                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________             FILED
                                                  U.S. COURT OF APPEALS
                               No. 10-11077         ELEVENTH CIRCUIT
                                                        SEPT 22, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                    D.C. Docket No. 2:09-cv-02126-IPJ

CORPORATE AMERICA CREDIT UNION,

                                                     Plaintiff-Appellee,

                                   versus

JOSEPH HERBST, et al.,

                                                     Defendants,

RUBINBROWN LLP,

                                                     Defendant-Appellant.

                         ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (September 22, 2010)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:
      Plaintiff Corporate America Credit Union provides liquidity and other services

to retail credit unions in Alabama. It is one of twenty-six corporate credit union

members of U.S. Central Federal Credit Union, a wholesale credit union. Corporate

America held a debt-like interest in U.S. Central called Members’ Capital Shares. In

2008, U.S. Central reported a writedown of subprime-mortgage investments. As a

result, its credit and debt ratings were downgraded. To improve its capital position

and prevent additional downgrades by rating agencies, U.S. Central requested that its

twenty-six members exchange their Members’ Capital Shares for equity-like Paid-In-

Capital Shares.

      U.S. Central retained Defendant RubinBrown LLP to prepare a valuation of the

Paid-In-Capital Shares, and these parties executed an agreement related to the

services that RubinBrown would perform. This agreement contained a binding

arbitration clause stating, “[t]he parties agree that any and all disputes between them

in any way concerning the services provided by RubinBrown pursuant to the

Agreement . . . shall be committed to binding arbitration . . . .” (Dkt. 23-1 at 14.)

      RubinBrown produced a valuation report, the first page of which noted that the

report was prepared for “[i]nternal purposes for use by U.S. Central, its 26 corporate

members, and their respective auditors . . . .” (Dkt. 34-1 at 4.) The report represents

that the Paid-In-Capital Shares were worth at least $450 million, and Corporate

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America asserts that it relied on this report in agreeing to exchange its Members’

Capital Shares in U.S. Central for Paid-In-Capital Shares. It alleges that soon after

the exchange, U.S. Central was placed in conservatorship, and the Paid-In-Capital

Shares were worthless.

      Corporate America sued various directors of U.S Central alleging securities

fraud and breach of fiduciary duty. It also sued RubinBrown alleging professional

negligence and state securities law violations arising from the valuation of the Paid-

In-Capital Shares. Relying on the arbitration agreement between RubinBrown and

U.S. Central, RubinBrown moved to dismiss or alternatively to stay and compel

arbitration of Corporate America’s claims. RubinBrown also moved to dismiss for

want of personal jurisdiction. The district court denied the motions, and RubinBrown

filed this interlocutory appeal challenging the denial of its motion to compel

arbitration.

      Corporate America is not a party to the contract between RubinBrown and U.S.

Central. RubinBrown argues that Corporate America is a third-party beneficiary of

that contract and is therefore bound by its arbitration agreement. In the alternative,

RubinBrown argues that Corporate America is estopped from seeking to avoid

application of the arbitration agreement because all of Corporate America’s claims




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against RubinBrown derive from the contract containing the arbitration clause. After

review of the record, we conclude that these arguments are without merit.

      In some circumstances, a non-signatory may be bound to an arbitration

agreement. See e.g. Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42, 48 (Ala. 1999).

But, an arbitration agreement restricted to the immediate parties does not bind a non-

party. World Rentals & Sales, LLC v. Volvo Constr. Equip. Rents, Inc., 517 F.3d

1240, 1244 (11th Cir. 2008) (citation omitted). “[I]f the language of the arbitration

provision is party specific and the description of the parties does not include the

nonsignatory, this Court’s inquiry is at an end, and we will not permit arbitration of

claims against the nonsignatory.” Smith v. Mark Dodge, Inc., 934 So. 2d 375, 381

(Ala. 2006) (citation omitted). After review of the record, we agree with the district

court’s analysis on pages seven through twelve of its order concluding that the

arbitration agreement in this case was party specific; it binds U.S. Central and

RubinBrown, but it does not bind non-signatories like Corporate America. (Dkt. 41

at 7-12.)

      We also conclude that Corporate America should not be compelled to arbitrate

its claims under the doctrine of equitable estoppel. “Equitable estoppel precludes a

party from claiming the benefits of a contract while simultaneously attempting to

avoid the burdens that contract imposes.” Blinco v. Green Tree Servicing LLC, 400

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F.3d 1308, 1312 (11th Cir. 2005). “The purpose of the doctrine is to prevent a

plaintiff from, in effect, trying to have his cake and eat it too; that is, from relying on

the contract when it works to his advantage by establishing the claim, and repudiating

it when it works to his disadvantage by requiring arbitration.” In re Humana Inc.

Managed Care Litig., 285 F.3d 971, 976 (11th Cir. 2002) rev’d on other grounds.,

PacifiCare Heath Sys., Inc. v. Book, 538 U.S. 401, 123 S. Ct. 1531 (2003) (citation

and quotation omitted). Corporate America’s claims arise from alleged negligent

and/or fraudulent misrepresentations contained in the valuation report prepared by

RubinBrown. (Dkt. 1 at 48, 51, 56-57.) They do not arise from the terms of the

contract between RubinBrown and U.S. Central. “The plaintiff’s actual dependence

on the underlying contract in making out the claim . . . [is] the sine qua non of an

appropriate situation for applying equitable estoppel.” In re Humana, 285 F.3d at

976. Because Corporate America’s claims are not intertwined with the contract

between U.S. Central and RubinBrown, the court did not abuse its discretion in

declining to compel arbitration under the doctrine of equitable estoppel.

       AFFIRMED.




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