NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NED FLORES, individually and on behalf 

of all others similarly situated, 

Plaintiff-Appellee, 

 v. 

ADIR INTERNATIONAL, LLC, 

Defendant-Appellant.

No. 18-55959 

D.C. No. 

2:15-cv-00076-AB-PLA 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Submitted December 10, 2019**

Pasadena, California

Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.

Defendant-Appellant Adir International, LLC (Adir) appeals the district 

court’s denial of its motion to compel arbitration in an action brought by PlaintiffAppellee Ned Flores (Flores). “We review de novo the district court’s denial of a 

* 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).

FILED

DEC 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

motion to compel arbitration, including its determination that a party has waived 

the right to arbitrate.” Newirth, by & through Newirth v. Aegis Senior Cmtys.,

LLC, 931 F.3d 935, 939 (9th Cir. 2019). As the parties are familiar with the facts, 

we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

We affirm. 

As a preliminary matter, Adir argues that the district court failed to 

adequately consider that the “heavy burden” of establishing waiver of the right to 

compel arbitration lies with Flores. However, a party may overcome this “heavy 

burden” by demonstrating: (1) knowledge of an existing right to compel 

arbitration; (2) intentional acts inconsistent with that existing right; and 

(3) prejudice to the party opposing arbitration resulting from such inconsistent acts. 

Newirth, 931 F.3d at 940.1 

Adir argues that the district court incorrectly determined that: (1) Adir 

engaged in conduct inconsistent with its right to arbitrate and, (2) Flores was 

prejudiced by such conduct.2 Contrary to Adir’s contentions, by filing two motions 

to dismiss and defending an appeal, Adir “indicate[d] a conscious decision . . . to 

seek judicial judgment on the merits of [the] arbitrable claims” – conduct 

1 To the extent Adir argues for remand so the district court can apply the federal 

test, remand is unnecessary because Adir waived its right to arbitration under any 

standard.

2 Adir does not dispute that it knew it had a right to compel arbitration. 
3 

inconsistent with a right to arbitrate. Id. at 941 (second alteration in original) 

(citation and internal quotation marks omitted). Furthermore, Adir “made an 

intentional decision to refrain from filing a motion to compel arbitration” until 

after this court’s reversal of the district court’s prior dismissal. Id. Adir’s yearand-a-half delay further emphasizes its “strategic decision to take advantage of the 

judicial forum” in a manner inconsistent with its right to arbitrate. Id. Considering 

Adir’s acts, Flores satisfied his heavy burden as it pertains to the second prong of 

the analysis. 

Regarding prejudice, a plaintiff is not prejudiced by “[a]ny extra expense 

incurred as a result of the [plaintiff’s] deliberate choice of an improper forum,” 

such as preparing the complaint and litigating non-merits issues. Fisher v. A.G. 

Becker Paribas Inc., 791 F.2d 691, 698 (9th Cir. 1986); see also Newirth, 931 F.3d 

at 943–44. However, a plaintiff may demonstrate prejudice by pointing to costs 

incurred in defending against actions taken inconsistent with the right to arbitrate, 

by having to “relitigate an issue on the merits on which [he] already prevailed in 

court,” or by showing that a defendant received an advantage from litigating in the 

federal forum. Newirth, 931 F.3d at 944 (citation and internal quotation marks 

omitted). Here, in defending against two motions to dismiss and appealing the 

district court’s dismissal of his complaint, Flores incurred costs “directly traceable” 

to Adir’s acts that were inconsistent with its known right to arbitrate. See id. In 
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addition, directing Flores to arbitration at this late stage in the game would be akin 

to forcing Flores to “relitigate . . . key legal issue[s]” that this court already decided 

in his favor. See id. (citation and internal quotation marks omitted). Moreover, 

granting Adir’s motion to compel would give Adir two bites at the apple – “an 

advantage from litigating in federal court that [it] would not have received in 

arbitration.” See id. (citation and internal quotation marks omitted).

Considering the totality of Adir’s actions, the district court correctly 

determined that Adir waived its right to compel arbitration. 

AFFIRMED.