Argued: September 14, 2017
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:15-cv-01390-CMH-JFA)
Patrick Roche, CAMERON MCEVOY, PLLC, Fairfax, Virginia, for
Mark Lipner, IRELL & MANELLA LLP, Los Angeles,
California, for Appellees.
A. Rowan, Sheryl L. De Luca, NIXON & VANDERHYE P.C.,
Arlington, Virginia, for Appellant.
Charles B. Molster, III, WINSTON & STRAWN LLP,
Washington, D.C.; Ellisen S. Turner, Adam M. Shapiro, IRELL
& MANELLA LLP, Los Angeles, California, for Appellees.
WYNN, FLOYD, and HARRIS, Circuit Judges.
by published opinion. Judge Wynn wrote the majority opinion,
in which Judge Harris joined. Judge Floyd wrote a dissenting
Simply Wireless, Inc. ("Simply Wireless") appeals
from an order of the United States District Court for the
Eastern District of Virginia dismissing its complaint against
Defendants T-Mobile US, Inc. and T-Mobile USA, Inc.
(collectively, "T-Mobile"). Upon determining that
the parties' business relationship was governed by a
written agreement containing a mandatory arbitration clause,
the district court went on to determine that the scope of
that arbitration clause included all of Simply Wireless's
claims against T-Mobile.
conclude that the district court erred in determining the
scope of the parties' arbitration clause, as the parties
clearly and unmistakably intended for an arbitrator-not the
court-to resolve all arbitrability disputes. Nonetheless,
because the parties intended for an arbitrator to resolve all
arbitrability disputes, the district court's ultimate
dismissal of Simply Wireless's complaint in favor of
arbitration was proper. Accordingly, we affirm the district
court's dismissal on alternate grounds.
review a grant of a motion to dismiss a complaint by taking
the facts in the light most favorable to the plaintiff.
Cruz v. Maypa, 773 F.3d 138, 141 (4th Cir. 2014).
Wireless sells cellular telephone goods and services to
consumers and provides advertising, marketing, and
distribution services to other businesses in the
telecommunications industry. Simply Wireless is the
registered owner of multiple trademarks using the name SIMPLY
WIRELESS. According to the complaint, Simply
Wireless is also the originator and owner of the trademark
SIMPLY PREPAID in connection with the sale of cellular
telephone goods and services. Since 2002, Simply Wireless has
sold hundreds of thousands of prepaid phone cards in
connection with the SIMPLY PREPAID trademark, and it has used
that mark to promote and market the goods and services of
other telecommunications providers.
also provides cellular services. Although T-Mobile and Simply
Wireless compete in the same industry, they have partnered on
several projects since at least 2003. Pertinent to this
appeal, on July 12, 2012, T-Mobile and Simply Wireless
partnered on a project by executing a contract entitled
"Amended & Restated Limited Purpose Co-Marketing and
Distribution Agreement for Equipment Sold th[r]ough HSN &
QVC" (the "HSN/QVC Agreement"). S.J.A. 502.
The HSN/QVC Agreement allowed Simply Wireless "to use
T-Mobile's experience, Confidential Information,
Marks and goodwill to promote, market and sell
T-Mobile's Wireless Service and Equipment to Subscribers
through [HSN and QVC] for various on-air promotions, . . .
subject to the terms and conditions of this Agreement."
Id. The HSN/QVC Agreement included several
provisions protecting T-Mobile's trademarks:
18.1. Marks. [Simply Wireless] acknowledges that the
Marks, along with all Intellectual Property Rights associated
therewith are the property of T-Mobile.
18.5. Protection of T-Mobile Rights. [Simply
Wireless] shall immediately notify T-Mobile of any
infringement, misappropriation, or violation of any Marks
and/or Intellectual Property Rights of T-Mobile . . . that
comes to [Simply Wireless's] attention. [Simply Wireless]
shall not infringe or violate, and shall use its best
efforts to preserve and protect T-Mobile's . . . interest
in, all such Marks and Intellectual Property Rights.
S.J.A. 513-14 (emphasis added). It also included an
arbitration clause that provided, in pertinent part:
19.1.1. Submission to Arbitration. Any claims or
controversies . . . arising out of or relating
to this Agreement ("Dispute") shall be
resolved by submission to binding arbitration. The
arbitration shall be administered and hearings shall be held
in Seattle, Washington before a single neutral arbitrator
from the offices of Judicial Arbitration & Mediation
Services. The arbitration shall be administered pursuant
to the JAMS Comprehensive Rules and Procedures then in
effect. . . . Notwithstanding any choice of law
provision in this Agreement, the parties agree that the