James Tuminello v. Brian Richards

MEMORANDUM

Appellants James Tuminello and UBS Financial Services, Inc. appeal the district court’s order granting appellee Brian Richards’ motion to compel arbitration and stay proceedings and denying appellants’ motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1292 (a)(1), and we affirm.

1. The arbitrator, rather than the district court, should determine whether this dispute is arbitrable. The parties’ agreement provides that the arbitrator shall decide “any and all controversies ... concerning any aecount(s), transaction, dispute or the construction, performance, or breach of this or any other Agreement.” This language provides clear and unmistakable evidence that the parties intended the question of arbitrability to be decided in arbitration. See Howsam v. Dean Witter Reynolds, Inc., 587 U.S. 79 , 83, 123 S.Ct. 588 , 154 L.Ed.2d 491 (2002) (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination [ujnless the parties clearly and unmistakably provide otherwise.’ ” (quoting AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649 , 106 S.Ct.…