Aiello v. Sears Termite & Pest Control Inc.

70 F. App'x 960

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2003
• Docket: No. 02-15067. D.C. No. CV-01-00908-SMM
• Status: Published

Opinion

MEMORANDUM

**

The Aiellos sought an injunction in the state court action, and the state judge decided upon arbitrability and all remaining issues, and thus the dismissal of their state action was both on the merits and final.¹ Because the issue was decided by the Arizona state courts, appellants are collaterally estopped from challenging the arbitrability of their claim. It is of no moment that their state appeal was dismissed as moot - the trial court judgment is still a final judgment with preclusive effect.² It was within the discretion of the district court to dismiss the action rather than stay it pending arbitration.³

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See generally Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 745 P.2d 617, 622 (App.1987) (superseded on other grounds by statute as stated in Goodman v. Samaritan Health Sys., 195 Ariz. 502, 990 P.2d 1061, 1067 n. 7 (Ct.App.1999).

2 . See Food for Health v. 3839 Joint Venture, 129 Ariz. 103, 628 P.2d 986 (Ct.App.1981).

3 . Sparling v. Hoffman Constr., 864 F.2d 635 (9th Cir.1988).