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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Aryn Brumley, et al., 

Plaintiffs, 

v. 

Austin Centers for Exceptional Students 

Incorporated, et al., 

Defendants. 

No. CV-18-00662-PHX-DLR 

ORDER 

Before the Court is Defendant Austin Centers for Exceptional Students 

Incorporated’s (“ACES”) motion to dismiss Plaintiffs’ first amended complaint as 

untimely or to compel arbitration.1

 (Doc. 46.) The motion is fully briefed.2 (Docs. 49, 

56.) For the following reasons, ACES’ motion is granted in part and denied in part. 

I. Background 

 ACES is a state-certified school for special education students. (Doc. 42 ¶ 28.) 

A.B., who is autistic and has Attention Deficit Hyperactivity Disorder, began attending 

ACES in 2015. (¶¶ 35, 43.) Plaintiffs allege that, on March 31, 2017, an ACES employee 

used excessive force to get A.B. onto a school bus, and in doing so broke A.B.’s wrist. (¶¶ 

76, 78-102, 127-130.) 

 1

 Plaintiffs are Aryn and Joseph Brumley, who bring this action individually and on behalf of A.B. as next friend and parents. (Doc. 42 at 1.) 

2

 The parties requested oral argument, but after reviewing the parties’ briefing and the record, the Court finds oral argument unnecessary. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 
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 As part of A.B.’s enrollment at ACES, A.B. and Aryn signed, among other things, 

a Behavioral Intervention Policy and a Parent/Guardian Commitment (collectively 

“Enrollment Paperwork”). (¶¶ 57-68.) The Behavioral Intervention Policy contains an 

arbitration agreement, which provides: 

All parties agree that any dispute which arises as a result of any behavioral intervention shall be filed within ninety (90) days 

and shall be decided by binding arbitration only with both 

parties agreeing to the selection of an arbitrator who is 

professionally competent in special education administration 

and behavioral health. Any award shall not exceed the amount 

of actual expenses and arbitration shall be conducted in 

accordance with the rules of the American Arbitration 

Association [“AAA”], a copy of which is available from the 

principal on any ACES campus. 

(Doc. 46-1 at 2.) 

Moreover, in signing the Parent/Guardian Commitment, Aryn and A.B. agreed that 

they “read and understand the information in the Parent/Student Handbook [(“Handbook”)] 

and [] agree to follow those guidelines.” (Id. at 11.) The Handbook, likewise, provides an 

arbitration agreement, which states: 

As a condition of enrollment [] ACES and any other party 

responsible for a student agree to submit any and all disputes that might arise regarding a student to binding arbitration and any award shall not exceed the amount of actual expenses. The 

parties shall mutually agree to the selection of an arbitrator who 

is professionally competent in special education administration

and behavioral health. The arbitration shall be conducted in 

accordance with the rules of the [AAA] and copies of those 

rules are available for review from the principal on any ACES 

campus. 

(Id. at 6.) According to Plaintiffs, ACES did not explain the arbitration provisions and did 

not provide a copy of the Handbook. (Doc. 42 ¶¶ 60-63.) 

 On August 3, 2018, Plaintiffs filed their first amended complaint, alleging violations 

of the Rehabilitation Act of 1973 and the and Americans with Disabilities Act, and raising 

state law tort claims. (Doc. 42.) ACES moves to dismiss Plaintiffs’ first amended 

complaint as untimely or, in the alternative, to compel arbitration. (Doc. 46.) 

II. Legal Standard 
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The Federal Arbitration Act (“FAA”) provides that written agreements to arbitrate 

disputes arising out of transactions involving interstate commerce “shall be valid, 

irrevocable, and enforceable except upon grounds that exist at common law for the 

revocation of a contract.” 9 U.S.C. § 2; see AT&T Mobility LLC v. Concepcion, 563 U.S. 

333 (2011) (discussing liberal federal policy favoring valid arbitration agreements). The 

FAA “leaves no place for the exercise of discretion by a district court, but instead mandates 

that district courts shall direct the parties to proceed to arbitration on issues as to which an 

arbitration agreement has been signed.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 

218 (1985) (emphasis in original). The court must compel arbitration where: (1) a valid 

agreement to arbitrate exists, and (2) the agreement encompasses the dispute at issue. 

Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). “Where 

a contract contains an arbitration [agreement], courts apply a presumption of arbitrability 

as to particular grievances, and the party resisting arbitration bears the burden of 

establishing that the arbitration agreement is inapplicable.” Wynn Resorts, Ltd. v. Atl.-Pac. 

Capital, Inc., 497 Fed. App’x. 740, 742 (9th Cir. 2012). 

III. Discussion3

 ACES seeks to compel arbitration pursuant to the arbitration provisions contained 

in the Enrollment Paperwork. ACES argues that the question of arbitrability has been 

delegated to the arbitrator and thus the scope of this Court’s review is narrow. (Doc. 46 at 

6.) Plaintiffs argue that the agreement’s delegation provision is unenforceable and that, 

even if it is enforceable, certain claims are outside the scope of the arbitration provisions. 

(Doc. 49 at 1-2.) 

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 ACES argues that the Court should dismiss Plaintiffs’ claims as untimely. (Doc. 46 at 4-5.) The Court will not address this argument because the statute of limitations is 

part and parcel of the arbitration agreement. See, e.g., ITT Educ. Servs., Inc. v. Arce, 533 

F.3d 342, 345-46 (5th Cir. 2008) (finding a confidentiality provision to be part of an arbitration agreement, in part, because the provision was included under the same heading as the other arbitration terms); Newton v. Am. Debt Servs., Inc., 854 F. Supp. 2d 712, 732 (N.D. Cal. 2012) (considering a statute of limitations to be part of an arbitration 

agreement). Specifically, the statute of limitations is located in the same sentence as the 

arbitration agreement in the Behavioral Intervention Policy. Because the Court has 

determined that the parties agreed to delegate arbitrability to the arbitrator, whether the 

statute of limitations applies (or is unconscionable) is an issue to be decided by the arbitrator. 
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A. Arbitrability 

“Although gateway issues of arbitrability presumptively are reserved for the court, 

the parties may agree to delegate them to the arbitrator.” Momot v. Mastro, 652 F.3d 982, 

987 (9th Cir. 2011). “Courts should not assume that the parties agreed to arbitrate 

arbitrability unless there is ‘clear and unmistakable’ evidence that they did so.” First 

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). “Clear and unmistakable 

‘evidence’ of agreement to arbitrate arbitrability might include . . . a course of conduct 

demonstrating assent . . . or . . . and express agreement to do so.” Rent-A-Center, West, 

Inc. v. Jackson, 561 U.S. 63, 79-80 (2010). Even if a delegation of arbitrability is clear 

and unmistakable, it may be found unenforceable if the delegation itself is unconscionable. 

Id. at 71-74. 

Here, the Court finds clear and unmistakable evidence that the parties intended to 

delegate the issue of arbitrability to the arbitrator. The arbitration agreements contained in 

the Enrollment Paperwork expressly provide that “arbitration shall be conducted in 

accordance with the rules of the [AAA].” (Doc. 46-1 at 2, 6.) Rule 7(a) of the AAA 

provides that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, 

including any objections with respect to the existence, scope, or validity of the arbitration 

agreement or to the arbitrability of any claim or counterclaim.” AAA Commercial 

Arbitration Rule 7(a). “[I]ncorporation of the AAA rules constitutes clear and 

unmistakable evidence that [the] contracting parties agreed to arbitrate arbitrability.” 

Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). 

 Plaintiffs contend that Brennan is inapplicable where, as here, one party is 

unsophisticated. (Doc. 49 at 14.) The Court disagrees. Brennan expressly dispels this 

argument: 

Our holding today should not be interpreted to require that the

contracting parties be sophisticated or that the contract be 

“commercial” before a court may conclude that incorporation 

of the AAA rules constitutes “clear and unmistakable” 

evidence of the parties’ intent. Thus, our holding does not 

foreclose the possibility that this rule could also apply to 

unsophisticated parties or to consumer contracts. Indeed, the 

vast majority of the circuits that hold that incorporation of the 
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AAA rules constitutes clear and unmistakable evidence of the 

parties’ intent do so without explicitly limiting that holding to 

sophisticated parties or to commercial contracts. 

Brennan, 796 F.3d at 1130-31; McLellan v. Fitbit, Inc., No. 16-CV-36-JD, 2017 WL 

4551484, at *2 (N.D. Cal. Oct. 11, 2017) (“The “greater weight of authority has concluded 

that the holding of Opus Bank applies similarly to non-sophisticated parties.”). 

B. Unconscionability 

 Because the parties clearly and unmistakably delegated the question of arbitrability 

to the arbitrator, “the only remaining question is whether the particular agreement to 

delegate arbitrability—the Delegation Provision—is itself unconscionable.” Brennan, 796 

F.3d at 1132 (emphasis in original). When assessing whether a delegation provision is 

unconscionable, a court must sever it from the arbitration agreement in which it is 

embedded. That is, unless the party opposing arbitration “challenged the delegation 

provision specifically, [the Court] must treat it as valid . . . , and must enforce it . . . , leaving 

any challenge to the validity of the [arbitration] [a]greement as a whole for the arbitrator.” 

Rent-A-Ctr., 561 U.S. at 72. 

 Plaintiffs challenge the arbitration agreements as a whole, but do not challenge the 

specific delegation provisions. Accordingly, the Court concludes that the 

unconscionability challenge made by Plaintiffs must be resolved by an arbitrator. See id.

at 75 (declining to consider respondent’s claim that the entire agreement to arbitrate was 

unconscionable because it was not specific to the delegation provision); Meadows v. 

Dickey’s Barbecue Restaurants, Inc., 144 F. Supp. 3d 1069, 1080 (N.D. Cal. 2015). 

IV. Conclusion 

The Enrollment Paperwork contains arbitration clauses. Plaintiffs have raised 

objections to the validity of those arbitration provisions and have argued that the provisions 

do not encompass the dispute at issue. But, by agreeing to conduct arbitration according 

to the AAA rules, the parties clearly and unmistakably delegated such gateway arbitrability 

questions to the arbitrator. The Court therefore must compel Plaintiffs to submit to 

arbitration because the parties entered into a valid and enforceable agreement to arbitrate 
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questions of arbitrability. Stated differently, Plaintiffs are free to argue that the arbitration 

clauses, generally, are unconscionable, or that their claims fall outside the scope of those 

provisions. But they must make those arguments to the arbitrator, not to this Court. 

Accordingly, 

IT IS ORDERED that ACES’ motion (Doc. 46.) is GRANTED in part and 

DENIED in part as follows: (1) ACES’ motion to dismiss as untimely is DENIED; and 

(2) ACES’ motion to compel arbitration is GRANTED. 

IT IS FURTHER ORDERED that the Clerk is directed to close this case, 

whereupon, by proper motion of the prevailing party at arbitration, it may be reopened or 

dismissed with prejudice. 

Dated this 6th day of March, 2019. 

Douglas L. Rayes 

United States District Judge