Armstrong v. Michaels Stores, Inc., 59 F.4th 1011 (9th Cir. 2023)

Teresa Armstrong executed an arbitration agreement with her employer Michaels Stores. After filing her claims in state court, Michaels answered, asserting its right to arbitration as an affirmative defense and removing the action to federal district court. The parties then submitted a joint case management statement that referenced as an issue in dispute whether Armstrong had agreed to arbitrate. Michaels also served interrogatories and a request for document production. Following the Supreme Court’s ruling in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), Armstrong’s claims were compelled to arbitration where she lost. Armstrong appealed the arbitrator’s award on the basis that Michaels waived its right to arbitration by waiting too long to move to compel arbitration. The district court confirmed the award and the Ninth Circuit affirmed. The Ninth Circuit explained that Michaels did not engage in “intentional acts inconsistent” with the right to arbitration. Thus, although Michaels did not immediately move to compel arbitration, Michaels repeatedly reserved the right to compel arbitration, did not ask the district court to weigh in on the merits, and did not engage in any meaningful discovery unrelated to the arbitration issue.