                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THE ERECTION COMPANY, INC., a                    No. 11-35949
Washington corporation,
                                                 D.C. No. 3:11-cv-00805-JE
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

W&W STEEL, LLC, a Delaware limited
liability company,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     John Jelderks, Magistrate Judge, Presiding

                       Argued and Submitted March 7, 2013
                                Portland, Oregon

Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.

       The Erection Company (TEC) appeals the district court’s denial of its

petition to compel arbitration and grant of W&W Steel’s (W&W) motion for

partial summary judgment. The Federal Arbitration Act authorizes an appeal from



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an order denying a petition to compel arbitration, 9 U.S.C. § 16(a)(1)(C), and the

district court certified its partial summary judgment as a final judgment, see Fed.

R. Civ. P. 54(b). We therefore have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1. TEC’s argument that the parties entered into a contract which contained

an arbitration clause fails. W&W unequivocally expressed in its January 28, 2011,

Letter of Intent that it intended to be bound only when a written subcontract was

signed by both parties. No such written subcontract was ever signed by both

parties. Nonetheless, TEC argues that the parties entered into a binding contract

through their email communications on April 6, 2011. There was no contract

formed on April 6, 2011 because there was no meeting of the minds on a set of

terms. See Phillips v. Johnson, 514 P.2d 1337, 1343 (Or. 1973) ( “[B]efore there

can be a valid contract there must be a meeting of the minds as to all of its terms. . .

.”). Because the parties did not enter into a contract which provided for disputes to

be resolved through arbitration, the district court did not err in denying TEC’s

petition to compel arbitration.

      2. TEC has not raised a triable issue of material fact as to whether the

parties formed a contract through their words and conduct prior to the April 6,




                                           2
2011 negotiations. The district court therefore did not err in granting summary

judgment to W&W on TEC’s breach of contract claim.

      AFFIRMED.




                                         3
