                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-1264


CATHCART PROPERTIES, INCORPORATED,

                  Plaintiff – Appellant,

             v.

TERRADON CORPORATION, a West Virginia corporation,

                  Defendant   - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:08-cv-00298)


Submitted:    January 13, 2010               Decided:   February 4, 2010


Before MICHAEL, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Heather M. Langeland, Lonnie C. Simmons, DITRAPANO, BARRETT &
DIPIERO, PLLC, Charleston, West Virginia, for Appellant.  David
J. Mincer, BAILEY & WYANT, P.L.L.C., Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Cathcart      Properties,         Incorporated,             appeals         the

district court’s order granting Terradon Corporation’s motion to

dismiss   for     failure    to     state    a   claim.         Cathcart’s      complaint

sought a declaratory judgment enforcing an arbitration provision

in a contract between the parties.                 For the reasons that follow,

we affirm.

               It is well-settled that “a party cannot be required to

submit to arbitration any dispute which he has not agreed so to

submit,” because it is only through the advance agreement of the

parties that the arbitrator derives his authority to resolve

disputes.       AT & T Techs., Inc. v. Commc’ns Workers of Am., 475

U.S.    643,    648-49     (1986)      (internal      quotation       marks     omitted).

However, “the question of arbitrability . . . is undeniably an

issue    for    judicial     determination,”          and   “[u]nless       the    parties

clearly    and    unmistakably         provide    otherwise,         the    question        of

whether the parties agreed to arbitrate is to be decided by the

court, not the arbitrator.”                 Id. at 649; see also Carson v.

Giant Foods, Inc., 175 F.3d 325, 329 (4th Cir. 1999) (explaining

that although doubts “concerning the scope of arbitrable issues

should    be      resolved     in      favor     of     arbitration,”           the    same

presumption “does not apply to the issue of which claims are

arbitrable”).        “Because       the     examination         of   the   scope      of    an

arbitration       agreement       is      primarily         a    task      of     contract

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interpretation,” this court reviews de novo a district court’s

determination       of   the    arbitrability            of     a    dispute.         Cara’s

Notions, Inc. v. Hallmark Cards, Inc., 140 F.3d 566, 569 (4th

Cir. 1998).

             The record demonstrates that the district court did

not    err   in    finding     that    the       parties       did   not    “clearly       and

unmistakably” agree to have an arbitrator decide the scope of

his own authority.        Because there was no contract provision that

expressly     stated     that    the    parties          agreed      to    arbitrate       the

arbitrability of a claim, the court itself was required to make

that determination.          See Carson, 175 F.3d at 329-30 (noting that

the courts have “repeatedly rejected the assertion that general

arbitration clauses . . . commit to arbitration disputes over an

arbitrator’s       jurisdiction,”       even        those       that      are     broad    and

otherwise    “commit     all    interpretive            disputes      ‘relating      to’    or

‘arising out of’ the agreement”).

             The    arbitration        provision          at     issue      required       the

parties to submit to arbitration “any dispute or controversy

arising from [the relevant] Contract.”                         However, the district

court correctly concluded that the plain terms of the contract

did not permit a finding that Cathcart’s substantive claim arose

from   the   contract.         Therefore,         the    court       properly      dismissed

Cathcart’s    complaint        for    failure      to     state      a    claim    that    the

substantive issue should be submitted to arbitration.

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           Accordingly,   we   affirm   the   district   court’s   order

granting the motion to dismiss.       We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                              AFFIRMED




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