the Sunrise Trust v. MORGAN STANLEY & Co., Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE SUNRISE TRUST, et al.,
Plaintiffs - Appellants,
v.
MORGAN STANLEY & Co., Inc., et al.,
Defendants - Appellees.
No. 12-17456
D.C. No. 2:12-cv-00944-JCM-
PAL
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted January 13, 2014
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
Plaintiffs-Appellants The Sunrise Trust and Susan King appeal from the
District Court’s judgment confirming an arbitration award.1 We have jurisdiction
FILED
JAN 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1 King was not a party to the arbitration; the Trust was the only claimant in
the arbitration. Only a party to an arbitration may move to vacate the resulting
* This disposition is not appropriate for publication and is not precedent,
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument, pursuant to Fed. R. App. P. 34(a)(2)(B) & (C).

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pursuant to 28 U.S.C. § 1291, and we affirm.
In general, the Trust argues that the arbitration panel is “guilty of
misconduct in refusing to postpone the [arbitration] hearing,” pursuant to 9 U.S.C.
§ 10(a)(3). The record, however, does not support the Trust.
When the Trust, though its counsel, moved for a postponement six days
before the hearing based on King’s health, the panel provided a number of reasons
to support its ruling that the hearing would proceed as scheduled. The panel stated
that it had previously granted the Trust a postponement, that the Trust’s motion
had been made “within days of the scheduled hearing” for a “second time,” that the
respondents had not joined in the request, that “far too many” witnesses were
expected to attend the hearing, and that it would “make arrangements for Ms.
King’s testimony at a later date” because she was a witness, but “not the Claimant
in this case.” The panel’s ruling was not an “arbitrary denial of a reasonable
request for postponement.” Sheet Metal Workers Int’l Ass’n Local Union No. 420
v. Kinney Air Conditioning Co., 756 F.2d 742, 746 (9th Cir. 1985).
Following the panel’s ruling, King decided to represent the Trust herself and
requested postponements four days before the hearing and at the hearing’s
award. 9 U.S.C. § 10. Accordingly, this Court has construed all claims and
arguments asserted by the Trust and King as made on behalf of the Trust, which
was a party to the arbitration.
2

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commencement. The panel rejected both requests. The record does not indicate
any material development between these latter requests and the former request,
except for King’s decision to represent the Trust herself. In these circumstances, in
light of the panel’s prior denial, the panel did not “arbitrar[il]y den[y]. . .
reasonable request[s] for postponement.” Sheet Metal Workers Int’l Ass’n Local
Union No. 420, 756 F.2d at 746.
The judgment of the District Court is AFFIRMED.
3

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The Sunrise Trust v. Morgan Stanley & Co., Inc., 12-17456
Ikuta, J., dissenting:
I would dismiss this appeal because, based on the record before us, the
plaintiffs have failed to establish that their “petition to vacate [the arbitration
award] complains principally and in good faith that the award was rendered in
manifest disregard of federal law,” and therefore we lack subject matter
jurisdiction. Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111–12 (9th Cir.
2004) (emphasis added) (internal quotation marks omitted); see also Lippitt v.
Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1040–41 (9th Cir. 2003)
(explaining that “mere references” to statements by a federal agency do not create
federal question jurisdiction).
FILED
JAN 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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