Opinion
21-17076
11-03-2022
LAW OFFICES OF RICHARD E. WILSON, LLC, Plaintiff-Appellee, v. LAURENCE H. SMITH; MITCHELL T. HELLER; MAKAIWA RESORT COMPANY, LLC, Defendants-Appellants,
NOT FOR PUBLICATION
Argued and Submitted October 12, 2022 Honolulu, Hawaii
Appeal from the United States District Court No. 1:21-cv-00184-JMS-KJM for the District of Hawaii J. Michael Seabright, Chief District Judge, Presiding
Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.
MEMORANDUM
Laurence H. Smith and Mitchell Teller (collectively, "Appellants") appeal the district court's order granting the motion to compel arbitration filed by Law Offices of Richard E. Wilson ("Wilson"). The district court ruled that Appellants had waived any right to object to arbitrability by virtue of their participation in the arbitration until the arbitrator decided an issue in favor of Wilson. We review de novo and affirm.
On appeal, Appellants contend that the case is controlled by our decision in Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1277 (9th Cir. 2006) (en banc), where we held that there had been no waiver where the plaintiff objected strongly to the arbitration from the outset and only participated in the arbitration for preliminary matters unrelated to the merits. Any objection by Appellants in this case, as the district court found, was "equivocal at best." Appellants here agreed to an arbitration schedule, actively participated in pre-arbitration discovery regarding documents related to the merits of the contract dispute, and submitted a discovery dispute to the arbitrator. Appellants did not clearly object to arbitration until after they received an unfavorable ruling from the arbitrator ordering them to produce documents.
This court has "long recognized a rule that a party may not submit a claim to arbitration and then challenge the authority of the arbitrator to act after receiving an unfavorable result." Fortune, Alsweet &Eldridge, Inc. v. Daniel, 724 F.2d 1355, 1357 (9th Cir. 1983) (per curiam) (citing Ficek v. S. Pac. Co., 338 F.2d 655, 657 (9th Cir. 1964)). Because of Appellants' active participation in the arbitration until receiving the unfavorable ruling, Appellants waived the right to object to arbitrability.
In view of Appellants' waiver, it is not necessary to decide Appellants' claim that the district court should have conducted a jury trial on the issue of arbitrability pursuant to the Federal Arbitration Act.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.