## IN THE UNI TED STAT ES COURT OF APPEALS FOR THE FIF TH CIRCU IT

No. 09-11000

DK JOINT VENTURE 1; DK JOINT VENTURE 2; VANDALAI, L.L.C., and/or L L L P ; P A R L A I , I N C

. , a n d / o r LLLP; JEFF WEEKS; K C R I N V E S T M E N T S , I N C

. ; RICHARD BUSH; RTB HOLDINGS, L.P., and/or Ltd.,
Plaintiffs - Appellees

v. RICHARD W. WEYAND; PETER THIESSEN,
Defendants - Appellants

Appeal from the United States District Court for the Northern District of Texas

Before DAVIS, WIENER, and DENNIS, Circuit Judges. DENNIS, Circuit Judge: This is an appeal from a district court’s order confirming an arbitration award. The plaintiffs-appellees are six business entities which claim to have been defrauded by the defendant-appellants, Richard Weyand and Peter Thiessen. Weyand and Thiessen were respectively the chief executive officer (CEO) and chief financial officer (CFO) of several corporations, which are hereinafter referred to as the defendant corporations. The plaintiffs and the defendant corporations entered into certain contracts which contained arbitration agreements. The plaintiffs initiated arbitration proceedings against the defendant corporations and also against Weyand and Thiessen as U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D August 4, 2 011
Lyle W . Cayce Clerk Case: 09-11000 Document: 00511562679 Page: 1 Date Filed: 08/04/2011

### No. 09-11000

individuals. Weyand and Thiessen protested that they had not agreed to arbitrate anything. Nevertheless, an arbitration panel rendered an award of damages and attorneys’ fees against, inter alia, Weyand and Thiessen. The plaintiffs then filed a motion for confirmation of the arbitration award in federal district court. Weyand and Thiessen argued that the arbitration panel had exceeded its jurisdiction by rendering an award against them, because they had never consented to arbitration. However, the district court issued an order confirming the arbitration award. We reverse the district court’s order because under ordinary principles of contract and agency law, Weyand and Thiessen were not personally bound by the arbitration agreements that their corporations entered into, and therefore the arbitration panel lacked jurisdiction to render an award against them. BACKGROUND The underlying proceedings are complex, but the facts that are relevant to this appeal are as follows. The plaintiffs-appellees are business entities named DK Joint Venture 1, DK Joint Venture 2, Vandalai L.L.L., Parlai L.L.L., KCR Investments, Inc., and RTB Holdings, Ltd. In 2007, the plaintiffs filed arbitration demands with the Dallas office of the American Arbitration Association. They alleged that the defendants — including Weyand, Thiessen, fifteen corporations controlled by them, and two other individuals who are not relevant to this appeal — had committed fraud, breach of contract, breaches of fiduciary duty, and other wrongs in order to induce the plaintiffs to invest money in a purported oil and gas venture. Weyand and Thiessen are the only defendants who are parties to this appeal. In seeking arbitration, the plaintiffs relied on arbitration provisions that were

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contained in contracts (called Subscription Agreements) between the plaintiffs and some of the defendant corporations. 1 

### Next, the plaintiffs filed two petitions in Texas state courts, making the same allegations and seeking to compel all the defendants to arbitrate the dispute. While these two actions were pending before the state courts, 19 investors (18 individuals and one corporation) intervened in one of the actions, asserting the same claims and allegations that the original plaintiffs
had asserted. The defendants removed the two state-court suits to the United States District Court for the Northern District of Texas. The federal district court consolidated the actions into one. On January 29, 2008, the district court issued an order which, as relevant here, held that all the defendants (including Weyand and Thiessen) were bound by the arbitration agreements. The district court’s order “administratively closed” the case “pending the conclusion of the arbitration proceedings.” The arbitration proceedings took place before a panel of three arbitrators appointed by the American Arbitration Association. The 2

The ar bitr atio n p rovis ions , wh ich we re all the sam e, read as f ollo ws : 1 Ar bi tratio n. Any cont rover sy, dis put e or dis agree me nt aris ing o u t o f or rela ting to this Agreem ent, the brea ch ther eof , or the sub ject mat t e r t h e reo f, sha ll be s e t t l e d b y bind ing arbit rat ion, wh ich sha ll be cond uct ed in Da llas , Texas in acc ord ance wi th the Com me rci al Arbit r a t i on Rules of the Ame ric an Arbit rat ion Ass ocia tio n, and wh ich to the exten t of the sub ject mat er [s ic] of the arbit rat ion, sha ll be bind ing not only on t h e p a r t i e s to the Agreem ent, but on any othe r enti ty cont roll ed by, in cont rol of or unde r com mo n cont rol wi th the par ty to the exten t that suc h aff iliat e joins in the arbit rat ion, and judgm ent on the aw ard rend ere d by the arbit rat or may b e e n ter ed in any cour t having juris dic tio n t here of.

Du ring the arbit rat ion pr oce edi ngs, fou r of the def enda nt cor por atio ns fil ed Chapt er 2 7 bank rup tcy pet itio ns. Weyand and Thies se n argue that thes e bank rup tcy fil ings aff ect ed the arbit rat ion pane l’s juris dic tio n over the enti re arbit rat ion pr oce edi n g

. We need not add res s this iss ue beca use we conc lude on othe r ground s that the arbit rat ion pane l lack ed juris dic tio n t o r ende r an a wa rd agai nst We yand and Thies se n.


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intervenors did not participate in the arbitration proceeding. After conducting an evidentiary hearing, the panel issued a decision on April 1, 2009, awarding the plaintiffs damages and fees totaling $13 ,317,381 against Weyand and $311,329 against Thiessen. 3 

### The plaintiffs (but not the intervenors) then filed a motion in the federal district court, seeking confirmation of the arbitration award. The court did not treat this motion as continuing the previous action, but instead assigned it a new docket number and treated it as a new case. It is unclear why the district court handled the case in that way, but the parties did not object. On September 2, 2009, the court issued an order granting the plaintiffs’ motion. On September 3, the court entered judgment against Weyand and Thiessen, ordering them to pay “the amounts awarded by the arbitrators on April 1, 2009.” Weyand and Thiessen filed a timely notice of appeal as to both the order and the judgment. ANALYSIS
I. The central question in this appeal is whether Weyand and Thiessen, in their personal capacities, are bound by the arbitration agreements that were entered into by the defendant corporations, of which they were the CEO and CFO. Applying well-established general principles of contract and agency law, we conclude that Weyand and Thiessen are not personally bound by the arbitration agreements. The standard of review for a district court’s confirmation of an arbitration award is de novo, using the same standard as the district court. Brown v. Witco Corp. , 340 F.3d 209, 216 (5th Cir. 200 3). Under the Federal Arbitration Act, an arbitration award can be vacated for any of several

The arbit rat ion pane l als o held anot her indi vidual def enda nt, Ke lly G. Rogers , liable 3 for a tot al of $730, 123. Rogers is no t a p art y t o t his ap pea l.



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enumerated reasons, one of which is that “the arbitrators exceeded their powers.” 9 U.S.C. § 10(a)(4); Citigroup Global Markets, Inc. v. Bacon , 562 F.3d 349, 352 (5th Cir. 2009). We have stated that “[o]rdinary principles of contract and agency law may be called upon to bind a nonsignatory to an [arbitration] agreement whose terms have not clearly done so.” Bridas S.A.P.I.C. v. Gov’t of
Turkmenistan , 345 F.3d 347, 356 (5th Cir. 200 3). We need not decide in this case whether those principles should be drawn from Texas law or federal law, because both bodies of law lead us to the same conclusion. See Railroad 4 

### Mgmt. Co. v. CFS La. Midstream Co. , 428 F.3d 214, 222 (5th Cir. 200 5) (“Where there are no differences between the relevant substantive laws . . . , there is no conflict, and a court need not undertake a choice of law analysis.”). Weyand and Thiessen, as CEO and CFO of the defendant corporations, were the corporations’ agents. Under general principles of contract and agency law, the fact that the defendant corporations entered into the Subscription Agreements did not cause their agents, Weyand and Thiessen, who acted only as officers on behalf of the corporations, to be personally bound by those agreements. For instance, the Restatement (Third) of Agency

The Subs cri pt ion Agreem ents them se lves st ate that they are to be governe d by Texas 4 law

. The Sup rem e Court ’s opi nion in Fir st O ptio ns of Chic ago, Inc. v

. Kap la n , 514 U. S. 938 (199 5) sup por ts the app lica tio n of s t a t e l a w : “Whe n dec idi ng wh ethe r the par tie s agree d to arbit rat e a cer tain mat ter (inc ludi ng arbit rabil ity) , cour ts genera lly

. . . sho uld app ly ord inary st ate- law p rinc ipl es t hat govern the form atio n of cont rac ts .” Id. at 944. H ow ever, ou r cour t has st ated that “th e fed eral sub st antive law of arbit rabil ity” app lies to the ques tio n of “to wh at exten t a non- signa tor y is bound by an arbit rat ion pr ovis ion cont ained in a cont rac t she is sui ng unde r. ” Was h. Mut. Fin. Gr p. , LLC v. Bai le

y , 364 F.3d 260, 267 n.6 (5t h Cir. 2004)

. (The ques tio n in Was hington Mutua l wa s sim ilar to, but dis tinc t fr om , the ques tio n we are dec idi ng here , wh ich is wh ethe r Weyand and T h i e s s e n , wh o are non- signa tor ies , are bound by arbit rat ion pr ovis ions cont ained in cont rac ts unde r wh ich they are being sue d. ) The Texas Sup rem e Court has st ated that , given the uncer taint y about wh ethe r fed eral or s t a t e law governs the ques tio n of wh ethe r a n o n s i g n a tor y is bound by an arbit rat ion agree me nt, “w e have det erm ined to app ly st ate sub st antive law and ende avor to ke ep it cons ist ent wi th fed eral law .” In re Laba tt Food Serv
., L.P. , 279 S

. W

. 3 d 6 4 0 , 643 (Tex. 2009) (c itin g In re Wee kle y Ho me s , 180 S. W.3 d 127, 130 -31 (Tex. 200 5))

. 

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states: “When an agent acting with actual or apparent authority makes a contract on behalf of a disclosed principal, (1) the principal and the third party are parties to the contract; and (2) the agent is not a party to the contract unless the agent and third party agree otherwise.” Restatement (Third) of Agency § 6.01 (2006). The Restatement (Second) of Agency says substantively the same thing: “Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.” Restatement (Second) of Agency § 320 (1958). A recent Texas appellate decision, Roe v. Ladymon , 318 S.W.3d 502 (Tex. App.–Dallas 2010, no pet.), applied these general principles to a set of facts very similar to those of the present case. Roe, a homeowner, entered into a contract with Metro LLP, a contractor. Id. at 507. Ladymon signed the contract in his capacity as a partner of Metro. Id. When Roe was unsatisfied with Metro’s work, she pursued arbitration against both Metro and Ladymon.
Id. at 508. The arbitrator awarded damages to Roe and held that Metro and Ladymon were jointly and severally liable for those damages. Id. at 509. However, when Roe filed suit to confirm the arbitration award, the state trial court “held that the arbitrator had exceeded his authority in rendering an award against Ladymon individually.” Id. The court of appeals affirmed. The court explained that “by signing the contract as an agent for a disclosed principal, Ladymon did not become personally bound by the terms of that contract, including the arbitration clause.” Id. at 521. The Roe court explained why that case was different from another class of cases, in which courts have held that plaintiffs who had signed arbitration agreements could be compelled to arbitrate their disputes with nonsignatory defendants. Such cases include In re Vesta Insurance Group, Inc. , 192 S.W.3d 759 (Tex. 2006), in which “a signatory to a contract containing an arbitration

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clause filed . . . suit [in court] against non-signatory officers and agents of the other party to the contract,” thereby attempting to avoid arbitration. Roe , 318 S.W.3d at 520 (citing Vesta , 192 S.W.3d at 762-63). In other words, “[t]he signatory plaintiff [in Vesta ] was resisting arbitration while the non-signatory defendants sought to hold the signatory plaintiff to abide by his agreement to
arbitrate.” Id. The Roe court explained, “ Vesta stands for the proposition that a signatory plaintiff cannot avoid its agreement to arbitrate disputes simply by bringing . . . claims against the [nonsignatory] officers, agents, or affiliates of the other signatory to the contract.” Id. This proposition is based on “estoppel principles” because it essentially involves holding the plaintiff to his agreement to arbitrate. See id. But Roe was fundamentally different from Vesta because in Roe , “the party resisting arbitration did not sign the agreement to arbitrate [in his individual capacity].” Id. Thus, in Roe there was no “basis to ‘estop’ [the defendant] from refusing to arbitrate because he never agreed to arbitrate.” Id. at 520-21. The present case is like Roe and
unlike Vesta because here, the parties resisting arbitration, Weyand and Thiessen, never personally agreed to arbitrate. Thus, under Roe , Weyand and Thiessen are not bound by the arbitration agreements. 5 

### Federal courts addressing similar fact patterns have followed essentially the same reasoning used by the Roe court, and have reached analogous results. In Bel-Ray Co. v. Chemrite (Pty) Ltd. , 181 F.3d 435 (3d Cir. 1999), the Third Circuit partially reversed a district court’s order compelling arbitration; the appellate court held that only the defendant

The dis tri ct cour t in this cas e err oneo usl y reli ed on Mc Mi ll an v. Com pu t er Tra nsl atio n 5 System s & Supp ort, Inc. , 66 S. W.3 d 477 (Tex. App

. – D allas 2001, no pet .) , a cas e wh os e fac t pat ter n wa s lik e that of Ve sta : in Mc Mi ll an , the plai ntif f, a bus ines s wh ich wa s a signa tor y to

an arbit rat ion agree me nt, wa s com pel led to arbit rat e its clai ms agains t indi vidual s wh o we re agents of the def

enda nt cor por atio n, even thou gh thos e indi vidual s had not per so nally agree d to arbit rat e. Mc Mi ll an is in app os ite f or the sam e r eas ons as Ve sta

. 

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corporation and not its individual directors and officers were bound by an arbitration agreement, because the directors and officers had not personally agreed to arbitrate. Id. at 446. The Third Circuit reasoned, “Arbitration is strictly a matter of contract. If a party has not agreed to arbitrate, the courts have no authority to mandate that he do so.” Id. at 444. And in Merrill Lynch Investment Managers v. Optibase, Ltd. , 337 F.3d 125 (2d Cir. 2003), the Second Circuit upheld a preliminary injunction preventing a plaintiff from pursuing arbitration proceedings against a defendant which was not a party to the arbitration agreement. Id. at 132. The defendant resisting arbitration
in Merrill Lynch was a corporation which was affiliated with another corporation that had entered into the arbitration agreement. Id. at 130. The Bel-Ray and Merrill Lynch courts both distinguished a prior case, Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 7 F.3d 1110 (3d Cir. 1993), in which plaintiffs who had signed an arbitration agreement had been compelled to arbitrate claims against two nonsignatory defendants (an individual and a corporation) that were agents of the other party to the agreement. The Second Circuit succinctly explained that Pritzker was distinguishable because “it matters whether the party resisting arbitration is a signatory or not.” Merrill Lynch , 337 F.3d at 131; see also Bel-Ray , 181 F.3d
at 444-45. This was the same distinction that the Roe court employed in distinguishing Vesta

. The Supreme Court’s decision in First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938 (1995), is also i nstructive, as it involved a similar set of facts, although the Court’s opinion focused on a slightly different question — the threshold issue of whether the parties had “agree[d] to submit the arbitrability question itself to arbitration.” Id. at 943. In that case, the plaintiff (First Options) had entered into an arbitration agreement with a corporate defendant (MKI) and sought to compel MKI’s owner and his wife

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(the Kaplans) to arbitrate, even though the Kaplans were not parties to the arbitration agreement. The arbitration panel ruled that it had the power to enter an award against the Kaplans despite their unwillingness to arbitrate. But “the Third Circuit agreed with the Kaplans that their dispute was not arbitrable,” id. at 941, and the Supreme Court affirmed, id. at 949. 6 

### In summary, both the Texas and federal courts have recognized that “it matters whether the party resisting arbitration is a signatory or not.” Merrill Lynch , 337 F.3d at 131. In this case, the parties resisting a rbitration — Weyand and Thiessen in their individual capacities — are not signatories. Under ordinary principles of contract and agency law, their status as the CEO and CFO and agents of the defendant corporations is insufficient to personally bind them to the arbitration agreements. Nonetheless, the plaintiffs argue that we must defer to the arbitration panel’s determination that it had jurisdiction over Weyand and Thiessen, because the arbitration provisions in the Subscription Agreements gave the

On e fed eral app ellat e cour t has reac hed the opp os ite res ult on a se t of fac ts that wa s 6 analogo us to thos e of Fir st Op tions , Bel -Ra y , Me rri ll Lynch , a n d R o e

. S e e Lee v. Chic a , 983 F.2d 883 (8t h Cir. 1993)

. Ho we ver, in light of mo re rec ent Sup rem e Court and Eighth Circ uit

cas es , Lee s eem s to have been im pli edl y over rule d. In Lee , the Eighth Circ uit held that an em p l o y e e o f a se cur itie s brok erage fir m wa s per so nally bound by an arbit rat ion agree me nt that the fir m had ente red into wi th a cus tom er,
even thou gh the em plo yee wa s not a p a r t y t o t h at agree me nt. Id. at 887. But Lee is cont rad ict ed by a mo re rec ent Eighth Circ uit cas e, Ni tro Di stri buting, Inc. v. Al tico r, Inc. , 453 F.3d 995 (8t h Cir. 2006) , in wh ich the Eighth Circ uit mad e the sam e dis tinc tio n that the Bel

Ray and Me rri ll Lynch cour ts mad e

— e xplain ing that “s ituat ions wh ere a nonsi gnator y att em pt s to bind a si gnator y to an arbit rat ion agree me n t ” are cru cial ly dif fer ent fr om thos e wh ere “th e signa tor y[] is att em pt i n g t o b i n d the nons ignato ry

. . . to the arbit rat ion agree me nt. ” Id. at 999. Relying on this dis tinc tio n, the Ni tro cour t held that the nons ignato ry plai ntif fs in that c ase w ere no t bound by an arbit rat ion agree me nt they had not signe d. Id. While the Ni tro cour t did not expr es sly add res s Lee , the Ni tro cour t mo st lik ely regar ded Lee ’s hold ing as having been sup ers ede d by the Sup rem e Cou r t ’ s i n t erveni ng dec isi on in Fir st Op tions

. 

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arbitration panel the power to determine its own jurisdiction. Relying on our 7 

### court’s opinion in Agere Systems, Inc. v. Samsung Electronics Co. , 560 F.3d 337 (5th Cir. 2009), the plaintiffs contend that the arbitration panel’s decision regarding its own jurisdiction must be accepted unless it is “wholly groundless.” Id. at 340 (quoting Qualcomm Inc. v. Nokia Corp. , 466 F.3d 1366, 1371 (Fed. Cir. 2006)) (internal quotation ma rks omitted). However, Agere is inapposite here because in Agere , an arbitration agreement undisputedly existed between the parties, and the dispute was over “whether the arbitration clause [was] still in effect.” Id. By contrast, the present case involves a simpler type of dispute which, we have held, is for the courts and not the arbitrator to decide in the first instance: a dispute over whether the parties entered into any arbitration agreement in the first place. “[I]t is clear that because arbitration is a matter of contract, where a party contends that it has not signed any agreement to arbitrate, the court must first determine if there is an agreement to arbitrate before any additional dispute can be sent to arbitration.” Will-Drill Res., Inc. v. Samson Res. Co. , 352 F.3d 211, 218 (5th Cir. 2003). We held in Will-Drill “that where a party attacks the very existence of an agreement, as opposed to its continued validity or enforcement, the courts must first resolve that dispute.” Id. at 219. Because 8

This argum ent relies on a se nten ce in the Subsc rip tio n Agreem ents wh ich says that 7 arbit rat ion “s hall be cond uct ed

. . . in acc ord ance wi th the Com me rci al Arbit rat ion Rules of the Ame ric an Arbit rat ion Ass ocia t i o n [ AAA]. ” Rule 7 of the AAA’s rule s st ates , “The arbit rat or sha ll have the pow e r to rule on his or her ow n juris dic tio n, inclu ding any objec tio ns wi th

res pec t to the exis tenc e, sc ope , or validi ty of the arbit rat ion agree me nt. ” Som e of our sis ter cir cuit s have held that an arbit rat ion agree me nt that ref ers to the AAA’s rule s ther eby clea rly and unm ist ak ably dem ons tra tes that the par tie s to the agree me nt to arbit rat e in te nded to give the a r b i t r ator the pow er to det erm ine wh ethe r an iss ue or dis put e is arbit rable

. See Qu al com m Inc. v. Noki a Corp

. , 466 F. 3 d 1366, 1373 (Fed

. Cir. 2006) (c itin g Contec Corp

. v. Rem ote Solu tion Co. , 398 F.3d 205, 208 (2d Cir. 2005) ); Ter mi nix Int’l Co. v. Pal me r Ranc h Ltd. P’shi p , 432 F.3d 132 7, 1332 (11t h Cir

. 2005)

. See al so In re Mo rgan Stanl ey & Co. , 293 S. W.3 d 182, 189 (Tex. 2009) (agr eeing wi th 8 Wil l- Dr il l on t his p oint ).



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that is the type of dispute we are addressing here, we do not owe deference to the arbitration panel’s determination of its own jurisdiction. 9 

### The plaintiffs also argue that Weyand and Thiessen should be barred by judicial estoppel from claiming that they did not personally agree to 1 0 

### arbitrate. This argument is based on the fact that Weyand, in his role as a defendant in a separate lawsuit in another federal district court involving different plaintiffs, successfully filed a motion to compel arbitration, requiring the plaintiffs in that case to arbitrate their claims against him personally rather than seeking relief in court. Patterson Co. v. Weyand , No. CIV-09-133- RAW (D. Okla. July 31, 2009). Weyand’s motion in that case w as based on an

Mo reo ver, our opinion in Ager e its elf expla ins wh y the “w holly ground les s” st andar d 9 doe s not app ly to this cas e: that st andar d app lies o n l y w h e n “th e par tie s ‘unm ist ak ably inte nd[ ed] to del egate the pow er to dec ide arbit ra b i lity to an arbit rat or. ’” 560 F.3d at 340 (quo ting Qu al com m , 466 F.3d at 1371)

. Lik ew ise , the Sup re m e C o u r t held in Fir st Op tions that “[ c] ourt s sho uld not ass ume that the par tie s agree d to arbit rat e arbit rabil ity unles s ther e is ‘c lear and u nmi st ak able’ evi denc e t hat they did s o.” 514 U. S. at 944 ( alte rat ions omit ted ) (quo ting AT

&T Tec hs.
, Inc. v. Com mc ’n s W o r k e r s o f Am

. , 475 U. S. 643, 649 (198 6))

. In this

cas e, given that Weyand and Thies se n did not per so nally agree to arbit rat e at all, it cer tainl y fol low s that ther e is no “cl ear and unm ist ak able” e v i d e n c e t hat they agree d to del egate ques tio ns of arbit rabil ity to the arbit rat or. The arbit rat ion pr ovis ions in the Subs cri pt ion Agreem ents may be suf fic ient to sho w that the pa rtie s to those agre em ents inte nded to confer that p ow er on the arbit rat ion pane l, but — as expla ined above — Weyand and Thies se n ar e not per so nally bound by the Subs cri pt ion Agreem ents

. “The doc tri ne of judi cial est opp el pr event s a par ty fro m as se rti ng a clai m in a legal 1 0
pr oce edi ng that is inco nsi st ent wi th a clai m tak en by that par ty in a p revio us pr oce edi ng.” New Ha mp s h i r e v

. Ma ine , 532 U. S. 742, 749 (200 1) (quo ting 18 Mo ore ’s Feder al Prac tice § 134. 30, at 134- 62 (3d ed. 2000) ) (int erna l quot atio n mar ks om itt ed)

. “[ J]ud icia l es top pel ‘is

an equit able doc tri ne invok ed by a cour t at its dis cre tio n.’ ” Id. at 750 (quo ting Russ el l v. Rol fs , 893 F.2d 1033, 1037 (9t h Cir. 1990) ). “[ S] evera l fac tor s typi call y info rm the dec isi on wh ethe r to app ly the doc tri n e in a par tic ular cas e: Firs t, a par ty’s late r pos itio n mus t be ‘cl earl y inco nsi st ent’ wi th its earl ier posi tio n.” Id. (quo ting Uni ted States v. Ho ok , 195 F.3d 299, 306 (7t h Cir. 1999) ). “Se cond , co u r t s r e gularly inquir e wh ethe r the par ty has suc cee ded in per sua ding a c o u r t to acc ept that par ty’s earl ier pos itio n, so that judic ial acc ept ance of an inco nsi st ent pos itio n in a late r pr oce edi ng wo uld cre ate ‘th e per cep tio n that eit her the fir st or the se cond cour t wa s mi sle d. ’” Id. (quo ting Edw ar ds v. Ae tna Lif e Ins. Co. , 690 F.2d 595, 599 (6t h Cir. 1982) ). “A thir d cons ide rat ion is wh ethe r the par ty se ek ing to ass ert an inco nsi st ent pos itio n wo uld der ive an unfa ir advant age or im pos e an unfa ir de t r im ent on the opp os ing par ty if not es top ped .” Id.



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arbitration provision that is identical to the arbitration provisions that are at issue in the present case. However, we are not persuaded by the plaintiffs’ judicial estoppel argument because, in light of the distinction explained above, there is no genuine inconsistency between Weyand’s positions in the other case and the present case. Again, “it matters whether the party resisting arbitration is a signatory or not.” Merrill Lynch , 337 F.3d at 131. In the present case, the parties resisting arbitration are Weyand and Thiessen, who are not signatories or parties to the contracts at issue. By contrast, in the other case, the parties resisting arbitration were signatories to the contract. Because Weyand has not taken inconsistent positions, the plaintiffs’ judicial estoppel argument fails. The plaintiffs additionally argue that Weyand and Thiessen are bound by the arbitration provisions in the Subscription Agreements because of language in the agreements referring to “affiliates.” The plaintiffs contend that the agreements purport to bind “affiliates” of the defendant corporations, and they further claim that Weyand and Thiessen count as “affiliates.” 1 1 

### However, this argument fails because, even if the Subscription Agreements could be interpreted in that manner, the defendant corporations lacked the authority to bind Weyand and Thiessen personally. As the Third Circuit explained in Bel-Ray , “under traditional agency principles, [unless the agent agrees to be personally bound,] the only other way . . . an agent can be bound by the terms of a contract is if she is made a party to the contract by her principal acting on her behalf with actual, implied, or apparent authority.”

The dis tri ct cour t’s or der of Jan uary 29, 2008 expla ined t he bas is of this argum ent 1 1

as fol low s: “Regula tio n 13.0 3, wh ich is fou nd in Exhibit A to the Subs cri pt ion Agreem ents

. . . st ates that the regula tio ns inclu de the enti re agree me nt of the Me mbe rs and thei r Aff iliat es

. Paragr aph 16 of the Subs cri pt ion Agreem ent[ s] , wh ich is the arbit rat ion c laus e, des cri bes aff iliat es as any othe r enti ty cont roll ed b y , i n c ontr ol of, or unde r com mo n cont rol wi th a par ty. ” S lip O p. at 8.



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181 F.3d at 445. The plaintiffs have not identified a nything in the record which would establish that the defendant corporations (the principals) had any type of authority to bind Weyand and Thiessen (the agents) personally. In the absence of such authority, the language about “affiliates” in the Subscription Agreements cannot have been sufficient to make the arbitration provisions binding on Weyand and Thiessen.
II. Finally, we address Weyand and Thiessen’s argument that this court lacks jurisdiction to review the district court’s judgment of September 3. There is no doubt that we at least have jurisdiction to review the district court’s order of September 2, which granted the plaintiffs’ motion to confirm
the arbitration award. See 9 U.S.C. § 16(a) (“An appeal may be taken from . . . an order . . . confirming or denying confirmation of an award or partial award . . . .”). However, we must consider whether we also have jurisdiction to review the September 3 judgment, because we are required to be careful about the limits of our jurisdiction. See, e.g. , Beiser v. Weyler , 284 F.3d 665, 674 (5th Cir. 2002) (“[F]ederal courts are courts of limited jurisdiction. We thus make especially certain that we take jurisdiction only over such cases as Congress has provided by statute.”). According to Weyand and Thiessen, the September 3 judgment was not an appealable “final decision” under 28 U.S.C. § 1291 b ecause it did not dispose of all parties and claims in the case. As we explained in Bader v. Atlantic International, Ltd. , 986 F.2d 912 (5th Cir. 1993), “[i]n a la wsuit which contains multiple claims and/or multiple parties, [an appealable] final judgment exists only if it meets one of two conditions: The judgment must either adjudicate all claims, rights, and liabilities of all parties or the district court must expressly conclude that no just reason exists for delaying the entry of final judgment and must expressly order the entry of that judgment

13 Case: 09-11000 Document: 00511562679 Page: 13 Date Filed: 08/04/2011

### No. 09-11000

pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.” Id. at 914-
15. Likewise, in Bridgmon v. Array Systems Corp. , 325 F.3d 572 (5th Cir. 1 2 

### 2003), we reasoned that “[i]f the district court did not enter a final judgment disposing of all parties and claims (or certify claims upon which judgment was granted as a partial final judgment under Rule 54(b)) then this court would not have jurisdiction over this appeal.” Id. at 574 n.2 (citing 28 U.S.C. § 1291). Here, the district court did not make the express determination required by Rule 54(b) when it entered the September 3 judgment; therefore, the judgment was an appealable final decision only if it disposed of all the parties and claims in the case. Weyand and Thiessen’s specific argument is that the September 3 judgment failed to dispose of all parties and claims because it did not address the claims of the 19 intervenors who were parties to one of the two original state-court suits that were removed and consolidated in federal court. Those intervenors were still parties to that consolidated case when the district court entered the order of January 29, 2008, holding that all the defendants were bound by the arbitration agreement and “administratively clos[ing]” the case pending the arbitration proceedings. However, after the arbitration panel issued its award and the plaintiffs filed their motion to confirm the award, the district court treated that motion as commencing a new case rather than

Rule 54( b) st ates : 1 2 Ju dgm ent on Multiple Clai m s or Invo lving Multiple Par t i es. When an act ion pr es ents mo re th a n o ne clai m for reli ef

-- wh ethe r as a clai m, count erc laim , cro ss clai m, or thir d- par ty clai m
-- or w h e n m ulti ple par tie s are involved , the court may d irec t entr y of a fi nal judgm ent as to one or mo re, but few er than all, clai ms or par tie s only if the c o u r t expr es sly det erm ines that ther e is no just rea s o n f o r del ay. Ot herw ise , any ord er or othe r dec isi on, how ever des ignate d, that adjud icat es few er than all the clai ms or the right s and liabil itie s of few er than all the par ties d oes no t end the act ion as to any o f the clai ms or par tie s and may be revis ed at any tim e bef ore the entr y of a judgm ent adjud icat ing al l t he clai ms and al l t he par tie s’ r ights and li abilit ies

. 

### 14 Case: 09-11000 Document: 00511562679 Page: 14 Date Filed: 08/04/2011

### No. 09-11000

reopening the old one. The district court gave the case a new docket 1 3 

### number, and did not treat the intervenors as being included among the parties to the new case. The intervenors did not participate in the new case (nor had they participated in the arbitration proceeding). Therefore, when the district court entered the judgment of September 3, it disposed of all the claims and parties that were actually in the case. Consequently, the judgment of September 3 was a final decision under § 1291, and we have jurisdiction to review it. CONCLUSION Under ordinary principles of agency law, whether drawn from Texas or federal law, Weyand and Thiessen’s roles as the CEO and CFO of the defendant corporations are insufficient to bind them personally to arbitration agreements that the corporations entered into. The plaintiffs have failed to identify any valid basis for Weyand and Thiessen to be personally bound by the arbitration agreements. Accordingly, we REVERSE the district court’s order of September 2 and its judgment of September 3, and REMAND the case for further proceedings consistent with this opinion.

Weyand and Thies se n ins ist that the dis tri ct cour t mus t have real ly reo pene d an old 1 3

cas e, rat her than com me ncing a new one, beca use the plai ntif fs , in fil ling out a for m that they fil ed wi th thei r m o t i o n for conf irm atio n of the arbit rat ion aw ard , chec ke d a box mar ke d “Rein st ated or Reopene d. ” H ow ever, t his d oes no t alte r the fac t that t he dis tri ct cour t, on ce it rec eived t he mo tio n, tre ated it as c om me ncing a new c ase

. N one of the par tie s rais ed any objec tio n t o t he dis tri ct cour t’s d oing so

. 

### 15 Case: 09-11000 Document: 00511562679 Page: 15 Date Filed: 08/04/2011