                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 21 2011

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




                            FOR THE NINTH CIRCUIT



CHAD M. CARLSEN; SHASTA L.                       No. 10-35324
CARLSEN; CARL POPHAM; MARY
POPHAM, husbands and wives,                      D.C. No. 2:09-cv-00246-LRS
individually and on behalf of a class of
similarly situated Washington families,
                                                 MEMORANDUM *
              Plaintiffs - Appellees,

  v.

GLOBAL CLIENT SOLUTIONS, LLC,
an Oklahoma limited liability company;
ROCKY MOUNTAIN BANK & TRUST,
a Colorado financial institution,

              Defendants - Appellants.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                       Argued and Submitted March 9, 2011
                               Seattle, Washington

Before: McKEOWN, FISHER, and GOULD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Defendants-Appellants Global Client Solutions, LLC and Rocky Mountain

Bank & Trust appeal the district court’s denial of their motions to compel

arbitration. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B), and we affirm.

      We review de novo a district court’s decision on a motion to compel

arbitration, and we review the underlying factual findings for clear error. Balen v.

Holland Am. Line Inc., 583 F.3d 647, 652 (9th Cir. 2009). Under Washington law,

whether there was mutual assent to be bound by a contract is generally treated as a

question of fact. Keystone Land & Dev. Co. v. Xerox Corp., 94 P.3d 945, 949 n.10

(Wash. 2004).

      The district court did not clearly err in finding that there was no agreement

to arbitrate. The Special Purpose Account Application signed by Plaintiffs-

Appellees, the Carlsens and the Pophams, did not contain an arbitration clause.

The Account Agreement and Disclosure Statement contained an arbitration clause,

but it was not sent to Plaintiffs until after they signed the Application, and the

district court was not presented with evidence showing that the Agreement was

reasonably available to them when they signed. See Mattingly v. Palmer Ridge

Homes, LLC, 238 P.3d 505, 512 (Wash. Ct. App. 2010) (“Although ‘parties have a

duty to read the contracts they sign,’ documents incorporated by reference usually

must be reasonably available, at the least, so that the essentials of a contract can be


                                           2
discerned by the signer.” (quoting Del Rosario v. Del Rosario, 97 P.3d 11, 16

(Wash. 2004))); W. Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 7

P.3d 861, 865 (Wash. Ct. App. 2000) (“[I]ncorporation by reference is ineffective

to accomplish its intended purpose where the provisions to which reference is

made do not have a reasonably clear and ascertainable meaning.” (quoting 11

Richard A. Lord, Williston on Contracts § 30.25 (4th ed. 1999))).

      Defendants’ argument that Plaintiffs assented to arbitration through their

conduct does not persuade us. The Application did not provide that Defendants

could unilaterally add to or amend the contract terms, or specify that additional

terms would be deemed accepted by conduct. Because we hold that the district

court did not err in finding that there was no agreement to arbitrate, we need not

consider alternative arguments raised by the parties.

      AFFIRMED.




                                          3
