United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
the Court is Defendant Barry Johnson's Motion to Stay and
Compel Arbitration (ECF No. 11). Magistrate Judge Patricia A.
Sullivan filed a Report and Recommendation
(“R&R”) (ECF No. 20), recommending that the
Motion be denied. Defendant filed a timely Objection to the
R&R (ECF No. 30). The Court accepts the R&R and denies
Defendant acknowledges, “[T]he First Circuit in
Powershare held that a motion to stay pending an
arbitration was non-dispositive.” (Obj. 6 (citing
Powershare, Inc. v. Syntel, Inc., 597 F.3d 10, 14
(1st Cir. 2010)).) On review of a magistrate judge's
decision on a nondispositive motion, the Court “set[s]
aside the order” only “if it ‘is clearly
erroneous or is contrary to law.'”
Powershare, 597 F.3d at 14 (quoting Fed.R.Civ.P.
72(a)) . “This means that [I] must accept both the
trier's findings of fact and the conclusions drawn
therefrom unless, after scrutinizing the entire record, [I]
‘form a strong, unyielding belief that a mistake has
been made.'” Phinney v. Wentworth Douglas
Hosp., 199 F.3d 1, 4 (1st Cir. 1999) (quoting
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
(1st Cir. 1990)).
Defendant's objections are quite specific, they do not
convey the necessary “strong, unyielding belief”
that Magistrate Judge Sullivan clearly erred. For that
reason, the Court adopts the well-supported R&R in full.
this Court ACCEPTS the R&R (ECF No. 20) and adopts its
reasoning and recommendations. Defendant's Motion to Stay
and Compel Arbitration (ECF No. 11) is DENIED.
PATRICIA A. SULLIVAN, United States Magistrate Judge.
before the Court is the motion of defendant, attorney Barry
Johnson, to stay this legal malpractice case and to compel
arbitration pursuant to the Federal Arbitration Act, 9 U.S.C.
§§ 1, et seq. ECF No. 11. Also named as
defendants are the law firm for which Barry Johnson worked,
Law Offices of Steven M. Johnson, P.C., d/b/a the Johnson Law
Firm, together with its principal, Steven M. Johnson
(collectively, “JLF”). Only Barry Johnson, who
apparently is not related to attorney Steven M. Johnson,
presses the motion to compel arbitration.
their complaint, plaintiffs Rickie Patton and his wife,
Cathleen Marquardt, have sued JLF and Barry Johnson, a Texas
attorney who worked for JLF, for legal malpractice (among
other torts), which Patton and Marquardt claim was committed
in the course of defendants' representation of
in litigating and settling Patton's claim in In re
Kugel Mesh Hernia Patch Products Liability
Litigation, MDL Docket 07- 1842-ML (D.R.I.). Barry
Johnson seeks to enforce a set of arbitration clauses
contained in the Attorney Representation Agreement
(“ARA”) (ECF No. 1-1 at 18) executed in April
2007 by Patton (but not his wife) and JLF. ECF No. 1-1 at 18
¶¶ 16-18. Barry Johnson did not sign the 2007 ARA;
his contractual relationship is with JLF and did not begin
until February 20, 2013, when he signed an employment
agreement.Nevertheless, Barry Johnson seeks to
enforce (against Patton and Marquardt) ¶ 17 of the ARA,
which states that any dispute regarding the
“interpretation, performance, or breach of this Fee
Agreement, including any claim of legal malpractice . . .
shall be resolved by final and binding arbitration conducted
in Fort Worth, Texas and administered by Judicial Arbitration
and Mediation Service (JAMS).” ECF No. 1-1 at 18 ¶
17. JLF has not joined, nor does it oppose, the motion.
reasons that follow, I recommend that the motion to compel
arbitration be denied.
April 2007, Patton and JLF signed the ARA whereby Patton
engaged JLF to represent him on a contingent fee basis in
connection with his Kugel Mesh claim. ECF No. 1-1 at 18
¶¶ 1-4. The ARA provides that it is to be construed
pursuant to the law of Texas. Id. ¶ 10. Its
severability clause makes clear that the unenforceability of
any provision does not affect the other provisions.
Id. The ARA reflects Patton's agreement that JLF
might employ associate counsel at its expense and in its
discretion to appear or undertake to represent Patton.
Id. ¶ 11. While plaintiffs and JLF disagree on
the precise sequence of events, it appears that Patton (but
not Marquardt) signed the ARA either immediately prior to or
during their only meeting with attorney Steven M. Johnson,
who signed the ARA on behalf of JLF. See ECF Nos.
15-2 ¶ 4, 15-3 ¶¶ 3-4, 16-2 ¶¶ 4-5.
The ARA is a form prepared by JLF, with terms set out in
sixteen numbered clauses (exclusive of the arbitration
clauses) and lines at the foot of the document for dates and
signatures of “CLIENT” and “ON BEHALF OF
FIRM.” These lines were signed and dated by Patton and
by JLF indicating the formation of the contract to engage
JLF. ECF No. 1-1 at 18. The parties do not dispute that these
sixteen clauses of the ARA constitute a binding engagement
ARA's three arbitration clauses are paragraphs 16, 17 and
18. ECF No. 1-1 at 18 ¶¶ 16-18. They address
arbitration exclusively, including venue selection (Fort
Worth, Texas). None of the other provisions of the ARA makes
any reference to arbitration or to forum selection for
litigation or arbitration of disputes. Collectively, the
three arbitration clauses provide:
(1) The client has been advised “of the advantages and
disadvantages of the use of arbitration” and has had an
opportunity to seek advice from independent counsel;
(2) Based on this advice, the parties agree that “any
dispute arising from the interpretation, performance, or
breach of this Fee Agreement, including any claim of legal
malpractice, . . . shall be resolved by final and binding
arbitration conducted in Fort Worth, Texas and administered
by Judicial Arbitration and Mediation Service (JAMS)”;
(3) “[J]udgment upon any award rendered by the
arbitrator in such proceedings may be entered by any state or
federal court with jurisdiction over the matter.”
Id. ¶¶ 16-18.
three clauses are configured differently from the other
provisions in the ARA form in that each ends with the
following: “***(CLIENT INITIAL HERE ___
X.” Id. (bold in original). However,
none of the three is signed or initialed in the space
following the clause. Both Patton and Marquardt have averred
that, during their brief meeting with attorney Steven M.
Johnson, he did not mention the arbitration clauses, did not
advise them regarding arbitration and did not ask or suggest
that Patton sign or initial any of the arbitration clauses.
ECF Nos. 15-2 ¶ 5, 15-3 ¶ 4. As a result, only the
foot of the document reflects Patton's signature. ECF No.
1-1 at 18. Patton has averred that he never believed or
understood that he agreed to arbitration or that he was
waiving his right to a jury trial. ECF No. 15-2 ¶ 6;
see ECF No. 15-3 ¶ 4 (Marquardt also avers that
Steven M. Johnson did not review the arbitration language or
jury trial waiver during the meeting at which the ARA was
signed). Steven M. Johnson's affidavit states that he met
with Patton and Marquardt at the commencement of the
engagement, soon after ...