NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONYA CANADY, on behalf of herself and No. 20-15997 others similarly situated, D.C. No. 2:19-cv-04738-DWL Plaintiff-Appellee,

v. MEMORANDUM*

BRIDGECREST ACCEPTANCE

CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Submitted June 10, 2021** Submission Vacated June 22, 2021 Resubmitted November 4, 2021 Portland, Oregon

Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.

Bridgecrest Acceptance Corporation appeals the district court’s order

denying its motion to compel arbitration against Tonya Canady pursuant to a

* 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).

Panel contract signed by her spouse containing a mandatory arbitration clause. We have

jurisdiction under 28 U.S.C. § 1292, and we affirm.

1. The district court correctly determined that state law governs whether

Canady is compelled to arbitrate. Although the Federal Arbitration Act controls

the interpretation of arbitration agreements, we look to state contract law to

determine whether a non-signatory is bound by an arbitration agreement. See

Rajagopalan v. NoteWorld, LLC, 718 F.3d 844, 847 (9th Cir. 2013); Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 630 (2009); Kramer v. Toyota Motor

Corp., 705 F.3d 1122, 1128 (9th Cir. 2013).

2. The district court correctly applied federal choice of law rules to

determine that the contract law of Florida, rather than Arizona, governs here. See

Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). Neither party

seriously disputes this finding, and we agree with the district court that

“application of the factors identified [] overwhelmingly supports the conclusion

that Florida law is applicable.” Canady is a citizen of Florida, her husband is a

resident of Florida, and the underlying purchase of the truck and the signing of the

contracts all took place in Florida. The only connection to Arizona is that

Bridgecrest is headquartered and likely placed the calls there.

3. The district court correctly held that under Florida law, Canady is not

a personal representative of her husband and thus is not bound by the arbitration

Panel 2 agreement. In Florida, a personal representative is a term of art used in estate law

to denote a court appointed fiduciary who oversees an estate’s administration. See

Fla. Stat. §§ 733.301-733.309; see also Opis Mgmt. Res., LLC v. Dudek, 2011 WL

6024092, at *2 (N.D. Fla. 2011) (“[A] ‘personal representative’ means the

‘fiduciary appointed by the court to administer the estate and what has been known

as an administrator . . . or executor.”) (citations omitted). Indeed, an entire

statutory scheme exists articulating the qualifications and duties of a personal

representative under Florida law. See Fla. Stat. §§ 733.301-733.309. Canady’s

husband is not deceased, so the concept of “personal representative” is

inapplicable. Fla. Stat. § 733.302.1

4. The district court correctly held that Canady is not equitably estopped

from avoiding the arbitration agreement. Under Florida law, “[t]hird persons who

are not parties to an arbitration agreement generally are not bound by the

agreement.” Mendez v. Hampton Ct. Nursing Ctr., 203 So.3d 146, 148 (Fla. 2016)

(citation omitted). Drawing from this principle, Florida courts have rarely applied

equitable estoppel in the manner Bridgecrest seeks. “Critically,” in Florida, “the

third-party beneficiary doctrine enables a non-contracting party to enforce a

1 The district court correctly concluded that Bridgecrest waived its agency-law arguments. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Even if not waived, Bridgecrest’s contention that Canady acted as her husband’s agent because he included her phone number on the contract is unavailing. See Lepisto v. Senior Lifestyle Newport Ltd. P’ship, 78 So. 3d 89, 94 (Fla. Dist. Ct. App. 2012).

Panel 3 contract against a contracting party—not the other way around.” Id. at 149; see

also Beck Auto Sales, Inc. v. Asbury Jax Ford, LLC, 249 So.3d 765, 767 (Fla. Ct.

App. 2018) (“Florida and federal courts have recognized that principles of

equitable estoppel sometimes allow a non-signatory to compel arbitration against

someone who had signed an arbitration agreement.”) (citation omitted); M.S.

Dealer Servs. Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999) (applying Florida

law). Accordingly, we agree with the district court that in most cases, “it does not

appear that Florida courts apply [equitable estoppel] to estop non-signatories.”

In certain cases, Florida courts have stated that “an individual who makes

use of a contract as long as it works to his or her advantage is estopped from

avoiding the contract’s provisions concerning the forum in which any dispute

should be resolved.” Stalley v. Transitional Hosps. Corp. of Tampa, Inc., 44 So.

3d 627, 632 (Fla. Ct. App. 2010). Here, Canady interacted with Bridgecrest only

to facilitate payments under the contract, and her claim under the TCPA is not

derived from or dependent upon any contractual obligation with Bridgecrest.

Thus, she was not enjoying the benefits of the contract such that she should be

estopped on these grounds. See, e.g., Ray v. NPRTO Fla., LLC, 322 F. Supp. 3d

1261 (M.D. Fla. 2017), aff’d, 743 F. App’x 955 (11th Cir. 2018) (applying Florida

law to find no arbitration in a similar case).

Because the district court correctly determined that Florida law governs this

Panel 4 dispute and correctly applied Florida law to conclude that Canady is not compelled

to arbitrate pursuant to a contract signed by her spouse, we AFFIRM.

Panel 5