JAMES WOLFF V. TOMAHAWK MANUFACTURING

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2022
• Docket: 22-35145
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES B. WOLFF, No. 22-35145

Plaintiff-Appellee, D.C. No. 3:21-cv-00880-SI

v. MEMORANDUM* TOMAHAWK MANUFACTURING, a Wisconsin corporation,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted December 7, 2022 Seattle, Washington

Before: O’SCANNLAIN, McKEOWN, and MILLER, Circuit Judges.

Tomahawk Manufacturing (“Tomahawk”), a Wisconsin corporation that

produces equipment for the meat-processing industry, appeals the district court’s

denial of its motion to compel arbitration with James Wolff. Tomahawk argues

that a 2012 contract (“FOT Agreement”) between Spherical IP, LLC (“Spherical”)

and Formtec, LLC (“Formtec”) incorporated by reference a 2010 confidentiality

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. agreement (“2010 NDA”) between Tomahawk and Wolff, and, consequently, that

the FOT Agreement’s arbitration clause governs Wolff’s breach of contract claims

under the 2010 NDA. We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo a district court’s denial of a motion to compel arbitration. Davis v.

Nordstrom, Inc., 755 F.3d 1089, 1091 (9th Cir. 2014). As the contracts at issue

stipulate, Wisconsin law applies to this dispute. We affirm.

Wisconsin courts have had “little opportunity” to “apply contract and agency

principles to the enforcement of arbitration agreements by or against

nonsignatories.” Mayer v. Soik, No. 2020AP199, 2021 WL 3073073, at *6 (Wis.

Ct. App. July 21, 2021); see also Pagan v. Integrity Sol. Servs., Inc., 42 F. Supp.

3d 932, 934 (E.D. Wis. 2014) (noting the lack of Wisconsin caselaw on the issue).

Tomahawk relies heavily on Mayer, an unpublished disposition, and has not

identified any binding Wisconsin authority or persuasive federal caselaw. See

Employers Ins. of Wausau v. Jackson, 527 N.W.2d 681, 686 n.5 (Wis. 1995)

(explaining that Wisconsin courts may look to “federal court interpretations” of the

Federal Arbitration Act “as an aid in the resolution” of cases regarding the

Wisconsin Arbitration Act). Mayer is both nonauthoritative and distinguishable:

there, the court noted that the parties whom a nonsignatory sought to bind to

arbitration were technically nonsignatories as well but had stipulated that they each

2 qualified as “a signatory by virtue of a ‘personal guarantee’ addendum.” Mayer,

No. 2020AP199, at *6. No such stipulation occurred here.

Even if a combination of agency and equitable estoppel theories could

support Tomahawk’s bid to bind Wolff to arbitration, Tomahawk forfeited those

arguments by failing to develop them below. The district court found that

Tomahawk had “not argue[d] theories of agency, alter ego, or piercing the

corporate veil,” but “simply sa[id] in describing the factual background that, on

information and belief, Wolff is the sole member of Spherical.” This assertion

about Spherical’s membership is insufficient to support Tomahawk’s more robust

arguments regarding agency and equitable estoppel on appeal. In addition, these

arguments address only why Wolff should be bound. On appeal, Tomahawk still

fails to explain why it can enforce an agreement that it did not sign.

Tomahawk’s incorporation by reference argument also fails. While “[i]t

cannot be disputed that Wisconsin has adopted the doctrine of incorporation by

reference,” In re Erbach’s Estate, 164 N.W.2d 238, 242 (Wis. 1969), the doctrine

is not endlessly flexible. The FOT Agreement’s confidentiality clause may have

incorporated the 2010 NDA by reference, but Tomahawk has proffered no

convincing argument for holding that the 2010 NDA, in turn, incorporated the FOT

Agreement’s arbitration clause. Wolff’s assertion that the FOT Agreement

concerns a narrower range of “technology” than the 2010 NDA also substantiates

3 the 2010 NDA’s “independent legal effect” and weighs against incorporating the

arbitration requirement. Although we pass no judgment on the effect of the interim

arbitration award between parties related to this dispute, we note that our view of

incorporation does not conflict with the arbitrators’ conclusions.

AFFIRMED.1

1 We construe Tomahawk’s motion to seal (Dkt. No. 49) as pertaining to the interim arbitration award submitted as a supplemental authority pursuant to Fed. R. App. P. 28(j) (Dkt. No. 47), and we grant the motion. We also grant Wolff’s motion to file under seal a letter responding to Tomahawk’s notice of supplemental authority (Dkt. No. 54).