and Submitted December 15, 2016 San Francisco, California
from the United States District Court for the Northern
District of California William Horsley Orrick, III, District
Judge, Presiding D.C. No. 3:14-cv-02857-WHO
Charles Michael Schaible (argued) and Patrick P. Gunn, Cooley
LLP, San Francisco, California, for Plaintiff-Appellant.
Jeffrey L. Fillerup (argued), Rincon Law LLP, San Francisco,
California, for Defendant-Appellee.
Before: Carlos F. Lucero, [*] Susan P. Graber, and Andrew D.
Hurwitz, Circuit Judges.
panel dismissed for lack of jurisdiction an interlocutory
appeal from the district court's order denying Kum Tat
Limited's motion to compel arbitration of a claim against
Linden Ox Pasture, LLC, where the arbitration motion relied
only on state law and was not filed pursuant to the Federal
Federal Arbitration Act authorizes interlocutory appeals from
the orders described in 9 U.S.C. § 16(a)(1). The panel
held that the district court order denying the motion to
compel arbitration was not an order from which §
16(a)(1) permitted an interlocutory appeal because the
arbitration motion urged application only of California
arbitration law and contained no citation to the Federal
panel declined to treat the appeal as a petition for a writ
of mandamus given that mandamus is warranted only if, among
other requirements, a district court order was clearly
erroneous. The panel held that the district court did not
clearly err in reserving for itself the question of whether
the parties agreed to arbitrate. The panel also held that the
district court did not clearly err in concluding that the
parties did not form a contract.
HURWITZ, Circuit Judge:
Limited ("Kum Tat") moved to compel arbitration of
a claim against Linden Ox Pasture, LLC ("Linden
Ox"), in connection with an attempted purchase of a
California residence. The arbitration motion relied only on
state law, and Kum Tat later emphasized that the motion was
not filed pursuant to the Federal Arbitration Act
("FAA"), 9 U.S.C. §§ 1-16. The district
court denied the motion, and Kum Tat filed this interlocutory
appeal, invoking appellate jurisdiction under the FAA. We
dismiss the appeal for lack of jurisdiction.
2014, Kum Tat, a Chinese corporation, offered to buy a
residential property from Linden Ox, a Florida limited
liability corporation, for $38 million. The offer included
all "furniture, " "art work, " and
"decorative items, " and required Linden Ox to
submit an "[e]xclusion list of any personal items"
within five days of acceptance. The offer provided that any
disputes "arising out of this Contract" would be
arbitrated and that the parties "MAY BE COMPELLED TO