Nidhal Ben-Salah v. STERLING JEWELERS, INC., DBA Jared Galleria of Jewelry, a Delaware corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIDHAL BEN-SALAH,
Plaintiff-Appellant,
v.
STERLING JEWELERS, INC., DBA
Jared Galleria of Jewelry, a Delaware
corporation,
Defendant-Appellee.
No. 18-35140
D.C. No. 3:17-cv-00907-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 15, 2019**
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Nidhal Ben-Salah appeals the district court’s order compelling arbitration
and dismissing his employment discrimination case against his employer, Sterling
FILED
MAY 24 2019
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Jewelers, Inc. (“Sterling”). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. We affirm the district court’s determination that Ben-Salah agreed to
arbitration. Whether Ben-Salah entered into the RESOLVE Arbitration Agreement
(“RAA”) is a question of fact. See Seyfried v. O’Brien, 81 N.E.3d 961, 967 (Ohio
Ct. App. 2017). Ben-Salah did not specifically object to the magistrate judge’s
factual determination that he agreed to the RAA by electronically signing the
“Acknowledgement.” Thus, he waived his right to challenge the magistrate
judge’s determination on appeal. See Bastidas v. Chappell, 791 F.3d 1155, 1159
(9th Cir. 2015).
2. We affirm the district court’s determination on fraudulent inducement.
Ben-Salah did not specifically challenge the magistrate judge’s legal determination
that an arbitrator must decide whether Sterling fraudulently induced Ben-Salah to
accept the RAA in his objections to the district court. While failing to object to a
magistrate judge’s legal conclusions does not constitute an automatic waiver of the
right to challenge those findings on appeal, we may weigh Ben-Salah’s failure to
object in favor of finding waiver on appeal. See Miranda v. Anchondo, 684 F.3d
844, 848 (9th Cir. 2012). Ben-Salah takes issue with the magistrate judge’s
understanding that Ben-Salah was arguing the entire agreement was fraudulently
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induced, not just the arbitration provisions. See Rent-A-Ctr., W., Inc. v. Jackson,
561 U.S. 63, 71 (2010) (arguments of “fraud in the inducement of the arbitration
clause itself” are for the court, while challenges to the validity of the contract as a
whole are for an arbitrator) (citation omitted). Because he failed to object to the
magistrate judge’s determination before the district court, we do not have the
district court’s analysis. Further, Ben-Salah does not even acknowledge his failure
to object in his briefing on appeal.
Even if Ben-Salah had not waived his fraudulent inducement challenge, his
allegations fall short of a prima facie case for misrepresentation under Ohio law.
See Volbers-Klarich v. Middletown Mgt., Inc., 929 N.E.2d 434, 440 (Ohio 2010)
(listing elements). Ben-Salah has not alleged that the Sterling manager’s
representation that Ben-Salah was only scrolling through and signing “policies,”
even if it were false and material, was made with the manager’s knowledge of its
falsity or intent to deceive.
3. We affirm the district court’s determination that the RAA was not
unconscionable. Under Ohio law, “the party challenging a contract as
unconscionable must prove ‘a quantum’ of both procedural and substantive
unconscionability.” Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d 12, 24
(Ohio 2008). Although determining whether a contract is unconscionable involves
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a question of law, finding procedural unconscionability involves factual
determinations regarding the circumstances surrounding the making of the
contract. See id. at 21. Ben-Salah’s real disagreement lies with the magistrate
judge’s factual findings about procedural unconscionability, to which Ben-Salah
did not specifically object before the district court, thus precluding our review on
appeal.1 See Bastidas, 791 F.3d at 1159. Because we affirm the district court’s
finding on procedural unconscionability, we may not set aside the RAA as
unconscionable. See Taylor, 884 N.E.2d at 24.
4. The district court did not abuse its discretion by declining to decide
the question of equitable tolling. The arbitration agreement provides that “a court
may decide procedural questions that grow out of the dispute and bear on the final
disposition of the matter (e.g., one (1) year for filing a claim)” in the event a party
has already initiated a judicial proceeding. This statement rebuts the presumption
that the issue must be a question for the arbitrator. See Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 85 (2002) (deciding that procedural disputes are
1 For example, Ben-Salah’s declaration never alleged that he was “instructed
not to review the documents,” as he contends on appeal. Nor did Ben-Salah allege
that he was pressured to sign the “Acknowledgement,” or given insufficient time to
read or digest its provisions. Nor did Ben-Salah object to the magistrate judge’s
failure to make a factual finding about Ben-Salah’s inability to access a copy of the
RAA.
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presumptively a question for the arbitrator unless the arbitration agreement
provides otherwise). However, as a matter of contract interpretation, by providing
that the court “may” decide procedural questions, the agreement grants the court
discretion as to whether to decide them. The district court exercised that discretion
and provided a reasoned basis for determining it would not decide the issue.
AFFIRMED.
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