Phillip G. Roszak v. U.S. FOODSERVICE INCORPORATED and USF HOLDING CORPORATION

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILLIP G. ROSZAK,
Plaintiff - Appellant,
v.
U.S. FOODSERVICE INCORPORATED
and USF HOLDING CORPORATION,
Defendants - Appellees.
No. 13-17160
D.C. No. 2:13-cv-01009-SRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Arugued and Submitted December 10, 2015
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.
Phillip G. Roszak appeals from the district court’s judgment in favor of U.S.
Foodservice, Inc. and USF Holding Corp. (collectively, “U.S. Foods”) in Roszak’s
diversity action alleging violations of the Delaware Whistleblowers’ Protection Act
FILED
JAN 06 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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(“DWPA”), Del. Code Ann. tit. 19, § 1701 et seq., and the parties’ employment
agreements. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s order granting U.S. Foods’s motions to dismiss the DWPA claim
and to compel arbitration and denying Roszak’s motion to stay arbitration.
Brennan v. Opus Bank, 796 F.3d 1125, 1128 (9th Cir. 2015) (decisions about
arbitrability of claims); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)
(motion to dismiss). We may affirm on any ground supported by the record.
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
We affirm.
The district court dismissed Roszak’s DWPA claim because it concluded
that the DWPA does not apply to alleged violations committed outside of the state.
After the district court’s entry of judgment, the arbitrator rendered an award
finding, among other things, that Roszak was not fired because of any
whistleblowing activity, and the United States District Court for the Northern
District of Illinois entered an order confirming the award. See U.S. Foods, Inc. v.
Noble, No. 13 C 3640, 2015 WL 5081126 (N.D. Ill. Aug. 27, 2015). Counsel has
represented to this court that the Northern District of Illinois’s final judgment will
not alter confirmation of the award. If, for whatever reason, the award should not
have been confirmed, that order may be appealed to the Seventh Circuit. That
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court may review issues decided in the arbitration, but this court will not review
the order of the Northern District of Illinois. Therefore, we do not address whether
the DWPA applies to alleged violations committed outside of the state by a
Delaware corporation, because even if the district court erred, the confirmed
arbitration award precludes relitigation of the issue whether Roszak was fired
because of any whistleblowing activity.1 See Kendall v. Vista U.S.A., Inc., 518
F.3d 1042, 1050 (9th Cir. 2008) (elements of issue preclusion). In the event that
the Northern District of Illinois fails to enter final judgment confirming the
arbitration award, however, this court will entertain a motion for reconsideration
under Circuit Rule 27-10.2
The district court’s grant of U.S. Foods’s motion to compel and denial of
Roszak’s motion to stay arbitration on the remaining claims was proper because
the parties incorporated the American Arbitration Association (“AAA”) rules into
their agreement and therefore agreed to arbitrate the question of arbitrability. See
Brennan, 796 F.3d at 1130 (“[I]ncorporation of the AAA rules constitutes clear
1Although the issue of preclusion was not raised in the parties’ briefs, their
views on this issue were heard at oral argument.
2 By separate order, the panel will order the Clerk to stay the mandate and
the parties to notify the court when final judgment is entered in the Northern
District of Illinois.
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and unmistakable evidence that contracting parties agreed to arbitrate
arbitrability.”).
Roszak’s Motion to Certify Questions to the Delaware Supreme Court, filed
on April 14, 2014, is denied as unnecessary.
AFFIRMED.
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