                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 06 2016

                            FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS




PHILLIP G. ROSZAK,                               No. 13-17160

              Plaintiff - Appellant,             D.C. No. 2:13-cv-01009-SRB

 v.
                                                 MEMORANDUM*
U.S. FOODSERVICE INCORPORATED
and USF HOLDING CORPORATION,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                    Arugued and Submitted December 10, 2015
                            San Francisco, California

Before:       O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.

      Phillip G. Roszak appeals from the district court’s judgment in favor of U.S.

Foodservice, Inc. and USF Holding Corp. (collectively, “U.S. Foods”) in Roszak’s

diversity action alleging violations of the Delaware Whistleblowers’ Protection Act


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“DWPA”), Del. Code Ann. tit. 19, § 1701 et seq., and the parties’ employment

agreements. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s order granting U.S. Foods’s motions to dismiss the DWPA claim

and to compel arbitration and denying Roszak’s motion to stay arbitration.

Brennan v. Opus Bank, 796 F.3d 1125, 1128 (9th Cir. 2015) (decisions about

arbitrability of claims); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)

(motion to dismiss). We may affirm on any ground supported by the record.

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

We affirm.

      The district court dismissed Roszak’s DWPA claim because it concluded

that the DWPA does not apply to alleged violations committed outside of the state.

After the district court’s entry of judgment, the arbitrator rendered an award

finding, among other things, that Roszak was not fired because of any

whistleblowing activity, and the United States District Court for the Northern

District of Illinois entered an order confirming the award. See U.S. Foods, Inc. v.

Noble, No. 13 C 3640, 2015 WL 5081126 (N.D. Ill. Aug. 27, 2015). Counsel has

represented to this court that the Northern District of Illinois’s final judgment will

not alter confirmation of the award. If, for whatever reason, the award should not

have been confirmed, that order may be appealed to the Seventh Circuit. That


                                           2
court may review issues decided in the arbitration, but this court will not review

the order of the Northern District of Illinois. Therefore, we do not address whether

the DWPA applies to alleged violations committed outside of the state by a

Delaware corporation, because even if the district court erred, the confirmed

arbitration award precludes relitigation of the issue whether Roszak was fired

because of any whistleblowing activity.1 See Kendall v. Vista U.S.A., Inc., 518

F.3d 1042, 1050 (9th Cir. 2008) (elements of issue preclusion). In the event that

the Northern District of Illinois fails to enter final judgment confirming the

arbitration award, however, this court will entertain a motion for reconsideration

under Circuit Rule 27-10.2

      The district court’s grant of U.S. Foods’s motion to compel and denial of

Roszak’s motion to stay arbitration on the remaining claims was proper because

the parties incorporated the American Arbitration Association (“AAA”) rules into

their agreement and therefore agreed to arbitrate the question of arbitrability. See

Brennan, 796 F.3d at 1130 (“[I]ncorporation of the AAA rules constitutes clear



      1
       Although the issue of preclusion was not raised in the parties’ briefs, their
views on this issue were heard at oral argument.
      2
         By separate order, the panel will order the Clerk to stay the mandate and
the parties to notify the court when final judgment is entered in the Northern
District of Illinois.

                                           3
and unmistakable evidence that contracting parties agreed to arbitrate

arbitrability.”).

       Roszak’s Motion to Certify Questions to the Delaware Supreme Court, filed

on April 14, 2014, is denied as unnecessary.

       AFFIRMED.




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