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Moore v. Local 569 of International Brotherhood of Electrical Workers

filed: May 5, 1995.

LAWRENCE MOORE, PLAINTIFF-APPELLANT, AND WALTER F. WHELAN; WALTER F. WOBLAN, JR., PLAINTIFFS,
v.
LOCAL 569 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; PAUL BLACKWOOD; WAYNE LOVIN; JIM WESTFALL; TOM PRIDEMORE; JOE HEISLER; DICK SMITH; TERRY GODSHALK, ET AL.; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; J. J. BARRY; S. R. MCCANN; RICHARD ROBBINS; SAN DIEGO ELECTRICAL INDUSTRY TRAINING TRUST, DEFENDANTS, AND ATKINSON MECHANICAL; FISCHBACH & MOORE, INC., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-87-00172-B. Rudi M. Brewster, District Judge, Presiding.

Before: Monroe G. McKay,*fn* Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Fernandez.

Author: Fernandez

FERNANDEZ, Circuit Judge:

Lawrence Moore brought this action against Fischbach & Moore, Inc. (Fischbach) among others. After his action failed as to Fischbach, the district court upheld an attorneys' fee award which was imposed upon Moore pursuant to an arbitration procedure. Moore then appealed. He raises a whole host of issues, but we find one dispositive - did the arbitration agreement's attorneys' fee provision apply to Moore? The answer to that question is no. We, therefore, do not decide the other issues regarding that award of fees. However, we do consider Moore's additional claim that he should not have been sanctioned for a late filed motion. We reverse in part and vacate and remand in part.

BACKGROUND

Moore was a member of Local 569 of the International Brotherhood of Electrical Workers and an employee of Fischbach. It and Local 569 were signatories to a collective bargaining agreement which had a lengthy title but which we will simply call the "Inside Agreement." At the time this dispute arose the October 1, 1986 version of the Inside Agreement was in effect, but before the case went to trial, the August 23, 1988 version was adopted.

Moore was of the opinion that Fischbach and Local 569 had cooperated in a manner that allowed Fischbach to evade the terms of the 1986 version of the Inside Agreement. He therefore brought this action. Local 569 then filed a formal grievance against Fischbach based upon the substance of Moore's complaints. That process was initiated after the 1988 version of the Inside Agreement was in effect, and reached a Conclusion while this action was in progress. Fischbach prevailed.

Moore, however, continued with this action because he still believed that Fischbach had violated the Inside Agreement and because he also believed that Local 569 had violated its duty of fair representation to him. Fischbach again prevailed.

After winning, Fischbach made a motion for an award of the attorneys' fees under the 1988 version of the Inside Agreement. Upon holding that the agreement was legal and applicable to Moore, the district court referred the issue to arbitration for a determination as to the reasonableness of the amount. Our review of the record reveals that the arbitration committee considered only the reasonableness of the fees. The arbitration resulted in an award of $244,104.01 of attorneys' fees against Moore. Upon petition by Fischbach, the district court confirmed the award and entered judgment accordingly. Moore appealed.

STANDARD OF REVIEW

The scope of an arbitration clause is reviewed de novo. See Dennis L. Christensen Gen. Bldg. Contractor, Inc. v. General Bldg. Contractor, Inc., 952 F.2d 1073, 1076 (9th Cir. 1991). Of course, we must determine whether the arbitration provision itself is legal. See Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244, 1247-48 (9th Cir. 1994). We review that issue de novo also. See Three Valleys Mun. Water Dist. v. E.G. Hutton & Co., Inc., 925 F.2d 1136, 1139 (9th Cir. 1991); Paulson v. Dean Witter Reynolds, Inc., 905 F.2d 1251, 1254 (9th Cir. 1990). We review a district court's imposition of sanctions pursuant to Federal Rule of Civil Procedure 11 for abuse of discretion. See Roundtree v. United States, 40 F.3d 1036, 1038 (9th Cir. 1994).

Discussion

A. Legality of the Fee Shifting Provision.

Long after the dispute over Fischbach's practices arose between it and Moore, and after Moore had commenced this litigation, the 1988 version of the Inside Agreement was adopted. The ...


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