Dennis Mastro v. John Momot , 439 F. App'x 612 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 22 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DENNIS MASTRO, et al., No. 09-17698
Petitioners - Appellants, D.C. No. 2:09-cv-01076-ROS
v.
MEMORANDUM*
JOHN MOMOT,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Argued and Submitted March 15, 2011
Davis, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and WU, District Judge.**
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain the
decision. We have jurisdiction under 9 U.S.C. § 16(a)(1)(C).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
In light of our contemporaneously filed opinion in the Mastros’ related
appeal, Momot v. Mastro, No. 10-15276, we vacate and remand to the district
court.
At the time the district court issued its order denying the Mastros’ motion to
compel arbitration under section 4 of the Federal Arbitration Act (FAA), 9 U.S.C.
§ 4, its decision was correct. To have ruled otherwise would have required the
court to address the arbitrability of Momot’s claims, the same issue that was then
pending before the Nevada district court. See Pacesetter Sys., Inc. v. Medtronic,
Inc., 678 F.2d 93, 94–95 (9th Cir. 1982).
In light of our holding in the related appeal that the parties agreed to
arbitrate the question of arbitrability, however, the FAA mandates that the district
court grant the motion to compel arbitration. See 9 U.S.C. § 4; Dean Witter
Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985) (stating that FAA section 4
“leaves no place for the exercise of discretion by a district court, but instead
mandates that district courts shall direct the parties to proceed to arbitration on
issues as to which an arbitration agreement has been signed”).
VACATED AND REMANDED with instructions to grant Appellants’
motion to compel arbitration.
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