Brian Gile, an individual, on behalf of himself v. DOLGEN CALIFORNIA, LLC, a Tennessee limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN GILE, an individual, on behalf of
himself and all others similarly situated;
RANDOLPH GALLEGOS, an individual, on
behalf of himself and all others similarly
situated,
Plaintiffs-Appellees,
v.
DOLGEN CALIFORNIA, LLC, a Tennessee
limited liability company,
Defendant-Appellant,
and
DOES, 1 through 100, inclusive,
Defendant.
No. 21-56311
D.C. No.
5:20-cv-01863-MCS-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Argued and Submitted November 15, 2022
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: NGUYEN and H.A. THOMAS, Circuit Judges, and FITZWATER,**
District Judge.
Dolgen California, LLC (“Dollar General”) appeals the district court’s order
denying its motion to compel arbitration and stay proceedings. We have
jurisdiction under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(1). We review de novo
the district court’s denial of a motion to compel arbitration, including its
determination that a party has waived the right to arbitrate. Newirth by & through
Newirth v. Aegis Senior Communities, LLC, 931 F.3d 935, 939 (9th Cir. 2019).
We affirm.
The right to arbitration, like other contractual rights, can be waived. Martin
v. Yasuda, 829 F.3d 1118, 1124 (9th Cir. 2016). A party seeking to prove waiver
of a right to arbitration must demonstrate: (1) knowledge of an existing right to
compel arbitration; and (2) acts inconsistent with that existing right. Hoffman
Const. Co. of Oregon v. Active Erectors & Installers, Inc., 969 F.2d 796, 798 (9th
Cir. 1992).1 Dollar General concedes that it had knowledge of its right to compel
arbitration, and challenges only whether plaintiffs demonstrated that Dollar
** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
1 We previously required a party seeking to prove waiver of a right to arbitrate to
also demonstrate proof of prejudice, but the U.S. Supreme Court has held that this
third element is not required. Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1714
(2022).

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General acted inconsistently with its right to arbitrate.
In evaluating this second element, we consider “the totality of the parties’
actions,” and ask “whether a party’s actions indicate a conscious decision to seek
judicial judgment on the merits of the arbitrable claims, which would be
inconsistent with a right to arbitrate.” Newirth, 931 F.3d at 941 (cleaned up). “A
party’s extended silence and delay in moving for arbitration may indicate a
‘conscious decision to continue to seek judicial judgment on the merits of [the]
arbitrable claims.’” Martin, 829 F.3d at 1125 (quoting Van Ness Townhouses v.
Mar Indus. Corp., 862 F.2d 754, 759 (9th Cir. 1988)). Additionally, this second
element is satisfied “when a party chooses to delay his right to compel arbitration
by actively litigating his case to take advantage of being in federal court.” Id. “A
statement by a party that it has a right to arbitration in pleadings or motions is not
enough to defeat a claim of waiver,” because “[a] party cannot keep its right to
demand arbitration in reserve indefinitely while it pursues a decision on the merits
before the district court.” Id. (quoting In Re Mirant Corp. v. Castex Energy, Inc.,
613 F.3d 584, 591 (5th Cir. 2010)).
Dollar General filed a motion to compel arbitration over eleven months after
it removed this case to federal court. Before filing its motion to compel arbitration,
Dollar General had filed two motions to dismiss based largely on arguments going
to the merits of plaintiffs’ claims—one seeking full dismissal, the other expressly

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seeking dismissal with prejudice of many of plaintiffs’ claims. Dollar General had
also met and conferred with plaintiffs’ counsel six times prior to filing additional
motions to dismiss pursuant to C.D. Cal. Local Rule 7-3 and stipulated five times
to plaintiffs filing amended complaints over the course of many months.
Additionally, Dollar General signed onto a joint Rule 26(f) report before filing its
motion to compel.
Because Dollar General’s “extended silence and delay” in moving for
arbitration “indicate[s] a conscious decision to continue to seek judicial judgment
on the merits of the arbitrable claims,” Martin, 829 F.3d at 1125 (quoting Van Ness
Townhouses, 862 F.2d at 759), we hold that Dollar General acted inconsistently
with its intent to arbitrate and therefore waived its right to arbitrate.
AFFIRMED.

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