FILED
NOT FOR PUBLICATION FEB 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEDIVAS, LLC, No. 14-55926
Plaintiff - Appellant, D.C. Nos. 3:10-cv-01001-W-RBB
3:11-cv-02852-W-RBB
v.
MARUBENI CORPORATION, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted February 12, 2015**
Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
MediVas, LLC, appeals the district court’s order compelling arbitration of
certain claims against Marubeni Corporation and the district court’s subsequent
confirmation of an arbitration award in favor of Marubeni. We have jurisdiction
pursuant to 9 U.S.C. § 16(a)(1)(D) and (a)(3), and we affirm.
I.
The district court properly ordered arbitration of those claims that are related
to the Note Purchase Agreement and Agency Agreement and do not arise out of the
Security Agreement. “When determining whether parties have agreed to submit to
arbitration, we apply general state-law principles of contract interpretation, while
giving due regard to the federal policy in favor of arbitration by resolving
ambiguities as to the scope of arbitration in favor of arbitration.” Goldman, Sachs
& Co. v. City of Reno, 747 F.3d 733, 742 (9th Cir. 2014) (internal quotation marks
omitted). The arbitration clause in the 2004 Note Purchase Agreement and Agency
Agreement remained in effect to the extent that it was not specifically limited by
the venue selection clause in the parties’ 2007 Security Agreement. Although “the
forum selection clause[] need only be sufficiently specific to impute to the
contracting parties the reasonable expectation that they would litigate any disputes
in federal court,” id. at 744, the venue clause does so here only to the extent
disputes arise out of the Security Agreement. The Security Agreement provides
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that, “for this purpose only,” San Diego courts shall have “exclusive jurisdiction to
hear and determine any dispute, claim or controversy between or among [the
parties].” “Where contract language is clear and explicit and does not lead to
absurd results, [a court] ascertain[s] intent from the written terms and go[es] no
further.” Shaw v. Regents of Univ. of Cal., 67 Cal. Rptr. 2d. 850, 855 (Ct. App.
1997) (internal quotation marks omitted).
With respect to MediVas’s Fourth Cause of Action, the district court erred in
initially compelling arbitration of MediVas’s claim that the security interest created
by the 2007 agreements constituted a fraudulent transfer. This is because the claim
relates directly to the security interest governed by the Security Agreement and is
therefore subject to the venue selection provision. While this conclusion is
contrary to that reached by the district court, the arbitral tribunal refused to
adjudicate the issue and it has since been remanded to the state court.
II.
The district court correctly confirmed the arbitration award in favor of
Marubeni and against MediVas. The grounds for a court’s refusal or deferral of
recognition or enforcement of an arbitration award are limited to the seven grounds
listed in Article V of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the “New York Convention”). See China Nat’l Metal
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Prods. Imp./Exp. Co. v. Apex Digital, Inc., 379 F.3d 796, 799–800 (9th Cir. 2004).
This review is circumscribed and, “[r]ather than review the merits of the
underlying arbitration, we review de novo only whether the party established a
defense under the Convention.” Id. at 799. Because MediVas is seeking to avoid
enforcement of the award, it has the burden of showing the existence of a New
York Convention defense. Polimaster Ltd. v. RAE Sys., Inc., 623 F.3d 832, 836
(9th Cir. 2010). This burden is substantial because “the public policy in favor of
international arbitration is strong, and the New York Convention defenses are
interpreted narrowly.” Id. (citation omitted).
MediVas failed to meet its substantial burden. It has presented no
compelling reason for us to doubt the applicability of the arbitration clause and it
actively chose not to participate in the arbitration proceedings. Where there is no
showing that one of the defenses to the New York Convention applies,
confirmation of the award is proper. See Ministry of Def. of the Islamic Republic
of Iran v. Gould, Inc., 969 F.2d 764, 770 (9th Cir. 1992) (“[T]he court shall
confirm the award unless it finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the [New York] Convention.”
(internal quotation marks and emphasis omitted)).
AFFIRMED.
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