McConnell & Malek Enterprises v. Proof Mark, Inc

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA MCCONNELL & MALEK Case No. 23-cv-00010-LJC ENTERPRISES, Plaintiff, ORDER STAYING ARBITRATION v. Re: Dkt. No. 25 PROOF MARK, INC, Defendant.

Before the Court is Plaintiff McConnell & Malek Enterprise’s (MME) Ex Parte Emergency Motion to Stay Arbitration before the American Arbitration Association (AAA). Dkt.

25. On May 18, 2022, MME and Defendant Proof Mark, Inc (PMI) signed a Professional Service Agreement (PSA) containing an arbitrability clause. MME now challenges the arbitrability of this dispute, including whether the PSA is a binding contract and whether the PSA mandates arbitration. See Dkt. 25 at 4. PMI, on the other hand, filed a demand with the AAA on January 9, 2023, initiating the arbitration process in Houston, Texas. Dkt. 27-1 at 1-2; Dkt. 27-2 at 1. MME asserts the arbitration is imminent, but the AAA states it “will abide by any court order issued” regarding the arbitration’s timing. Dkt. 25-2 at 1.

Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, the Court temporarily STAYS the arbitration before the AAA to allow for this Court to determine, pursuant to Federal Arbitration Agreement (FAA), whether the dispute in this action is subject to a private agreement by the parties to seek resolution through arbitration.

This Court has jurisdiction to review the enforceability of arbitration provisions. See, e.g., U.SC. § 2; Oberstein v. Live Nation Ent., Inc., 2023 WL 1954688, at *5 (9th Cir. 2023) (stating a court’s role under the FAA is to determine “whether a valid arbitration agreement exists and, if so, whether the agreement encompasses the dispute at issue”) (internal quotation marks omitted).

3 In general, gateway disputes, such as whether a party is “bound by a given arbitration clause” or || whether an arbitration clause is a binding contract that “applies to a particular type of controversy,” are “for judicial determination unless the parties clearly and unmistakably provide otherwise.” See Shivkov v. Artex Risk Sols., Inc., 974 F.3d 1051, 1065 (9th Cir. 2020) □□□□□□□□□ quotation marks omitted) (addressing class action). “[A]rbitration is strictly a matter of consent . .

8 . aparty cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Casa del Caffe Vergnano S.P.A. v. ItalFlavors, LLC, 816 F.3d 1208, 1211 (9th Cir. || 2016) Ginternal citations and quotation marks omitted). “[I]t is well settled that where the dispute 11 at issue concerns contract formation, the dispute is generally for the courts to decide.” Id. (internal || citation and quotation marks omitted). Given that MME is clearly disputing that this dispute 13 should be subject to arbitration, the arbitration to take place in Houston, Texas is temporarily || enjoined and stayed pending this Court’s resolution of the enforceability and validity of the PSA’s 15 arbitration provision. a 16 IT IS SO ORDERED.

2 17 |) Dated: February 27, 2023 19 Ls, | hartry—— L . CIS OS 20 United States Magistrate Judge