Peck Ormsby Construction Company v. City of Rigby

526 F. App'x 769

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2013
• Docket: 11-36016
• Status: Unpublished

Opinion

MEMORANDUM *

The City of Rigby is estopped from challenging the validity of the arbitration clause in the performance guarantee it received from Parkson Corporation. Even though the city never signed the guarantee, it “cannot accept [its] benefits ... and at the same time question its validity.” 28 Am.Jur.2d Estoppel and Waiver § 60 (2013); accord 9 U.S.C. § 2; Nghiem v. NEC Elecs., Inc., 25 F.3d 1437, 1439 (9th Cir.1994); Justad v. Ward, 147 Idaho 509, 211 P.3d 118, 121 (2009); Billings v. City of Orlando, 287 So.2d 316, 318 (Fla.1973). The city received the guarantee and installed the guaranteed product years before it ever objected to any part of the guarantee. By suing, the city now seeks to further enjoy the benefits of the guarantee, yet avoid its burdens by refusing arbitration. This it cannot do. See also Comer v. Micor, Inc., 436 F.3d 1098, 1101-02 (9th Cir.2006); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 414, 417-18 (4th Cir.2000). The district court shall order the parties to arbitrate any claims covered by the performance guarantee.

REVERSED.

* This disposition isn’t appropriate for publication and isn’t precedent except as provided by 9th Cir. R. 36-3.