* The Honorable David G. Larimer, of the United States District Court for the Western District of New York, sitting by designation. 12-58-cv Twenty-First Securities Corp. v. Crawford **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER R** **ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .**  **C ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT**  **, A PARTY MUST CITE EITHER THE**  **F EDERAL**  **A PPENDIX OR AN**  **ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON**  **ANY PARTY NOT REPRESENTED BY COUNSEL .**  At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 9 thday of November, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 DENNY CHIN, 7 Circuit Judges, 8 DAVID G. LARIMER, * 9 District Judge

. 10 11 12 Twenty-First Securities Corporation, 13 14 Plaintiff-Appellant , 15 16 v. 12-58-cv 17 18 Dr. Byron Crawford, 19 20 Defendant-Appellee. 21 22 23 24 FOR APPELLANT: Daniel Gildin, Kevin M. Shelley, Kaufmann 25 Gildin Robbins & Oppenheim LLP, New York, 26 NY. 27 28 FOR APPELLEE: Robert A. Uhl, Aidikoff, Uhl & Bakhtiari, 29 Beverly Hills, CA; Steven B. Caruso, 30 Maddox Hargett & Caruso, P.C., New York, 31 NY. 322 1 Appeal from the United States District Court for the 2 Southern District of New York (Pauley, J. ). 3 4 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 5

**AND DECREED**that the memorandum and order of the United 6 States District Court for the Southern District of New York 7 is **AFFIRMED**
. 8 Plaintiff-Appellant Twenty-First Securities Corp. 9 (“Twenty-First”) appeals from a memorandum and order of the 10 United States District Court for the Southern District of 11 New York (Pauley, J .), denying Twenty-First’s motion to 12 preliminarily enjoin a Financial Industry Regulatory 13 Authority (“FINRA”) arbitration proceeding filed by 14 Defendant-Appellee Dr. Byron Crawford. The arbitration 15 arises from Crawford’s investment, through his nominee Rahn 16 & Bodmer, in the 1861 Capital Discovery Domestic Fund LP 17 (“1861 Fund” or “Fund”) based on advice from Twenty-First, a 18 brokerage and investment firm. The district court denied 19 Twenty-First’s motion for a preliminary injunction because 20 it concluded, inter alia , that Crawford was Twenty-First’s 21 customer with respect to Crawford’s investment in the 1861 22 Fund and, therefore, entitled to arbitration pursuant to 23 FINRA Rule 12200. The panel has reviewed the briefs and the 24 record in this appeal and agrees unanimously that oral 253 argument is unnecessary because “the facts and legal 1 arguments [have been] adequately presented in the briefs and 2 record, and the decisional process would not be 3 significantly aided by oral argument.” Fed. R. App. P. 4 34(a)(2)(C). We assume the parties’ familiarity with the 5 underlying facts, the procedural history, and the issues 6 presented for review. 7 When reviewing a district court’s denial of a 8 preliminary injunction, we review the district court’s 9 findings of fact for clear error, its legal conclusions de 10

novo , and its ultimate decision for abuse of discretion. 11 Arbitrability is a question of law for the court to decide. 12 Wachovia Bank, Nat’l Ass’n v. VCG Special Opportunities 13 Master Fund, Ltd. , 661 F.3d 164, 171 (2d Cir. 2011); UBS 14 Fin. Servs., Inc. v. W. Va. Univ. Hosps., Inc. , 660 F.3d 15 643, 648 (2d Cir. 2011) (citation omitted). 16 To prevail on its motion for a preliminary injunction, 17 Twenty-First was required to demonstrate, inter alia , a 18 “likelihood of success on the merits," i.e., that Crawford 19 was not entitled to arbitrate his claims. Citigroup Global 20 Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd. , 21 598 F.3d 30, 35 (2d Cir. 2010) (internal quotation marks 22 omitted). Where, as in this case, there is no written 234 agreement to arbitrate, a claim against a FINRA member is 1 subject to mandatory arbitration only where arbitration is 2 “requested by the customer.” FINRA R. 12200. Here, the 3 district court correctly concluded that Crawford was Twenty4 First’s “customer” with respect to his investment in the 5 1861 Fund. See, e.g. , Bensadoun v. Jobe-Riat , 316 F.3d 171, 6 177 (2d Cir. 2003) (citing Lehman Bros. Inc. v. Certified 7 Reporting Co. , 939 F. Supp. 1333 (N.D. Ill. 1996)). 8 We reject Twenty-First’s contention to the contrary. 9 The district court’s finding was not clearly erroneous. 10 Moreover, Twenty-First failed to present any evidence 11 contradicting Crawford’s showing that he was a customer. It 12 is well settled that "the party opposing arbitration ‘may 13 not rest on a denial but must submit evidentiary facts 14 showing that there is a dispute of fact to be tried.’" 15 D'Antuono v. Serv. Rd. Corp. , 789 F. Supp. 2d 308, 319-20 16 (D. Conn. 2011) (quoting Oppenheimer & Co., Inc. v. 17 Neidhardt , 56 F.3d 352, 358 (2d Cir.1995)). 18 General principles of construction also weigh in favor 19 of arbitrability here. This Court has held that when 20 interpreting FINRA’s arbitration rules, “‘any doubts 21 concerning the scope of arbitrable issues should be resolved 22 in favor of arbitration.’” Wachovia Bank , 661 F.3d at 171 23 (quoting Bensadoun , 316 F.3d at 176). 245 We have considered Twenty-First’s remaining arguments 1 and, after a thorough review of the record, find them to be 2 without merit. Accordingly, the memorandum and order of the 3 district court is hereby **AFFIRMED** . In light of our 4 decision, Crawford’s motion to supplement the record is 5

**DENIED** as moot. The Public Investors Arbitration Bar 6 Association’s motion to file an amicus brief is **GRANTED**
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FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9