Pierce County v. Ma Mortenson Company ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 17 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIERCE COUNTY, a political subdivision No. 19-35257
of the State of Washington,
D.C. No. 3:19-cv-05041-RJB
Plaintiff-Appellant,
v. MEMORANDUM*
MA MORTENSON COMPANY, a
Minnesota corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted March 6, 2020
Seattle, Washington
Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
Pierce County appeals the district court’s order compelling arbitration and
dismissing the County’s complaint for declaratory relief. We have jurisdiction
under 9 U.S.C. § 16(a)(3). See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.
79, 89 (2000).
The district court did not err in granting M.A. Mortenson Company’s motion
to compel arbitration. The parties agreed that “[a]ll Claims arising out of the Work
shall be resolved by arbitration” and defined the term “Claim” to include any claim
filed by Mortenson with the County to resolve a dispute “regarding the terms of a
Change Order or a request for equitable adjustment.” The agreement did not
require that a dispute meet any conditions precedent to be considered a “Claim”
that triggers the agreement to arbitrate. Rather, § 8.01 of the agreement used the
term “Claim” to refer to all disputes regarding compensation, regardless whether
the claim satisfied the substantive and procedural requirements in § 8.01(C).
Therefore, Mortenson’s pending compensation disputes constitute “Claims” that
the parties had agreed to arbitrate.
Nor did the court err in dismissing the County’s complaint for declaratory
relief regarding whether specified Claims satisfied the nine requirements in
§ 8.01(C). The complaint is best read as raising defenses to Mortenson’s claims
for compensation and therefore is barred by the parties’ agreement that “[n]o
2
independent legal action relating to or arising from the Work shall be maintained.”
Further, the parties’ agreement that the arbitration “shall be in accordance with the
Construction Industry Arbitration Rules of AAA” is “clear and unmistakable
evidence” that the parties agreed that an arbitrator would decide whether a dispute
meets the requirements for being an arbitrable “Claim.” See Brennan v. Opus
Bank, 796 F.3d 1125, 1130 (9th Cir. 2015); see also Moses H. Cone Mem’l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (“[A]ny doubts concerning the
scope of arbitrable issues should be resolved in favor of arbitration, whether the
problem at hand is the construction of the contract language itself or an allegation
of waiver, delay, or a like defense to arbitrability.”). Accordingly, it is for the
arbitrator to decide whether Mortenson’s “Claims” should be deemed “waived” for
not satisfying the requirements of § 8.01(C).
AFFIRMED.
3