                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 04 2010

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




                            FOR THE NINTH CIRCUIT



FRED OVCHINNIKOV,                                No. 09-35140

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01482-PK

  v.
                                                 MEMORANDUM *
CONTECH CONSTRUCTION
PRODUCTS, INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                            Submitted February 1, 2010 **
                                Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       Plaintiff-Appellant Fred Ovchinnikov appeals the district court’s denial of

his Motion to Set Aside Order of Dismissal and Reinstate Action. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court’s dismissal order permitted Ovchinnikov to reinstate his

claim if the settlement agreement was not consummated. See Fed. R. Civ. P.

41(a)(2). In determining the existence of a contract, we review the district court’s

legal conclusions de novo and factual findings for clear error. U.S. for Use of

Youngstown Welding and Eng’g Co. v. Travelers Indem. Co., 802 F.2d 1164, 1169

(9th Cir. 1986). We review the district court’s factual findings regarding offer,

acceptance, revocation, and the intent of the parties to form a contract for clear

error. See Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 621 (9th Cir. 1988)

(offer, acceptance, and revocation); Local 3-7, Int’l Woodworkers of Am. v. DAW

Forest Prods. Co., 833 F.2d 789, 793 (9th Cir. 1987) (intent to form a contract).

      “The construction and enforcement of settlement agreements are governed

by principles of local law which apply to interpretation of contracts generally.”

Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989). The parties do not dispute

that Oregon is the place where the contract was executed, or that Oregon law

governs the issue of contract formation. See Sterrett v. Stoddard Lumber Co., 46

P.2d 1023, 1028 (Or. 1935).

      The district court correctly concluded that, according to Oregon’s objective

theory of contract, the parties formed a settlement contract. See In re Marriage of

Baldwin, 168 P.3d 1233, 1235 (Or. Ct. App. 2007). Ovchinnikov’s argument that


                                           2
he did not understand that the terms “full release” of “all claims” meant all his

claims against Contech is without merit. See Dalton v. Robert Jahn Corp., 146

P.3d 399, 406 (Or. Ct. App. 2006) (rejecting appellant’s claim that she did not

understand the terms of the agreement she signed because “there is nothing in the

record to indicate that anyone knew or should have known that [appellant] believed

anything different from what everyone else believed,” the terms of the agreement

“were clear and comprehensible,” and appellant had “access to professional

assistance” to determine what the agreement meant).

      Moreover, any possible ambiguity was clarified by Contech’s proposed form

of settlement agreement, which listed the specific claims to which “all claims”

referred. After receiving this document, Ovchinnikov’s counsel responded by e-

mail that “the agreement looks good,” contacted the district court to have the case

dismissed, and sent another e-mail stating that “this case has been resolved.”

These statements and actions objectively indicate that Ovchinnikov’s counsel

understood what Contech meant by “full release of all claims.” See Kaiser Found.

Health Plan of the Nw. v. Doe, 903 P.2d 375, 380 (Or. Ct. App. 1995). Because

Ovchinnikov’s counsel had apparent authority to agree to a binding settlement on

Ovchinnikov’s behalf, counsel’s understanding of the term was sufficient to form a

contract. See id.


                                           3
      The district court’s finding that Ovchinnikov’s counsel did in fact agree to

the terms of the settlement agreement—and not just to the form of the settlement

agreement—is not clearly erroneous. Ovchinnikov’s counsel objectively

manifested assent to the terms of Contech’s offer in three ways: (1) by stating that

“the agreement looks good”; (2) by moving to have the case dismissed; and (3) by

sending an e-mail stating, “this case has been resolved.” Although “the agreement

looks good,” in isolation, might be construed as assent only to the form of the

agreement, the decision to seek dismissal of the action and the statement that the

case has “been resolved” objectively indicate that an agreement on the terms was

reached. And there is no evidence that either party intended that the agreement be

conditioned on a signed writing. See Gen. Realty Corp. v. Douglas Lowell, Inc.,

354 P.2d 306, 310–11 (Or. 1960).

      Nor did the district court abuse its discretion by enforcing the settlement

contract between Contech and Ovchinnikov and declining to reinstate the action.

Our cases rendering employee-arbitration clauses unenforceable unless the

employee knowingly waived his or her right to a judicial forum are inapplicable

here. See, e.g., Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1303–05 (9th Cir.

1994). Ovchinnikov waived his claims after bringing suit in a judicial forum, not

his right to a judicial forum. Moreover, the “knowing waiver” doctrine renders


                                          4
arbitration clauses unenforceable only with regard to claims that the claimant did

not know were covered by the arbitration clause. See Renteria v. Prudential Ins.

Co. of Am., 113 F.3d 1104, 1107 (9th Cir. 1997). Ovchinnikov cannot plausibly

argue that he did not know that a settlement agreement with Contech

contemplating a “full release of all claims” would waive the discrimination claims

he raised in the present lawsuit. Analogy to Federal Rule of Civil Procedure

60(b)(6) is not helpful here. Although that rule permits courts to give relief from

judgments, it does not empower courts to decline to enforce binding contracts

between private parties.

      AFFIRMED.




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