2 2

- 369 NATS, Inc. v. Radiation Shield Techs., Inc.



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC D ATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 9 t h da y of M a r c h , two thousand twenty

- three

. 3 4 PRESENT: 5 DENNIS JACOBS , 6 MICHAEL H. PARK , 7 WILLIAM J. NARDINI , 8 Circuit Judges. 9

_____________________________________ 10 11 NATS, Inc. , 12 13 Plaintiff

- Appell ee , 14 15

v. 22

- 369 16 17 Radiation Shield Technologies, Inc. , 18 Ronald DeMeo, 19 20 Defendant s -

Appell ants

. * 21 22

_____________________________________ 23 24 25

* The Clerk of Court is respectfully directed to amend the caption accordingly.2 FOR PLAINTIFF

- APPELL EE : P ATRICK M. F AHEY , Shipman & 1 Goodwin LLP
, Hartford
, CT

. 2 3 FOR DEFENDANT S

- APPELL ANTS : D WAYNE A. R OBINSON , Kozyak 4 Tropin & Throckmorton LLP
, 5 Miami
, FL (Joshua Truppman, 6 Brodsky Fotiu

- Wojtowicz, PLLC, 7 Miami, FL, on the brief )

. 8 9
Appeal from a judgment of the United States District Court for the District of Connecticut 10
( Thompson
, J

. ). 11

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 12

DECREED that the judgment of the district court is AFFIRMED

. 13
Radiation Shield Technologies, Inc. and Ronald DeMeo (“Defendants”) appeal the district 14

court’s denial of the ir motion to compel arbitration . Plaintiff NATS, Inc. sued De fendants in 15

2021 for breach of contract, fraud, and violation of Connecticut’s Unfair Trade Practices Act in 16

connection with an order for 1,500 hazmat suits. Defendants moved to compel arbitration under 17
the Federal Arbitration Act (“FAA”), arguing that NA TS expressly agreed to arbitrate when its 18
president signed a non

- disclosure agreement (“NDA”). The district court denied the motion 19
without prejudice to renewal pending “trial on the narrow question ” whether there is “ in existence 20
an agreement to arbitrat e.” Appellants’ App’x at 436. Defendants appealed. We assume the 21
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 22
appeal. 23

This Court’s jurisdiction is generally limited to appeals from “final decisions of the district 24

courts of the United States .” 28 U.S.C. § 1291

. But w e have jurisdiction under the FA A to hear 25
an appeal from “ an order

. . . denying a petition under section 4 of this title to order arbitration to 263 proceed.” 9 U.S.C. § 16(a)(1 )(B); see Chorley Enter s. , Inc. v. Dickey’s Barbecue Rest

. , Inc. , 807 1
F.3d 553, 561 (4th Cir. 2015) ( “Section 16(a)(1)(b) provides for interlocutory appeals of orders 2
denying arbitration without stating whether those orders must be final.” ). 3

“We review de novo the denial of a motion to compel arbitration.” Soliman v. Subway 4

Franchisee Advert. Fund Tr., Ltd. , 999 F.3d 828, 833 (2d Cir. 2021) (citation omitted). “Courts 5
deciding motions to compel arbitration apply a standard similar to that applicable for a motion for 6
summary judgment. On a motion for summary judgment, the court considers all relevant, 7
admissible evidence submitted by the parties

. ” Id. (cleaned up). Here, the district court 8
determined that there was a “genuine issue as to whether there is in existence an agreement to 9
arbitrate.” Appellants’ App’x at 436. We thus limit our review to whether the district court 10
correctly found that “a genuine dispute of material fact remained.” Quilloin v. Tenet 11

Health S ystem Phila

. , Inc. , 673 F.3d 221, 227 n.3 (3d Cir. 2012)

. 12
We agree with the district court that there are factual disputes regarding the existence of an 13
agreement to arbitrate. “ In order for an enforceable contract to exist, the court must find that the 14
parties’ minds had truly met.” Tir reno v. Hartford
, 129 A.3d 735
, 739 n.5 (Conn. App. Ct. 2015); 15

see Vision Palm Springs, LLLP v. Michael Anthony Co. , 272 So. 3d 441, 444 (Fla. Dist. Ct. App. 16
2019) (“Contract formation requires a manifestation of mutual assent, the existence of which is 17

de termined by an objective test.” (footnote omitted) ). 1 There is a material dispute of fact as to 18

whether NATS assented to the NDA. Among other factual disputes, t he record shows that NATS 19
sent a signed version of the NDA to a third party, Tech Flow Co.
, not to Defendants. The parties 20

1 The parties dispute whether Florida or Connecticut law applies

. We need not decide the issue because there are factual disputes as to mutual assent under the law of both states

.4 dispute whether Tech Flow had authorization to later forward the NDA to Radiation Shield 1
Technologies . The district court’s decision to deny the motion to compel arbitration was thus 2

correct. 3

W e find no error in the distric t court ’s denial of Defendants’ motion to compel arbitration
, 4

entered without prejudice . But the denial without prejudice coupled with an immediate trial of 5
the material unresolved questions creates uncertainty as to appellate jurisdiction in particular cases. 6

So
, we note that a district court may consider other courses of action when it determines that a 7

limited trial on the issue of an arbitration agreement’s existence is necessary. For example
, a 8

district court could hold a motion to compe l arbitration in abeyance pending trial, thereby 9
preclud ing parties from taking unmeritorious, interlocutory appeals by not issuing an order that 10
technically falls within the terms of § 16(a)(1)

. Cf. Hansen v. LMB Mortg. Servs., Inc. , 1 F.4th 11
667, 672 (9t h Cir. 2021) ; Jin v. Parsons Corp. , 966 F.3d 821, 827

– 28 (D.C. Cir. 2020)

. In any 12

event , the district court here correctly decided to “proceed summarily to the trial” on arbitrability. 13

9 U.S.C. § 4

. 14

We have considered all of Defendants ’ remaining argum ents and find them to be without 15

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED

. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe, Clerk of Court 18