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THIELE v. MERRILL LYNCH

January 21, 1999

WILLIAM L. THIELE, JR., PLAINTIFF,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Brewster, Senior District Judge.

ORDER (1) GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; (2)
  VACATING THIS COURT'S APRIL 8, 1998 AND DECEMBER 22, 1998
  ORDERS; (3) ENTERING THIS ORDER NUNC PRO TUNC TO DECEMBER 22,
  1998; AND (3) GRANTING IN PART AND DENYING IN PART DEFENDANT'S
  MOTION TO COMPEL ARBITRATION AND STAY THE PROCEEDINGS

On September 11, 1998, Plaintiff William L. Thiele ("THIELE") filed a Motion for Reconsideration of this Court's April 8, 1998 Order compelling arbitration of his claims. He argues that new case law requires the invalidation of his purported arbitration agreement and that a change in Defendant's policy, resulting from an Illinois lawsuit, also invalidates this agreement. Defendant Merrill Lynch ("ML") disagrees, characterizing Thiele's Motion to Reconsider as an attempt to reargue the Motion to Compel Arbitration.

I. Background

Thiele worked as a financial consultant for ML from 1972 until 1996. At the start of his employment at ML, Thiele executed a New York Stock Exchange ("NYSE") Form Re-1 to register him as a securities representative with the NYSE. The Form Plaintiff signed contains a compulsory arbitration clause:

  I agree that any controversy between me and any
  member or member organization or affiliate or
  subsidiary thereof arising out of my employment or
  the termination of my employment shall be settled by
  arbitration at the instance of any such party in
  accordance with the arbitration procedure prescribed
  in the Constitution and rules then obtaining of the
  New York Stock Exchange.

Form RE-1 ¶ 31(j).

Moreover, during his employment at ML, on at least July 22, 1981, July 11, 1989, October 26, 1994, and July 25, 1995, Plaintiff executed a "Form U-,4" as required, to register himself in additional states. The Form U-4 applications contain compulsory arbitration clauses:

  I agree to arbitrate any dispute, claim or
  controversy that may arise between me and my firm, or
  a customer, or any other person, that is required to
  be arbitrated under the rules, constitutions, or
  by-laws of the organizations with which I register,
  as indicated in Item 10 as may be amended from time
  to time and that any arbitration award rendered
  against me may be entered as a judgment

  in any court of competent jurisdiction.

Form U-4, ¶ 5.

Defendant discharged Plaintiff on December 26, 1996. On October 21, 1997, Plaintiff filed a complaint with this Court alleging (1) age discrimination in violation of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634, and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov.Code §§ 12900-12996 (Deering 1982); (2) termination in violation of public policy; (3) breach of implied employment contract; and (4) tortious interference with prospective advantage. On April 8, 1998, upon motion by Defendant, and pursuant to the contractual agreements between the Parties, this Court ordered the Parties to submit their claims to arbitration. Plaintiff now asks for reconsideration of that Order.

II. Analysis

A. Standard of Law

The Federal Rules of Civil Procedure provide this Court with the grounds to hear a motion for reconsideration of a previous order:

  On motion and upon such terms as are just, the court
  may relieve a party or a party's legal representative
  from a final judgment, order, or proceeding for the
  following reasons: (1) mistake, inadvertence,
  surprise, or excusable neglect; (2) newly discovered
  evidence which by due diligence could not have been
  discovered in time to move for a new trial under Rule
  59(b); (3) fraud . . ., misrepresentation, or other
  misconduct of an adverse party; (4) the judgment is
  void; (5) the judgment has been satisfied, released,
  or discharged, or a prior judgment upon which it is
  based has been reversed or otherwise vacated, or it
  is no longer equitable that the judgment should have
  prospective application; or (6) any other reason
  justifying relief from the operation of the judgment.

Fed.R.Civ.P. 60(b). Reconsideration is appropriate "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J. Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).

B. Grounds for Reconsideration

Thiele argues that he is entitled to reconsideration of the Court's April 8, 1998 Order on two grounds: (1) there has been an intervening change in law; (2) there has been a change in NYSE and ML rules and policies. The Court declines to grant reconsideration ...


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