Balkrishna Setty v. Shrinivas Sugandhalaya LLP

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2019
• Docket: 18-35573
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BALKRISHNA SETTY, individually and as No. 18-35573 general partner in Shrinivas Sugandhalaya Partnership with Nagraj Setty; SHRINIVAS D.C. No. 2:17-cv-01146-RAJ SUGANDHALAYA (BNG) LLP,

Plaintiffs-Appellees, MEMORANDUM*

v.

SHRINIVAS SUGANDHALAYA LLP,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted June 3, 2019** Seattle, Washington

Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.

Shrinivas Sugandhalaya LLP (“SS LLP”), an incense manufacturing

company based in Mumbai, appeals the district court’s order denying its motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). compel arbitration and to grant a stay in a trademark action brought by Balkrishna

Setty (“Balkrishna”) and his company Shrinivas Sugandhalaya (BNG) LLP (“BNG

LLP”), located in Bangalore.

We review de novo the district court’s denial of a motion to compel

arbitration. Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017).

We review a district court’s order denying a motion to stay pending arbitration for

abuse of discretion. Alascom, Inc. v. ITT North Elect. Co., 727 F.2d 1419, 1422

(9th Cir. 1984).

SS LLP, citing the arbitration clause in the Partnership Deed, seeks to

compel arbitration under the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (“New York Convention”), 9 U.S.C. § 201 et seq. and the

Federal Arbitration Act (“FAA”), 9 U.S.C. § 2. Our recent decision in Yang v.

Majestic Blue Fisheries, LLC, 876 F.3d 996 (9th Cir. 2017) forecloses both

arguments.

It is undisputed that SS LLP is not a signatory to the Partnership Deed. In

fact, SS LLP was not even in existence at the time the Partnership Deed was

signed. As a non-signatory, SS LLP may not compel arbitration under the New

York Convention. See Yang, 876 F.3d at 1001 (interpreting the Convention’s

phrase “signed by the parties” to include only signatories or parties to the

agreement under which the litigant moves to compel and holding that “the [New

2 York Convention] does not allow non-signatories or non-parties to compel

arbitration.”).

To the extent that SS LLP seeks to compel arbitration under the FAA, this

argument also fails. Under the FAA, a non-signatory may invoke arbitration if state

law permits. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–32 (2009).

However, where the FAA allows what the Convention prohibits, the Convention

controls. See Yang, 876 F.3d at 1002 (“To the extent the FAA provides for

arbitration of disputes with non-signatories or non-parties, it conflicts with the

Convention Treaty and therefore does not apply.”); 9 U.S.C. § 208 (“Chapter 1 [of

the FAA] applies to actions and proceedings brought under this chapter to the

extent that chapter is not in conflict with this chapter or the [New York]

Convention as ratified by the United States”).

SS LLP makes a couple of other arguments on appeal. First, SS LLP argues

that BNG LLP and SS LLP are parties to the Deed of Partnership because they are

both “assigns” of the respective brothers. This argument was not raised before the

district court, does not have much support in the record, and requires fact-finding

that our court is not positioned to conduct. Second, SS LLP argues that, because

the arbitration process “has begun” in India (through SS LLP serving a demand on

Balkrishna), a stay is appropriate. This argument was dismissed by the district

court in a separate order that is not before our court.

3 Because the New York Convention does not permit SS LLP to compel

arbitration, the district court did not abuse its discretion in denying a stay of

proceedings pending arbitration.

AFFIRMED.