Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1988)

MEMORANDUM^* 

Defendants-appellants Shearson Lehman Brothers ("Shearson") and Forrest Amato ("Amato") appeal from the order of the district court denying their motion to compel plaintiff-appellee Edward H. Pietz ("Pietz") to arbitrate his claims against them. We affirm.

Shearson and Amato contend that the district court erred in finding that Pietz did not agree to submit any claims against them to arbitration. We uphold factual findings of the district court unless they are clearly erroneous. Interpetrol Bermuda Ltd. v. Kaiser Aluminum Int'l, Corp., 719 F.2d 992, 998 (9th Cir. 1983); Francesco's B., Inc. v. Hotel Employees and Bartenders Union, Local 28, 659 F.2d 1383, 1387 (9th Cir. 1981).

" ' [A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' " Francesco's B., 659 F.2d at 1387 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)); AT & T Technologies v. Communications Workers of America, 475 U.S. 643, 648 (1985). As the district court noted, to support their motion to compel arbitration, Shearson and Amato:

presented a "Security Account" which may have been falsely notarized and the authenticity of which is challenged without defense. Also, they submitted three "Client Agreements" which are actually composites of a signature page and an inapplicable front page with arbitration clause. These defendants then submitted a June 2984 standard form with an arbitration clause which differed from the July 1985 clause, and illegible microfilm photocopies of customer agreements which purported to show that Pietz agreed to arbitrate two of the smaller accounts. Finally, they submitted a series of agreements signed by Pietz which apply to accounts other than his own.

We agree with the district court that " [n]one of the [se] documents make a threshold showing of a valid written agreement requiring arbitration of any of ... [Pietz's] claims." The district court's finding that Shearson and Amato failed to establish that Pietz agreed to arbitrate is not clearly erroneous.

It should be noted that at oral argument plaintiff conceded that the denial of the motion would not constitute res judicata or collateral estoppel of another motion to compel arbitration based upon different facts. We agree.

Given the defendants' conduct, as described by the district court judge, the court may wisely consider appropriate sanctions against defendants for the waste of trial and appellate court resources.

AFFIRMED.