                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         May 12, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CARL GENBERG,

             Plaintiff-Appellant,

v.                                                        No. 13-1140
                                             (D.C. No. 1:11-CV-02434-WYD-MEH)
STEVEN S. PORTER, an individual;                           (D. Colo.)
JEFFREY SPERBER, an individual; AL
BAUTISTA, an individual; MICHELE
DARNAUD, an individual; CHERYL
HOFFMAN-BRAY, an individual;
PHILIPPE GASTONE, an individual;
MARC REDLICH, an individual,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, McKAY, and ANDERSON, Circuit Judges.


      Carl Genberg used to work for Ceragenix Corporation and Ceragenix

Pharmaceuticals. Now he seeks damages from his former employer and its senior

managers, board members, and outside lawyer.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       According to Mr. Genberg’s complaint, the trouble began when he came to

suspect that Ceragenix broke the law by failing to hold required shareholder

meetings. Mr. Genberg asked his friend, Joseph Salamon, to send a letter to the

board of directors raising the issue. Mr. Salamon agreed and Mr. Genberg drafted an

email that Mr. Salamon then sent under his name. After Ceragenix’s board received the

email, the directors hired an outside attorney, Marc Redlich, to lead an internal

investigation into the allegations. During his investigation, Mr. Redlich discovered that it

was Mr. Genberg who ghost-wrote the letter. Mr. Redlich concluded that in doing so

Mr. Genberg violated his fiduciary duties to the company, and when Mr. Redlich reported

this to the board of directors it voted to terminate his employment. Of course, the board

of directors offers a very different account of the relevant events, suggesting it fired

Mr. Genberg only after it discovered he was assisting a hostile take-over of the company.

       In any event, Mr. Genberg, a lawyer representing himself, filed this wrongful

termination lawsuit against individual members of the board of directors;

Mr. Redlich; Steven Porter, the company’s Chief Executive Officer; and Jeffrey

Sperber, its Chief Financial Officer. Shortly, Mr. Genberg followed up with a motion

to compel arbitration on his just-filed claims, a motion aimed at all of the defendants

except Mr. Redlich. Mr. Genberg filed, as well, a separate motion seeking partial

summary judgment against Mr. Porter and the other members of the board. For their

part, the defendants replied with motions to dismiss.




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       In a lengthy order, the district court disposed of all these various motions. The

court rejected Mr. Genberg’s argument that the individual defendants were parties to

his employment agreement and so bound by its arbitration clause to take their dispute

to an arbitrator rather than a court. The court then proceeded to dismiss

Mr. Genberg’s claims against all the defendants save Mr. Porter. With respect to

Mr. Porter the court rejected Mr. Genberg’s motion for summary judgment, finding

that triable questions of fact existed.

       Now before us, Mr. Genberg challenges the denial of his motion to compel

arbitration and the dismissal of most of his claims. But while there is little doubt we

have jurisdiction to review the district court’s order to the extent it denied the motion

to compel arbitration, see 9 U.S.C. § 16(a)(1)(B), the remainder of the district court’s

order is not otherwise appealable because it fails to resolve “all matters as to all

parties and causes of action.” D&H Marketers, Inc. v. Freedom Oil & Gas, Inc.,

744 F.2d 1443, 1444 (10th Cir. 1984) (en banc). Claims against Mr. Porter remain

pending in the district court, and the court has declined to certify its partial dismissal

order as a final order under Fed. R. Civ. P. 54(b).

       Mr. Genberg responds that his appeal of the district court’s order dismissing

most of his claims should be considered “pendent” to his appeal from the district

court’s order denying his motion to compel arbitration. But pendent appellate

jurisdiction “is generally disfavored,” Roska ex rel. Roska v. Sneddon, 437 F.3d 964,

970 (10th Cir. 2006), applying “only where the otherwise nonappealable decision is


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inextricably intertwined with the appealable decision, or where review of the

nonappealable decision is necessary to ensure meaningful review of the appealable

one,” Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915 (10th Cir. 2008).

      We are unconvinced that the district court’s dismissal order was inextricably

intertwined with, or necessary to the meaningful review of, the district court’s denial

of the motion to compel arbitration. In the first place, because Mr. Redlich wasn’t

included in the motion to compel arbitration it is difficult to see how our resolution

of that motion is “intertwined” with the merits of the claims against him. Besides,

and as a more general proposition, whether the employment agreement’s arbitration

clause bound any of the individual defendants to arbitrate presents a separate and

distinct issue easily resolved without discussing the legal merits of Mr. Genberg’s

claims against them.

      Turning to Mr. Genberg’s appeal of the district court’s denial of his motion to

compel arbitration, we discern no reversible error. As the district court noted, “when

the requirement to arbitrate is created by an agreement, it can be invoked only by a

signatory of the agreement, and only against another signatory.” Smith v. Multi-Fin.

Secs. Corp., 171 P.3d 1267, 1272 (Colo. App. 2007). In the case before us, it is

undisputed that none of the defendant board members signed Mr. Genberg’s

arbitration-clause-containing employment agreement. And, as Mr. Genberg seems to

acknowledge, Mr. Porter did so only in his representative capacity for Ceragenix.

See, e.g., McCarthy v. Azure, 22 F.3d 351, 361 (1st Cir. 1994) (“It is common ground


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that signing an arbitration agreement as agent for a disclosed principal is not

sufficient to bind the agent to arbitrate claims against him personally.” (internal

quotation marks omitted)).

       To be sure, Mr. Genberg points out that non-signatories and those signing in a

representative capacity for their employers may sometimes “be bound by agreements

to arbitrate . . . under principles of agency, incorporation by reference, veil-piercing,

assumption or implied conduct, estoppel, successor in interest, and third-party

beneficiary.” Smith, 171 P.3d at 1272. But the district court expressly considered

and rejected Mr. Genberg’s contention that the defendants here qualified as alter egos

of Ceragenix or third-party beneficiaries of his arbitration agreement. On appeal

Mr. Genberg doesn’t seem to dispute these conclusions so much as contend the

defendants should be bound to arbitrate under the alternative theories of agency and

estoppel. But he didn’t fairly present these legal theories to the district court, that

court did not consider them in its ruling, and so under our precedent they are deemed

forfeit or waived. See FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999).

       The district court’s order denying Mr. Genberg’s motion to compel arbitration

is affirmed. The remainder of this appeal is dismissed for lack of jurisdiction.

                                                 Entered for the Court



                                                 Neil M. Gorsuch
                                                 Circuit Judge



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