Balkrishna Setty, individually v. Shrinivas Sugandhalaya Llp

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALKRISHNA SETTY, individually and as
general partner in Shrinivas Sugandhalaya
Partnership with Nagraj Setty; SHRINIVAS
SUGANDHALAYA (BNG) LLP,
Plaintiffs-Appellees,
v.
SHRINIVAS SUGANDHALAYA LLP,
Defendant-Appellant.
No. 18-35573
D.C. No. 2:17-cv-01146-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted June 3, 2019**
Seattle, Washington
Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.
Shrinivas Sugandhalaya LLP (“SS LLP”), an incense manufacturing
company based in Mumbai, appeals the district court’s order denying its motion to
* 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).
FILED
JUN 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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compel arbitration and to grant a stay in a trademark action brought by Balkrishna
Setty (“Balkrishna”) and his company Shrinivas Sugandhalaya (BNG) LLP (“BNG
LLP”), located in Bangalore.
We review de novo the district court’s denial of a motion to compel
arbitration. Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017).
We review a district court’s order denying a motion to stay pending arbitration for
abuse of discretion. Alascom, Inc. v. ITT North Elect. Co., 727 F.2d 1419, 1422
(9th Cir. 1984).
SS LLP, citing the arbitration clause in the Partnership Deed, seeks to
compel arbitration under the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (“New York Convention”), 9 U.S.C. § 201 et seq. and the
Federal Arbitration Act (“FAA”), 9 U.S.C. § 2. Our recent decision in Yang v.
Majestic Blue Fisheries, LLC, 876 F.3d 996 (9th Cir. 2017) forecloses both
arguments.
It is undisputed that SS LLP is not a signatory to the Partnership Deed. In
fact, SS LLP was not even in existence at the time the Partnership Deed was
signed. As a non-signatory, SS LLP may not compel arbitration under the New
York Convention. See Yang, 876 F.3d at 1001 (interpreting the Convention’s
phrase “signed by the parties” to include only signatories or parties to the
agreement under which the litigant moves to compel and holding that “the [New

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York Convention] does not allow non-signatories or non-parties to compel
arbitration.”).
To the extent that SS LLP seeks to compel arbitration under the FAA, this
argument also fails. Under the FAA, a non-signatory may invoke arbitration if state
law permits. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–32 (2009).
However, where the FAA allows what the Convention prohibits, the Convention
controls. See Yang, 876 F.3d at 1002 (“To the extent the FAA provides for
arbitration of disputes with non-signatories or non-parties, it conflicts with the
Convention Treaty and therefore does not apply.”); 9 U.S.C. § 208 (“Chapter 1 [of
the FAA] applies to actions and proceedings brought under this chapter to the
extent that chapter is not in conflict with this chapter or the [New York]
Convention as ratified by the United States”).
SS LLP makes a couple of other arguments on appeal. First, SS LLP argues
that BNG LLP and SS LLP are parties to the Deed of Partnership because they are
both “assigns” of the respective brothers. This argument was not raised before the
district court, does not have much support in the record, and requires fact-finding
that our court is not positioned to conduct. Second, SS LLP argues that, because
the arbitration process “has begun” in India (through SS LLP serving a demand on
Balkrishna), a stay is appropriate. This argument was dismissed by the district
court in a separate order that is not before our court.

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Because the New York Convention does not permit SS LLP to compel
arbitration, the district court did not abuse its discretion in denying a stay of
proceedings pending arbitration.
AFFIRMED.

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