                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 07 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES TUMINELLO and UBS                          No. 12-35259
FINANCIAL SERVICES, INC.,
                                                 D.C. No. 3:11-cv-05928-BHS
              Plaintiffs - Appellants,

       v.                                        MEMORANDUM *

BRIAN RICHARDS and BRICH
HOLDINGS LLC, a Nevis limited liability
company,

              Defendants - Appellees.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                     Argued and Submitted November 5, 2012
                              Seattle, Washington

Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, District
        Judge.**




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable Raymond J. Dearie, Senior United States District Judge for
Eastern District of New York, sitting by designation.
      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 account(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., 537 U.S. 79, 83 (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 [u]nless the

parties clearly and unmistakably provide otherwise.’” (quoting AT & T Techs., Inc.

v. Commc’ns Workers, 475 U.S. 643, 649 (1986))); Momot v. Mastro, 652 F.3d

982, 988 (9th Cir. 2011) (“[T]his language, delegating to the arbitrators the

authority to determine ‘the validity or application of any of the provisions of’ the

arbitration clause, constitutes ‘an agreement to arbitrate threshold issues




                                            2
concerning the arbitration agreement.’” (quoting Rent-A-Ctr., W., Inc. v. Jackson,

130 S. Ct. 2772, 2777 (2010))).

      2. Even assuming that the parties had not delegated gateway questions of

arbitrability, the district court correctly determined that the dispute was arbitrable.

The court’s role in such an inquiry is “limited to determining (1) whether a valid

agreement to arbitrate exists and, if it does, (2) whether the agreement

encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc.,

207 F.3d 1126, 1130 (9th Cir. 2000). The court should not consider a defense that

touches on the merits of the case. See id. at 1134. A valid agreement to arbitrate

exists between Richards and UBS, and whether Tuminello and UBS are liable to

Richards for any actions or inactions is a “controversy” within the scope of the

agreement. Appellants’ arguments are intertwined with the merits of whether

Richards is entitled to recover against them. Those arguments should therefore be

addressed by the arbitrator.

      AFFIRMED.




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