Mohammed Al-Safin v. Circuit City Stores, Inc., a Virginia Corporation

394 F.3d 1254 Mohammed AL-SAFIN, Plaintiff-Appellee, v. CIRCUIT CITY STORES, INC., a Virginia corporation, Defendant-Appellant. No. 03-35297. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 2004. Filed January 14, 2005. Red Darrell Berry, Livingston & Mattesich, Sacramento, CA, for the defendant-appellant. Michael C. Subit, Frank Freed Subit & Thomas, LLP, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV 99-1953 MJP. Before: TASHIMA, PAEZ, and BEA, Circuit Judges. TASHIMA, Circuit Judge. 1 Circuit City Stores, Inc. ("Circuit City"), appeals the district court's denial of its motion to dismiss and compel arbitration of Mohammed Al-Safin's employment discrimination claims. The district court held that the arbitration agreement between Circuit City and Al-Safin is unconscionable under Washington state law, and thus unenforceable. We have jurisdiction pursuant to 9 U.S.C. § 16 (a)(1)(B), see Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 780 (9th Cir.2002), and we affirm. BACKGROUND 2 In June 1997,…

Circuit City Stores, Inc. (“Circuit City”), appeals the district court’s denial of its motion to dismiss and compel arbitration of Mohammed Al-Safin’s employment discrimination claims. The district court held that the arbitration agreement between Circuit City and Al-Safin is unconscionable under Washington state law, and thus unenforceable. Wé have jurisdiction pursuant to 9 U.S.C. § 16 (a)(1)(B), see Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 780 (9th Cir.2002), and'we affirm.

BACKGROUND

In June 1997, Al-Safin applied for a job at a Circuit City store in the state of Washington. Before Circuit City would consider his application, Al-Safin was required to sign an arbitration agreement entitled “Circuit City Dispute Resolution Agreement” (“DRA”). By signing the DRA, Al-Safin agreed to resolve all disputes arising out of his employment relationship -with Circuit City through arbitration, in accordance with the “Circuit City Dispute Resolution Rules and Procedures” (“DRRP”).

Rule 19 of the DRRP in effect in 1997 (the “1997 DRRP”) stated that both the DRA and the DRRP could be amended “on December 31st of any year upon giving 30 calendar days written notice to…

dissenting.

, Circuit City Stores, Inc. (“Circuit City”) appeals the district court’s denial of its motion to dismiss and compel arbitration of Mohammed Al-Safin’s employment discrimination claims. The majority opinion affirms, holding that certain provisions of Circuit City’s Dispute Resolution Rules and Procedures (“DRRP”) in effect, in 1998 are substantively unconscionable under Washington law and that these unconscionable provisions pervade the entire arbitration agreement such that any attempt to sever those provisions would render the resulting procedure unworkable. Op. at 1260-62.

I believe that the majority opinion errs in its initial premise — that is, that it is the DRRP in effect in 1998 that are at issue. Rather, I believe that the modification provision in Rule 19 of the DRRP in effect in 1998 is enforceable under Washington law (or, at the very least, that there is sufficient doubt as to certify that question to the Washington Supreme Court) and, thus, that it is the DRRP in effect at the time Al-Safin ultimately files his Arbitration Request Form and accompanying filing fee that govern the arbitration here. Further, the DRRP in effect in 2003 are not substantively…