                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 20 2013

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




                           FOR THE NINTH CIRCUIT



PECK ORMSBY CONSTRUCTION                         No. 11-36016
COMPANY,
                                                 D.C. No. 1:10-cv-00545-WBS
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

CITY OF RIGBY,

              Defendant-cross-plaintiff -
Appellee,

  v.

PARKSON CORPORATION,

              Cross-defendant - Appellant.



                  Appeal from the United States District Court
                            for the District of Idaho
                William B. Shubb, Senior District Judge, Presiding

                        Argued and Submitted May 10, 2013
                                 Portland, Oregon

Before:       KOZINSKI, Chief Judge, BERZON and HURWITZ, Circuit
              Judges.


          *
             This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
                                                                                   page 2

      The City of Rigby is estopped from challenging the validity of the

arbitration clause in the performance guarantee it received from Parkson

Corporation. Even though the city never signed the guarantee, it “cannot accept

[its] benefits . . . and at the same time question its validity.” 28 Am. Jur. 2d

Estoppel and Waiver § 60 (2013); accord 9 U.S.C. § 2; Nghiem v. NEC Elecs.,

Inc., 25 F.3d 1437, 1439 (9th Cir. 1994); Justad v. Ward, 211 P.3d 118, 121 (Idaho

2009); Billings v. City of Orlando, 287 So.2d 316, 318 (Fla. 1973). The city

received the guarantee and installed the guaranteed product years before it ever

objected to any part of the guarantee. By suing, the city now seeks to further enjoy

the benefits of the guarantee, yet avoid its burdens by refusing arbitration. This it

cannot do. See also Comer v. Micor, Inc., 436 F.3d 1098, 1101–02 (9th Cir.

2006); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d

411, 414, 417–18 (4th Cir. 2000). The district court shall order the parties to

arbitrate any claims covered by the performance guarantee.


      REVERSED.
