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Case 2:18-cv-09392-R-FFM Document 19 Filed 11/16/18 Page 1 of 20 Page ID #:248

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP


Bruce E. Van Dalsem (Bar No. 124128)
2 brucevandalsem@quinnemanuel.com
Daniel C. Posner (Bar No. 232009)
3 danposner@quinnemanuel.com
Dylan Bonfigli (Bar No. 317185)
4 dylanbonfigli@quinnemanuel.com
865 South Figueroa Street, 10th Floor
5 Los Angeles, California 90017-2543
Telephone: (213) 443-3000
6 Facsimile: (213) 443-3100
7 Attorneys for Universal City Studios LLC
and FFSO Productions LLC
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
10
11
NEAL MORITZ, an individual, and Case No. 2:18-cv-9392-R(FFMx)
12 NEAL H. MORITZ, INC., a California
corporation, NOTICE OF MOTION AND
13 MOTION TO STAY ACTION AND
Plaintiffs, COMPEL ARBITRATION;
14 MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT
15 THEREOF
UNIVERSAL CITY STUDIOS LLC, a
16 Delaware limited liability company, Declarations of Bruce E. Van Dalsem
FFSO PRODUCTIONS LLC, a and Stephen G. Dormer filed
17 Delaware limited liability company, and concurrently herewith
DOES 1 - 50, inclusive,
18 Hon. Manuel L. Real
Defendants.
19 Hearing Date: December 17, 2018
Time: 10:00 a.m.
20 Courtroom: 880
Trial Date: None Set
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Case No. 2:18-cv-9392-R(FFMx)
07983-00002/10519128.4 NOTICE OF MOTION AND MOTION TO STAY ACTION AND COMPEL ARBITRATION
Case 2:18-cv-09392-R-FFM Document 19 Filed 11/16/18 Page 2 of 20 Page ID #:249

1 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:


2 NOTICE IS HEREBY GIVEN THAT on December 17, 2018, at 10:00 a.m.,
3 in Courtroom 880 of the United States District Court for the Central District of
4 California, Western Division, Roybal Federal Building and U.S. Courthouse, 255 E.
5 Temple St., Los Angeles, CA, 90012, before the Honorable Manuel L. Real,
6 defendants Universal City Studios LLC and FFSO Productions LLC will, and
7 hereby do, move the Court to stay this case and order that the parties proceed to
8 binding arbitration, as required by the parties’ written contracts relating to this
9 dispute and pursuant to 9 U.S.C. §§ 3 and 4.
10 This motion is based on this Notice of Motion and Motion, the accompanying
11 Memorandum of Points and Authorities, the Declarations of Bruce E. Van Dalsem
12 and Stephen G. Dormer, the pleadings and papers filed in this action, and such
13 further arguments and matters as may be offered at the time of the hearing of this
14 motion.
15 This motion is made following the conference of counsel pursuant to Local
16 Rule 7-3, which took place on November 7, 2018.
17
18 DATED: November 16, 2018 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
19
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21 By /s/ Bruce E. Van Dalsem
22 Bruce E. Van Dalsem
Attorneys for Universal City Studios, LLC
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and FFSO Productions, LLC
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1 TABLE OF CONTENTS
Page
2
3 INTRODUCTION ....................................................................................................... 1
4 STATEMENT OF FACTS .......................................................................................... 2
5 A. The Parties Enter Into Seven Written Contracts Requiring The
Arbitration Of Any Disputes “Related To” Them .................................. 2
6
B. The Parties Negotiate, But Do Not Conclude, A Producer
7 Agreement For Hobbs And Shaw ............................................................ 5
8 C. Moritz Refuses To Agree To Arbitrate His Claims ................................ 7
9 ARGUMENT ............................................................................................................... 7
10 I. THE COURT SHOULD ALLOW THE ARBITRATOR TO DECIDE
THE THRESHOLD QUESTION OF ARBITRABILITY ............................... 7
11
II. IF THE COURT REACHES THE QUESTION OF ARBITRABILITY,
12 IT SHOULD FIND THIS CASE SUBJECT TO ARBITRATION ................ 11
13 III. THE COURT SHOULD STAY THIS CASE PENDING
ARBITRATION .............................................................................................. 14
14
CONCLUSION.......................................................................................................... 14
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1 TABLE OF AUTHORITIES
Page(s)
2
3 Cases
4 Aceves v. Autonation, Inc.,
317 F. App’x 665 (9th Cir. 2009) ........................................................................... 8
5 AT&T Techs., Inc. v. Commc’ns Workers of Am.,
475 U.S. 643 (1986).............................................................................................. 12
6
Belnap v. Iasis Healthcare,
7 844 F.3d 1272 (10th Cir. 2017) ............................................................................ 10
Brennan v. Opus Bank,
8 796 F.3d 1125 (9th Cir. 2015) ................................................................................ 9
9 Chelsea Morgan Sec., Inc. v. Rappaport,
3 F. Supp. 3d 791 (C.D. Cal. 2014) ...................................................................... 12
10 Cooper v. WestEnd Capital Mgmt., L.L.C.,
832 F.3d 534 (5th Cir. 2016) ................................................................................ 10
11
Drews Distrib., Inc. v. Silicon Gaming, Inc.,
12 245 F.3d 347 (9th Cir. 2001) .................................................................... 11, 12, 13
Fadal Machining Ctrs. v. Compumachine, Inc.,
13 461 F. App’x 630 (9th Cir. 2011) ........................................................................... 9
14 Green Tree Fin. Corp.-Ala. v. Randolph,
531 U.S. 79 (2000)................................................................................................ 12
15 Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell,
76 Cal. App. 4th 227 (1999) ................................................................................. 13
16
Mohamed v. Uber Techs., Inc.,
17 848 F.3d 1201 (9th Cir. 2016) .......................................................................... 8, 10
Momot v. Mastro,
18 652 F.3d 982 (9th Cir. 2011) ........................................................................ 7, 8, 10
19 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1 (1983).................................................................................................. 11
20 Oracle America, Inc. v. Myriad Group A.G.,
724 F.3d 1069 (9th Cir. 2013) ................................................................................ 9
21
Portland Gen. Elec. Co. v. Liberty Mutual Ins. Co.,
22 862 F.3d 981 (9th Cir. 2017) .................................................................................. 9
Prima Paint Corp. v. Flood & Conklin Mfg., Co.,
23 388 U.S. 395 .......................................................................................................... 12
24 Simply Wireless, Inc. v. T-Mobile US, Inc.,
877 F.3d 522 (4th Cir. 2017) ................................................................................ 10
25 Simula, Inc. v. Autoliv, Inc.,
175 F.3d 716 (9th Cir. 1999) ................................................................................ 12
26
United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
27 363 U.S. 574 (1960).............................................................................................. 12
Wynn Resorts, Ltd. v. Atl.-Pac. Capital, Inc.,
28 497 F. App’x 740 (9th Cir. 2012) ......................................................................... 10
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1 Statutory Authorities
2 9 U.S.C. § 2 ................................................................................................................ 11
9 U.S.C. § 3 ................................................................................................................ 14
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1 Introduction
2 This dispute does not belong in this Court, or in any court, because it is
3 subject to binding arbitration. The parties should be ordered to arbitration, and the
4 case should be stayed pending completion of the arbitration.
5 Since 2000, defendant Universal City Studios LLC (together with defendant
6 FFSO Productions LLC, “Universal”) has hired plaintiff Neal Moritz to render
7 services as a producer for a number of movies in the Fast and Furious motion
8 picture franchise. Universal and Moritz entered into at least seven written producer
9 agreements during that period, each of which requires that disputes between them
10 that are in any way “related to” those agreements be resolved through binding
11 arbitration, and that any question about whether a dispute is subject to arbitration be
12 decided by an arbitrator in the first instance.
13 In this case, Moritz alleges that Universal breached an alleged oral or implied
14 contract relating to the production of a Fast and Furious spinoff called Hobbs and
15 Shaw. Universal has demanded that Moritz agree to arbitrate his claims, but Moritz
16 has refused on the grounds that the arbitration clauses in the parties’ producer
17 agreements do not apply to his claims in this case. This Court need not even decide
18 that question, however, because the parties have agreed, in at least seven written
19 contracts, that an arbitrator is to decide whether claims between them are subject to
20 arbitration. As a matter of law, clauses in binding contracts that delegate the
21 threshold question of arbitrability to an arbitrator are valid and enforceable when
22 they are stated “clearly and unmistakably,” as they are here. Thus, at a minimum,
23 this case should be stayed to permit the arbitrator to determine whether Moritz’s
24 claims are subject to arbitration.
25 If this Court decides to reach the question of arbitrability, then the result
26 would be the same because Moritz’s claims are “related to” the parties’ written
27 agreements which provide for binding arbitration. In his Complaint, Moritz relies
28 upon his producer agreements for the prior Fast and Furious films as the basis for

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1 his alleged rights in Hobbs and Shaw. Moritz claims he is entitled to terms for
2 producing Hobbs and Shaw that are at least as favorable as the terms he received in
3 his prior agreements, and that Universal breached the parties’ alleged oral or implied
4 agreement for Hobbs and Shaw by failing to offer those terms. Moritz expressly
5 alleges that at least one of the parties’ written agreements—regarding Fast and
6 Furious 8, 9 and 10—is “relevant” to this case and supposedly was the “model” for
7 his alleged oral agreement regarding Hobbs and Shaw. (Compl. ¶¶ 30, 34.)
8 Because Moritz alleges that his claims are “related to” the parties’ written contracts,
9 which all include broad arbitration clauses, this case belongs in arbitration.
10 Accordingly, whether the Court determines that the threshold question of
11 arbitrability should be decided by an arbitrator or decides to resolve that question on
12 its own, Moritz should be ordered to arbitrate his claims and this case should be
13 stayed pending completion of the arbitration.
14 Statement of Facts
15 A. The Parties Enter Into Seven Written Contracts Requiring The
Arbitration Of Any Disputes “Related To” Them
16
17 Between 2000 and 2016, Universal hired Moritz to render services as a
18 producer for movies in the Fast and Furious franchise. (See Compl. ¶¶ 2-3.) The
19 franchise presently includes eight movies: The Fast and the Furious (2001), 2 Fast
20 2 Furious (2003), The Fast and the Furious: Tokyo Drift (2006), Fast & Furious
21 (2009), Fast Five (2011), Fast & Furious 6 (2013), Furious 7 (2015), and The Fate
22 of the Furious (2017). (Compl. ¶ 3.) The parties have entered into seven written
23 producer agreements setting forth the terms under which Moritz rendered services as
24 a producer for those films. As shown below, each of those written contracts
25 includes a broad arbitration clause requiring that all disputes “related to” (or
26 “relating to”) the agreements be resolved in binding arbitration:
27 Fast And Furious 1: In 2000, Universal and Moritz entered in a written
28 producer agreement (the “FF1 Agreement”) pursuant to which Moritz was hired to

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1 render services as a producer for the first Fast and Furious motion picture, then
2 titled Racer X. (Declaration of Stephen G. Dormer (“Dormer Decl.”) at ¶ 3, Ex. A.)
3 The film was released in 2001 under the name The Fast and the Furious. The FF1
4 Agreement requires that “[a]ny controversy, claim, or dispute arising out of or
5 related to this Agreement . . . shall be resolved according to the procedures set forth
6 in this paragraph [providing for JAMS arbitration] which shall constitute the sole
7 dispute resolution mechanism hereunder.” (Id. at 2 (emphasis added).)
8 Fast And Furious 2: In 2002, Universal and Moritz entered into a written
9 producer agreement (the “FF2 Agreement”) pursuant to which Moritz was hired to
10 render services as a producer for The Fast and the Furious 2. (Dormer Decl. ¶ 4,
11 Ex. B.) The film was released in 2003 under the name 2 Fast 2 Furious. The FF2
12 Agreement requires that “[a]ny controversy, claim, or dispute arising out of or
13 related to this Agreement . . . shall be resolved according to the procedures set forth
14 in this paragraph [providing for JAMS arbitration] which shall constitute the sole
15 dispute resolution mechanism hereunder.” (Id. at 2 (emphasis added).)
16 Fast And Furious III: In 2005, Universal and Moritz entered into a written
17 producer agreement (the “FF3 Agreement”) pursuant to which Moritz was hired to
18 render services as a producer for The Fast and the Furious III. (Dormer Decl. ¶ 5,
19 Ex. C.) The film was released in 2006 under the name The Fast and the Furious:
20 Tokyo Drift. The FF3 Agreement requires that “[a]ny controversy, claim, or dispute
21 arising out of or related to this Agreement . . . shall be resolved according to the
22 procedures set forth in this paragraph [providing for JAMS arbitration] which shall
23 constitute the sole dispute resolution mechanism hereunder.” (Id. at 2 (emphasis
24 added).)
25 Fast And Furious 4: In 2007, Universal and Moritz entered into a written
26 producer agreement (the “FF4 Agreement”) pursuant to which Moritz was hired to
27 render services as a producer for The Fast and the Furious 4. (Dormer Decl. ¶ 6,
28 Ex. D.) The FF4 Agreement requires that “[a]ny controversy, claim, or dispute

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1 arising out of or related to this Agreement . . . shall be resolved according to the


2 procedures set forth in this paragraph [providing for JAMS arbitration] which shall
3 constitute the sole dispute resolution mechanism hereunder.” (Id. at 2 (emphasis
4 added).)
5 Fast And Furious 6:1 In 2012, Universal and Moritz entered into a written
6 producer agreement (the “FF6 Agreement”) pursuant to which Moritz was hired to
7 render services as a producer for The Fast and the Furious 6. (Dormer Decl. ¶ 7,
8 Ex. E.) This film was released in 2013 under the name Fast & Furious 6. Starting
9 with the FF6 Agreement, the parties revised the arbitration clause they had used in
10 their other written agreements by expressly providing that questions of arbitrability
11 would be determined by the arbitrator: “Any controversy, claim, or dispute arising
12 out of or relating to this Agreement or this agreement to arbitrate, including,
13 without limitation, the interpretation, performance, formation, validity, breach, or
14 enforcement of this Agreement . . . shall be fully and finally adjudicated by binding
15 arbitration to the fullest extent allowed by law . . . .” (Id. at 2 (emphasis added).)
16 Fast and Furious 7: In 2013, Universal and Moritz entered into a written
17 producer agreement (the “FF7 Agreement”) pursuant to which Moritz was hired to
18 render services as a producer for The Fast and the Furious 7. (Dormer Decl. ¶ 8,
19 Ex. F.) This film was released in 2015 under the name Furious 7. The FF7
20 Agreement contains the same arbitration clause as in the FF6 Agreement and
21 requires that “[a]ny controversy, claim, or dispute arising out of or relating to this
22 Agreement or this agreement to arbitrate, including, without limitation, the
23 interpretation, performance, formation, validity, breach, or enforcement of this
24 Agreement . . . shall be fully and finally adjudicated by binding arbitration to the
25 fullest extent allowed by law . . . .” (Id. at 2 (emphasis added).)
26 1
The parties negotiated a written agreement for Fast and Furious 5 (which also
27 provided for arbitration) and fully performed under that agreement, but the FF5
28 Agreement was never signed.

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1 Fast And Furious 8, 9 and 10: In 2015, Universal and Moritz entered into a
2 written producer agreement (the “FF8-10 Agreement”) pursuant to which, Moritz
3 was hired, subject to certain conditions, to render services as a producer for Fast and
4 Furious 8, Fast and Furious 9, and Fast and Furious 10. (Dormer Decl. ¶ 9, Ex.
5 G.) Fast and Furious 8 was released in 2017 under the name The Fate of the
6 Furious. Fast and Furious 9 and Fast and Furious 10 have not yet been produced.
7 Subject to certain amendments not relevant to the arbitration provision, the FF8-10
8 Agreement incorporated the terms of the FF7 Agreement (see id. at 1), including its
9 arbitration provision, and thus required that “[a]ny controversy, claim, or dispute
10 arising out of or relating to this Agreement or this agreement to arbitrate,
11 including, without limitation, the interpretation, performance, formation, validity,
12 breach, or enforcement of this Agreement . . . shall be fully and finally adjudicated
13 by binding arbitration to the fullest extent allowed by law . . . . ” (id. Ex. F at 2
14 (emphasis added)).
15 B. The Parties Negotiate, But Do Not Conclude, A Producer
Agreement For Hobbs And Shaw
16
17 In his Complaint, Moritz alleges that after completion of principal
18 photography for The Fate of the Furious (FF8), he began to discuss with Universal a
19 spinoff referred to as Hobbs and Shaw. (Compl. ¶ 31.) Hobbs and Shaw was to be
20 based on the characters with those names from prior films in the Fast and Furious
21 franchise. (Compl. ¶ 24.) Although the parties exchanged drafts of a proposed
22 written producer agreement for Hobbs and Shaw, they never agreed to the terms of
23 this contract, and it was never finalized or signed. (Compl. ¶¶ 42-45.)2
24
25
2
26 Notably, the draft agreement the parties exchanged provided for binding
arbitration of any disputes “relating to” the agreement—just like all the parties’
27 other written agreements. When Universal sent Moritz the draft agreement, his
28 lawyer responded by agreeing to binding arbitration, but asking that the arbitration

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1 Without a written contract memorializing any agreement regarding Hobbs


2 and Shaw, Moritz alleges that the parties instead entered into an “oral” or “implied”
3 agreement under which he would render services as a producer for that film.
4 (Compl. ¶¶ 58, 67.)3 Moritz relies upon the parties’ written producer agreements for
5 other Fast and Furious films, and the FF8-10 Agreement in particular, as supplying
6 the terms for the purported Hobbs and Shaw oral or implied agreement, including by
7 alleging the following:
8  “The parties had never discussed or agreed that the financial terms of the
9 Hobbs and Shaw producer deal would be anything other than the first dollar
10 gross option that had been contained in his last producer deal, which was the
11 FF8-10 Agreement.” (Compl. ¶ 42 (bold emphasis added).)4
12  Universal’s proposal after the parties had allegedly entered into an oral
13 agreement was contrary “to what Moritz had received on all of the FF films
14 since approximately 2012 (and had received on many FF films before that).”
15 (Compl. ¶ 43.)
16  Moritz was prepared to alter the terms of the claimed oral agreement if
17 Universal increased “his upfront cash and box office bonuses as Universal
18 had done on the last three FF films that he had produced for them [i.e., FF6,
19 FF7 and FF8].” (Compl. ¶ 49.)
20
clause be conformed to the provision in the FF3 Agreement. (Dormer Decl. ¶ 10,
21 Ex. H (draft Hobbs and Shaw Agreement) at 3-5.)
22 3
Although Moritz claims to have entered into an oral agreement with Universal
23 regarding Hobbs and Shaw in 2017 (Compl. ¶ 34), he admits that he continued to
negotiate a written agreement until at least August 6, 2018—never claiming in the
24 interim that Universal was in breach by proposing terms during their subsequent
25 negotiations that he now alleges were inconsistent with their supposed earlier oral
agreement. (See, e.g., Compl. ¶¶ 39 (detailing negotiations of the draft agreement
26 for Hobbs and Shaw), 44 (same), 45 (same), 49 (same).)
27 4
As a general matter, “First Dollar Gross” refers to compensation to be paid
28 from the first proceeds received from a film, without deducting expenses.

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1  The alleged Hobbs and Shaw agreement was “modeled after the first dollar
2 gross compensation option in the FF8-10 Agreement.” (Compl. ¶ 59
3 (emphasis added).)
4 Based on his allegation that the Hobbs and Shaw agreement was “modeled”
5 on the FF8-10 Agreement, Moritz alleges that “there is one written producer
6 agreement between Moritz and Universal that is relevant” to the action, the “FF8-
7 10 Agreement.” (Compl. ¶ 30 (emphasis added).)
8 C. Moritz Refuses To Agree To Arbitrate His Claims
9 Moritz filed his Complaint on October 17, 2018, in Los Angeles County
10 Superior Court. On November 2, 2018, Universal removed the case to this Court on
11 the basis of complete diversity of citizenship. (Dkt. 1.)
12 On November 7, 2018, Universal sent a letter to Moritz’s counsel in which
13 Universal requested that Moritz “acknowledge his obligation to arbitrate.”
14 (Declaration of Bruce E. Van Dalsem (“Van Dalsem Decl.”) at ¶ 3, Ex. I.)
15 Universal explained that, based on Moritz’s allegations, the instant dispute is related
16 to “all prior agreements between the parties regarding the Fast and Furious
17 franchise,” and that Moritz is therefore contractually obligated to pursue his claims
18 in binding arbitration. (Id. at 2-3.) On November 7, 2018, Moritz’s counsel
19 responded by refusing to agree to arbitrate. (Van Dalsem Decl. ¶ 4.)
20 Argument
21 I. THE COURT SHOULD ALLOW THE ARBITRATOR TO DECIDE
THE THRESHOLD QUESTION OF ARBITRABILITY
22
23 The Court should grant this motion, and send this case to arbitration, without
24 deciding whether Moritz’s claims are subject to arbitration because that question is
25 for the arbitrator to decide in the first instance. Questions of arbitrability include
26 “whether an arbitration clause in a concededly binding contract applies to a given
27 controversy,” Momot v. Mastro, 652 F.3d 982, 987 (9th Cir. 2011), which is
28 precisely the issue the parties are disputing here.

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1 Although there is a presumption that courts decide issues of arbitrability, the


2 presumption is overcome when the parties “clearly and unmistakably provide
3 otherwise.” Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1208 (9th Cir. 2016)
4 (citation omitted) (holding that courts must enforce agreements to arbitrate issues of
5 arbitrability “according to their terms”). “Clear and unmistakable evidence of an
6 agreement to arbitrate arbitrability ‘might include . . . an express agreement to do
7 so.’” Id. (quoting Momot, 652 F.3d at 988). For instance, the Ninth Circuit has held
8 that the following clauses clearly evidence an agreement to arbitrate arbitrability:
9  “Arbitration. If a dispute arises out of or relates to this Agreement, the
10 relationships that result from this Agreement, the breach of this Agreement
11 or the validity or application of any of the provisions of this [arbitration
12 agreement], . . . the dispute shall be resolved exclusively by binding
13 arbitration.” Momot, 652 F.3d at 984; id. at 988 (“[T]his language,
14 delegating to the arbitrators the authority to determine ‘the validity or
15 application of any provision of’ the arbitration clause, constitutes an
16 agreement to arbitrate threshold issues concerning the arbitration
17 agreement.”).
18  “[T]his Arbitration Provision is intended to apply to the resolution of
19 disputes that otherwise would be resolved in a court of law or before a
20 forum other than arbitration. This Arbitration Provision requires all such
21 disputes to be resolved only by an arbitrator through final and binding
22 arbitration and not by way of court or jury trial. Such disputes include
23 without limitation disputes arising out of or relating to interpretation or
24 application of this Arbitration Provision, including the enforceability,
25 revocability or validity of the Arbitration Provision or any portion of the
26 Arbitration Provision. Uber Techs., 848 F.3d at 1207-08 (emphasis
27 added); see also, e.g., Aceves v. Autonation, Inc., 317 F. App’x 665, 666
28 (9th Cir. 2009) (arbitrator must determine scope of arbitration clause

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1 where parties agreed to arbitrate “any claim arising from or relating to [the
2 agreement], including the validity, enforceability or scope of th[e]
3 Arbitration Provision”).
4 Even without an express clause delegating the question of arbitrability to an
5 arbitrator, sophisticated parties, such as the parties here, clearly agree to arbitrate
6 issues of arbitrability when their agreements incorporate arbitral rules that expressly
7 delegate the question of arbitrability to an arbitrator. For example, in Brennan v.
8 Opus Bank, 796 F.3d 1125 (9th Cir. 2015), the parties clearly agreed to arbitrate
9 issues of arbitrability because their agreement incorporated the AAA rules of
10 arbitration, id. at 1131, which provided that “the arbitrator shall have the power to
11 rule on his or her own jurisdiction, including any objections with respect to the . . .
12 validity of the arbitration agreement,” id. at 1128.
13 Similarly, in Oracle America, Inc. v. Myriad Group A.G., 724 F.3d 1069 (9th
14 Cir. 2013), the parties’ “incorporation of the UNCITRAL arbitration rules [was]
15 clear and unmistakable evidence that the parties agreed that the arbitrator would
16 decide arbitrability,” id. at 1074-75, because UNCITRAL rules provided that the
17 arbitral tribunal has the power to decide its jurisdiction, id. at 1073; see also, e.g.,
18 Portland Gen. Elec. Co. v. Liberty Mutual Ins. Co., 862 F.3d 981, 985 (9th Cir.
19 2017) (incorporation of ICC arbitration rules “makes clear that the arbitrators are
20 vested with the authority to determine questions of arbitrability”); Fadal Machining
21 Ctrs. v. Compumachine, Inc., 461 F. App’x 630, 632 (9th Cir. 2011) (arbitration
22 clause evidenced a clear intent to delegate “questions of scope to the arbitrator”
23 because, among other reasons, it “incorporates the AAA’s Commercial Arbitration
24 Rules”).
25 Here, all seven of the parties’ written agreements either explicitly or through
26 their incorporation of arbitral rules “clearly and unmistakably” delegate the question
27 of arbitrability to an arbitrator.
28

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1 First, in their written contracts for FF6, FF7, and FF8-10, Moritz and
2 Universal explicitly agreed to arbitrate disputes relating to the “agreement to
3 arbitrate.” (Ex. E at 2, Ex. F at 2.) These agreements—which include the FF8-10
4 Agreement that Moritz alleges “is relevant” to his claims and provided the “model”
5 for the parties’ alleged oral agreement for Hobbs and Shaw—all contain “clear and
6 unmistakable” delegations of the question of arbitrability to an arbitrator, and those
7 provisions should be enforced here. See, e.g., Momot, 652 F.3d at 988; Uber Techs.,
8 848 F.3d at 1208-09.
9 Second, in their written contracts for FF1, FF2, FF3, and FF4, the parties
10 expressly incorporated various applicable versions of the JAMS arbitral rules, all of
11 which delegate questions of arbitrability to the arbitrator. (See Van Dalsem Decl.
12 ¶¶ 5-10, Ex. J at 5, Ex. K at 4, Ex. L at 4, Ex. M at 4, Ex. N. at 6-7, Ex. O at 7.) For
13 example, the FF4 Agreement incorporates JAMS Comprehensive Arbitration Rules
14 & Procedures, Rule 11(c), which provides: “Jurisdictional and arbitrability disputes,
15 including disputes over the existence, validity, interpretation or scope of the
16 agreement under which Arbitration is sought . . . shall be submitted to and ruled on
17 by the Arbitrator.” (Ex. N at 6-7 (emphasis added).) Each of these agreements thus
18 “clearly and unmistakably” provides that the arbitrator is to determine arbitrability.
19 See, e.g., Wynn Resorts, Ltd. v. Atl.-Pac. Capital, Inc., 497 F. App’x 740, 742 (9th
20 Cir. 2012) (incorporation of JAMS arbitration rules clearly evidenced intent to have
21 arbitrator resolve issues of arbitrability); Simply Wireless, Inc. v. T-Mobile US, Inc.,
22 877 F.3d 522, 528 (4th Cir. 2017) (“[I]n the context of a commercial contract
23 between sophisticated parties, the explicit incorporation of JAMS Rules serves as
24 ‘clear and unmistakable’ evidence of the parties’ intent to arbitrate arbitrability.”);
25 Belnap v. Iasis Healthcare, 844 F.3d 1272, 1284 (10th Cir. 2017) (“[B]y
26 incorporating the JAMS Rules into the Agreement, [the parties] evidenced a clear
27 and unmistakable intent to delegate questions of arbitrability to an arbitrator.”);
28

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1 Cooper v. WestEnd Capital Mgmt., L.L.C., 832 F.3d 534, 546 (5th Cir. 2016)
2 (same).
3 Accordingly, all seven of the parties’ written agreements relating to Fast and
4 Furious films “clearly and unmistakably” require that an arbitrator decide questions
5 of arbitrability. Because each of those agreements is “concededly binding” on the
6 parties, see Momot, 652 F.3d at 987, the parties’ dispute over whether the arbitration
7 clauses in them apply to Moritz’s claims in this action must be decided by the
8 arbitrator. The Court should therefore refer this case to arbitration without deciding
9 whether Moritz’s claims are subject to arbitration.
10 II. IF THE COURT REACHES THE QUESTION OF ARBITRABILITY,
IT SHOULD FIND THIS CASE SUBJECT TO ARBITRATION
11
12 If this Court decides to resolve the question of arbitrability rather than refer it
13 to an arbitrator, then the result would be the same: the case should be sent to
14 arbitration because, based on Moritz’s allegations, his claims are “related to” the
15 parties’ agreements that include broad arbitration clauses.
16 The Federal Arbitration Act (“FAA”) provides for the enforcement of
17 arbitration provisions in any contract affecting interstate commerce. 9 U.S.C. § 2 (a
18 “written provision in any . . . contract evidencing a transaction involving commerce
19 to settle by arbitration a controversy thereafter arising out of such contract or
20 transaction . . . shall be valid, irrevocable, and enforceable . . . .”) (emphasis added).
21 “Section 2 [of the FAA] is a congressional declaration of a liberal federal policy
22 favoring arbitration agreements . . . .” Moses H. Cone Mem’l Hosp. v. Mercury
23 Constr. Corp., 460 U.S. 1, 24 (1983) (emphasis added).
24 When construing an arbitration clause, as with any other contract provision,
25 “courts and arbitrators must give weight to the contractual rights and expectations of
26 the parties.” Momot, 652 F.3d at 986 (citation omitted). Accordingly, “as with any
27 other contract, the parties’ intentions control.” Id. (citation omitted). Because the
28 FAA “embodies a federal policy favoring arbitration . . . ‘any doubts concerning the

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1 scope of arbitrable issues should be resolved in favor of arbitration.’” Drews


2 Distrib., Inc. v. Silicon Gaming, Inc., 245 F.3d 347, 349 (9th Cir. 2001) (quoting
3 Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25). “[T]he party resisting arbitration
4 bears the burden of proving that the claims at issue are unsuitable for arbitration.”
5 Chelsea Morgan Sec., Inc. v. Rappaport, 3 F. Supp. 3d 791, 792 (C.D. Cal. 2014)
6 (Real, J.) (quoting Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000)).
7 Put another way, “[a] court should not deny a request to arbitrate an issue ‘unless it
8 may be said with positive assurance that the arbitration clause is not susceptible of
9 an interpretation that covers the asserted dispute.’” Drews Distrib., 245 F.3d at 349-
10 50 (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
11 574, 582 (1960)).
12 Moreover, when an arbitration clause is broad, as is the case here, the
13 presumption in favor of arbitrability is “particularly applicable.” AT&T Techs., Inc.
14 v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (emphasis added). Thus,
15 for example, in Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir. 1999), where the
16 arbitration clause covered “[a]ll disputes arising in connection with th[e]
17 Agreement,” the court held that the plaintiff’s “factual allegations need only ‘touch
18 matters’ covered by the contract containing the arbitration clause” to require
19 arbitration, and “all doubts [were] to be resolved in favor of arbitrability,” id. at 720-
20 21 (emphasis added).
21 Similarly, in Drews Distributing, 245 F.3d 347, the Ninth Circuit held that a
22 broad arbitration clause which required arbitration of “any controversy or claim
23 arising out of or related to” a distribution agreement applied to a dispute between
24 the parties regarding an earlier letter agreement, because the letter agreement
25 contemplated that the parties would enter into the distribution agreement, id. at 350
26 (emphasis added).
27 Here, the arbitration clauses in the parties’ seven Fast and Furious producer
28 agreements should be broadly construed as applying to Moritz’s claims in this case.

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1 Each of those clauses requires the arbitration of “[a]ny controversy, claim, or


2 dispute . . . related to” (or “relating to”) the agreement. See supra at 2-5. This
3 language is the paradigm of a broad arbitration clause. See, e.g., Prima Paint Corp.
4 v. Flood & Conklin Mfg., Co., 388 U.S. 395, 398 (clause requiring arbitration of
5 “[a]ny controversy or claim arising out of or relating to this Agreement” was a
6 “broad arbitration clause”); Drews Distrib., 245 F.3d at 350 (“[T]he arbitration
7 clause . . . is a ‘broad’ one, covering . . . ‘any controversy or claim arising out of or
8 related to’ th[e] agreement.’”); Larkin v. Williams, Woolley, Cogswell, Nakazawa &
9 Russell, 76 Cal. App. 4th 227, 230 (1999) (“The arbitration clause at issue is very
10 broad. It extends to ‘[a]ny controversy or claim arising out of or relating to any
11 provision of this [agreement] or the breach thereof . . . .’”).
12 Furthermore, Moritz’s claims, as they are alleged, plainly—indeed,
13 explicitly—“relate to” the Fast and Furious producer agreements. Moritz’s
14 Complaint is replete with references to those agreements, including an entire section
15 titled “Moritz’s Producer Deals With Universal,” in which Moritz recounts in detail
16 the relevant terms of his written agreements with Universal. (See Compl. ¶¶ 25-29.)
17 Moritz then alleges that his oral or implied agreement for Hobbs and Shaw is
18 “modeled” on one of those agreements—the FF8-10 Agreement. (Compl. ¶ 34.) He
19 further alleges that “[t]he parties had never discussed or agreed that the financial
20 terms of the Hobbs and Shaw producer deal would be anything other than the first
21 dollar gross option . . . [from] the FF8-10 Agreement.” (Compl. ¶ 42 (bold
22 emphasis added).) Moritz also relies on all his producer agreements to allege that
23 Universal had breached his supposed oral or implied agreement for Hobbs and Shaw
24 by proposing terms that were contrary “to what Moritz had received on all of the FF
25 films since approximately 2012 (and had received on many FF films before that).”
26 (Compl. ¶ 43.) Similarly, he alleges that he was prepared to alter the terms of the
27 claimed oral agreement if Universal increased “his upfront cash and box office
28

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1 bonuses as Universal had done on the last three FF films that he had produced for
2 them [i.e., FF6, FF7 and FF8].” (Compl. ¶ 49.)
3 Accordingly, Moritz’s claims, as alleged, explicitly “relate to” all of his
4 producer agreements with Universal, and at a minimum to the FF8-10 Agreement
5 which he expressly alleges is “relevant.” Given the breadth of the arbitration
6 clauses at issue, Moritz’s allegations are “related to” the parties’ written producer
7 agreements such that the arbitration clauses in them apply to this dispute and should
8 be enforced.
9 III. THE COURT SHOULD STAY THIS CASE PENDING ARBITRATION
10 When a party initiates litigation rather than arbitration, as is the case here,
11 either party may request that the court stay the litigation pending arbitration. See 9
12 U.S.C. § 3. If the court is satisfied that the dispute is “referable to arbitration,” then
13 the court “shall . . . stay the trial of the action until such arbitration has been had in
14 accordance with the terms of the [parties’] agreement . . . .” 9 U.S.C. § 3.
15 Here, as shown above, this case is referable to arbitration because an
16 arbitrator must decide the threshold question of whether the parties’ dispute is
17 subject to mandatory arbitration, which in any case it is because Moritz alleges that
18 his claims “relate to” all seven of the parties’ Fast and Furious producer
19 agreements. Accordingly, the Court should stay the action unless and until an
20 arbitrator determines that the instant dispute is not arbitrable. See 9 U.S.C. § 3.
21 Conclusion
22 Universal respectfully requests that the Court grant this motion, compel
23 Moritz to arbitrate his claims and stay this case pending completion of the
24 arbitration.
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1 DATED: November 16, 2018 QUINN EMANUEL URQUHART &


SULLIVAN, LLP
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4 By /s/ Bruce E. Van Dalsem
5 Bruce E. Van Dalsem
Attorneys for Universal City Studios LLC
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