Linglong Americas v. Horizon Tire , 666 F. App'x 445 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0642n.06
No. 16-3520 FILED
Dec 01, 2016
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
LINGLONG AMERICAS, INC., et al., )
)
Plaintiffs-Appellants, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
HORIZON TIRE, INC., et al., )
NORTHERN DISTRICT OF
)
OHIO
Defendants-Appellees. )
)
)
Before: McKEAGUE, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. In May 2015, Horizon Tire, Inc. filed two lawsuits in
California federal court against Linglong Americas, Inc. (“Linglong Americas”), Shandong
Linglong Tire Co. (“Linglong China”), and LLIT Co. (“Linglong Thailand”) (collectively,
“Linglong”). Linglong countersued in Ohio federal court, and Horizon responded by dismissing
its California suit and recasting its claims as counterclaims in the Ohio action. Linglong then
moved to compel arbitration of Horizon’s claims, arguing that an agreement between the parties
mandated arbitration even though the agreement had expired by its terms four years earlier. The
district court denied Linglong’s motion. We affirm.
I.
We recite the facts as pled by the non-moving party, namely Horizon. See Tackett v. M
& G Polymers, USA, LLC, 561 F.3d 478, 481 (6th Cir. 2009). In 2006, Horizon began working
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Linglong Americas, Inc., et al. v. Horizon Tire, Inc., et al.
with Linglong China to develop a new brand of Chinese-made tires for the American market. In
December of that year, the companies entered into a “Collaboration Agreement,” under which
Linglong China would produce a line of light-truck tires, for which Horizon would be the “sole
distributor.” R. 38-1 ¶ 4. The Agreement, by its terms, would “remain valid for five years” if
not renewed. Id. ¶ 10. The Agreement also contained an arbitration clause providing that, “if no
settlement can be reached through negotiations,” the parties would arbitrate in China any
“disputes or claims arising out of this agreement.” Id. ¶ 9.
By 2010, Horizon and Linglong had expanded their collaboration to include a wide range
of tires not covered by the Agreement, including tires for passenger cars, heavier trucks, off-
roading, and farming. When the Agreement expired in 2011, the companies did not renew it.
According to Horizon, however, the companies repeatedly affirmed in correspondence,
marketing materials, and other dealings that Horizon would be the exclusive U.S. distributor for
all the brands they had developed together, including a brand known as “Crosswind.”
In 2014, Linglong began to undermine this exclusive relationship, even as the companies
continued to deepen their business ties. That year, a Linglong executive, Feng Wang, solicited a
large order of tires from Horizon. Feng also affirmed that Horizon was “the only company that
could sell Crosswind tires in the United States.” Feng asked Horizon for its confidential list of
retail customers, which Horizon agreed to share subject to certain conditions. In November
2014, Horizon finalized an order for 3 million Crosswind tires from Linglong Thailand. Feng
continued to describe Horizon as Linglong’s “lifelong partner” and “exclusive U.S. distributor.”
Around the same time, Feng asked Horizon to loan Linglong Thailand about $3.6 million.
Horizon agreed on the condition that the loan be repaid within a month.
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Over the next few months, the relationship between Horizon and Linglong began to
deteriorate. In December 2014, Horizon found evidence that one of its competitors in the U.S.
market was preparing to sell Crosswind tires. When Horizon confronted Linglong with that
evidence, Linglong promised to “protect Horizon’s exclusive distributorship for Crosswind[.]”
In early 2015, however, Linglong began to sell Crosswind tires through Linglong Americas and
other distributors in the United States. Linglong also refused to repay the $3.6 million it had
borrowed from Horizon, and failed to deliver most of the tires Horizon had ordered.
In May 2015, Horizon sued Linglong in California federal court, alleging that Linglong
had not repaid the loan, fulfilled the November 2014 order, or honored Horizon’s exclusive
distributorship rights. Linglong then sued Horizon in Ohio federal court, seeking, among other
things, a declaration that Horizon did not have an exclusive distributorship arrangement with
Linglong. Horizon dismissed its California suit, and filed an answer and counterclaims in Ohio.
Linglong amended its complaint, and Horizon then filed an answer and amended counterclaims
for declaratory relief, breach of contract, and misappropriation of trade secrets, among other
claims.
Linglong filed a motion under Rule 12(b)(1) to dismiss or stay Horizon’s amended
counterclaims pending arbitration. The district court denied the motion, reasoning that Horizon’s
claims were not based on the Agreement, that the Agreement had expired, and that Linglong had
waived any right to arbitrate. Linglong now appeals.
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II.
We review de novo the district court’s refusal to compel arbitration. Huffman v. Hilltop
Cos., LLC, 747 F.3d 391, 394 (6th Cir. 2014).
Linglong argues that the district court should have granted its motion to compel
arbitration because, in Linglong’s view, the Collaboration Agreement’s arbitration clause
survived the Agreement’s expiration in December 2011. An arbitration clause survives the
expiration of a contract only when the dispute at issue “arises under the contract.” S. Cent.
Power Co. v. Int’l Bhd. of Elec. Workers, Local Union 2359, 186 F.3d 733, 738-39 (6th Cir.
1999). Such a dispute arises in two circumstances relevant here.
First, a dispute arises under the contract when a “majority of the material facts and
occurrences” giving rise to the dispute occurred before the contract expired. See id. at 738-39.
Horizon’s claims center on events that unfolded in 2014 and 2015, years after the Agreement
expired. In the span of those two years, Horizon alleges, Linglong refused to repay a loan,
misappropriated a customer list, failed to fulfill a large order for tires, and began interfering with
Horizon’s putative exclusive distributorship. Although some of these claims may depend in part
on agreements and dealings that predate December 2011, the vast majority of events described in
the amended counterclaims, including most of Linglong’s alleged statements about Horizon’s
exclusive distributorship, occurred well after that date. Linglong indeed does not even argue the
contrary.
Second, a dispute arises under the contract when the contractual right at issue survives
the expiration of the contract itself. See id. Here, one might interpret Horizon’s counterclaims to
be based in part on a putatively permanent right of exclusive distributorship that in turn arises
from the Collaboration Agreement itself. But Horizon—both in the district court and on
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appeal—has expressly waived that theory as a basis for its claims. See Thomas v. Miller, 489
F.3d 293, 303 n.8 (6th Cir. 2007). Specifically, in the district court, Horizon conceded that the
Agreement is “no longer enforceable” and that its claims “arise out of facts and circumstances
that occurred after the Collaboration Agreement expired.” R. 51 at PageID 783-84. And on
appeal Horizon has stated that, “to the extent that Horizon had a claim based on a continuing
obligation created by the Collaboration Agreement, Horizon has unequivocally and irrevocably
waived it.” Horizon Br. 33. Thus, Horizon’s claims—as actually presented by Horizon—are not
based on any rights created by the Collaboration Agreement. The Agreement’s arbitration clause
therefore does not apply to those claims. It remains only to note that Horizon is now judicially
estopped from any claim against Linglong based upon the Collaboration Agreement. See
Pennycuff v. Fentress City Bd. of Educ., 404 F.3d 447, 452-53 (6th Cir. 2005).
The district court’s May 6, 2016 order denying Linglong’s Rule 12(b)(1) motion is
affirmed.
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