FILED
NOT FOR PUBLICATION MAR 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHAD M. CARLSEN; SHASTA L. No. 10-35324
CARLSEN; CARL POPHAM; MARY
POPHAM, husbands and wives, D.C. No. 2:09-cv-00246-LRS
individually and on behalf of a class of
similarly situated Washington families,
MEMORANDUM *
Plaintiffs - Appellees,
v.
GLOBAL CLIENT SOLUTIONS, LLC,
an Oklahoma limited liability company;
ROCKY MOUNTAIN BANK & TRUST,
a Colorado financial institution,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted March 9, 2011
Seattle, Washington
Before: McKEOWN, FISHER, and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants-Appellants Global Client Solutions, LLC and Rocky Mountain
Bank & Trust appeal the district court’s denial of their motions to compel
arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B), and we affirm.
We review de novo a district court’s decision on a motion to compel
arbitration, and we review the underlying factual findings for clear error. Balen v.
Holland Am. Line Inc., 583 F.3d 647, 652 (9th Cir. 2009). Under Washington law,
whether there was mutual assent to be bound by a contract is generally treated as a
question of fact. Keystone Land & Dev. Co. v. Xerox Corp., 94 P.3d 945, 949 n.10
(Wash. 2004).
The district court did not clearly err in finding that there was no agreement
to arbitrate. The Special Purpose Account Application signed by Plaintiffs-
Appellees, the Carlsens and the Pophams, did not contain an arbitration clause.
The Account Agreement and Disclosure Statement contained an arbitration clause,
but it was not sent to Plaintiffs until after they signed the Application, and the
district court was not presented with evidence showing that the Agreement was
reasonably available to them when they signed. See Mattingly v. Palmer Ridge
Homes, LLC, 238 P.3d 505, 512 (Wash. Ct. App. 2010) (“Although ‘parties have a
duty to read the contracts they sign,’ documents incorporated by reference usually
must be reasonably available, at the least, so that the essentials of a contract can be
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discerned by the signer.” (quoting Del Rosario v. Del Rosario, 97 P.3d 11, 16
(Wash. 2004))); W. Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 7
P.3d 861, 865 (Wash. Ct. App. 2000) (“[I]ncorporation by reference is ineffective
to accomplish its intended purpose where the provisions to which reference is
made do not have a reasonably clear and ascertainable meaning.” (quoting 11
Richard A. Lord, Williston on Contracts § 30.25 (4th ed. 1999))).
Defendants’ argument that Plaintiffs assented to arbitration through their
conduct does not persuade us. The Application did not provide that Defendants
could unilaterally add to or amend the contract terms, or specify that additional
terms would be deemed accepted by conduct. Because we hold that the district
court did not err in finding that there was no agreement to arbitrate, we need not
consider alternative arguments raised by the parties.
AFFIRMED.
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