Bushley v. Credit Suisse First Boston

Bushley v. Credit Suisse First Boston

Opinion

 [*1150]  LEAVY, Circuit Judge:

The issue presented is whether we have appellate jurisdiction to review the district court's order denying arbitration in one forum requested by the appellant when the same order also compels arbitration in an alternate forum requested by the appellant. Because the district court ordered arbitration pursuant to 9 U.S.C. § 4, its order is not appealable under 9 U.S.C. § 16(b)(2), we have no jurisdiction, and the appeal is dismissed.

BACKGROUND

Credit Suisse First Boston ("CSFB") hired Richard Bushley in 1998 as a sales assistant in its Technology Private Client Services Group. CSFB terminated Bushley for cause in June [**2]  2001. The termination followed a federal investigation regarding CSFB's internal policies for commission sales of stock in initial public offerings. CSFB paid substantial fines as a result of the investigation. In October 2002, Bushley filed this action in the California Superior Court for wrongful termination, libel and slander, and for injunctive relief under California Business and Professions Code § 17200 et seq.

CSFB removed the action to federal court pursuant to 28 U.S.C. § 1441 based upon diversity jurisdiction. CSFB then petitioned to compel arbitration under 9 U.S.C. § 4 and to stay the proceedings pending arbitration under 9 U.S.C. § 3, or in the alternative, to dismiss the action pursuant to FED. R. CIV. P. 12(b)(6). CSFB filed declarations in support of its petition stating that Bushley's claims were subject to arbitration before the National Association of Securities Dealers ("NASD"). CSFB asserted that Bushley signed a "Form U-4 Uniform Application for Securities Industry Regulation" ("Form U-4") containing an arbitration agreement that [**3]  required arbitration before the NASD. CSFB also asserted that Bushley's claims were subject to arbitration under CSFB's Employment Dispute Resolution Program ("EDR program").

 [*1151]  Bushley opposed the petition, arguing that there was no contract obligating him to submit to NASD arbitration. Bush-ley filed a declaration admitting that he signed the Form U-4 attached as Exhibit D to the declaration of CSFB's Director and Counsel in its Legal and Compliance Division. Form U-4 required arbitration of disputes under the rules of one or more organizations checkmarked in Section 10 of the Form U-4. The Form U-4 attached as Exhibit D to CSFB's declaration, however, had no organization checkmarked in Section 10. Bushley also declared that he did not agree to be subject to the EDR program.

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