Arevalo Tortilleria, Inc. v. Applied Underwriters Captive Risk Assurance Co. , 694 F. App'x 614 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AREVALO TORTILLERIA, INC., No. 15-56830
Plaintiff-Appellant, D.C. No.
2:15-cv-05497-PA-JC
v.
APPLIED UNDERWRITERS CAPTIVE MEMORANDUM*
RISK ASSURANCE COMPANY, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted June 6, 2017
Pasadena, California
Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** Senior District Judge.
Plaintiff Arevalo Tortilleria, Inc. (“Arevalo”) appeals the district court’s
decision granting Defendant Applied Underwriters Captive Risk Assurance
Company, Inc.’s (“AUCRA”) motions to dismiss and compel arbitration. We have
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable J. Frederick Motz, Senior United States District Judge for the
District of Maryland, sitting by designation.
jurisdiction over this appeal pursuant to 9 U.S.C. § 16(a)(3), and vacate the
judgment and remand to the district court for a trial on whether Arevalo executed
the arbitration agreements.1
1. Section 4 of the Federal Arbitration Act (“FAA”) states that “[i]f the
making of the arbitration agreement . . . be in issue, the court shall proceed
summarily to a trial thereof.” 9 U.S.C. § 4. AUCRA provided the district court
with copies of two contracts—a Reinsurance Participation Agreement (“RPA”) and
a Request to Bind—that were purportedly signed by Arevalo’s CEO and contained
arbitration clauses. But, Arevalo submitted a declaration by the alleged signatory’s
son and successor, stating that he is very familiar with his father’s signature and
did not recognize the signatures or believe they were written by his father. Arevalo
therefore raised a genuine issue of fact with respect to the execution of the
agreements, and is entitled to a trial under the FAA.2
2. The district court did not err in holding that AUCRA has the right to
enforce the RPA. Although AUCRA was a British Virgin Islands corporation
when it executed the RPA, the Iowa corporation into which it merged assumed its
predecessor’s rights and obligations. See IOWA CODE ANN. § 491.110. The fact
1
The parties’ various motions to take judicial notice of documents in other
proceedings (Dkt. 10, 14, 15) are granted.
2
We decline to address in the first instance what procedures are required for
such a trial.
2
that in 2012, a subsidiary of AUCRA sent Arevalo a demand letter and a draft
state-court complaint naming Applied Risk Services as “assignee of certain
accounts receivables” from AUCRA, does not raise a genuine issue of fact as to
whether AUCRA assigned away its right to enforce the arbitration agreement in
the RPA.
3. The district court did not err in holding that the arbitration agreements
were not inconsistent. Although the RPA and the Request to Bind provide for
arbitration in different locations, the parties indisputably intended that disputes
related to the RPA be submitted to arbitration, and the arbitrators can reconcile any
dispute about venue.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
3