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11-CV-3576
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MARCUS ISAIAH WASHINGTON,
Plaintiff-Appellant,

WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, formerly known as the WILLIAM MORRIS AGENCY, INC., JEFF MEADE and SARAH WINIARSKI,
Defendants-Appellees.

ON APPEAL FROM THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No. 10-Civ-9647 (PKC)(JCF)
OPPOSITION TO APPELLANT'S EXPEDITED MOTION TO RECALL MANDATE VACATE ORDER AND ARTICULATE REASONING IN THE FORM OF A JUDICIAL OPINION, PENDING THE FILING AND DISPOSITION OF A PETITION FOR CERTIORARI

Michael P. Zweig (MZ-5318) Christian D. Carbone (CC-6502) LOEB & LOEB LLP 345 Park Avenue New York, NY 10154 Telephone: 212.407.4000 Facsimile: 212.407.4990 Attorneys for Defendant-Appellees

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TABLE OF CONTENTS

Page(s)
TABLE OF AUTHORITIES PROCEDURAL HISTORY ARGUMENT

ii 1 2

I. MR. WASHINGTON HAS NOT DEMONSTRATED ANY EXCEPTIONAL CIRCUMSTANCES WARRANTING THE RECALL OR STAY OF THIS COURT'S MANDATE 2 CONCLUSION 5

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TABLE OF AUTHORITIES Pa2e(s)
CASES

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009) Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50 (2d Cir. 1985) Johnson v. Bechtel Assocs. Profl Corp., D.C., 801 F.2d 412 (D.C. Cir. 1986) Jonesfilm v. Lions Gate Films, Inc., 65 F. App'x 361 (2d Cir. 2003) Khulumani v. Barclay Nat'l Bank Ltd., 509 F.3d 148 (2d Cir. 2007), aff'd sub nom., Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86 (2d Cir. 1996) Williams v. Chrans, 50 F.3d 1358 (7th Cir. 1995) (per curiam) Zinker v. Doty, 907 F.2d 357 (2d Cir. 1990)
STATUTES

3 2 4 3

4 2 5 5

Fed. R. App. P. 41(d)(2)(A)
OTHER AUTHORTTIES

4

16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3938 (1977) 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3987.1 (3d ed.1999)

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Defendants-Appellees William Morris Endeavor Entertainment, LLC, Jeff Meade and Sarah Winiarski (collectively, "Appellees" or "WME") respectfully submit this memorandum in opposition to Plaintiff-Appellant Marcus Washington's motion asking this Court to either recall the mandate 1 issued in this case and vacate the District Court's July 29, 2011 order or stay the mandate for 90 days pending the filing and disposition of a writ of certiorari with the Supreme Court. For the reasons set forth below, Mr. Washington's motion, seeking yet again to avoid the enforceability of his arbitration agreement with his former employer, should be denied. PROCEDURAL HISTORY In December 2010, Mr. Washington filed a complaint purporting to assert claims of employment discrimination against WME. On July 29, 2011, the District Court granted WIVIE's motion for a stay pending arbitration, as required by Mr. Washington's written agreement with WME (the "Stay Order").

A mandate consists of a certified copy of the judgment, a copy of the court's opinion if any, and any direction about costs. Fed. R. App. P. 41(a). The mandate here ordered that WME's motion to dismiss is granted, that Mr. Washington's appeal is dismissed and that his motion denied as moot. U.S. Ct. of App., Second Circuit Mandate, Feb. 14, 2012, ECF No. 49.
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Mr. Washington filed a Notice of Appeal on August 10, 2011 and in September 2011, made an Emergency Motion for an Expedited Appeal and Request for the Disqualification of Hon. P. Kevin Castel and Hon. James C. Francis. This Court denied Mr. Washington's motion and granted WIVIE's cross-motion to dismiss Mr. Washington's appeal for lack of appellate jurisdiction, on the grounds that the Federal Arbitration Act explicitly excludes orders compelling arbitration from this Court's jurisdiction. On December 27, 2011, Mr. Washington filed a Petition for Rehearing, which was denied by this Court on February 3, 2012. This Court's mandate was issued to the Southern District of New York on February 14, 2012. ARGUMENT

I. MR. WASHINGTON HAS NOT DEMONSTRATED ANY EXCEPTIONAL CIRCUMSTANCES WARRANTING THE RECALL OR STAY OF THIS COURT'S MANDATE As Mr. Washington acknowledges, a Court of Appeals will only exercise its power to recall a mandate in "exceptional circumstances." Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996) ("this power is to be 'exercised sparingly') (citing Greater Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C.Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972)); see also, Fine v. Bellefonte
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Underwriters Ins. Co., 758 F.2d 50, 53 (2d Cir. 1985) ("a panel will ordinarily recall its mandate only in exceptional circumstances"); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3938 (1977). Allegations that a court has failed "to correctly construe and apply the applicable state law does not constitute by itself a circumstance justifying recall." Sargent, 75 F.3d at 90 (citing Hines v. Royal Indem. Co., 253 F.2d 111, 114 (6th Cir. 1958)) (internal citations omitted). Here, the merits of both this Court's mandate and the District Court's decision, are clear. The District Court, in accordance with well-settled case law, correctly determined that Mr. Washington's claims are arbitrable and that the arbitration agreement he signed is enforceable, and stayed the action pending arbitration. See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 267 n.9 (2009) ("nothing in the text of Title VII...precludes contractual arbitration"). Likewise, this Court, consistent with the clear provisions of the Federal Arbitration Act, has consistently affirmed that an order staying an action and compelling arbitration is not final and therefore is unappealable. See, e.g., Jonesfilm v. Lions Gate Films, Inc., 65 F. App'x 361, 363 (2d Cir. 2003). Having presented no evidence of error, no intervening change in case
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law, and no other extraordinary circumstances warranting a recall, Mr. Washington falls back on his broad, wholly unsupported assertion that "inaction...would lead to manifest injustice." (Pl. Mem. at 3). This is pure exaggeration. Enforcing a contractual agreement to arbitrate disputes is hardly an injustice. Mr. Washington has not — and cannot — point to one fact or cite to one case supporting his argument that extraordinary circumstances are present here. "[Mr. Washington] ha[s] had full opportunity to press [his] arguments on [] appeal...Surely with the normal process of appeal available, resort to the extraordinary step of recalling the mandate is unjustifiable." Johnson v. Bechtel Assocs. Profl Corp., D.C., 801 F.2d 412, 416 (D.C. Cir. 1986). Nor has Mr. Washington demonstrated an entitlement to a stay. Rule 41 requires the party seeking a stay of the mandate to show that "the certiorari petition would present a substantial question and that there is good cause for a stay." Fed. R. App. P. 41(d)(2)(A); see also Khulumani v. Barclay Nat'l Bank Ltd., 509 F.3d 148, 152 (2d Cir. 2007), aff'd sub nom., Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008). The grant of a motion to stay the mandate "is far from a foregone conclusion." 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3987.1 (3d ed. 1999). The inquiry must focus on
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whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury. See Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam). Here, the issue to be certified for review would be whether the District Court acted appropriately in enforcing the parties' binding arbitration agreement. This is hardly a question meriting Supreme Court certification. See, e.g., Zinker v. Doty, 907 F.2d 357, 361 (2d Cir. 1990) ("[P]etitions to the United States Supreme Court for certiorari rarely are granted"). There is no split amongst the circuits on the issue, no risk of irreparable harm to Mr. Washington, who remains free to pursue his claims in arbitration, and, in short, no merit whatsoever to Mr. Washington's petition.

CONCLUSION
For the reasons set forth above, Appellees WME, Jeff Meade and Sarah Winiarski respectfully submit that Appellant's motion should be denied in its entirety.

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Dated: May 16, 2012

Respec

itted

el P. Zweig (MZ-5 18) mzweig@loeb.com Christian D. Carbone (CC-6502) ccarbone@loeb.com LOEB & LOEB LLP 345 Park Avenue New York, NY 10154 Telephone: 212.407.4000 Facsimile: 212.407.4990 Attorneys for DefendantAppellees

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AFFIDAVIT OF SERVICE

STATE OF NEW YORK ) ) COUNTY OF NEW YORK )

SS.

TIMOTHY B. CUMMINS, being duly sworn, deposes and says: 1. 2. I am not a party to this action and am over 18 years of age. On May 16, 2012, I served a true copy of the foregoing

Opposition to Appellant's Expedited Motion to Recall Mandate, Vacate Order, and Articulate Reasoning in the Form of a Judicial Opinion, Pending the Filing and Disposition of a Petition Certiorari by Federal Express to the below listed party: Marcus I. Washington 54 Boerum Street Apartment 6M Brooklyn, New York 11206 Appellant Pro Se

Timothy B. Cummins Sworn to before me this 16th Day of May, 2012

Notary Public
NotaliTatirE Prelen 'York tate o PTI No. 01PE4973633

Commission Expires January 7. 201l

Qualified in Nassau County certificate Filed in New 'fork Coo

NY1015511.1 058426-10022

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