Cunico Corporation v. Custom Alloy Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CUNICO CORPORATION,
Plaintiff-Appellant,
v.
CUSTOM ALLOY CORPORATION,
Defendant-Appellee.
No. 14-56544
D.C. No. 2:14-cv-01234-PA-AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted September 1, 2016**
Pasadena, California
Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.
Cunico Corporation appeals the district court’s order granting Custom Alloy
Corporation’s motion to compel arbitration and dismissing Cunico’s action. We
have jurisdiction over the appeal under 9 U.S.C. § 16(a)(3). We review de novo
FILED
SEP 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 Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the district court’s decision and its legal conclusions regarding the existence of a
contract, and for clear error its factual findings. Casa del Caffe Vergnano S.P.A. v.
ItalFlavors, LLC, 816 F.3d 1208, 1211 (9th Cir. 2016). We reverse and remand.
The district court erred in compelling arbitration. Under the Federal
Arbitration Act, a district court’s role is “limited to determining (1) whether a valid
agreement to arbitrate exists and, if it does, (2) whether the agreement
encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
207 F.3d 1126, 1130 (9th Cir. 2000). A court may “decide as a matter of law that
the parties did or did not enter into” an arbitration agreement “[o]nly when there is
no genuine issue of fact concerning the formation of the agreement.” Three
Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir.
1991) (citation omitted). The district court’s order did not make the necessary
factual findings as to the parties’ communications, decide the law applicable to
contract formation, or state as a matter of law what constituted the offer,
acceptance, or terms of the contract. We reverse the order compelling arbitration
and dismissing the action, and remand for the district court to resolve factual issues
and make legal conclusions regarding the scope of the parties’ agreement. See
FTC v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004) (Court of
Appeals may remand where there are insufficient findings of fact and conclusions
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of law to permit meaningful review).
In light of our disposition, we do not consider the parties’ contentions
regarding unconscionability, waiver of a right to arbitration, and denial of oral
argument.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
REVERSED and REMANDED.
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