                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              MAR 17 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PIERCE COUNTY, a political subdivision           No.   19-35257
of the State of Washington,
                                                 D.C. No. 3:19-cv-05041-RJB
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

MA MORTENSON COMPANY, a
Minnesota corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                       Argued and Submitted March 6, 2020
                               Seattle, Washington

Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
      Pierce County appeals the district court’s order compelling arbitration and

dismissing the County’s complaint for declaratory relief. We have jurisdiction

under 9 U.S.C. § 16(a)(3). See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.

79, 89 (2000).

      The district court did not err in granting M.A. Mortenson Company’s motion

to compel arbitration. The parties agreed that “[a]ll Claims arising out of the Work

shall be resolved by arbitration” and defined the term “Claim” to include any claim

filed by Mortenson with the County to resolve a dispute “regarding the terms of a

Change Order or a request for equitable adjustment.” The agreement did not

require that a dispute meet any conditions precedent to be considered a “Claim”

that triggers the agreement to arbitrate. Rather, § 8.01 of the agreement used the

term “Claim” to refer to all disputes regarding compensation, regardless whether

the claim satisfied the substantive and procedural requirements in § 8.01(C).

Therefore, Mortenson’s pending compensation disputes constitute “Claims” that

the parties had agreed to arbitrate.

      Nor did the court err in dismissing the County’s complaint for declaratory

relief regarding whether specified Claims satisfied the nine requirements in

§ 8.01(C). The complaint is best read as raising defenses to Mortenson’s claims

for compensation and therefore is barred by the parties’ agreement that “[n]o


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independent legal action relating to or arising from the Work shall be maintained.”

Further, the parties’ agreement that the arbitration “shall be in accordance with the

Construction Industry Arbitration Rules of AAA” is “clear and unmistakable

evidence” that the parties agreed that an arbitrator would decide whether a dispute

meets the requirements for being an arbitrable “Claim.” See Brennan v. Opus

Bank, 796 F.3d 1125, 1130 (9th Cir. 2015); see also Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (“[A]ny doubts concerning the

scope of arbitrable issues should be resolved in favor of arbitration, whether the

problem at hand is the construction of the contract language itself or an allegation

of waiver, delay, or a like defense to arbitrability.”). Accordingly, it is for the

arbitrator to decide whether Mortenson’s “Claims” should be deemed “waived” for

not satisfying the requirements of § 8.01(C).

      AFFIRMED.




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