NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. MINER CONTRACTING, INC., an Arizona corporation,

Plaintiff

- Appellant,

v. DANA KEPNER COMPANY, INC., a Delaware corporation,

Defendant

- Appellee. No. 16

- 15209
D.C. No. 2:15

- cv - 01904

- NVW

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding
Su bmitted August 7, 2017 ** Pasadena, California Before: CALLAHAN and OWENS, Circuit Judges, and FABER, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable David A. Faber, United States District Judge for the Southern District of West Virginia, sitting by designation. 

# FILED

AUG 17 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Appellant A. M iner Contracting, Inc. (“Miner”) appeals the district court’s order denying Miner’s petition to vacate an arbitration award entered against it and
in favor of Appellee Dana Kepner Company, Inc. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. We review de novo a district court ’s denial of a motion to vacate an
arbitration award. See United States v. Park Place Assocs

. , Ltd. , 563 F.3d 907, 918 (9th Cir. 2009). The district court did not err in dismissing as untimely Miner’s motion to
vacate the award. Under the Federal Arbitra tion Act ( “ FAA ” ), “[ n ] otice of a
motion to vacate , modify, or correct an award must be served upon the adverse
p arty or his attorney within three months after the award is filed or delivered. ” 9 U.S.C. § 12. Miner concedes that its petition to vacate was filed more than three years after the award was final but argues that the district court should have applied the doctrine of equitable tolling to find the petition was timely filed. Although this court recently held as a matter of first impression that e quitable tolling principles apply to § 12 of the FAA, see Move, Inc. v. Citigroup Glob. Markets, Inc ., 840 F.3d 1152, 1156 (9th Cir. 2016), the facts of this case clearly do not merit equitable tolling. “We will apply equitable tolling in situations wher e, despite all due diligence, the party invoking equitable tolling is unable to obtain vital information3

bearing on the existence of the claim.” Socop

- Gonzalez v. I.N.S ., 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc) (internal quotation marks and alterati ons omitted).
T olling is not warranted in this case because Mine r did not act with due diligence

— in particular, i t has not alleged circumstances beyond its control that prevented it from discovering t he evidence on which it now relies

. Indeed, Miner
admits that it uncovered the information that it contends shows bias on the part of the arbitrator by searching the internet. Because the information on which Miner relies was readily available to it during the limitations period , tolling of the
limitatio ns period is not justified. “We decline to create a rule that encourages losing parties to challenge arbitration awards on the basis of pre

- existing, publicly available background information on the arbitrator[ ] that has nothing to do with the parties to the arbitration.” Lagstein v. Certain Underwriters at Lloyd’s , London , 607 F.3d 634, 646 (9th Cir. 2010). Even if the petition was not time

- barre d, Miner has not shown that there was “evident partiality” in the arbitrator. See 9 U.S.C. § 10(a)(2) (vacat ur required “where there was evident partiality or corruption in the arbitrator [] ”). “To show

‘ evident partiality’ in an arbitrator, [Miner] either must establish specific facts indicating actual bias toward or against a party or show that [the arbitrator ] failed to disclose to the parties information that creates ‘ [a] reasonable impression of bias.’” Lagstein , 607 F.3d at 645

- 46 (citation omitted). T herefore, “arbitrators4

must disclose facts showing they might reasonably be thought biased against one
li tigant and favorable to another.” In re Sussex , 781 F.3d 1065, 1074 (9th Cir. 2015) (internal quotation marks and citation omitted)

. “Under the FAA, vacatur of an arbitration award is not required simply because an arbitrator failed to disclose a

matter of some interest to a party. ” Lagstein , 607 F.3d at 6 46. “[ C ]ourts have rejected cla ims of evident partiality based on long past, attenuated, or insubstantial connections between a party and an arbitrator

. ” New Regency Prods., Inc. v. Nippon Herald Fi lms, Inc. , 501 F.3d 1101, 1110 (9th Cir. 2007). Miner claims the arbitrator here was evidently partial because two of the partners in his law firm represented an other attorney , Walsh, in a divorce matter

. Walsh , in tu rn, represented Miner’s opponent in li tigation unrelated to the
arbitration at issue here. Th is connection is too attenuated and too insubstantial to create the necessary “impression of partiality .” New Regency , 501 F.3d at 1111. Accordingly, the district court’s decision is affirmed; h owever, a ppellee’s request for attorneys’ fees incurred on appeal , made pursuant to 28 U.S.C. § 1 912 , is denied without prejudice. “[ S ] uch fees should be sought by [a] timely motion filed under Ninth Cir. 39

- 1.6.” First Card v. Hunt (In re Hunt) , 238 F.3 d 1098, 1101 n.2 (9th Cir. 2001).
AFFIRMED

.