Richard A. GEIER, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. M-QUBE INC.; Mobile Messenger Americas Inc., dba Mobile Messenger, Defendants-Appellants.
No. 13-36080
United States Court of Appeals, Ninth Circuit
May 26, 2016
824 F.3d 797
Argued and Submitted February 4, 2016—Seattle, Washington
Finally, Buford asserts that the record before the ALJ was not adequately developed bеcause it does not contain an opinion from a treating or consultative doctor as to Buford‘s work related limitations. However, medical assessments of state agency medical consultants as to Buford‘s limitations are of record and were expressly considered by the ALJ. See Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (state agency opinions support ALJ‘s RFC assessment); see also McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (ALJ‘s duty to develop the record is not never-ending and does not include the obligation to disprove every possible impairment); Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (the ALJ is required to order further medical examinations only if the existing medical record does not provide sufficient evidence to determine whether the claimant is disabled). We therefore reject the contention that the ALJ failed to adequately develop the record.
III.
The district court is affirmed.
Stephen M. Rummage, Candice M. Tewell (argued), Colin G. Prince, Davis Wright Tremaine LLP, Seattle, Washington, for Defendants-Appellants.
Before: Alex Kozinski, Diarmuid F. O‘Scannlain and Ronald M. Gould, Circuit Judges.
PER CURIAM:
We consider whether defendants are third-party beneficiaries of an arbitration clause that accompаnied the subscription to a mobile game.
FACTS
Pow! Mobile, not a party here, is a mobile content provider that marketed a “reverse auction” game called “Bid and Win.” In this type of game, players bid on рrizes, and whoever makes the lowest unique bid wins. Users could subscribe to Pow! Mobile‘s cell phone content service, and play by submitting bids via text message. Bid and Win‘s $9.99 monthly subscription charge was billed directly to the subscriber‘s cell phone bill.
Defendant m-Qube, Inc. is a “connection aggregator.” It markets mobile games and other subscription-based content to the public. Defendant Mobile Messenger Americas, Inc. (“Mobile Messenger“) “built a computer ‘gateway’ to each of the major wireless carriers (e.g., AT&T, Verizon, Sprint, T-Mobile), allowing charities and businesses to send and receive text messages with customers.” Both Mobile Messenger and m-Qube are “billing aggregators” who serve as financial intermediaries between customers and content providers. Defendants’ parent company is Messenger Global, Inc.
Margaret Wells, Richard Geiеr‘s wife, allegedly subscribed to the mobile version of Bid and Win. According to defendants, Wells accepted Pow! Mobile‘s Terms and Conditions (the “Terms“) upon subscribing. Geier, however, counters that his wife never subscribed to thе service and thus didn‘t assent to the Terms. The Terms include a clause compelling arbitration for “any controversy... arising out of or relating to a service agreement between” Pow! Mobile and its subscriber.
Geiеr‘s class action complaint alleges defendants have engaged in a scheme “that causes Washington consumers to become unknowingly and unwittingly subscribed to premium text message services.” Geier filed his сomplaint in state court, but defendants removed the case to federal court pursuant to the Class Action Fairness Act. After Geier filed an amended complaint, defendants moved to compel arbitration.
Without determining whether Wells agreed to the Terms, the district court held that “defendants are not intended third-party beneficiaries entitled to enforce the arbitration clause” and thus denied defendants’ motion to compel arbitration.
DISCUSSION
We review the district court‘s ruling on the validity and scope of an arbitration clause de novo. Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir. 2006) (en banc). Under the Federal Arbitration Act, federal district courts must compel arbitration if (1) a valid agreement to arbitrate exists and (2) the dispute falls within the scope of that agreement. See Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).
Under paragraph 11 of thе Terms, the Bid and Win subscriber agrees to waive all claims “against [his] wireless carrier, any of Company‘s suppliers, or anyone other than Company, relating to the Service.” The Terms define “Company” as Pow! Mobile, but do not define “Company‘s suppliers.” Geier argues that defendants aren‘t Company‘s suppliers, but the district court for purposes of its analysis assumed that they were.
Pursuant to the arbitration clause contained in paragraph 12 of the Terms, sub-
When interpreting the Terms, the district court here held that Rajagopalan v. NoteWorld, LLC, 718 F.3d 844 (9th Cir. 2013) (per curiam), controls. Rajagopalan signed up for a debt settlement program with First Rate Debt Solutions (“First Rate“). Id. at 845. First Rate‘s contract included an arbitration clause; so, rather than suing First Rate, plaintiff filed a class action against NoteWorld, a third party that provided transaсtion management and processing services to First Rate. Id. at 845-46.
On appeal, we affirmed the district court‘s refusal to compel arbitration: “Though it is true that NoteWorld‘s name is mentioned in the contract, indireсt reference to a third party does not make the third party a beneficiary of the [contract].” Id. at 847 (alteration in original) (quoting Tooley v. Stevenson Co-Ply, Inc., 106 Wash. 2d 626, 724 P.2d 368, 371 (1986)). We noted that under Washington law, a third party is a beneficiary of a сontract if “performance under the contract would necessarily and directly benefit that party.” Id. (quoting Postlewait Constr., Inc. v. Great Am. Ins. Cos., 106 Wash. 2d 96, 720 P.2d 805, 807 (1986)). Thus, “[t]he creation of a third party beneficiary contract requires that the parties intend that the promisor assume a direct obligation to the intended beneficiary at the time they enter into the contract.” Id. (alteration in original) (quoting Burke & Thomas, Inc. v. Int‘l Org. of Masters, Mates & Pilots, 92 Wash. 2d 762, 600 P.2d 1282, 1285 (1979)). NoteWorld “submitted no evidence that Rajagopalan intеnded to designate NoteWorld as a third-party beneficiary, that NoteWorld assumed any duties or obligations under the First Rate contract, or that any party assumed direct obligations to NoteWorld.” Id. We thus held that NоteWorld was not a third-party beneficiary of the contract containing the arbitration clause. Id.
Unlike the agreement in Rajagopalan, the Terms here create a direct obligation from the subscriber to the Company‘s suppliers. Under paragraph 11 of the Terms, the subscriber waives all claims against Pow! Mobile‘s suppliers. Because there is evidence of a direct obligation from a subscriber to the Company‘s suppliers, this case is distinguishable from Rajagopalan.
This case is more akin to Gibson v. Wal-Mart Stores, Inc., 181 F.3d 1163 (10th Cir. 1999). After Gibson was injured while stocking shelves at a Wal-Mart store, an assistant manager told her that Wal-Mart would pay for her medical expenses if she signed release papers. Id. аt 1165-66. Gibson released all claims “against Wal-Mart, its officers, directors, employees, agents or attorneys as the result of any accident.” Id. at 1166. Gibson also “agree[d] to arbitrate any disputes as to entitlеment to benefits under Wal-Mart‘s workers’ compensation plan.” Id. (alteration in original). Eventually she sued Wal-Mart and a former co-employee, Becky Brooks, alleging that they negligently caused her injuries. Id. Invoking the release agreement, Wal-Mart filed a motion to compel arbitration, which the district court granted as to both Wal-Mart and Brooks. Id.
The Tenth Circuit affirmed, reasoning that “[t]he fact that Brooks did not individually sign thе Agreement does not preclude enforcement of the Agreement with respect to Gibson‘s claims against her because it is clear that Brooks was, at the very least, a third party beneficiary of thе Agreement.” Id. at 1170 n. 3. The Gibson
Although Gibson interprets Wyoming law, the factual background there is informative. The parties here agree that Washington law controls. Under that law, “[i]f the terms of the contract necessarily require the promisor to confer a benefit upon a third person, then the contract, and hencе the parties thereto, contemplate a benefit to the third person.” Lonsdale v. Chesterfield, 99 Wash. 2d 353, 662 P.2d 385, 389 (1983) (en banc) (quoting Vikingstad v. Baggott, 46 Wash. 2d 494, 282 P.2d 824, 825 (1955)). As described above, the signatory to the Terms agrees to waive all claims against thе Company‘s suppliers. Therefore, the Company‘s suppliers are intended third-party beneficiaries of the Terms. Thus, if defendants are suppliers of the Company, they may enforce the arbitration clаuse.
Whether defendants may enforce the arbitration clause against Geier requires two findings not made by the district court: Did Wells assent to the Terms? And, are defendants Pow! Mobile‘s suppliers? We remand so that the district court can make these determinations in the first instance.
We therefore REVERSE the district court‘s denial of defendants’ motion to compel and REMAND for further proceedings consistent with this opinion.