                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 29 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOEL NAZARA and CONNIE NAZARA,                   No. 10-16643

              Plaintiffs - Appellants,           D.C. No. 1:10-cv-00177-HG-KSC

  v.
                                                 MEMORANDUM*
FR LOG HOMES, INC., a Washington
State corporation, DBA Caribou Creek
Log Homes,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Hawaii
                Helen W. Gillmor, Senior District Judge, Presiding

                       Argued and Submitted June 13, 2012
                               Honolulu, Hawaii

Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Joel and Connie Nazara (“the Nazaras”) appeal the district court’s dismissal

of their diversity action against FR Log Homes, Inc. We have jurisdiction under

28 U.S.C. § 1291 and 9 U.S.C. § 16. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “The Supreme Court has repeatedly held that, absent a contrary provision in

the . . . agreement, the existence and scope of a contract to arbitrate are questions

for the court to determine in the first instance.” Cal. Trucking Ass’n v. Bhd. of

Teamsters & Auto Truck Drivers, Local 70, 679 F.2d 1275, 1280 (9th Cir. 1981)

(citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.

574, 582 (1960)). Here, the district court correctly concluded that the arbitration

clause encompasses the dispute at issue, because the clause states that “all disputes

between the parties” arising from the construction agreement must be arbitrated in

Boundary County, Idaho. See Schoenduve Corp. v. Lucent Techs., Inc., 442 F.3d

727, 732-33 (9th Cir. 2006). The district court also correctly determined that the

arbitration agreement is valid, because the enforceability of an arbitration provision

does not turn on state public policy. See Buckeye Check Cashing, Inc. v.

Cardegna, 546 U.S. 440, 446 (2006).

      The Nazaras argue that the district court should have stayed proceedings

rather than dismissed the case. However, the mandatory language of Section 3 of

the Federal Arbitration Act, requiring a district court to enter an order staying

proceedings and compelling arbitration, is only triggered “on application of one of

the parties,” and the mandatory language of Section 4 is only triggered upon a

“petition” of a party. See 9 U.S.C. §§ 3, 4. Here, neither party petitioned the

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district court to stay proceedings or compel arbitration under the Federal

Arbitration Act. Therefore, the district court had discretion to grant FR Log

Homes’ motion to dismiss. See Sparling v. Hoffman Constr. Co., 864 F.2d 635,

637-38 (9th Cir. 1988).

      The Nazaras also argue that the district court improperly compelled

arbitration in Idaho under Section 3 of the Federal Arbitration Act. However, the

district court’s order merely dismissed the action “without prejudice to Plaintiffs

submitting their claims to arbitration in Boundary County, Idaho.” This order did

not, by its terms, compel arbitration. It merely explains that, if the Nazaras want to

pursue this claim in arbitration, they are not prejudiced from doing so according to

the terms of the arbitration clause.

      AFFIRMED.




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