* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

December 23, 2005

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HARRIS CAPITAL FUND, LLC,

Plaintiff-Appellant,

v.

CARLA L. GRILLO,

Defendant-Appellee.

No. 05-3106

(D.C. No. 04-CV-1036-JTM)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, PORFILIO, and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel 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.

Appellant Harris Capital Fund, LLC, (Harris) appeals the order of the

district court granting appellee Carla L. Grillo’s motion to dismiss. We have
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jurisdiction under 9 U.S.C. § 16(a)(1)(B), Ansari v. Qwest Commc’ns Corp.,

414 F.3d 1214, 1217 (10th Cir. 2005), and we affirm.

Harris brought this action in district court to compel arbitration on a

personal guaranty agreement or, in the alternative, to obtain a declaratory

judgment finding Grillo’s claims in the dispute to be without merit. Grillo moved

to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(3) for improper venue and

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The district court

refused to address the Rule 12(b)(6) arguments, finding instead that venue in the

federal district court in Kansas was improper. We review a dismissal for

improper venue de novo, Pierce v. Shorty Small’s of Branson Inc., 137 F.3d 1190,

1191 (10th Cir. 1998), and also apply that standard to the denial of a motion to

compel arbitration, Ansari, 414 F.3d at 1218.

The guaranty agreement at issue contained the following provision:

Any controversy or claim arising out of, or relating to this

Agreement, or the breach thereof, shall be settled by arbitration in

New York City, State of New York, in accordance with the rules then

in effect of the American Arbitration Association, and judgment upon

the award rendered may be entered in any court having jurisdiction

thereof.

Aplt. App. at 10.

Based on this language, the district court held that “[t]he proper forum for

compelling arbitration . . . would be the courts of New York. New York is the
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exclusive venue for Harris’s claims.” Aplt. App. at 67. Harris argues that, while

the arbitration itself must take place in New York, any court of competent

jurisdiction can compel that arbitration.

Since the district court’s decision in this case, this court has published

Ansari, 414 F.3d 1214, in which we joined the majority of courts holding that

“where the parties agreed to arbitrate in a particular forum only a district court in

that forum has authority to compel arbitration under [9 U.S.C.] § 4. In other

words, a district court lacks authority to compel arbitration in other districts, or in

its own district if another has been specified for arbitration.” Id. at 1219-20

(citations and quotation omitted). The district court in this case correctly reached

the same result.

Although the district court did not indicate that its dismissal was without

prejudice, the other unresolved issues raised either in the complaint or in the

motion to dismiss can still be raised in the proper forum. See Hollander v.

Sandoz Pharm. Corp., 289 F.3d 1193, 1216-17 (10th Cir. 2002) (holding that

where jurisdictional dismissal did not address the merits the dismissal should

have been “without prejudice to filing in an appropriate forum”).

The judgment of the district court is AFFIRMED.

Entered for the Court
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Wade Brorby

Circuit Judge