Richard Daley v. Cvs Pharmacy, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 17-17409
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD DALEY, No. 17-17409

Plaintiff-Appellant, D.C. No. 2:16-cv-02693-JCM- CWH v.

CVS PHARMACY, INC., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Richard Daley appeals pro se from the district court’s judgment dismissing

his action arising from the termination of his employment. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s decision to compel

arbitration, Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th

* 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). Cir. 2000), and we affirm.

The district court properly compelled arbitration on the question of the

arbitrability of Daley’s claims because the parties entered a valid arbitration

agreement encompassing the issue of arbitrability. See id. (federal court’s role

under the Federal Arbitration Act is limited to determining whether a valid

agreement to arbitrate exists and whether it encompasses the dispute at issue); see

also AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 647 (1986)

(the issue of arbitrability is for judicial determination unless the parties clearly and

unmistakably provide otherwise); U.S. Home Corp. v. Michael Ballesteros Tr., 415

P.3d 32, 40-41 (Nev. 2018) (en banc) (discussing unconscionability under Nevada

law).

The district court did not abuse its discretion by denying Daley’s motion to

enter default judgment because defendant timely filed a motion to dismiss and

compel arbitration under Federal Rule of Civil Procedure 12(b)(1). See Fed. R.

Civ. P. 55 (entry of default); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986)

(standard of review).

We reject as without merit Daley’s contention that the motion to dismiss and

motion to compel arbitration were unlawfully filed.

2 17-17409 We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-17409