                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0601n.06

                                           No. 18-3020

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 ANDREA K. DRAKE; WILLIAM S. DRAKE,                      )                      FILED
                                                         )                 Nov 30, 2018
        Plaintiffs-Appellees,                            )             DEBORAH S. HUNT, Clerk
                                                         )
 v.                                                      )
                                                         )    ON APPEAL FROM THE
 DEPUY ORTHOPAEDICS, INC., et al.,                       )    UNITED STATES DISTRICT
                                                         )    COURT FOR THE NORTHERN
        Defendants,                                      )    DISTRICT OF OHIO
                                                         )
 STEVEN M. JOHNSON, d/b/a THE JOHNSON                    )
 LAW FIRM,                                               )
                                                         )
        Appellant.


BEFORE: KEITH, COOK, and LARSEN, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. This appeal arises from the district court’s granting

of Andrea Drake and William Drake’s (collectively, “the Drakes”) motion to enforce the Master

Settlement Agreement (“MSA”) that the parties entered into as a part of a multidistrict litigation

(“MDL”) action related to a hip implant recall. The parties dispute attorney’s fees related to the

Drakes’ former attorney’s brief representation of them. The parties disagree over the proper forum

for the arbitration proceedings, due to the fact that the MSA and the attorney representation

agreement both possibly provide for different forums. Steven Johnson (“Johnson”), the Drakes’

former attorney, received an arbitration award from an arbitrator in Texas, over the Drakes’

substantive and procedural objections. This award also comes after a Texas district court denied

Johnson’s motion to compel arbitration beforehand, finding it lacked personal jurisdiction over the
Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


Drakes. After the award was issued, a different Texas district court refused to rule on Johnson’s

motion to enforce the arbitration award, and transferred the case to the United States District Court

for the Northern District of Ohio, where the MDL was handled. In the Ohio district court, the

Drakes brought a combined motion to enforce the MSA, and to vacate the arbitration award entered

by the arbitrator in Texas. The district court granted the Drakes’ motion to enforce the MSA, but

declined to rule on whether to vacate the arbitrator’s award, finding that the award is not binding

on the district court. Johnson appeals the district court’s order on substantive grounds. The Drakes

argue that procedurally, inter alia, this appeal is not properly before the court because the district

court’s order is not a final order for purposes of appellate jurisdiction. We agree that Johnson’s

appeal is not properly before the court. In line with the analysis that follows, we REMAND this

matter to the district court for it to consider the Drakes’ motion to vacate the arbitration award and

Johnson’s motion to confirm the arbitration award.

                                              BACKGROUND

        I.       Factual Background

                 a. Attorney Johnson’s Representation of Drake in MDL

        Plaintiff William Drake is a Minnesota resident. He is married to Andrea Drake, and has

lived in Minnesota for approximately forty years. He received Articular Surface Replacement

(“ASR”) hip implants that were manufactured by DePuy Orthopaedics Inc., in both of his hips, at

a hospital located in Minnesota. In 2010, DePuy recalled the ASR implants (“MDL Action”) that

Mr. Drake received. The Drakes learned of the recall through a television advertisement from a

law firm representing persons who received DePuy ASR implants subject to this recall. Mrs.

Drake called the number on the advertisement and thereafter began discussions with Johnson


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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


through his law firm. The Drakes did not know where the law firm was located when they initiated

contact, but eventually learned that it was in Texas. Other than a brief layover in a Texas airport,

Mr. Drake has never been to Texas.

        Between September 28, 2010, and January 19, 2012, Johnson’s law firm contacted the

Drakes through calls and letters approximately fifty-seven times, which generally resulted in the

firm leaving voicemails. During that time period, following six months of no direct contact from

the Drakes, Johnson’s law firm sent Mr. Drake a final letter, which stated that “[f]ailing to contact

us may result in the closing of your file and the loss of your rights.” R. 10-3 at 6, Page ID # 252.1

Five days later, on January 24, 2012, Mr. Drake signed the form contract (Attorney Representation

Agreement, or “ARA”) Johnson’s firm had previously sent him. The ARA included an arbitration

clause, stating that in the event of a dispute, arbitration would be held in Fort Worth, Texas.2

        On November 28, 2012, Johnson was informed by the Drakes that they intended to

terminate their ARA with him, and secure different counsel. Shortly thereafter, Johnson filed a

short-form complaint on behalf of the Drakes in the MDL Action in Ohio.3 Once the Drakes hired

a local law firm to represent him, the new law firm4 filed a complaint in Minnesota, and the case




        1
             Citations to the district court record (“R.”) refer to Case No. 1:13-dp-20140 (N.D. Ohio), unless noted
otherwise.
        2
             Paragraph 14 of the ARA states:
                    Attorneys and Client agree that any dispute arising from the interpretation,
                    performance, or breach of this Fee Agreement, including any claim of legal
                    malpractice, but not including attorney disciplinary proceedings, shall be resolved
                    by final and binding arbitration conducted in Fort Worth, by any other arbitrator
                    that The Firm may choose. Attorneys and Client further agree that judgment upon
                    any award rendered by the arbitrator in such proceedings may be entered by any
                    state or federal court with jurisdiction over the matter.
        3
             William Drake v. DePuy Orthopaedics, Inc., et al., 1:12-dp-24036 (N.D. Ohio).
        4
             Meshbesher & Spence, Ltd., the law firm that currently represents the Drakes.


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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


was transferred to the Northern District of Ohio court handling this MDL. Before Johnson

dismissed the complaint he filed on behalf of the Drakes, he put the Drakes’ new attorneys on

notice of his attorney’s fee lien on any recovery from the Drakes’ MDL lawsuit. Johnson

dismissed the case he filed with the following stipulation:

        The parties further agree and stipulate that this dismissal shall have no effect on
        Plaintiff’s pending case in the United States District Court, Northern District of
        Ohio, filed by the law firm of Meshbesher & Spence, Ltd. on January 24, 2013
        (Case No. 1:30-dp-20140).

        The Parties further recognize that the Johnson Law firm has asserted a claim on any
        recovery the Plaintiff may make for any injuries related to the DePuy ASR for the
        full amount of all monies that JLF is entitled to under the terms of its contract with
        the Plaintiff and that this dismissal shall have no effect on those claims.

R. 30 at 5, Page ID # 698 (citing Case No. 1:12-dp-24036, Doc. No. 3 (N.D. Ohio)).

        II.        Procedural Background

        DePuy Orthopaedics, Inc. reached a settlement agreement with the plaintiff class in the

MDL Action in November 2013, and the Drakes signed on to this settlement agreement shortly

thereafter. The settlement agreement specifically outlines how disputes connected with the MDL

Action are to be handled, which includes arbitration and the use of a Special Master and/or Claims

Processor that have already been appointed through the MDL Action settlement process.

        In an effort to litigate the fee dispute arising out of the MDL Action, Johnson initiated a

JAMS5 arbitration in Dallas, Texas on July 31, 2014. The next day, he filed an action in the

Northern District of Texas, Fort Worth Division, to compel the Drakes to arbitrate in Texas.6 R.

7-12 at 4, Page ID # 181. The Fort Worth district court dismissed Johnson’s action for lack of


        5
            JAMS is the largest private alternative dispute resolution (“ADR”) provider in the world. See ABOUT US –
JAMS MEDIATION, ARBITRATION AND ADR SERVICES,   https://www.jamsadr.com/about-jams/ (last visited Oct. 31, 2018).
        6
            Case No. 4:14-cv-00611-A (N.D. Tex.).


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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


personal jurisdiction (in personam) over Mr. Drake. The arbitration continued, despite and over

the Drakes’ objections to both the individual arbitrator selected and to the Texas forum.

         On February 16, 2016, the Drakes initiated the ADR process regarding the parties’ fee

dispute, as dictated by the MDL Action settlement agreement, through Special Master Cathy Yanni

of JAMS. Two days later, Johnson again moved to compel the Drakes to arbitration in Texas, this

time filing in a Dallas district court. Special Master Yanni issued an order dismissing the Drakes’

arbitration request on the basis that she did not have jurisdiction over the matter because it was

already pending in a different forum with another JAMS arbitrator. Shortly afterwards, before the

district court in Dallas issued any substantive rulings, Johnson voluntarily dismissed that action.

         The Texas arbitrator issued a final award in favor of Johnson on June 22, 2016 (later

corrected for a typographical error and re-issued on July 7, 2016). Of the Drakes’ settlement

award, the arbitrator authorized over sixty-two percent to be distributed to Johnson, Johnson’s

attorneys, and the JAMS arbitration process.7 Johnson then filed another action in the district court

in Dallas, where he moved that the court confirm the arbitration award. The Drakes then filed a

motion to enforce the MDL Action settlement agreement and to vacate the arbitration award in the

Ohio district court. The Ohio district court granted the Drakes’ motion to enforce the settlement

agreement and did not reach the motion to vacate the arbitration award. The next day, the Dallas

district court sua sponte transferred Johnson’s motion to confirm the arbitration award to be

consolidated with the MDL case in the Ohio district court. Johnson timely appealed the Ohio

district court’s order.



         7
           The Drakes settled the first portion of their case (their Extraordinary Injury Fund claim is still possibly
outstanding) for $561,750. The arbitrator (Hon. Glen M. Ashworth) awarded Johnson $196,612.50, Johnson’s
attorneys $136,457, and the arbitration process $20,145.47.

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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


                                                 ANALYSIS

        As a threshold matter, we must determine whether we have jurisdiction to address the

issues raised in this appeal. Johnson argues that this court possesses appellate jurisdiction to hear

his claims under either 28 U.S.C. § 1291, or the jurisdictional provision of the Federal Arbitration

Act (“FAA”), 9 U.S.C. § 16. We disagree.

                   a.     Final Appealable Order – 28 U.S.C. § 1291

        “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the

district courts of the United States . . . except where a direct review may be had in the Supreme

Court.” 28 U.S.C. § 1291. A decision is final for purposes of § 1291 if the district court’s decision

“‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’”

Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988) (quoting Catlin v. United States, 324 U.S.

229, 233 (1945)). Johnson argues “that this appeal is from [the district court’s] final order or

judgment that disposes of all parties[’] claims.” Appellant Br. at 2. Further, he asserts that the

district court implicitly ruled on the Drakes’ motion to vacate the arbitration award when it found

the award non-binding, thus resolving all of the issues before the Ohio district court. Appellant

Br. at 11. In response, the Drakes argue that the district court did not rule on the arbitration award,

there is no final order for us to review, and that “[a] plain reading of the Judgment shows that this

case is in an interim stage.” Appellee Br. at 9-10.

        The parties dispute the proper forum to litigate their fee dispute, which has been

complicated by an arbitration award entered in Texas. Here, the Ohio district court faced two

separate tasks. First, it had to determine whether to enforce the settlement agreement reached by

the parties in the MDL Action. Second, it had to resolve whether the Texas arbitration award


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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


should be vacated. The court decided the first issue by granting the Drakes’ motion after analyzing

why the MDL Action’s settlement agreement required the parties to litigate their fee dispute

through the MDL Action’s pre-established process.

        The district court did not decide the second issue. It “[found] it unnecessary to address the

motion to vacate the arbitration award as it has no binding effect on the resolution of fees in this

case.” See 1:13-dp-20140, R. 30 at 16. Regardless of whether the Texas arbitration award is

binding on the MDL Action, the motion to vacate was one of the main issues before the court. The

district court’s inaction left the issue of how to deal with the arbitration award unresolved, and its

order is not a final resolution that ends the litigation on the merits. As such, the district court’s

order was not a final order, and this court does not possess appellate jurisdiction under 28 U.S.C.

§ 1291.

             b. Federal Arbitration Act – 9 U.S.C. § 16(a)(1)(E)

        Johnson also asserts that we maintain appellate jurisdiction under § 16(a)(1)(E) of the FAA,

which provides that an appeal may be taken from any order “modifying, correcting, or vacating”

an arbitration award. Appellant Br. at 1; 9 U.S.C. § 16(a)(1)(E).

        The district court took no action regarding the Texas arbitration award. It is not disputed

that the court did not modify or correct the award. However, the parties dispute whether the court

implicitly vacated it. Johnson contends that finding the award to be non-binding is the same as

vacating it; however, he cites to no authority. Appellant Br. at 26. The record is clear that the

district court declined to address the Drakes’ motion to vacate the arbitration award, and did not

discuss the grounds for the vacatur of the arbitration award under 9 U.S.C. §§ 10 or 16. The court

also did not rule on Johnson’s motion to confirm the award, which left his motion undecided.


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Case No. 18-3020, Andrea Drake, et al. v. DePuy Orthopaedics, Inc., et al.


Accordingly, we find that the district court’s decision to not address the merits of the Drakes’

motion to vacate the arbitration award, or Johnson’s motion to confirm the same award, precludes

this court from exercising jurisdiction over Johnson’s appeal.

        As such, this court does not possess appellate jurisdiction over this appeal through 28

U.S.C. § 1291 or 9 U.S.C. §16(a)(1)(E), and REMANDS this matter to the district court for further

consideration in line with this opinion.

                                                   ORDER

        WHEREFORE, the court REMANDS this action to the United States District Court for

the Northern District of Ohio to consider:

                 (1)      Steven M. Johnson’s Motion to Confirm Domestic Arbitration Award and

                          Enter Judgment, filed on 8/18/16 in case no. 3:16-cv-01993-L (Doc. 7) and

                          transferred from the Northern District of Texas to the Northern District of

                          Ohio on 12/29/2017 under case no. 1:17-dp-20085-JJH; and

                 (2)      Andrea K. Drake and William S. Drake’s Motion to Vacate Arbitration

                          Award filed in the Northern District of Ohio district court on 06/22/2016 in

                          case no. 1:13-dp-20140-JJH (Doc. 7).




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