Richard Daley v. Cvs Pharmacy, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD DALEY,
Plaintiff-Appellant,
v.
CVS PHARMACY, INC.,
Defendant-Appellee.
No. 17-17409
D.C. No. 2:16-cv-02693-JCM-
CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Richard Daley appeals pro se from the district court’s judgment dismissing
his action arising from the termination of his employment. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo the district court’s decision to compel
arbitration, Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th
* 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 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cir. 2000), and we affirm.
The district court properly compelled arbitration on the question of the
arbitrability of Daley’s claims because the parties entered a valid arbitration
agreement encompassing the issue of arbitrability. See id. (federal court’s role
under the Federal Arbitration Act is limited to determining whether a valid
agreement to arbitrate exists and whether it encompasses the dispute at issue); see
also AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 647 (1986)
(the issue of arbitrability is for judicial determination unless the parties clearly and
unmistakably provide otherwise); U.S. Home Corp. v. Michael Ballesteros Tr., 415
P.3d 32, 40-41 (Nev. 2018) (en banc) (discussing unconscionability under Nevada
law).
The district court did not abuse its discretion by denying Daley’s motion to
enter default judgment because defendant timely filed a motion to dismiss and
compel arbitration under Federal Rule of Civil Procedure 12(b)(1). See Fed. R.
Civ. P. 55 (entry of default); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986)
(standard of review).
We reject as without merit Daley’s contention that the motion to dismiss and
motion to compel arbitration were unlawfully filed.

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We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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