                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CUNICO CORPORATION,                              No. 14-56544

              Plaintiff-Appellant,               D.C. No. 2:14-cv-01234-PA-AJW

 v.
                                                 MEMORANDUM*
CUSTOM ALLOY CORPORATION,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                          Submitted September 1, 2016**
                              Pasadena, California

Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.

      Cunico Corporation appeals the district court’s order granting Custom Alloy

Corporation’s motion to compel arbitration and dismissing Cunico’s action. We

have jurisdiction over the appeal under 9 U.S.C. § 16(a)(3). We review de novo


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the district court’s decision and its legal conclusions regarding the existence of a

contract, and for clear error its factual findings. Casa del Caffe Vergnano S.P.A. v.

ItalFlavors, LLC, 816 F.3d 1208, 1211 (9th Cir. 2016). We reverse and remand.

      The district court erred in compelling arbitration. Under the Federal

Arbitration Act, a district court’s role is “limited to determining (1) whether a valid

agreement to arbitrate exists and, if it does, (2) whether the agreement

encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc.,

207 F.3d 1126, 1130 (9th Cir. 2000). A court may “decide as a matter of law that

the parties did or did not enter into” an arbitration agreement “[o]nly when there is

no genuine issue of fact concerning the formation of the agreement.” Three

Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1141 (9th Cir.

1991) (citation omitted). The district court’s order did not make the necessary

factual findings as to the parties’ communications, decide the law applicable to

contract formation, or state as a matter of law what constituted the offer,

acceptance, or terms of the contract. We reverse the order compelling arbitration

and dismissing the action, and remand for the district court to resolve factual issues

and make legal conclusions regarding the scope of the parties’ agreement. See

FTC v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1212 (9th Cir. 2004) (Court of

Appeals may remand where there are insufficient findings of fact and conclusions


                                           2
of law to permit meaningful review).

      In light of our disposition, we do not consider the parties’ contentions

regarding unconscionability, waiver of a right to arbitration, and denial of oral

argument.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      REVERSED and REMANDED.




                                           3
