UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1264
CATHCART PROPERTIES, INCORPORATED,
Plaintiff – Appellant,
v.
TERRADON CORPORATION, a West Virginia corporation,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:08-cv-00298)
Submitted: January 13, 2010 Decided: February 4, 2010
Before MICHAEL, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather M. Langeland, Lonnie C. Simmons, DITRAPANO, BARRETT &
DIPIERO, PLLC, Charleston, West Virginia, for Appellant. David
J. Mincer, BAILEY & WYANT, P.L.L.C., Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cathcart Properties, Incorporated, appeals the
district court’s order granting Terradon Corporation’s motion to
dismiss for failure to state a claim. Cathcart’s complaint
sought a declaratory judgment enforcing an arbitration provision
in a contract between the parties. For the reasons that follow,
we affirm.
It is well-settled that “a party cannot be required to
submit to arbitration any dispute which he has not agreed so to
submit,” because it is only through the advance agreement of the
parties that the arbitrator derives his authority to resolve
disputes. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475
U.S. 643, 648-49 (1986) (internal quotation marks omitted).
However, “the question of arbitrability . . . is undeniably an
issue for judicial determination,” and “[u]nless the parties
clearly and unmistakably provide otherwise, the question of
whether the parties agreed to arbitrate is to be decided by the
court, not the arbitrator.” Id. at 649; see also Carson v.
Giant Foods, Inc., 175 F.3d 325, 329 (4th Cir. 1999) (explaining
that although doubts “concerning the scope of arbitrable issues
should be resolved in favor of arbitration,” the same
presumption “does not apply to the issue of which claims are
arbitrable”). “Because the examination of the scope of an
arbitration agreement is primarily a task of contract
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interpretation,” this court reviews de novo a district court’s
determination of the arbitrability of a dispute. Cara’s
Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569 (4th
Cir. 1998).
The record demonstrates that the district court did
not err in finding that the parties did not “clearly and
unmistakably” agree to have an arbitrator decide the scope of
his own authority. Because there was no contract provision that
expressly stated that the parties agreed to arbitrate the
arbitrability of a claim, the court itself was required to make
that determination. See Carson, 175 F.3d at 329-30 (noting that
the courts have “repeatedly rejected the assertion that general
arbitration clauses . . . commit to arbitration disputes over an
arbitrator’s jurisdiction,” even those that are broad and
otherwise “commit all interpretive disputes ‘relating to’ or
‘arising out of’ the agreement”).
The arbitration provision at issue required the
parties to submit to arbitration “any dispute or controversy
arising from [the relevant] Contract.” However, the district
court correctly concluded that the plain terms of the contract
did not permit a finding that Cathcart’s substantive claim arose
from the contract. Therefore, the court properly dismissed
Cathcart’s complaint for failure to state a claim that the
substantive issue should be submitted to arbitration.
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Accordingly, we affirm the district court’s order
granting the motion to dismiss. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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