NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMETRA BRICE; et al., No. 19-17477
Plaintiffs-Appellees, D.C. No. 3:19-cv-01481-WHO
v.
MEMORANDUM∗
SEQUOIA CAPITAL OPERATIONS, LLC;
et al.,
Defendants,
and
7HBF NO. 2, LTD.; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted September 16, 2020
San Francisco, California
Before: W. FLETCHER, FORREST**, and VANDYKE, Circuit Judges.
Dissent by Judge W. FLETCHER
∗
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Formerly known as Danielle J. Hunsaker.
Defendants-appellants 7HBF NO. 2, LTD et al. appeal from the district
court’s denial of their motion to compel arbitration. 1 We have jurisdiction under 9
U.S.C. § 16(a)(1)(A), (C), and we reverse and remand with instructions to stay the
case and compel arbitration. We resolve this case for the reasons set forth in Brice
v. Plain Green, No. 19-15707, __ F.3d __ (9th Cir. Sept. 16, 2021), a companion
case involving different defendants but the same Borrowers, materially similar loan
agreements, and the same underlying dispute over the enforceability of the
arbitration agreements contained in Borrowers’ loan agreements.
Here, as in Plain Green, we conclude that the parties agreed to arbitrate both
their substantive disputes and any gateway questions regarding the arbitration
agreement’s “validity, enforceability, or scope.” See __ F.3d at __; slip op. at 31; see
also Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). The latter
agreement—the delegation provision—does not prevent Borrowers from
challenging enforceability based on prospective waiver or otherwise waive their
rights to pursue federal statutory remedies. See Am. Express Co. v. Italian Colors
Rest., 570 U.S. 228, 235 (2013). Therefore, we conclude that the delegation
provision is not itself invalid as a prospective waiver and that it is for an arbitrator,
1
This case was originally consolidated with another similar appeal, Brice v.
Sequoia Capital Operations LLC, No. 19-17414, but the parties to that appeal
settled after oral argument. The appeals were then severed, and No. 19-17414 was
dismissed.
2
not the court, to decide whether the parties’ arbitration agreement is enforceable.
REVERSED and REMANDED with instructions to stay the case and
compel arbitration.
3
FILED
Brice v. 7HBF No.2, No. 19-17477
SEP 16 2021
W. FLETCHER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
For the reasons given in my dissent in Brice v. Plain Green, No. 19-15707,
___ F.3d ___ (9th Cir. 2021), I strongly but respectfully dissent.