attached[1] in support of the motion to compel arbitration and a brief (Filing No. 19) with evidence attached in support of the motion to stay. The plaintiff filed a brief (Filing No. 22) and an index of evidence (Filing No. 23) in opposition to the motion to compel arbitration and a brief (Filing No. 21) in opposition to the motion to stay. The defendant filed a brief (Filing No. 24) and an index of evidence (Filing No. 25) in reply.

BACKGROUND

The plaintiff brought suit against the defendant for breach of a fiduciary relationship. See Filing No. 1 - Complaint ¶ 1. The plaintiff, a clearing broker, is "an independent full-service clearing and settlement firm, " providing "technology, administrative services and product offerings through multiple customized platforms" to "approximately 75 introducing brokers." Id. ¶ 10; see Filing No. 17 - Brief p. 7 n.1. An introducing broker has a direct relationship with an investing client and delegates the work of the floor operation, trade execution, and handling of securities and money to a clearing broker. See Filing No. 17 - Brief p. 7 n.1.

In January 2012, the plaintiff acquired Legent Clearing. See Filing No. 1 - Complaint ¶ 10. The defendant had been employed by Legent Clearing since December 31, 2009, as the Executive Vice President and General Counsel, and continued to work for the plaintiff as an employee, an attorney, and as General Counsel or Deputy General Counsel, until September 30, 2012. Id. ¶ 12; see Filing No. 17 - Brief p. 2-3. On December 31, 2009, as part of his employment, the defendant signed Legent Clearing's Arbitration Policy form, which provided:

I further agree that...
I will submit any dispute - including but not limited to my termination - arising under or involving my employment with Legent Clearing to binding arbitration within one (1) year from the date the dispute first arose. I agree that arbitration shall be the exclusive forum for resolving all disputes arising out of or involving my employment with Legent Clearing or the termination of that employment....

Filing No. 17 - Ex. R Legent Clearing Arbitration Policy.

The defendant was an independent contractor for the plaintiff from October 1, 2012, until December 31, 2012. See Filing No. 17 - Brief p. 3. As part of the change in his status, in October 2012, the defendant signed a Separation Agreement and General Release, including a Contractor Agreement. See Filing No. 23 - Ex. 1(A). The Separation Agreement states:

This Agreement contains the entire understanding and agreement between COR and Mr. Jarvis with respect to the subject matter hereof and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement, with the exception of any agreements signed by both parties hereto on or after the effective date of this Agreement.

Filing No. 23 - Ex. 1(A) Separation Agreement and General Release ¶ 7 (emphasis added). Although the agreement does not mention arbitration it contains a section titled Governing Law, which states:

This Agreement shall be construed and interpreted in accordance with the substantive laws of the State of Nebraska without giving effect to its conflict-of-laws principles. Mr. Jarvis submits to the jurisdiction of the federal and state courts located in Douglas County, Nebraska and consents that he may be served with any process or paper by certified or registered mail or by personal service within or without the State of Nebraska in accordance with applicable law. Furthermore, Mr. Jarvis waives and agrees not to assert in any action, suit or proceeding brought by COR to enforce this Agreement that he is not personally subject to the jurisdiction of such Douglas County, Nebraska courts, that the action, suit or proceeding is brought in an inconvenient forum or that the venue of the action, suit or proceeding is improper.

Id. ¶ 8 (emphasis added).

In late 2012 and early 2013, more than one of the plaintiff's introducing brokers, independent of their relationships with the plaintiff, became clients of the defendant. See Filing No. 17 - Brief p. 7; see also Filing No. 1 - Complaint ¶¶ 18-22. The plaintiff alleges that in May and June 2013, the defendant contacted the plaintiff by identifying himself as the attorney for two of the plaintiff's clients. See Filing No. 1 - Complaint ¶¶ 19, 21. In these communications, the defendant represented the clients in disputes against the plaintiff. Id. ¶¶ 19-22. The plaintiff alleges the defendant "appeared" to ...


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