FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THE ERECTION COMPANY, INC., a No. 11-35949
Washington corporation,
D.C. No. 3:11-cv-00805-JE
Plaintiff - Appellant,
v. MEMORANDUM *
W&W STEEL, LLC, a Delaware limited
liability company,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Argued and Submitted March 7, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
The Erection Company (TEC) appeals the district court’s denial of its
petition to compel arbitration and grant of W&W Steel’s (W&W) motion for
partial summary judgment. The Federal Arbitration Act authorizes an appeal from
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an order denying a petition to compel arbitration, 9 U.S.C. § 16(a)(1)(C), and the
district court certified its partial summary judgment as a final judgment, see Fed.
R. Civ. P. 54(b). We therefore have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. TEC’s argument that the parties entered into a contract which contained
an arbitration clause fails. W&W unequivocally expressed in its January 28, 2011,
Letter of Intent that it intended to be bound only when a written subcontract was
signed by both parties. No such written subcontract was ever signed by both
parties. Nonetheless, TEC argues that the parties entered into a binding contract
through their email communications on April 6, 2011. There was no contract
formed on April 6, 2011 because there was no meeting of the minds on a set of
terms. See Phillips v. Johnson, 514 P.2d 1337, 1343 (Or. 1973) ( “[B]efore there
can be a valid contract there must be a meeting of the minds as to all of its terms. . .
.”). Because the parties did not enter into a contract which provided for disputes to
be resolved through arbitration, the district court did not err in denying TEC’s
petition to compel arbitration.
2. TEC has not raised a triable issue of material fact as to whether the
parties formed a contract through their words and conduct prior to the April 6,
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2011 negotiations. The district court therefore did not err in granting summary
judgment to W&W on TEC’s breach of contract claim.
AFFIRMED.
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