                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 21 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARCELLA JOHNSON, On Behalf of                   No.   17-17489
Herself and All Others Similarly Situated,
                                                 D.C. No. 3:17-cv-05157-EDL
              Plaintiff-Appellee,

 v.                                              MEMORANDUM*

ORACLE AMERICA, INC.,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                     Argued and Submitted February 15, 2019
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and LASNIK,**
District Judge.

      Oracle America, Inc., in a reversal of the employer’s usual role, appeals the

district court’s order compelling arbitration in an employment dispute. Oracle


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
contends the district court should have decided whether there was an enforceable

agreement to arbitrate, and that issues related to arbitrability had not been

delegated to the arbitrator. Although issues related to contract defenses must be

decided by the district court, where a contract clearly delegates the issue of

arbitrability to the arbitrator, the arbitration provision must be enforced. See

Mohamed v. Uber Technologies, Inc., 848 F.3d 1201, 1209 (9th Cir. 2016).

      In this case there were two agreements, and the one Oracle would doubtless

prefer contains a class action waiver. Both agreements, however, provided for the

applicability of the Federal Arbitration Act (“FAA”) or Judicial Arbitration and

Mediation Services (“JAMS”) rules. Under those rules, issues concerning

arbitrability can be delegated to the arbitrator so long as the delegation is clear.

See Mohamed, 848 F.3d at 1209. Here, both agreements contained a clear

delegation. The district court therefore correctly ruled it was for the arbitrator to

determine which contract defined the scope of the arbitration.

      Oracle first argues the district court erred because it failed to decide which

agreement the arbitrator should enforce. But neither party disputes that Agreement

1 was properly entered into by both Johnson and Oracle. And Oracle admitted in

its opposition to Johnson’s motion to compel arbitration that Agreement 1 was a

valid agreement. The district court noted there are two arbitration agreements and


                                            2
instructed Oracle that it could raise any arguments as to Agreement 2 to the

arbitrator. There is no rule, and indeed Oracle does not cite one, that supports its

argument that the district court could only compel arbitration by concluding a

single agreement existed.

       Oracle also argues the district court erred because it failed to consider

Oracle’s argument that Agreement 1 was inoperative because Agreement 2 was a

novation of Agreement 1. But the issue of whether Agreement 2 is a novation of

Agreement 1 does not raise a defense to the contract’s validity that must be decided

by the district court. See Mohamed, 848 F.3d at 1209. Accordingly, whether

Agreement 2 was a novation of Agreement 1 is an issue that can be decided by the

arbitrator.

       AFFIRMED.




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