Carol Lafountaine v. HOLIDAY AL MANAGEMENT SUB LLC, DBA Holiday Retirement

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL LAFOUNTAINE,
Plaintiff-Appellant,
v.
HOLIDAY AL MANAGEMENT SUB
LLC, DBA Holiday Retirement,
Defendant-Appellee.
No. 20-35105
D.C. No. 6:17-cv-00095-SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted October 30, 2020
Portland, Oregon
Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.
Carol LaFountaine appeals the district court’s order granting Holiday AL
Management Sub LLC’s motion to compel arbitration. We have jurisdiction under
28 U.S.C. § 1291, and we reverse.
FILED
FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Under Montana law, consent to a contract “requires that there be mutual
assent or a meeting of the minds on all essential terms.” Glob. Client Sols., LLC v.
Ossello, 382 Mont. 345, 352 (2016) (quotation marks and citation omitted).
LaFountaine did not expressly or impliedly consent to enter into the Arbitration
Agreement.
Although the district court found that LaFountaine received the Arbitration
Agreement in the mail and LaFountaine acknowledges that she was aware of the
Arbitration Agreement and scanned its first page, there is no evidence that
LaFountaine consented to the agreement’s terms. While LaFountaine did not take
any steps to opt out of the Arbitration Agreement, as permitted by its terms,
Montana courts have not held that the failure to opt out of an agreement constitutes
consent to be bound by that agreement, and under general principles of contract
law, silence is deemed to be acceptance only “where the offeree silently takes
offered benefits” or “where one party relies on the other party’s manifestation of
intention that silence may operate as acceptance.” Restatement (Second) of
Contracts § 69 cmt. a (Am. L. Inst. 1981); see also 2 Williston on Contracts § 6:50
(4th ed. 2020). LaFountaine did not accept any consideration or benefit of the
agreement, or perform any of its terms. Cf. Mont. Code Ann. § 28-2-503.
Although LaFountaine continued to work for Holiday, she had been working there
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for six months. The parties have identified no Montana judicial decision holding
that maintaining the status quo constitutes an acceptance of benefits or a
manifestation of intent to be bound by an agreement. We conclude that
LaFountaine did not make any “objective manifestation of assent” that would lead
a reasonable person to conclude “that the parties intended to be bound by the
contract.” Chipman v. Nw. Healthcare Corp., Applied Health Servs., 373 Mont.
360, 364 (2014) (citation omitted). Holiday’s reliance on Circuit City Stores, Inc.
v. Najd, 294 F.3d 1104 (9th Cir. 2002) is misplaced, because that case applied
California law, not Montana law.1 In addition, here, unlike in Circuit City Stores,
there is no evidence that LaFountaine signed an acknowledgment form.
Because no contract was formed, the district court’s order compelling
arbitration was in error. We therefore reverse that order, vacate the fee award,
vacate the judgment dismissing LaFountaine’s claims, and remand to the district
court for further proceedings.
1 LaFountaine argues that under Montana law, waiver of a party’s state and
federal constitutional right to a jury trial is valid only if made “knowingly,
voluntarily, and intelligently under the totality of circumstances.” Lenz v. FSC Sec.
Corp., 414 P.3d 1262, 1272 (Mont. 2018) (citations omitted). Neither party
addresses whether this heightened requirement is preempted by § 2 of the Federal
Arbitration Act, 9 U.S.C. § 2. See, e.g., Kindred Nursing Ctrs. Ltd. P’ship v.
Clark, 137 S. Ct. 1421, 1426 (2017). Therefore, we decline to consider that issue
here.
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REVERSED, VACATED, and REMANDED.
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