UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

LODGEWORKS, L.P., Plaintiff-Appellee,

v. C.F. JORDAN CONSTRUCTION, LLC, Defendant-Appellant. No. 12-3074 (D.C. No. 6:11-CV-01317-KHV-GLR) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and MATHESON , Circuit Judges.

C.F. Jordan Construction, LLC (“Jordan ”) appeals from th e district court’s grant of a preliminary injunction in favor of LodgeWorks, L.P. (“LodgeWorks”). The district court enjoined Jordan from arbitrat ing in a forum other than Wichita, Kansas and from seeking arbitra tion in Texas. Because it is predicated on an error of law, we vacate the order gran ting a preliminary injunction. 1

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.
1 Our jurisdiction derives fr om 28 U.S.C. § 1292(a)(1). FILED United States Court of Appeals Tenth Circuit 

### December 20, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND The relevant facts are not in dispute. Briefly, LodgeWorks contracted with Jordan for the design and construction of a hot el in Austin, Texas. About ten months after it was completed, the hotel had to be closed for five months for water remediation, cleaning, and rebuilding of affected areas . LodgeWorks alleged the water infiltration and resulti ng damages were due to Jord an’s design and construction defects. The parties’ contract incl uded the following provisions: 39. Arbitration. All claims, dis putes and other matters in question arising out of, or relating to, this Ag reement or the bre ach thereof, shall be decided in Wichita, Kansas by arbitration in acco rdance with the Construction Industry Arbitration Ru les of the American Arbitration Association then obtaining, unless the parties mutually agree otherwise. This Agreement to arbitr ate shall be specifically enforceable under the prevailing arbitration law. The aw ard rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

. . . . 42. Applicable Law. This Ag reement shall be governed by and construed under the laws of the Stat e of Kansas (excluding conflict of laws principles), unless otherwise re quired by the laws of the state in which the Project is located or otherwise agreed in the Project Addendum for a particular Project. Aplt. App. at 38 (“Venue Clause” and “Cho ice-of-law Clause,” respectively). LodgeWorks filed a demand for arbitr ation with the Amer ican Arbitration Association (“AAA”) and requested the pro ceedings be held in Wichita, Kansas. Jordan objected and filed suit in a Texas court to preven t arbitration in Kansas and- 3 - the application of Kansas law. 2 Jordan later dismissed th e Texas lawsuit and filed an arbitration demand with the AAA seeking arbitr ation in Texas. Jo rdan then requested the AAA to consolidate the two arbitrations. LodgeWorks filed the underlying acti on seeking a preliminary and permanent injunction to prevent Jordan from arbitrating in a forum other than Wichita, Kansas and from arbitrating in Texas under Texa s law. Adopting the recommendation of a magistrate judge, the district court concluded that LodgeW orks had met the requisite four criteria and granted a preliminary in junction “enjoin[ing] [J ordan] from seeking to conduct an arbitration h earing in a forum other than Wichita, Kansas or asking the American Arbitration Associ ation to hold a hearing on this dispute in Texas.” Aplt. App. at 256. The district court di d not, however, rule on the Choice-of-law Clause, finding LodgeWorks did not atte mpt to “meet the requirements of a preliminary injunction on the choice of law question.” Id. at 254 n. 8. On appeal neither party quarrels about the Choice-of-l aw Clause, so we do not consider it. Cf. Gray v. Univ. of Colo. Hosp. Auth. , 672 F.3d 909, 915 ( 10th Cir. 2012) (holding “[b]ecause plaintiffs have fail ed to contest in any meaningf ul way the district court’s dismissal of their . . . claims, they have voluntarily foregone any right to further adjudication of those claims”).

2 Jordan invoked a Texas statute it claimed allowed it to void the contract language requiring arbitration. Jordan has abandoned th is argument on appeal.- 4 - II. PRELIMINARY INJUNCTION STANDARDS The party seeking a preliminary inj unction must demonstrate the following four factors weigh in its favor : “(1) it is substantially likely to succeed on the merits; (2) it will suffer irrepa rable injury if the injunction is denied; (3) its th reatened injury outweighs the injury the oppos ing party will suffer under the injunction; and (4) the injunction would not be advers e to the public interest.” Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC , 562 F.3d 1067, 1070 (10th Cir. 2009).
III. DISCUSSION Whether the contracting parties “are bou nd by a given arbitration clause raises a question of arbitrability for a court to decide.” Howsam v. Dean Witter Reynolds,
Inc. , 537 U.S. 79, 84 (2002) (internal quotati on marks omitted). Here, the parties do not dispute their disagreement is subject to arbitration under the broad arbitration clause in their contract. Th erefore, the question of arbitr ability is not before us. Rather, the question presented is whether venue selection is for the court or the arbitrator to decide. Once an arbitration provision has been re solved in favor of arbitration, “the validity of the remainder of the contract . . . is for th e arbitrator to decide.” Nitro-Lift Techs., L.L.C. v. Howard , 133 S. Ct. 500, 503 (2012) (p er curiam) (holding validity of covenants not to compete was for arbi trator to decide). “Thus procedural questions which grow out of the disput e and bear on its final disposition are presumptively not for the judge, but for an arbitrator to decide.” Howsam , 537 U.S.- 5 - at 84 (internal quotation marks omitted). Such procedural questions include “whether prerequisites such as time limits, notice, la ches, estoppel, and other conditions precedent to an obligati on to arbitrate have been met.” Id. (emphasis and internal quotation marks omitted). Although this circuit has not addressed whether arbitral venue is an issue for the court or the arbitrator, other circuits have done so. The Second Circuit recently held, after determining the di spute was arbitrable, “venue is a procedural issue that [the] arbitrators should addre ss in the first instance.” UBS Fin. Servs. v. W. Va. Univ. Hosps., Inc. , 660 F.3d 643, 655 (2d Cir. 2011). Sim ilarly, the First Ci rcuit held, “the dispute between the parties is concededly arbitrable, [therefo re] determining the place of the arbitration is simp ly a procedural matter and hence for the arbitrator.” Richard C. Young & Co. v. Leventhal , 389 F.3d 1, 5 (1st Cir. 2004); cf. Cent. W. Va. Energy, Inc. v. Bayer Cropscience LP , 645 F.3d 267, 274 (4th Cir. 2011) (stating dispute over which arbitrati on panel should decide issues was “far more akin to a venue dispute than a question of arbitrability, and, as su ch, it [was] appropriate for arbitral resolution”); Ridge at Red Hawk, L.L.C. v. Schneider , 493 F.3d 1174, 1178 & n.3 (10th Cir. 2007) (stating “the fact that an arb itration was held in an improper venue does not call into question the merits of the award” and noting “venue is a matter that goes to proce ss rather than substantive rights—determining which among various competent tribunals will decide the case” (internal quotation marks and brackets omitted)).- 6 - “[T]he relevant que stion here is what kind of arbitration proceeding the parties agreed to. That question does not concern a state statute or judici al procedures. It concerns contract interpretation and arb itration procedures. Arbitrators are well situated to answer that question.” Green Tree Fin. Corp. v. Bazzle , 539 U.S. 452-53, (2003) (plurality opinion) (citation omitted) (addressing “whether the contracts forbid class arbitration”). “The arbitrators [w ill] presumably enfo rce the venue-selection clause in precisely the same way that a court would.” McCullagh v. Dean Witter Reynolds, Inc. , 177 F.3d 1307, 1310 (11th Cir. 1999). Moreover, the arbitration clause contains “sweeping language con cerning the scope of the questions committed to arbitration, [so] this matt er of contract interpretation should be for the arbitrator, not the courts, to decide.” Green Tree , 539 U.S. at 453. The district court erred in holding LodgeWorks was substantially likely to succeed on the merits of its claim that a court, not the arbitrators, would decide venue. Having failed to meet the first crit erion of a substantia l likelihood of success, LodgeWorks was not entitled to a preliminary injunction and the district court abused its discretion in granting the injunc tion as to venue for arbitration. 3

3 LodgeWorks had a heightened burden of s howing the traditional four factors weigh heavily and compellingly in its favor, a showing it did not make. We review the grant of a prelim inary injunction for an abuse of discretion. A district c ourt abuses its discretion if it commits an error of law, or is clearly erroneous in its preliminary factual findings. Further, because a preliminary injunction is an extraordinary remedy, the movant’s right to relief must be cl ear and unequivocal. Three types of preliminary injunctions are specific ally disfavored: (1) preliminary (continued)- 7 - IV. CONCLUSION Although the injunction, as written, is vacated, we presume neither party will file additional lawsuits about venue. Clai m preclusion “prevents the parties or their privies from relitigating issues that were or could have been raised in an earlier action.” Mitchell v. City of Moore , 218 F.3d 1190, 1202 ( 10th Cir. 2000) (internal quotation marks omitted). We also presume the parties will be most circumspect in attempting to foreclose arbitration of the c ontract provisions rega rding choice of law. The district court’s order granting a preliminary injunction, as written, is vacated.

Entered for the Court

Terrence L. O’Brien Circuit Judge

injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunc tions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. For these categories of disf avored preliminary injunctions, the movant has a heightened burden of showing that the traditional four factors weigh heavily and compellingl y in its favor before obtaining a preliminary injunction. Fundamentalist Church of Jesus Chri st of Latter-Day Saints v. Horne , 698 F.3d 1295, 1301 (10th Ci r. 2012) (citations omitted) (internal quotation marks and brackets omitted).