This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 JOHN N. HORNE, 7 Plaintiff-Appellant, 8

v. NO. 29,822 9 LOS ALAMOS NATIONAL SECURITY, 10 LLC, GEORGE PETER NANOS, and 11 KEVIN W. JONES, 12 Defendants-Appellees. 13 APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY 14 Stephen D. Pfeffer, District Judge 15 Timothy L. Butler 16 Santa Fe, NM 17 for Appellant 18 Rodey, Dickason, Sloan, Akin & Robb PA 19 Jeffrey Lowry 20 Thomas A. Outler 21 Albuquerque, NM 22 for Appellees 23

MEMORANDUM OPINION 24 BUSTAMANTE, Judge. 252 Plaintiff John Horne prevailed in a binding arbitration against Los Alamos 1 National Security, LLC, (LANS) on a grievan ce he filed regarding discipline imposed 2 on him after an incident in which classifi ed materials were not properly accounted for. 3 Neither Horne nor LANS moved to c onfirm, modify, or vacate the award. 4 Subsequently, Horne filed a lawsuit agai nst LANS and two LANS employees. The 5 district court awarded summary judgment infavor of LANS, concluding that Horne’s 6 exclusive remedy was a timely motion to vacate or correct the arb itration award, and 7 that his claims had been waived. Because LANS has not shown whether the arbitrator 8 ruled on the scope of the arbitration agreement, and because this appears to be a 9 disputed issue of material fact, we reverse. 10 I. BACKGROUND 11 For the purposes of its motion to dismiss, LANS accepted the allegations in 12 Horne’s complaint as true. Horne began work at Los Alamos National Laboratory in 13 September 1983. He started as a machinis t and eventually worked his way to the 14 explosive testings group. By fall of 2003 Horne was an “experimentalist” in the 15 explosive testings group, responsible fo r completing hydrodynamics tests. Horne’s 16 job frequently required him to access classified material. 17 Laboratory policy required that employees notify a classified matter custodian 18 (CMC) of the creation of physical media c ontaining classified information (called 193 “CREM,” for Classified Removable Electroni c Media) so that the CMC could enter 1 the CREM into an accountability system. Op erating procedures called for employees 2 to obtain bar codes from the CMC, affix the bar codes tothe CREM, and give the 3 CREM to the CMC for entry into the sy stem. If the CMC was not available, 4 employees were to place th e CREM in a secure deposito ry and notify the CMC that 5 they had done so. 6 In the fall of 2003 Horne was assisti ng with a conference. During this 7 conference, ten classified zip disks werecreated for which Horne was responsible. 8 Horne had been given twelve bar codes to use to identify any CREM that were 9 created. Unbeknownst to Horne, the CMC had already entered eachof the bar codes 10 into the accountability system. The CMC di d not remove the tw o unused bar codes 11 from the system when he receive d the ten disks from Horne. 12 Subsequently, an audit showed that CRE M associated with the two bar codes 13 were missing. The lab eventually determin ed that the discrepancy was due to the 14 CMC entering the two bar codes into th e system that had never actually been 15 associated with CREM. Nevertheless, Horne was placed on two weeks of unpaid 16 leave and was issued a security infracti on for failing to account for the CREM. Based 17 on these events, on January 24, 2005, Horn e filed an internal administrative 18 complaint. 194 Over two years later, on May 9, 2007, Horne and LANS entered into a Formal 1 Hearing Agreement—essentiallyan agreement to arbitrate. The agreement specified 2 that a “formal hearing will resolve all matters raised in the complaint that have not 3 been previously resolved.” It further speci fied that “[t]he empl oyee agrees that s/he 4 will not file any administrative or legal ac tions regarding the matters raised in the 5 complaint.” The agreement also provides that any hearings held 6 will be conducted under the authority of and in accordance with the 7 provisions of AM 111 [Laboratory’s Administrative Manual Policy] and 8 the rules of the organization providing the hearing officer, insofar as the 9 organization’s rules are consistent with AM 111. In the event of a 10 conflict between AM 111 and the rule s of the organization, AM 111 will 11 take precedence. 12 AM 111 is LANS own complaint resolution policy. 13 Horne’s administrative complaint was attached to the agreement and indicated 14 that the remedies sought by Horne were “removal of letter of reprimand, repay[ment 15 of ten] days of compensation including bene fits[,] reinstate[ment of] lost vacation 16 time[, and] reimbursement of any fees incurred.” Two boxes were checked on the 17 administrative complaint. The first was fo r “Salary decrease, withholding of a salary 18 increase, demotion, or suspension without pay.” The second was for “Retaliation for 19 using AM 111 or any other policy that protects employees from retaliation.” The 20 complaint included an attachment desc ribing the adverse effects on Horne’s 21 employment: 225 This situation has had severe conse quences in my personal life and has 1 caused irreparable harm to my reput ation and to my ability to advance 2 in the career path that I had chosento pursue. The association of my 3 good name to the unsubstantiated clai ms and unethical actions of Pete 4 Nanos, Kevin Jones, Mary Hockaday, Mike Irving, et al. has created a 5 hostile work environment for me as well as essentially destroying any 6 hope for future advancement. This shameless attempt to validate the 7 aforementioned acts and accusations through official sanction is not only 8 unethical but is in violation of AM111, AM112, and AM729. 9 On June 21, 2007, Horne signed and s ubmitted a demand for arbitration under 10 the American Arbitration Association Employment Arbitration Rules Demand for 11 Arbitration (demand for arbitration). Ho rne asserts the demand for arbitration form 12 was prepared by LANS and presented tohim for signature. The demand for 13 arbitration describes the nature of the dispute as: 14 Was the written reprimand with a te n-day suspension without pay issued 15 to Mr. Horne on December 16, 2004[,] done in compliance with 16 laboratory policies and procedures? Was Mr. Horne retaliated against 17 for having utilized the IG’s whistleblower hotline? 18 Also, the demand for arbitration describes the claim or relief sought as: 19 AM 111 (the laboratory’s internal grie vance process): “A hearing officer 20 is limited to restoring any pay benefits, or rights lost as a result of the 21 action taken and may, in his or her discretion, aw ard costs, expenses and 22 attorney[] fees in favor of the prevailing employee. 23 The arbitrator heard the dispute on D ecember 11, 2007. Horne asserts that he 24 “sought to expand the scope of the hearing to deal completely w ith all of the issues 25 raised in his administrative grievance[,]” but that his request was denied. Horne also 266 notes that at the arbitration hearing, he “withdrew” his IG retaliation claim. Horne 1 asserts he “agreed the only issue to be tried was the policy and procedure violation, 2 objected to the improper narrow scope of th e proceeding . . . and specifically reserved 3 his rights to bring other claims outside the scope of the arbitration.” 4 The arbitrator issued his decision on February 20, 2008, finding that the 5 “decisions to find an ‘infraction’ on the part of Mr. Horne, and to administer discipline 6 on that basis are wholly unreasonable.” The arbitrator ordered LANS to (1) pay all 7 wages and benefits lost by Horne; (2) re imburse Horne’s attorney fees; and (3) 8 “restore any loss of rights which Mr. Horn e may have sustained as a result of the 9 unfounded ‘infraction’ and the adverse personnel action arising from the report of that 10 infraction.” The decision does not elaborate as to what those rights might be. Neither 11 Horne nor LANS attempted to vacate or to confirm the arbitrator’s judgment. Horne 12 took a voluntary reduction in force in December 2007. The record does not indicate 13 whether he did this before or after the hearing. 14 The only direct evidence of the arbitration proceedings in the record is the 15 interim decision and award of arbitrator. The decision does not reveal any explicit 16 finding by the arbitrator as to the scope of the arbitration. The decision does quote 17 AM111.16 as an apparent guide to what the arbitrator perceived as his task at least 18 with regard to remedies. AM 111.16 provide s: “A hearing officer . . . is limited to 197 restoring any pay, benefits or rights lost as a result of the action taken and may, in his 1 or her discretion, award costs, expenses, and attorney[] fees in favor of the prevailing 2 party.” The decision does not include any factual findings or conclusions concerning 3 retaliation. 4 On December 12, 2008, about ten months after the date of the award, Horne 5 filed this lawsuit in district court. Th e eight-count complaint alleged retaliation under 6 the New Mexico Fraud Against Taxpayers Act, NMSA 1978, §§ 44-9-1 to -14 (2007), 7 breach of contract, breach of implied c ovenant of good faith and fair dealing, 8 intentional infliction of emotional distress, constructive discharge, tortious 9 interference with existing contractual re lations, civil conspiracy, and, in the 10 alternative, prima facie tort. 11 Rather than file an answer, LANS filed a motion to dismiss or, alternatively, for 12 summary judgment. The only statement of undisputed material fact that LANS made 13 relevant to this appeal was that LANS and Horne had entered into an agreement to 14 arbitrate, which was attached . LANS argued that the claims were within the scope of 15 the arbitration agreement and that Horne had expressly waived his right to litigate 16 claims within the scopeof the agreement. 17 The district court granted LANS’ motion. At the hearing, the district court 18 indicated that, under the holding of United Technology & Reso urces, Inc. v. Dar Al 198 Islam , 115 N.M. 1, 4, 846 P.2d 307, 310 (1993), it was Horne’s responsibility to move 1 to vacate or correct th e award within ninety days. At the conclusion of the hearing the 2 district court noted that Horne’s failure to do so “amount[ed] to a waiver of the claims 3 brought forth in this action.” The written order actually dismissing the case appears 4 to adopt a slightly different theory, observi ng that “Horne entered into an arbitration 5 agreement that waived his right to seek judi cial relief for the claims set forth in this 6 lawsuit.” 7 II. DISCUSSION 8 Horne argues that the district court erred in granting summary judgment in 9 essentially three ways: (1 ) by determining his only mean s of contesting the scope of 10 the arbitration was to move to vacate or correct the awar d, (2) by concluding that the 11 scope of the arbitration agreement was broad, and (3) by upholding the arbitration 12 when the arbitration agreement was uncons cionable. We address each argument in 13

turn. 14 Because LANS’ motion relies on matters out side the complaint, we treat it as 15 a motion for summary judgment. SeeRule 1-012(B) NMRA. “Summary judgment 16 may be proper when the moving party establishes a prima facie case for summary 17 judgment.” Edward C. v. City of Albuquerque , 2010-NMSC-043, ¶ 43, 148 N.M. 646, 18 241 P.3d 1086. Because resolution on the merits is favored, a reviewing court 199 “view[s] the facts in a light most favor able to the party opposing the motion and 1 draw[s] all reasonable inferences insupport of a trial on the merits.” Handmaker v. 2 Henney , 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879. In contrast, “New 3 Mexico also has a ‘strong public policy encouraging dispute resolution through 4 arbitration and favoring finality and stric tly limited court review of arbitration 5 awards.’” K.R. Swerdfeger Constr., In c. v. UNM Bd. of Regents , 2006-NMCA-117, 6 ¶ 27, 140 N.M. 374, 142 P.3d 962 (quoting Spaw-Glass Constr. Servs., Inc. v. Vista 7 de Santa Fe, Inc. , 114 N.M. 557, 558, 844 P.2d 807, 808 (1992)). 8 A. Scope and Waiver 9 1. Waiver and Section 44-7A-24 10 The ability of a district court to review an arbitral award is narrowly limited by 11 statute. NMSA 1978, Sections 44-7A-24 and -25 (2001), set forth the criteria under 12 which a district court may vacate, modify, or correct an award. Motions under these 13 statutes must be made within ninety days of when the movant receives the award. Id. 14 Unless a timely motion is made, the district court may not disturb an award. See 15 United Tech. , 115 N.M. at 5, 846 P.2d at 311. 16 At the hearing, the district court indicated that it based its decision on United 17 Technology

. United Technologyinvolved a dispute between a developer and a builder 18 over payment for a construction project. Id. at 2, 846 P.2d at 308. Pursuant to the 1910 construction contract, the matter was submitted to arbitration. Id. The arbitrator 1 awarded the disputed amount to the builderbut denied the builder’s request for 2 attorney fees. Id. Neither party moved to confirm or vacate the award within the 3 ninety-day statutory period. See id. at 4, 846 P.2d at 310. Almost one year after the 4 award, the developer applied to the district court for confirmation. See id. at 2, 846 5 P.2d at 308. During the presentment hearing, the builder attempted to raise the issue 6 of attorney fees. See id. The district court confirmed the award, and our Supreme 7 Court affirmed, noting that only a timely motion to vacate, modify, or correct the 8 award would have allowed the district court to review the arbitrator’s decision not to 9 grant the fees. See id. at 5, 846 P.2d at 311. In reaching its decision, the Supreme 10 Court applied a rule from other jurisdic tions that have adopted the Uniform 11 Arbitration Act that a party to arbitrati on who did not assert a substantive defense 12 within the statutory period was barred from later asserting it. Id. 13 The instant case is distinguishable from United Technology . The district court 14 remarked at the hearing that it was persuaded by United Technologythat Horne’s 15 failure to move to vacate or correct the award within the statutory period operated as 16 a waiver. However, unlike the claims in this case, the claim for attorney fees in 17 United Technologywas actually decided by the arbitrator. Here, LANS has not 1811 shown—or even attempted to demonstrate—that the arbitrator actually ruled on the 1 scope of the arbitration or on the claims Horne now pursues. 2 To the extent that the district court’s ruling was based on Horne’s failure to 3 move to vacate the award, it was in erro r. Because LANS has not produced evidence 4 that the arbitrator had previously ruled on the scope or the claims, LANS has not made 5 a prima facie case that it was entitled to summary judgment on these grounds. We do 6 not believe that Section 44- 7A-24 bestows finality upon matters that were not decided 7 by the arbitrator. Instead, whether a participant is barred from pursuing claims he 8 could have pursued (but did not) at arbitr ation is a question of claim preclusion, a 9 defense that is not yet at issue in this case. Accordingly, summary judgment was not 10 appropriate on these grounds based on the limited facts presented. 11 2. Scope of the Arbitration Agreement 12 In awarding summary judgment to LANS , the district court concluded that 13 Horne had “waived his right to seek judicial relief for the claims set forth in this 14 lawsuit.” Implicit in this conclusion is that the claims in this lawsuit were within the 15 scope of the arbitration. The district c ourt thus appears to have agreed with LANS 16 that the scope of the arbitration was broad enough to encompass the claims in this suit. 17 We address this issue because it appears thatthe arbitrator did not make any explicit 1812 findings related to the scope of the agreement. To the extent the decision addresses 1 the issue of scope, it treats it as a narrow matter limited to the propriety of discipline. 2 Paragraph four of the arbitration agreement provides that “[t]he hearing officer 3 will have exclusive authority to resolve dis putes relating to . . . applicability of this 4 Agreement.” Accordingly, ev en if the arbitrator did notaddress the scope of the 5 arbitration, the question of sc ope was still for the arbitrator to decide. However, the 6 parties chose to invoke the district court’s authority to resolve the question, and have 7 therefore waived arbitration. See Wood v. Millers Nat’l Ins. Co. , 96 N.M. 525, 527- 8 28, 632 P.2d 1163, 1165-66 (1981) (holding that the right to arbitrate is waived when 9 a “party seeking to compel arbitration i nvokes the court’s discretionary power, prior 10 to demanding arbitration, on a question other than its demand for arbitration”). Thus, 11 to the extent that the arbitrator did not ru le on the scope of the arbitration agreement 12 or the claims at issue here, it was properly before the district court. 13 We review the district court’s interpretation of the scope of the arbitration 14 agreement de novo. See Campos v. Homes by Joe Boyden, L.L.C. , 2006-NMCA-086, 15 ¶ 7, 140 N.M. 122, 140 P.3d 543. “Interpret ation of broad arbitration provisions 16 requires the court to focus on the subject matter of the underlying agreement and the 17 subject matter of the dispute.” Id. ¶ 9. “[T]he subject matter of the underlying 1813 agreement determines the scope of the arbitration provision.” Santa Fe Techs., Inc. 1 v. Argus Networks, Inc. , 2002-NMCA-030, ¶ 56, 131 N.M. 772, 42 P.3d 1221. 2 The issue arises most frequently in mo tions to compel arbitration. In Santa Fe 3 Technologies , two corporations, Argus and Santa Fe Technologies (SFT), entered into 4 a contract for a possible merger in preparation to bid on a federal project. Id. ¶ 4. The 5 contract contained a clause requiring arb itration of “any breach, default, dispute, 6 controversy, or claim arising out of or relating to this Agreement.” Id. ¶ 5 (internal 7 quotation marks omitted). Argus eventually decided it would prefer to work with a 8 different partner and termin ated its deal with SFT. Id. ¶ 9. Argus purchased a third 9 company and won the bid for the federal project with that company. Id. ¶ 10. SFT 10 sued, alleging tortious interference with a contract and usurpation of a business 11 opportunity. Id. ¶ 11. Argus moved to compel arbitration, but the district court 12 refused, and we affirmed noting that “[o]ur case law requires a closer connection 13 between the subject matter of the agreement and the subject matter of the dispute.” 14 Id. ¶ 56. Although the arbitration clause was broad, it was s till limited by the scope 15 of the contract. See id. ¶¶ 55-57. Since the contract discussed methods of closing the 16 potential merger and did not discuss the bi d on the federal project, the arbitration 17 clause did not apply. Id. ¶ 55. 1814 In Campos , this Court again looked to the underlying subject matter to 1 determine the scope of the agreement. B uyers had purchased a house, allegedly based 2 on false representations of seller that adjacent land would not be developed. See 3 Campos , 2006-NMCA-086, ¶ 2. As part of th e purchase, buyers were enrolled in a 4 home warranty program. Id. ¶ 3. The program had a br oad arbitration clause that, 5 among other things, required arbitration of claims of negligent or intentional 6 misrepresentation. Id. ¶ 4. When buyers sued, sellers moved to compel arbitration. 7 See id. ¶ 2. The district court denied the motion to compel arbitration. Id. We 8 affirmed, holding that the arbitration clause was directed to the subject matter of the 9 warranty in which it was contained. See id. ¶¶ 2, 10. Since th e warranty addressed 10 structural defects, not the condition of adjoining land, the claim about 11 misrepresentation of the adjoining land during the sale was not required to be 12 arbitrated. See id. ¶ 13. 13 Following Santa Fe Technologiesand Campos , we examine the subject matter 14 of the agreement to determin e the scope of the arbitrati on. The agreement was limited 15 to the resolution of “all matters raised in the complaint.” The complaint was attached 16 to the agreement. We discern the following subject matter in the complaint. The 17 complaint explicitly refers to“[r]etaliation for using AM111 or any other policy that 18 protects employees from retaliation, in cluding AM 101, AM 711, AM 729, AM 730, 1915 and AM 731.” An attachment the complaint, also mentions hostile work environment 1 and Horne’s difficulty in continuing on in his chosen career as an Experimentalist, 2 singling out the behavior of Nanos and J ones. In contrast, as quoted above, the 3 demand for arbitration only referenced the propriety of the employee discipline 4 imposed and the matter of retaliation “for having utilized the IG’s whistleblower 5 hotline[.]” 6 LANS made no showing as to the actual scope of the arbitration beyond the 7 administrative complaint. LANS’ theory clearly is one of claim preclusion; that is, 8 having submitted to arbitr ation any portion of his employment claims Horne is 9 precluded from asserting any other claims in any other forum. That may be the end 10 result of the inquiry. But the matter cannot be determined on the agreement and 11 administrative complaint alone, and not in th e face of (1) Horne’s assertions that he 12 tried to expand the scope and was not allowed to af ter LANS objected, (2) the 13 language of the demand for arb itration, (3) the lack of any finding by the arbitrator as 14 to scope, and (4) the lack of any reference to retaliation in the arbitrator’s decision. 15 This last factor lends credence to Horne’s assertion that he withdrew his retaliation 16 claim and was allowed to do so by LANS and the arbitrator. 17 In sum, LANS failed to make a prima facie case entitling it to summary 18 judgment. We will not sort out the issue of scope on the limited record available to 1916 us. On remand it might be of some value to provide the district court some access to 1 the actual proceedings before the arbitrator. 217 B. Unconscionability 1 Horne’s remaining argument is that the di strict court erred infailing to find the 2 agreement to arbitrate unconscionable. Specifically, he contends that it was 3 unconscionable for him to have to choose between arbitration and filing a lawsuit 4 before he had access to re levant documents possessed by LANS. He claims that 5 “LANS successfully manipulated [him] into making an election of remedies, [which] 6 significantly limit[ed] LANS[’] legal liability .” Horne acknowledges that arbitration 7 “in the abstract” is neither procedurally nor substantively unconscionable. 8 As Horne has not related the facts of his case to the tests for procedural or 9 substantive unconscionability, we must atte mpt to parse his argument ourselves. We 10 generally agree with LANS that Horne appears to make two arguments. First, we 11 understand Horne to argue that the agreement was procedurally unconscionable 12 because LANS did not provide Horne withdiscovery until after Horne chose between 13 arbitration and litigation. S econd, we understand Horne to argue that the arbitration 14 agreement itself was substantively unc onscionable, although we can identify no 15 particular basis for this claim. 16 At the outset, we note that it is not atall clear that Horne can complain of 17 unconscionability more than ninety days after entry of the arbitration award. The 18 argument that an agreement toarbitrate is unconscionable is essentially the argument 1918 that there was no agreement to arbitrate. Section 44-7A-24 provides that an award 1 may be vacated if there was no agreement to arbitrate. Section 44-7A-24(a)(5). In 2 Alexander v. Calton & Assocs., Inc. , 2005-NMCA-034, ¶ 15, 137 N.M. 293, 110 P.3d 3 509, we noted that under Section 44-7A-24, “a party may continue to argue that there 4 is no agreement to arbitrate even after th e arbitration is completed, so long as he 5 preserves his objections before the hearing begins.” This dicta from Alexander 6 strongly suggests that Horne’s unconscionability argument should fail both for lack 7 of preservation and because he did not attemp t to vacate the ruling within ninety days. 8 We nevertheless briefly address the merits. A contract to arbitrate is 9 unenforceable if it is found to be unconscionable. See, e.g. , Cordova v. World Fin. 10 Corp. of N.M. , 2009-NMSC-021, ¶ 34, 146 N.M. 256, 208 P.3d 901. A contract may 11 be substantively unconscionable or procedurally unconscionable. Fiser v. Dell 12 Computer Corp. , 2008-NMSC-046, ¶ 20, 144 N.M. 464, 188 P.3d 1215. Substantive 13 unconscionability refers to the legality and fairness of the contract terms themselves, 14 focusing on whether the terms “are commerc ially reasonable and fair, the purpose and 15 effect of the terms, the one-sidedness of the terms, and other similar public policy 16 concerns.” Cordova , 2009-NMSC-021, ¶ 22. Procedur al unconscionability deals with 17 the “factual circumstances surrounding the formation of the contract, including the 18 relative bargaining strength, sophistication of the parties, and the extent to which 1919 either party felt free to accept or d ecline terms demanded by the other.” Id. ¶ 23. We 1 review whether a contract is unconscionable as a matter of law. Id. ¶ 11. 2 The arbitration agreement in this case is not substantively unconscionable. In 3 Cordova , our Supreme Court concluded that the arbitration agreement was 4 unconscionable because it was “unfairly and unreasonably one-sided” and reserved 5 the right to litigate exclusively for one side while forcing the other side to arbitrate. 6 Id. ¶¶ 26-27, 32. Unlike the agreement in Cordova , the agreement here does not favor 7 one side over another. Horne was allowed to choos e between arbitration and 8 litigation. The arbitration agreement that heagreed to treats each side equally. Horne 9 wrote the complaint that defines the scope of the arbitration. Furthermore, unlike 10 Fiser , where the arbitration agreement was he ld to be substantively unconscionable 11 for violating public policy, 2008-NMSC-046, ¶ 21, no public policy has been violated 12 here. We find nothing in the circumstances of this case to suggest that the agreement 13 to arbitrate here was anything but fair. 14 In addition, the circumstances surrounding the formation of the arbitration 15 agreement were not procedurally unconscionable. Procedural inequality exists where 16 the inequality in bargaining power is so ex aggerated as to render one party’s choice 17 essentially nonexistent. Guthmann v. La Vida Llena , 103 N.M. 506, 510, 709 P.2d 18 675, 679 (1985), overruled on other grounds by Cordova , 2009-NMSC-021, ¶ 31. 1920 Horne acknowledges that he had the choice of arbitration, litigation, or using a “single 1 manager decision maker.” Horne has not shown that bargaining power was so 2 unequal as to preclude him from choosing litig ation. Nor has hemade any argument 3 directed to relative bargaining strength, s ophistication of the parties, or his freedom 4 to choose litigation. Horn e’s primary argument is that, at the time he elected 5 arbitration, he did not have access to the information he later obtained through 6 discovery, and therefore could not intelligen tly formulate a complaint. But we have 7 routinely enforced arbitration agreements entered into not only before discovery was 8 available, but before a conflict ever arose. See, e.g. , United Tech. , 115 N.M. at 2, 5, 9 846 P.2d at 308, 311. Furthermore, had Horne chosen litig ation, he would not have 10 had access to discovery until after he filed his complaint. SeeRule 1-026(A) NMRA 11 (“ Partiesmay obtain discovery . . . .” (emphasis added)). As in any litigation, Horne 12 was aware of the facts from his own experi ence, which were sufficient to allow him 13 to initiate proceedings that would entitlehim to obtain additional evidence. 14 To the extent that Horne argues th at the agreement was procedurally 15 unconscionable because LANS prepared the demand for arbitration that initiated the 16 arbitration, we disagree. Horne signed th e demand for arbitration over a month after 17 he signed the agreement to arbitrate. Ho rne was free to attempt to modify the form 18 before signing it. Most importantly, howev er, Horne had already agreed that the 1921 arbitrator would decide the scope of the ag reement to arbitrate. Accordingly, Horne 1 had an avenue in which to raise any arguments that the scope was broader than the 2 demand that he filed. As we have noted , Horne appears to have done so, although the 3 statements he has made are perhaps contradictory on this point. 4 III. CONCLUSION 5 For the foregoing reasons, we reverse the order granting summary judgment and 6 remand for further proceedings consistent with this opinion. 7 IT IS SO ORDERED. 8

9 MICHAEL D. BUSTAMANTE, Judge 10 WE CONCUR: 11

12 CELIA FOY CASTILLO, Chief Judge 13

14 LINDA M. VANZI, Judge 15