United States District Court, D. Arizona
the Court is Defendant Austin Centers for Exceptional
Students Incorporated's (“ACES”) motion to
dismiss Plaintiffs' first amended complaint as untimely
or to compel arbitration. (Doc. 46.) The motion is fully
briefed. (Docs. 49, 56.) For the following reasons,
ACES' motion is granted in part and denied in part.
a state-certified school for special education students.
(Doc. 42 ¶ 28.) A.B., who is autistic and has Attention
Deficit Hyperactivity Disorder, began attending ACES in 2015.
(¶¶ 35, 43.) Plaintiffs allege that, on March 31,
2017, an ACES employee used excessive force to get A.B. onto
a school bus, and in doing so broke A.B.'s wrist.
(¶¶ 76, 78-102, 127-130.)
of A.B.'s enrollment at ACES, A.B. and Aryn signed, among
other things, a Behavioral Intervention Policy and a
Parent/Guardian Commitment (collectively “Enrollment
Paperwork”). (¶¶ 57-68.) The Behavioral
Intervention Policy contains an arbitration agreement, which
All parties agree that any dispute which arises as a result
of any behavioral intervention shall be filed within ninety
(90) days and shall be decided by binding arbitration only
with both parties agreeing to the selection of an arbitrator
who is professionally competent in special education
administration and behavioral health. Any award shall not
exceed the amount of actual expenses and arbitration shall be
conducted in accordance with the rules of the American
Arbitration Association [“AAA”], a copy of which
is available from the principal on any ACES campus.
(Doc. 46-1 at 2.)
in signing the Parent/Guardian Commitment, Aryn and A.B.
agreed that they “read and understand the information
in the Parent/Student Handbook [(“Handbook”)] and
 agree to follow those guidelines.” (Id. at
11.) The Handbook, likewise, provides an arbitration
agreement, which states:
As a condition of enrollment  ACES and any other party
responsible for a student agree to submit any and all
disputes that might arise regarding a student to binding
arbitration and any award shall not exceed the amount of
actual expenses. The parties shall mutually agree to the
selection of an arbitrator who is professionally competent in
special education administration and behavioral health. The
arbitration shall be conducted in accordance with the rules
of the [AAA] and copies of those rules are available for
review from the principal on any ACES campus.
(Id. at 6.) According to Plaintiffs, ACES did not
explain the arbitration provisions and did not provide a copy
of the Handbook. (Doc. 42 ¶¶ 60-63.)
August 3, 2018, Plaintiffs filed their first amended
complaint, alleging violations of the Rehabilitation Act of
1973 and the and Americans with Disabilities Act, and raising
state law tort claims. (Doc. 42.) ACES moves to dismiss
Plaintiffs' first amended complaint as untimely or, in
the alternative, to compel arbitration. (Doc. 46.)
Federal Arbitration Act (“FAA”) provides that
written agreements to arbitrate disputes arising out of
transactions involving interstate commerce “shall be
valid, irrevocable, and enforceable except upon grounds that
exist at common law for the revocation of a contract.”
9 U.S.C. § 2; see AT&T Mobility LLC v.
Concepcion, 563 U.S. 333 (2011) (discussing liberal
federal policy favoring valid arbitration agreements). The
FAA “leaves no place for the exercise of discretion by
a district court, but instead mandates that district courts
shall direct the parties to proceed to arbitration on issues
as to which an arbitration agreement has been signed.”
Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218
(1985) (emphasis in original). The court must compel
arbitration where: (1) a valid agreement to arbitrate exists,
and (2) the agreement encompasses the dispute at issue.
Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207
F.3d 1126, 1130 (9th Cir. 2000). “Where a contract
contains an arbitration [agreement], courts apply a
presumption of arbitrability as to particular grievances, and
the party resisting arbitration bears the burden of
establishing that the arbitration agreement is
inapplicable.” Wynn Resorts, Ltd. v. Atl.-Pac.
Capital, Inc., 497 Fed. App'x. 740, 742 (9th Cir.
seeks to compel arbitration pursuant to the arbitration
provisions contained in the Enrollment Paperwork. ACES argues
that the question of arbitrability has been delegated to the
arbitrator and thus the scope of this Court's review is
narrow. (Doc. 46 at 6.) Plaintiffs argue that the
agreement's delegation provision is unenforceable and
that, even ...