                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         MAR 04 2016

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




DAIRY EMPLOYEES UNION LOCAL                      No. 13-57143
NO 17, Christian Labor Association of the
United States of America Pension Trust           D.C. No. 2:12-cv-04545-DSF-SP
and BOARD OF TRUSTEES OF THE
DAIRY EMPLOYEES UNION, No Local
17 Christian Labor Association of the            MEMORANDUM*
United States of America Pension Trust,

              Plaintiffs - Appellees,

  v.

ROBERT VANDER EYK DAIRY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted February 5, 2016
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CALLAHAN and N.R. SMITH, Circuit Judges, and RAKOFF,** Senior
District Judge.

      Robert Vander Eyk Dairy (“Dairy”) appeals from the district court’s grant of

summary judgment determining that Dairy owed withdrawal liability to Dairy

Employees Union Local No. 17 Christian Labor Association of the United States

of America Pension Trust (“Pension Trust”). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Dairy waived its right to contest withdrawal liability in federal court by

failing to arbitrate. Teamsters Pension Tr. Fund v. Allyn Trans. Co., 832 F.2d 502,

505–06 (9th Cir. 1987) (“[T]he statute states unambiguously that ‘[a]ny dispute

between an employer and the plan sponsor . . . concerning a determination [of

withdrawal liability] . . . shall be resolved through arbitration’ (29 U.S.C.

§ 1401(a)(1)), and Congress clearly intended exactly what those words import.”

(emphasis and second alteration in original)). “The arbitration clause constitutes an

exhaustion of administrative remedies requirement.” Bd. of Trs. of Const.

Laborers’ Pension Tr. for S. Cal. v. M.M. Sundt Const. Co., 37 F.3d 1419, 1420

(9th Cir. 1994) (per curiam). “Exceptions to exhaustion requirements are usually

limited, and apply only in extraordinary circumstances, such as, when the arbitral

       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                          -2-
process would be futile or would cause the plaintiff irreparable injury.” Id. at 1421.

Dairy has not shown that proceeding to arbitration under the allegedly

unconscionable arbitration provision in the Trust Agreement would render the

arbitral process futile or cause Dairy irreparable injury.

      We reject Dairy’s argument that its challenge to the arbitration provision

tolled the time for seeking arbitration. We do not address the exceptions to

arbitration permitted in other circuits because Dairy failed to argue them. To the

extent Dairy argued in its Reply Brief and at oral argument that it is not an

employer under ERISA, Dairy waived the argument by not raising it in its Opening

Brief and by treating Pension Trust’s description of Dairy as an “employer . . .

within the meaning of . . . 29 U.S.C. § 1002(5)” as undisputed. See Martinez-

Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).

      AFFIRMED.




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