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Kum Tat Limited v. Linden Ox Pasture, LLC

United States Court of Appeals, Ninth Circuit

January 13, 2017

Kum Tat Limited, Plaintiff-Appellant,
v.
Linden Ox Pasture, LLC, Defendant-Appellee.

          Argued and Submitted December 15, 2016 San Francisco, California

         Appeal 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.

         SUMMARY [**]

         Jurisdiction/Arbitration

         The 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 Arbitration Act.

         The 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 Arbitration Act.

         The 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.

          OPINION

          HURWITZ, Circuit Judge:

         Kum Tat 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.

         BACKGROUND

         A. Contract negotiations

         In May 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 ...


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