                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 22 2011

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

DENNIS MASTRO, et al.,                           No. 09-17698

              Petitioners - Appellants,          D.C. No. 2:09-cv-01076-ROS

  v.
                                                 MEMORANDUM*
JOHN MOMOT,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Roslyn O. Silver, Chief District Judge, Presiding

                       Argued and Submitted March 15, 2011
                                Davis, California

Before: W. FLETCHER and M. SMITH, Circuit Judges, and WU, District Judge.**

       Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts except as necessary to explain the

decision. We have jurisdiction under 9 U.S.C. § 16(a)(1)(C).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
         In light of our contemporaneously filed opinion in the Mastros’ related

appeal, Momot v. Mastro, No. 10-15276, we vacate and remand to the district

court.

         At the time the district court issued its order denying the Mastros’ motion to

compel arbitration under section 4 of the Federal Arbitration Act (FAA), 9 U.S.C.

§ 4, its decision was correct. To have ruled otherwise would have required the

court to address the arbitrability of Momot’s claims, the same issue that was then

pending before the Nevada district court. See Pacesetter Sys., Inc. v. Medtronic,

Inc., 678 F.2d 93, 94–95 (9th Cir. 1982).

         In light of our holding in the related appeal that the parties agreed to

arbitrate the question of arbitrability, however, the FAA mandates that the district

court grant the motion to compel arbitration. See 9 U.S.C. § 4; Dean Witter

Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985) (stating that FAA section 4

“leaves no place for the exercise of discretion by a district court, but instead

mandates that district courts shall direct the parties to proceed to arbitration on

issues as to which an arbitration agreement has been signed”).

         VACATED AND REMANDED with instructions to grant Appellants’

motion to compel arbitration.




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