Flintkote Co. v. Aviva PLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 13-4055

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FLINTKOTE COMPANY

v.

AVIVA PLC,

formerly known as Commercial Union Assurance Company

Ltd.,

Appellant

______________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civ. No. 13-cv-00103)

District Judge: Hon. Leonard P. Stark

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Argued July 8, 2014

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Before: SMITH, VANASKIE, and SHWARTZ, Circuit

Judges.

(Filed: October 9, 2014)

Fred L. Alvarez, Esq. [ARGUED]

Arthur J. McColgan, Esq.

Walker Wilcox Matousek

One North Franklin Street

Suite 3200

Chicago, IL 60606

Thaddeus J. Weaver, Esq.

Dilworth Paxson

704 King Street, Suite 500

P.O. Box 1031

Wilmington, DE 19801

Counsel for Appellant

Louis A. Chiafullo, Esq. [ARGUED]

Gita F. Rothschild, Esq.

McCarter & English

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Michael P. Kelly, Esq.

Katharine L. Mayer, Esq.

McCarter & English, LLP

Renaissance Centre

405 N. King Street, 8th Floor

Wilmington, DE 19801

Counsel for Appellee

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OPINION OF THE COURT

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2

VANASKIE, Circuit Judge.

This case involves an effort by Appellee The Flintkote

Company (Flintkote) to compel arbitration on a theory of

equitable estoppel against Appellant Aviva PLC (Aviva), a

non-signatory to the agreement containing the arbitration

clause at issue. Aviva appeals the District Court’s order

compelling arbitration and denying as moot Aviva’s motion

to dismiss or transfer. Applying Delaware law, we conclude

that Aviva is not equitably bound to arbitrate on these facts.

We will therefore reverse the District Court’s order insofar as

it compels arbitration, and will vacate the order to the extent

that it denies as moot the motion to dismiss or transfer.

I.

Flintkote, which is incorporated in Delaware and

headquartered in California, was one of the nation’s major

suppliers of asbestos-based products. From 1980 onward,

Flintkote’s parent company, Genstar Corporation, hedged

against the possibility of asbestos-related bodily injury claims

by procuring a vast number of insurance policies from

prominent London insurance firms—among them Aviva,1 one

of the largest insurance companies in the world. Within a

matter of years, it became apparent that Flintkote’s claims

under these policies would result in costly and protracted

disputes regarding the scope of coverage.

1

Aviva was formerly named Commercial Union

Assurance Company Ltd.

3

On June 19, 1985, Flintkote and several of the London

insurers, but not Aviva, entered into a mass settlement known

as the Wellington Agreement, which provided a structure for

resolution of Flintkote’s then-pending and future insurance

claims. Specifically, the Wellington Agreement required that

disputes over coverage be resolved through a three-step ADR

process consisting of open negotiation via mediation, binding

arbitration, and an expedited appellate process. (App. 104.)

Section XX of the Agreement required the London insurers to

make certain payments to Flintkote, and Flintkote was

obligated to reimburse the payors, with interest, if it also

received those same payments from another insurer. (App.

89–90.)

In 1989, Flintkote and Aviva entered into a separate

agreement (the 1989 Agreement), which in substance was

largely similar to the Wellington Agreement, including as to

reimbursement for claims also paid by other insurers. Crucial

to this case, however, is the fact that the 1989 Agreement

contained a clause explicitly reserving each party’s right to

resolve any disputes arising under that Agreement through

litigation:

Flintkote and [Aviva] shall

resolve through litigation any

disputed issues to this Agreement,

and nothing contained in any

provision of this Agreement or in

any provision of the Wellington

Agreement, as applied to this

Agreement, shall require [Aviva]

and Flintkote to resolve any

disputes that may arise between

them relating to this Agreement

4

through ADR under the

Wellington Agreement.

(App. 137.)

Flintkote filed for bankruptcy in 2004, resulting in a

case which remains pending in the United States Bankruptcy

Court for the District of Delaware. See In re The Flintkote

Co. & Flintkote Mines, Ltd., No. 04-11300 (Bankr. D. Del.).

In 2006, invoking the Wellington Agreement, Flintkote

initiated a large-scale coverage-related mediation with the

London insurers. The Mediation Agreement, which itself

contained no reference to the Wellington Agreement,

provided that the parties’ conduct and statements made in the

course of mediation were to be confidential.2 (App. 438–39.)

2

Specifically, the Mediation Agreement stated:

All offers, promises, conduct, and

statements, whether oral or

written, made in the course of the

mediation by the parties, their

agents, employees, experts and

attorneys, and the mediator are

confidential. Such offers,

promises, conduct, and statements

will not be disclosed to third

parties, except persons associated

with the parties in the mediation

process and persons or entities to

whom a party has a legal or

contractual obligation to report,

and are privileged and

inadmissible for any purpose . . . .

5

Aviva, although not contractually obligated to participate,

opted to join the mediation in an effort to resolve Flintkote’s

pending claims for coverage.

Throughout the subsequent proceedings, Aviva and the

other London insurers were jointly represented by the same

counsel, Attorney Fred Alvarez. In a letter dated August 4,

2006, Alvarez requested that Flintkote “participat[e] in

submitting a joint motion to lift the automatic bankruptcy stay

in Flintkote’s bankruptcy proceeding,” citing a concern that

the stay might prevent Aviva and the other London insurers

from “fully present[ing] their defenses and claims in the

Wellington ADR.” (App. 149.) Yet for reasons unknown, no

such motion was filed at that time. As described below, the

automatic stay remained in place until early 2013.

During the course of the ensuing mediation, Flintkote

reached individual settlements with some of the London

insurers, but not with Aviva. On July 16, 2012, counsel for

Aviva and the remaining other London insurers wrote to

Flintkote seeking “reimbursement or off-set with respect to

prior payments” as well as interest under Section XX of the

Wellington Agreement. (App. 153.) The July 16 letter

further stated that “[a]bsent resolution of the issues in the

pending Wellington ADR, [the London insurers] intend[ed] to

include the [reimbursement] issue[] in the Wellington

Arbitration.” (Id.) Flintkote took no action on the demand.

Two months after the July 16 letter, the parties began

to exchange draft arbitration agreements. The drafts contained

(App. 438.)

6

standard reservations stating that they were provided only for

“discussion purposes,” were subject to client review and

approval, and were provided “without prejudice” to the

parties’ rights under the applicable accords. (App. 444–47).

The last draft arbitration agreement was sent to Flintkote by

Alvarez on behalf of Aviva and the London insurers on

December 14, 2012.

On December 24, 2012, Aviva, now acting separately

from the remaining London insurers, moved in the Delaware

Bankruptcy Court to lift the automatic stay imposed under 11

U.S.C. § 362(d) “to allow it to pursue a declaratory judgment

action in the United States District Court for the Northern

District of California to determine the scope of the insurance

coverage available for [Flintkote] under certain insurance

policies” Aviva had issued. (App. 321.) On January 17,

2013, before the Bankruptcy Court ruled on Aviva’s motion,

Flintkote filed the instant declaratory judgment action against

Aviva in the District of Delaware.

On February 4, the Bankruptcy Court granted Aviva’s

motion to lift the stay, but delayed its effective date until

February 19, thus preventing Aviva from filing its complaint

in California until that date. On February 18, as plaintiff in

the District of Delaware, Flintkote moved to compel

arbitration pursuant to Section 4 of the Federal Arbitration

Act (FAA), 9 U.S.C. § 4. The next day, Aviva filed its own

declaratory judgment action in the Northern District of

California.

On March 1, Aviva moved to dismiss Flintkote’s

action or transfer it to California. On March 13, Flintkote

filed a motion to dismiss the Aviva action initiated in

California, or have it transferred to Delaware. On May 14,

7

the California court stayed Aviva’s action pending the

Delaware court’s resolution of Aviva’s motion to dismiss or

transfer Flintkote’s action.

In a memorandum and order filed September 30, 2013,

the Delaware District Court granted Flintkote’s motion to

compel arbitration, concluding that Aviva was equitably

estopped from avoiding arbitration by virtue of its

participation in the lengthy mediation process. The District

Court denied as moot Aviva’s motion to dismiss or transfer.

Aviva filed a timely notice of appeal. On November 21,

2013, in light of the Delaware District Court’s order

compelling arbitration, the California District Court dismissed

Aviva’s suit without prejudice. See Aviva PLC v. Flintkote

Co., No. 13-00711, 2013 WL 6139748 (N.D. Cal. Nov. 21,

2013).

II.

The District Court had jurisdiction in this case under

28 U.S.C. § 1332(a) and 9 U.S.C. § 4. We have jurisdiction

under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(3).

We exercise plenary review over the District Court’s

order on a motion to compel arbitration. Quilloin v. Tenet

Healthsystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012).

In assessing the motion to compel arbitration itself, we apply

the standard for summary judgment in Rule 56(a), under

which the motion should be granted where “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). We view the facts and draw inferences in the light

most favorable to the nonmoving party. Quilloin, 673 F.3d at

228. We apply this standard “because the district court’s

8

order compelling arbitration is in effect a summary

disposition of the issue of whether or not there had been a

meeting of the minds on the agreement to arbitrate.” Century

Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584

F.3d 513, 528 (3d Cir. 2009) (quotation marks and citations

omitted).

III.

With its enactment of the FAA, Congress “expressed a

strong federal policy in favor of resolving disputes through

arbitration.” Id. at 522. Even in light of the FAA, however,

we have recognized that “[a]rbitration is strictly a matter of

contract. If a party has not agreed to arbitrate, the courts have

no authority to mandate that he do so.” Bel-Ray Co., Inc. v.

Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999). Thus,

in deciding whether a party may be compelled to arbitrate

under the FAA, we first consider “(1) whether there is a valid

agreement to arbitrate between the parties and, if so, (2)

whether the merits-based dispute in question falls within the

scope of that valid agreement.”3 Century Indem., 584 F.3d at

527. Here, it is undisputed that no express agreement to

arbitrate existed between Flintkote and Aviva.

Instead, Flintkote relies upon our recurring admonition

that a party, despite being a non-signatory to an arbitration

agreement, may be equitably bound to arbitrate “under

traditional principles of contract and agency law.” E.I.

3

Although a presumption in favor of arbitration exists,

that presumption applies only when interpreting the scope of

an arbitration agreement, and not when deciding whether a

valid agreement exists. Century Indem., 584 F.3d at 527.

9

DuPont De Nemours & Co. v. Rhone Poulenc Fiber & Resin

Intermediates, S.A.S., 269 F.3d 187, 194–95 (3d Cir. 2001).

Such principles, which by the Supreme Court’s recent

measure include “assumption, piercing the corporate veil,

alter ego, incorporation by reference, third-party beneficiary

theories, waiver and estoppel,” Arthur Andersen LLP v.

Carlisle, 556 U.S. 624, 631 (2009) (quotation marks omitted),

all are founded on the notion that a contract may sometimes

be equitably enforced by or against even nonparties. In the

wake of Arthur Andersen, however, we must expressly

consider “whether the relevant state contract law recognizes

[the particular principle] as a ground for enforcing contracts

against third parties.” Id. at 632.

Neither the District Court’s opinion in this case nor the

parties’ briefing addresses with particularity which state’s law

governs Flintkote’s motion to compel arbitration.4 At

various times throughout their briefing on Flintkote’s motion,

however, both parties cite to either Delaware case law or

federal opinions interpreting Delaware law. (See Appellant’s

Br. at 22, 33–34; Appellee’s Br. at 23–24, 34; Appellant’s

Reply Br. at 8; App. 65, 426, 558.) And the District Court

ultimately concluded that Aviva was equitably bound to

arbitrate under two distinct theories of estoppel, both of

which arise under Delaware law: first, that Aviva “exploited”

the Wellington agreement to secure benefits to which it would

otherwise not have been entitled, E.I. DuPont, 269 F.3d at

199 (addressing a diversity case implicating Delaware law);

4

We recognize that the parties are at odds as to

whether the substance of the underlying insurance dispute

should be decided under California or Delaware law, and we

take no position on that question.

10

and second, that Aviva’s participation in mediation caused

Flintkote to “change [its] position to [its] detriment[,]” Great

Am. Credit Corp. v. Wilmington Hous. Auth., 680 F. Supp.

131, 134 (D. Del. 1988) (quotation marks and citations

omitted) (applying Delaware law). (App. 12–14.) For these

reasons, and because neither party presented a timely

argument that Flintkote’s motion is governed by the law of

any jurisdiction other than the forum state, we too will apply

the law of Delaware.5

5

Aviva suggested for the first time at oral argument

that California law applies to the equitable estoppel analysis.

Because Aviva did not make that argument in its briefing or

before the District Court, we consider it waived. See

Griswold v. Coventry First LLC, 762 F.3d 264, 272 n.6 (3d

Cir. 2014) (noting that a “footnote in [a] reply brief” was

“insufficient to raise a choice-of-law issue on appeal”).

In the alternative, we note that California law is

materially similar to Delaware law on the basic principles of

equitable estoppel. See Steinhart v. Cnty. of Los Angeles, 47

Cal. 4th 1298, 1315 (Cal. 2010) (recognizing doctrine of

equitable estoppel); NAMA Holdings, LLC v. Related World

Mkt. Ctr., 922 A.2d 417, 431–33 (Del. Ch. 2007) (same);

Goldman v. KPMG LLP, 173 Cal. App. 4th 209 (Cal. App.

Ct. 2009) (compelling arbitration on the basis of equitable

estoppel); Wilcox & Fetzer, Ltd. v. Corbett & Wilcox, No.

2037-N, 2006 WL 2473665, *4–6 (Del. Ch. Aug. 22, 2006)

(same); In re Marriage of Brinkman, 4 Cal. Rptr. 3d 722, 728

(Cal. Ct. App. 2003) (requiring proof of equitable estoppel by

clear and convincing evidence); Emp’rs’ Liab. Assurance

Corp. v. Madric, 183 A.2d 182, 188 (Del. 1962) (same).

11

Delaware law recognizes the doctrine of equitable

estoppel, see NAMA Holdings, LLC v. Related World Mkt.

Ctr., 922 A.2d 417, 431–33 (Del. Ch. 2007), and imposes the

burden of producing clear and convincing proof on the party

asserting estoppel, see Emp’rs’ Liab. Assurance Corp. v.

Madric, 183 A.2d 182, 188 (Del. 1962). “An estoppel may

not rest upon an inference that is merely one of several

possible inferences.” Id. We now consider Aviva’s

argument that Flintkote failed to justify application of

equitable estoppel by clear and convincing evidence.

A.

As noted above, the first basis for the District Court’s

opinion was what we have termed the “knowing exploitation”

theory of equitable estoppel. We first addressed that principle

in E.I. DuPont, where, drawing on the opinions of other

federal circuits, we explained that a non-signatory is equitably

precluded from “embracing a contract, and then turning its

back on the portions of the contract, such as an arbitration

clause, that it finds distasteful.” 269 F.3d at 200.6

Thus, seeing no appreciable conflict of laws, we opt to apply

the law of Delaware.

6

Delaware courts have since cited that portion of the

E.I. DuPont opinion favorably on several occasions. See,

e.g., Aveta Inc. v. Cavallieri, 23 A.3d 157, 182 (Del. Ch.

2010); NAMA Holdings, 922 A.2d at 430–32 & nn.25–27, 35;

Trenwick Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d

168, 218 n.155 (Del. Ch. 2006). We thus have no concern

that our continuing validation of E.I. DuPont constitutes an

12

Delaware courts have identified several circumstances

under which a non-signatory may “embrace” a contract: (1)

where the non-signatory “direct[ly], rather than indirect[ly],

benefit[ted] from the [agreement] during the course of the

agreement’s performance[,]” NAMA Holdings, 922 A.2d at

432; (2) where the non-signatory “‘consistently maintain[s]

that other provisions of the same contract should be enforced

to benefit him[,]’” Aveta Inc., 23 A.3d at 182 (quoting E.I.

DuPont, 269 F.3d at 200); or (3) where the non-signatory

“‘sue[s] to enforce the provisions of a contract that it likes,

while simultaneously disclaiming the provisions that it does

not[,]’” id. (quoting Town of Smyrna v. Kent Cnty. Levy

Court, No. 244-K, 2004 WL 2671745, at *4 (Del. Ch. Nov. 9,

2004)).7 Even so, a court must “proceed with a good deal of

application of federal common law which would be precluded

under Arthur Andersen. See Griswold, 762 F.3d at 272 n.6

(“Because we are satisfied that the Supreme Court's decision

in Arthur Andersen did not overrule Third Circuit decisions

consistent with relevant state law contract principles, we may

rely on our prior decisions so long as they do not conflict with

[the applicable] state law principles.”).

7

One might argue that we announced a more

restrictive rule in Bouriez v. Carnegie Mellon University, 359

F.3d 292, 295 (3d Cir. 2004), when we stated that “[a] person

may also be equitably estopped from challenging an

agreement that includes an arbitration clause when that

person embraces the agreement and directly benefits from it.”

(emphasis added) (citing E.I. DuPont, 269 F.3d at 199–200).

But Bouriez has never been cited approvingly by a Delaware

court, and in any event did not purport to apply Delaware law.

13

caution . . . lest nuanced concepts of equity be allowed to

override established legal principles of contract formation.”

NAMA Holdings, 922 A.2d at 433 n.35.

Our review of the record leads us to conclude that

Flintkote has failed to adduce clear and convincing evidence

that Aviva “embraced” the Wellington Agreement in any

meaningful sense. First, the mediation in which Aviva

participated was governed not by the Wellington Agreement,

but by the Mediation Agreement—a document which (1)

made no reference to the Wellington Agreement, (2)

contained no arbitration provision, and (3) was structured on

its own terms as a completely confidential procedure. To

participate in the mediation, Aviva was not required to sign

the Wellington Agreement or forfeit any rights under the

1989 Agreement. In sum, there is simply no evidence that

Aviva embraced the Wellington Agreement when it opted to

participate in mediation alongside the other London insurers.8

Thus, in light of Arthur Andersen, we will not consider it

here.

8

Flintkote argues that were it not for the Wellington

Agreement, the mediation at issue would simply never have

occurred, thus precluding Aviva from delaying the resolution

of Flintkote’s insurance claims against it. To the extent that

this can be considered a “benefit” at all, we consider it to be

of the “indirect” sort that provides no basis for equitable

estoppel. See NAMA Holdings, 922 A.2d at 432 (citing

Thomson-CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773,

779 (2d Cir. 1995)).

14

Second, we do not view the July 16 letter that Attorney

Alvarez sent Flintkote, in which he noted an ostensible right

to reimbursement under Section XX of the Wellington

Agreement, as a basis for application of equitable estoppel.

(App. 153.) This single invocation of the Wellington

Agreement, which appears to be an isolated event in the six-

year course of the mediation at issue, did not result in any

direct benefit to Aviva. The request likewise falls well short

of “consistently” seeking the benefit of “other provisions of

the same contract[,]” or actually suing to enforce that clause.

See Aveta Inc., 23 A.3d at 182. As a final point, we note that

Aviva was entitled to reimbursement and interest under a

similar provision in the 1989 Agreement, meaning that any

reimbursement ultimately obtained by Aviva would have

stemmed primarily, if not entirely, from the 1989 Agreement,

not the Wellington Agreement.

Finally, Flintkote attempts to justify the District

Court’s holding by noting the August 4, 2006 letter in which

Attorney Alvarez requested that Flintkote join in filing a

motion to lift the Bankruptcy Court’s automatic stay. (App.

149.) No such joint motion was ever filed, and the automatic

stay remained in place until being lifted, over Flintkote’s

objection, to allow Aviva to file suit in the Northern District

of California over six years later. Because the request in the

August 4, 2006 letter was not an attempt to invoke any right

under the Wellington Agreement, and because Aviva

ultimately received no direct benefit as a result of the August

4, 2006 letter, we conclude that it does not provide a basis for

equitable estoppel.

In sum, the record does not contain clear and

convincing evidence that Aviva “embraced” the Wellington

Agreement by directly benefitting from that Agreement,

15

consistently seeking to enforce that Agreement’s provisions

for Aviva’s benefit, or suing to enforce rights ostensibly

arising under that Agreement. The District Court thus erred

in granting Flintkote’s motion to compel arbitration on this

basis.

B.

Delaware courts have also recognized that the doctrine

of equitable estoppel may apply “when a party by his conduct

intentionally or unintentionally leads another, in reliance

upon that conduct, to change position to his detriment.”

Wilson v. Am. Ins. Co., 209 A.2d 902, 903–04 (Del. 1965).

“The party claiming estoppel must demonstrate that: (i) they

lacked knowledge or the means of obtaining knowledge of the

truth of the facts in question; (ii) they reasonably relied on the

conduct of the party against whom estoppel is claimed; and

(iii) they suffered a prejudicial change of position as a result

of their reliance.” Nevins v. Bryan, 885 A.2d 233, 249 (Del.

Ch. 2005).

Here, the District Court found that Flintkote had

reasonably relied on Aviva’s participation in the mediation

process as an assurance that Aviva had disclaimed its right to

litigation under the 1989 Agreement and instead consented to

participation in the Wellington process, up to and including

binding arbitration. This purportedly operated to Flintkote’s

detriment by delaying resolution of the underlying insurance

claims at issue.

Even assuming that such delay might constitute a

detriment under the circumstances, we conclude that Flintkote

has still failed to establish two of the three factors described

in Nevins. First, given that Flintkote was a signatory to the

16

1989 Agreement, which contained an express litigation

provision, Flintkote was on actual notice of “the truth of the

facts in question,” i.e., that Aviva had negotiated for and

specifically reserved the right to resolve all disputed issues

through litigation. Cf. Great Am. Credit Corp., 680 F. Supp.

at 134, 138 (declining to apply equitable estoppel where a

contractor should have known of a statutory provision

precluding payment to it if it failed to pay its subcontractors).

Second, to the extent that Flintkote relied on Aviva’s

participation in mediation as an unspoken waiver of its rights

under the 1989 Agreement, such reliance was unreasonable.

The Mediation Agreement contains no language to suggest

that it displaced the 1989 Agreement’s litigation provision,

makes no reference to the Wellington Agreement, and does

not contemplate a resort to arbitration in the event of failure

to reach a negotiated disposition. Flintkote’s mistaken

assumption to the contrary could have been clarified with

even a cursory inquiry at any point during the six-year

mediation, and thus provides no basis for equitable estoppel.9

For these reasons, Flintkote could not have reasonably

relied on Aviva’s participation in mediation as a basis to

believe binding arbitration would occur if the mediation

failed. We therefore conclude that the District Court erred in

applying equitable estoppel under a theory of detrimental

reliance to compel Aviva to arbitrate.

9

For the reasons already described in Part III.A, we

attribute little significance to Aviva’s July 16 letter

identifying issues that might be raised in arbitration.

Similarly, the draft arbitration agreements exchanged by the

parties contained disclaimers that they were for discussion

purposes only.

17

IV.

Finally, we find no merit in Flintkote’s auxiliary

arguments based on waiver and implied-in-fact contract.

Under Delaware law, “the standards for demonstrating

waiver—the voluntary and intentional relinquishment of a

known right—are quite exacting.” Amirsaleh v. Bd. of Trade

of City of N.Y., Inc., 27 A.3d 522, 529 (Del. 2011) (quotation

marks and citations omitted). As explained earlier, we see no

conduct on Aviva’s part that, to a reasonable observer, would

have conveyed an intent to waive or otherwise forgo its rights

under the 1989 Agreement. And it is hornbook common law

that courts will not infer an implied-in-fact contract where an

express contractual provision already exists on the same

point, as it does here under the 1989 Agreement. See

Williston on Contracts, § 1:5.

V.

Because we will reverse the District Court’s order to

the extent that it granted Flintkote’s motion to compel

arbitration, Aviva’s motion to dismiss or transfer is no longer

moot. We will therefore vacate the District Court’s order

insofar as it addressed that motion. Because the District

Court has not yet passed on the merits of the parties’

arguments as to venue, we express no opinion on the matter

and leave it for resolution upon remand.

VI.

For the foregoing reasons, we will reverse the District

Court’s order granting Flintkote’s motion to compel

arbitration, vacate the District Court’s order denying as moot

18

Aviva’s motion to dismiss or transfer, and remand for

proceedings consistent with this Opinion.

19