Fred Ovchinnikov v. Contech Construction Products, Inc.

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED OVCHINNIKOV,
Plaintiff - Appellant,
v.
CONTECH CONSTRUCTION
PRODUCTS, INC.,
Defendant - Appellee.
No. 09-35140
D.C. No. 3:07-cv-01482-PK
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted February 1, 2010**
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Plaintiff-Appellant Fred Ovchinnikov appeals the district court’s denial of
his Motion to Set Aside Order of Dismissal and Reinstate Action. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
FILED
FEB 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The district court’s dismissal order permitted Ovchinnikov to reinstate his
claim if the settlement agreement was not consummated. See Fed. R. Civ. P.
41(a)(2). In determining the existence of a contract, we review the district court’s
legal conclusions de novo and factual findings for clear error. U.S. for Use of
Youngstown Welding and Eng’g Co. v. Travelers Indem. Co., 802 F.2d 1164, 1169
(9th Cir. 1986). We review the district court’s factual findings regarding offer,
acceptance, revocation, and the intent of the parties to form a contract for clear
error. See Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 621 (9th Cir. 1988)
(offer, acceptance, and revocation); Local 3-7, Int’l Woodworkers of Am. v. DAW
Forest Prods. Co., 833 F.2d 789, 793 (9th Cir. 1987) (intent to form a contract).
“The construction and enforcement of settlement agreements are governed
by principles of local law which apply to interpretation of contracts generally.”
Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989). The parties do not dispute
that Oregon is the place where the contract was executed, or that Oregon law
governs the issue of contract formation. See Sterrett v. Stoddard Lumber Co., 46
P.2d 1023, 1028 (Or. 1935).
The district court correctly concluded that, according to Oregon’s objective
theory of contract, the parties formed a settlement contract. See In re Marriage of
Baldwin, 168 P.3d 1233, 1235 (Or. Ct. App. 2007). Ovchinnikov’s argument that

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he did not understand that the terms “full release” of “all claims” meant all his
claims against Contech is without merit. See Dalton v. Robert Jahn Corp., 146
P.3d 399, 406 (Or. Ct. App. 2006) (rejecting appellant’s claim that she did not
understand the terms of the agreement she signed because “there is nothing in the
record to indicate that anyone knew or should have known that [appellant] believed
anything different from what everyone else believed,” the terms of the agreement
“were clear and comprehensible,” and appellant had “access to professional
assistance” to determine what the agreement meant).
Moreover, any possible ambiguity was clarified by Contech’s proposed form
of settlement agreement, which listed the specific claims to which “all claims”
referred. After receiving this document, Ovchinnikov’s counsel responded by e-
mail that “the agreement looks good,” contacted the district court to have the case
dismissed, and sent another e-mail stating that “this case has been resolved.”
These statements and actions objectively indicate that Ovchinnikov’s counsel
understood what Contech meant by “full release of all claims.” See Kaiser Found.
Health Plan of the Nw. v. Doe, 903 P.2d 375, 380 (Or. Ct. App. 1995). Because
Ovchinnikov’s counsel had apparent authority to agree to a binding settlement on
Ovchinnikov’s behalf, counsel’s understanding of the term was sufficient to form a
contract. See id.

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The district court’s finding that Ovchinnikov’s counsel did in fact agree to
the terms of the settlement agreement—and not just to the form of the settlement
agreement—is not clearly erroneous. Ovchinnikov’s counsel objectively
manifested assent to the terms of Contech’s offer in three ways: (1) by stating that
“the agreement looks good”; (2) by moving to have the case dismissed; and (3) by
sending an e-mail stating, “this case has been resolved.” Although “the agreement
looks good,” in isolation, might be construed as assent only to the form of the
agreement, the decision to seek dismissal of the action and the statement that the
case has “been resolved” objectively indicate that an agreement on the terms was
reached. And there is no evidence that either party intended that the agreement be
conditioned on a signed writing. See Gen. Realty Corp. v. Douglas Lowell, Inc.,
354 P.2d 306, 310–11 (Or. 1960).
Nor did the district court abuse its discretion by enforcing the settlement
contract between Contech and Ovchinnikov and declining to reinstate the action.
Our cases rendering employee-arbitration clauses unenforceable unless the
employee knowingly waived his or her right to a judicial forum are inapplicable
here. See, e.g., Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1303–05 (9th Cir.
1994). Ovchinnikov waived his claims after bringing suit in a judicial forum, not
his right to a judicial forum. Moreover, the “knowing waiver” doctrine renders

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arbitration clauses unenforceable only with regard to claims that the claimant did
not know were covered by the arbitration clause. See Renteria v. Prudential Ins.
Co. of Am., 113 F.3d 1104, 1107 (9th Cir. 1997). Ovchinnikov cannot plausibly
argue that he did not know that a settlement agreement with Contech
contemplating a “full release of all claims” would waive the discrimination claims
he raised in the present lawsuit. Analogy to Federal Rule of Civil Procedure
60(b)(6) is not helpful here. Although that rule permits courts to give relief from
judgments, it does not empower courts to decline to enforce binding contracts
between private parties.
AFFIRMED.

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