FILED

NOT FOR PUBLICATION JAN 15 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE SUNRISE TRUST, et al., No. 12-17456

Plaintiffs - Appellants, D.C. No. 2:12-cv-00944-JCM-

PAL

v.

MEMORANDUM *

MORGAN STANLEY & Co., Inc., et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted January 13, 2014 San Francisco, California Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

Plaintiffs-Appellants The Sunrise Trust and Susan King appeal from the

District Court’s judgment confirming an arbitration award.1 We have jurisdiction

1 King was not a party to the arbitration; the Trust was the only claimant in the arbitration. Only a party to an arbitration may move to vacate the resulting

* This disposition is not appropriate for publication and is not precedent, except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision without oral argument, pursuant to Fed. R. App. P. 34(a)(2)(B) & (C). pursuant to 28 U.S.C. § 1291, and we affirm.

In general, the Trust argues that the arbitration panel is “guilty of

misconduct in refusing to postpone the [arbitration] hearing,” pursuant to 9 U.S.C.

§ 10(a)(3). The record, however, does not support the Trust.

When the Trust, though its counsel, moved for a postponement six days

before the hearing based on King’s health, the panel provided a number of reasons

to support its ruling that the hearing would proceed as scheduled. The panel stated

that it had previously granted the Trust a postponement, that the Trust’s motion

had been made “within days of the scheduled hearing” for a “second time,” that the

respondents had not joined in the request, that “far too many” witnesses were

expected to attend the hearing, and that it would “make arrangements for Ms.

King’s testimony at a later date” because she was a witness, but “not the Claimant

in this case.” The panel’s ruling was not an “arbitrary denial of a reasonable

request for postponement.” Sheet Metal Workers Int’l Ass’n Local Union No. 420

v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir. 1985).

Following the panel’s ruling, King decided to represent the Trust herself and

requested postponements four days before the hearing and at the hearing’s

award. 9 U.S.C. § 10. Accordingly, this Court has construed all claims and arguments asserted by the Trust and King as made on behalf of the Trust, which was a party to the arbitration.

2 commencement. The panel rejected both requests. The record does not indicate

any material development between these latter requests and the former request,

except for King’s decision to represent the Trust herself. In these circumstances, in

light of the panel’s prior denial, the panel did not “arbitrar[il]y den[y]. . .

reasonable request[s] for postponement.” Sheet Metal Workers Int’l Ass’n Local

Union No. 420, 756 F.2d at 746.

The judgment of the District Court is AFFIRMED.

3

FILED

The Sunrise Trust v. Morgan Stanley & Co., Inc., 12-17456 JAN 15 2014

MOLLY C. DWYER, CLERK

Ikuta, J., dissenting: U.S. COURT OF APPEALS

I would dismiss this appeal because, based on the record before us, the

plaintiffs have failed to establish that their “petition to vacate [the arbitration

award] complains principally and in good faith that the award was rendered in

manifest disregard of federal law,” and therefore we lack subject matter

jurisdiction. Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111–12 (9th Cir.

2004) (emphasis added) (internal quotation marks omitted); see also Lippitt v.

Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040–41 (9th Cir. 2003)

(explaining that “mere references” to statements by a federal agency do not create

federal question jurisdiction).