Peck Ormsby Construction Company v. City of Rigby , 526 F. App'x 769 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PECK ORMSBY CONSTRUCTION No. 11-36016
COMPANY,
D.C. No. 1:10-cv-00545-WBS
Plaintiff - Appellee,
v. MEMORANDUM *
CITY OF RIGBY,
Defendant-cross-plaintiff -
Appellee,
v.
PARKSON CORPORATION,
Cross-defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted May 10, 2013
Portland, Oregon
Before: KOZINSKI, Chief Judge, BERZON and HURWITZ, Circuit
Judges.
*
This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
page 2
The City of Rigby is estopped from challenging the validity of the
arbitration clause in the performance guarantee it received from Parkson
Corporation. Even though the city never signed the guarantee, it “cannot accept
[its] benefits . . . and at the same time question its validity.” 28 Am. Jur. 2d
Estoppel and Waiver § 60 (2013); accord 9 U.S.C. § 2; Nghiem v. NEC Elecs.,
Inc., 25 F.3d 1437, 1439 (9th Cir. 1994); Justad v. Ward, 211 P.3d 118, 121 (Idaho
2009); Billings v. City of Orlando, 287 So. 2d 316, 318 (Fla. 1973). The city
received the guarantee and installed the guaranteed product years before it ever
objected to any part of the guarantee. By suing, the city now seeks to further enjoy
the benefits of the guarantee, yet avoid its burdens by refusing arbitration. This it
cannot do. See also Comer v. Micor, Inc., 436 F.3d 1098, 1101–02 (9th Cir.
2006); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d
411, 414, 417–18 (4th Cir. 2000). The district court shall order the parties to
arbitrate any claims covered by the performance guarantee.
REVERSED.