Tamayo

MEMORANDUM ***

We sua sponte consolidated these separate appeals on July 3, 2003, and we hereby sever them for purposes of this decision.

First, in case No. 02-15721, Brainstorm USA’s appeal from the district court’s de *128 cisión denying its motion to compel arbitration, we affirm the judgment of the district court. The district court’s decision can be affirmed on any ground supported by the record. Recording Indus., Ass’n of Am. v. Diamond Multimedia Sys. Inc., 180 F.3d 1072 , 1077 n. 3 (9th Cir.1999). Because the validity of the arbitration agreement is a necessary precondition to Brainstorm’s invocation of its terms, we will assume such validity (without deciding the issue) solely for the purpose of deciding the Brainstorm appeal. Further we will assume, arguendo, that Ohio law applies to this claim as provided for in the agreement.

In Ohio, “[o]nly a party to a contract or an intended third-party beneficiary of a contract may bring an action on a contract.” Grant Thornton v. Windsor House, Inc., 57 Ohio St.3d 158 , 566 N.E.2d 1220, 1223 (1991). If a “promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an incidental…