Rafique v. Premier Financial Alliance, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2026
• Docket: 25-586
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANEELA RAFIQUE; JOHN SOO-HOO; No. 25-586 HAIDEE COLLADO, D.C. No. 4:23-cv-00732-JST Plaintiffs - Appellees,

v. MEMORANDUM*

PREMIER FINANCIAL ALLIANCE, INC., a Georgia Corporation; DAVID CARROLL; JACK WU,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted December 1, 2025** San Francisco, California

Before: RAWLINSON and SANCHEZ, Circuit Judges, and ZIPPS, Chief District Judge***

* 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). *** The Honorable Jennifer G. Zipps, United States Chief District Judge for the District of Arizona, sitting by designation. Premier Financial Alliance, Inc. (Premier), David Carroll (Carroll), and Jack

Wu (Wu) (collectively, Appellants) appeal the district court’s grant of Appellees’

motion to lift the stay pending arbitration. We affirm.

1. “[P]arties have the right under the FAA to choose the rules under which

their arbitration will be conducted. . . .” Tillman v. Tillman, 825 F.3d 1069, 1076

(9th Cir. 2016) (citation omitted). “[W]hen an employer enters into an agreement

requiring its employees to arbitrate, it must participate in the process or lose its

right to arbitrate.” Brown v. Dillard’s, Inc., 430 F.3d 1004, 1013 (9th Cir. 2005).

Appellants contracted to arbitrate using AAA procedures. Appellants were

clearly advised of the amount of filing fees owed by Appellants and the due date

for those fees. The communications clearly stated that failure to remit payment

would result in termination of the arbitration. Appellants do not dispute the fact

that they failed to pay the required fee by the due date, nor the fact that they

received the emails. Rather, Appellants contend that they should have been

provided an extension of time because their failure to pay the fees was due to a

“clerical error.”

“[A] party waives its right to compel arbitration when (1) it has knowledge

of the right, and (2) it acts inconsistently with that right.” Hill v. Xerox Bus. Servs.,

LLC, 59 F.4th 457, 460 (9th Cir. 2023). “There is no concrete test to determine

whether a party has engaged in acts that are inconsistent with its right to arbitrate;

2 25-586 rather, we consider the totality of the parties’ actions . . .” Newirth by Newirth v.

Aegis Senior Communities, LLC, 931 F.3d 935, 941 (9th Cir. 2019) (citations and

internal quotation marks omitted). Courts have generally found that nonpayment

of a filing fee is an act inconsistent with the right to arbitrate. See Brown, 430 F.3d

at 1013; see also Sink v. Aden Enters., Inc., 352 F.3d 1197, 1199-1200 (9th Cir.

2003).

Appellants do not dispute that they failed to pay the filing fee. In addition,

they did not explain why they failed to respond to the multiple communications

from AAA and Appellees’ counsel regarding payment of the filing fee. There is

also no evidence in the record that Appellants took any actions demonstrating an

intent to proceed with arbitration prior to AAA closing the case. Thus, the totality

of the circumstances supports the district court’s finding that Appellants waived

their right to arbitrate. See Hill, 59 F.4th at 460. So the district court “properly

lifted the stay” of arbitration and allowed Appellees to proceed with their case in

district court. Tillman, 825 F.3d at 1074 (citations omitted).1

2. “Generally, we will not consider arguments raised for the first time on

appeal, although we have discretion to do so.” Rose Court, LLC v. Select Portfolio

Servicing, Inc., 119 F.4th 679, 688 (9th Cir. 2024) (citations and internal quotation

1 In view of the district court’s dispositive finding of waiver, there was no need to address the material breach issue or the preemption issue. See Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 1137 (9th Cir. 2005).

3 25-586 marks omitted). “We typically exercise our discretion to consider newly-raised

issues in the following three circumstances: (1) in the exceptional case in which

review is necessary to prevent a miscarriage of justice or to preserve the integrity

of the judicial process, (2) when a new issue arises while appeal is pending because

of a change in the law, and, (3) when the issue presented is purely one of law and

either does not depend on the factual record developed below, or the pertinent

record has been fully developed.” Id. (citation and internal quotation marks

omitted).

Appellants assert for the first time on appeal that AAA failed to comply with

AAA Commercial Rules 59(e) and 59(f). They acknowledge that they did not

specifically cite Rule 59 to the district court. However, they argue that an earlier

version with an identical provision, Rule 57(e) – (f) was part of the record

presented to the district court. Appellants contend that because Rules 57 and 59

are similar provisions, both AAA rules were “effectively part of the record . . .

presented to the district court.” We disagree. Because the issue being argued on

appeal was not raised in the district court, and no circumstance exists that warrants

our review of this issue in the first instance, we decline to exercise our discretion to

consider this issue. See id.

4 25-586 AFFIRMED.2

2 Although we ultimately decide that Appellants’ arguments on appeal lacked merit, we do not conclude that the appeal was frivolous. See Caputo v. Tungsten Heavy Powder, Inc., 96 F.4th 1111, 1149 (9th Cir. 2024) (“An appeal is frivolous when the result is obvious or the appellant’s arguments are wholly without merit. . . .”) (citation and internal quotation marks omitted).

5 25-586