Domingo
Domingo v. Ameriquest Mortgage Co.
Opinion
Lead Opinion
*920 MEMORANDUM **
Carla H. Domingo appeals the district court’s grant of Ameriquest Mortgage Company’s (“Ameriquest”) motion to compel arbitration and its dismissal of her case. We have jurisdiction pursuant to 28 U.S.C. § 1291 . 1 We review the district court’s decision de novo, 2 but with “a healthy regard for the federal policy favoring arbitration.” 3 We reverse because we conclude that, under Hawaii law, the arbitration contract is an unenforceable contract of adhesion. The facts are familiar to the parties, and we will not recite them here.
A contract of adhesion is unenforceable under Hawaii law if: (1) it resulted from “coercive bargaining between parties of unequal bargaining strength; and (2)[it] unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.”
Hawaii courts recognize that contracts for hire are often “take-it-or-leave-it” style contracts of adhesion satisfying the first prong of Hawaii’s test. 5 That proves to be the case here. The parties in this case were unequal bargainers and the stronger party, Ameriquest, offered a “take it or leave it” contract to Domingo. Hawaii law requires nothing more.
As for…
Concurring Opinion
Hill, J.
concurring separately.
In Circuit City Stores, Inc. v. Adams, 194 F.3d 1070 (9th Cir.), rev’d 532 U.S. 105 , 121 S.Ct. 1302 , 149 L.Ed.2d 234 (1999), this court held that employment contracts were beyond the reach of the Federal Arbitration Act. Upon reversal and remand by the Supreme Court, this court decided Circuit City Stores, Inc. v. Adams, 279 F.3d 889 (9th Cir.), cert. denied, 535 U.S. 1112 , 122 S.Ct. 2329 , 153 L.Ed.2d 160 (2002). There the Ninth Circuit held that, as employment contracts are generally considered to be unconscionable contracts of adhesion, any arbitration clauses contained within them, judged to be unfair by a court, render them unenforceable.
This circuit has the familiar stare decisis rule that one panel cannot overrule a prior panel’s holding. Sitting as a member of a panel of the Ninth Circuit, and, respecting stare decisis, I concur. Contra Musnick v. King Motor Co., 325 F.3d 1255 (11th Cir. 2003)(Hill, J.).