Steven McArdle v. At&t Mobility LLC ( 2012 )

FILED
UNITED STATES COURT OF APPEALS AUG 31 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
STEVEN MCARDLE, No. 09-17218
Plaintiff - Appellee, D.C. No. 4:09-cv-01117-CW
Northern District of California,
v. Oakland
AT&T MOBILITY, LLC; NEW
CINGULAR WIRELESS PCS, LLC; ORDER AMENDING
NEW CINGULAR WIRELESS MEMORANDUM DISPOSITION
SERVICES, INC., AND DENYING PETITION FOR
REHEARING
Defendants - Appellants.
Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.
The Memorandum Disposition filed on June 29, 2012 is amended as
follows:
On page 2 of the Memorandum Disposition, last paragraph, the first sentence
is amended by inserting following and deleting the language
beginning with through , so that the sentence now reads:
.
The second sentence of the last paragraph is deleted in its entirety.
The third sentence of the last paragraph is amended by deleting
, deleting the language beginning with through the end of the
sentence, and inserting following , so the
sentence now reads: .
An Amended Memorandum Disposition will be filed simultaneously with
this Order.
With these amendments, the panel has voted to deny Appellant’s Petition for
Rehearing filed on July 2, 2012.
The Petition for Rehearing is DENIED. No further petitions for rehearing
and/or rehearing en banc will be entertained.
2 09-17218
FILED
NOT FOR PUBLICATION AUG 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN MCARDLE, No. 09-17218
Plaintiff - Appellee, D.C. No. 4:09-cv-01117-CW
v. AMENDED
MEMORANDUM *
AT&T MOBILITY, LLC; NEW
CINGULAR WIRELESS PCS, LLC;
NEW CINGULAR WIRELESS
SERVICES, INC.,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted June 15, 2012 **
San Francisco, California
Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
AT&T Mobility, LLC appeals the district court’s order denying its motion to
compel arbitration.
When the district court denied the motion to compel arbitration, it did not
have the benefit of the decisions by the United States Supreme Court in AT&T
Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) and by this court in Coneff v.
AT&T Corp., 673 F.3d 1155 (9th Cir. 2012). The district court ruled that the
arbitration clause in the agreement between Plaintiff Steven McArdle and AT&T
was unenforceable due to the absence of class action relief. This ruling is not
consistent with the holdings of Concepcion and Coneff. See Concepcion, 131 S.
Ct. at 1751-52; Coneff, 673 F.3d at 1161.
In Coneff, we noted that “generally applicable contract defenses” survive
under § 2 of the Federal Arbitration Act. Coneff, 673 F.3d at 1161 (quoting
Concepcion, 131 S. Ct. at 1746). We remand to the district court to consider in the
first instance McArdle’s arguments based on generally applicable contract
defenses. See id.REVERSED and REMANDED.
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