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Simply Wireless, Inc. v. T-Mobile US, Inc.

United States Court of Appeals, Fourth Circuit

December 13, 2017

SIMPLY WIRELESS, INC, Plaintiff - Appellant,
v.
T-MOBILE US, INC, f/k/a T-Mobile USA, Inc.; T-MOBILE USA, INC., Defendants - Appellees. SIMPLY WIRELESS, INC, Plaintiff - Appellant,
v.
T-MOBILE US, INC, f/k/a T-Mobile USA, Incorporated; T-MOBILE USA, INCORPORATED, Defendants - Appellees.

          Argued: September 14, 2017

         Appeal 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)

         ARGUED:

          Sean Patrick Roche, CAMERON MCEVOY, PLLC, Fairfax, Virginia, for Appellant.

          Joseph Mark Lipner, IRELL & MANELLA LLP, Los Angeles, California, for Appellees.

         ON BRIEF:

          Robert 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.

          Before WYNN, FLOYD, and HARRIS, Circuit Judges.

         Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Judge Harris joined. Judge Floyd wrote a dissenting opinion.

          WYNN, CIRCUIT JUDGE:

         Plaintiff 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.

         We 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.

         I.

         We 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).

         Simply 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.[1] 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.

         T-Mobile 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[2] 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 Federal ...

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