delegation clause in New Mexico

2024The 17 arbitration agreement further provided in a delegation clause that the arbitrator has 18 “‘exclusive authority to resolve any dispute relating to the interpretation, 19 applicability, enforceability or formation of this [a]greement including, but not 9 1 limited to any claim that all or any part of this [a]greement is void or voidable.’” Id. 2 at 66.

2024Recognizing the authority of Rent-A-Center, the court found that the party challenging the delegation clause must do so specifically otherwise the court “‘must treat the delegation clause as valid and enforce it.’” Moreno, 277 F. Supp. 3d at 1212 (quoting Rent-A-Center, 561 U.S. at 70 ) (alteration omitted).

2025See Felts, 2011-NMCA-062, ¶ 22 (“Our Supreme Court has stated that courts must interpret the provisions of an arbitration agreement according to the rules of contract law and apply the plain meaning of the contract language in order to give effect to the parties’ agreement.” (alteration, internal quotation marks, and citation omitted)). {19} Despite the district court’s finding that the delegation clause constitutes clear and unmistakable evidence of the parties’ agreement to arbitrate gateway issues, it proceeded to find that Defendants waived their right to invoke the delegation clause.

2024In Juarez, this Court noted that the plaintiff’s argument was “challenging the contract as a whole and [was] not clearly directed against the validity of the delegation clause alone,” 2022-NMCA-056 , ¶ 38 (internal quotation marks and citation omitted) as required by Felts v. CLK Management, Incorporated, 2011-NMCA-062 , 149 N.M. 681 , 254 P.3d 124 .

2025Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 (2019); Sanchez v. United Debt Couns., LLC, 2024- NMSC-026, ¶ 15, 562 P.3d 564 (holding that the court will review challenges to a delegation clause if the clause “is (1) specifically challenged on (2) such grounds as exist at law or in equity for the revocation of any contract” (internal quotation marks and citation omitted)). {16} With these principles in mind, we turn to the case at hand.

2025Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 (2019); 16 Sanchez v. United Debt Couns., LLC, 2024-NMSC-026 , ¶ 15, ___ P.3d ___ (holding 17 that the court will review challenges to a delegation clause if the clause “is (1) 18 specifically challenged on (2) such grounds as exist at law or in equity for the 19 revocation of any contract” (internal quotation marks and citation omitted)). 11 1 {16} With these principles in mind, we turn to the case at hand.

2025The parties cannot delegate disputes over the very existence of an arbitration agreement.” (alterations, footnote, and internal quotation marks omitted)); Edwards v. Doordash, Inc., 888 F.3d 738, 744 (5th Cir. 2018) (“Arguments that an agreement to arbitrate was never formed . . . are to be heard by the court even where a delegation clause exists.”); In re: Auto.

2025The parties cannot delegate disputes over the very existence of an arbitration agreement.” (alterations, footnote, and internal quotation marks omitted)); Edwards v. Doordash, Inc., 888 F.3d 738, 744 (5th Cir. 2018) (“Arguments that an agreement to arbitrate was never formed . . . are to be heard by the court even where a delegation clause exists.”); In re: Auto.

2022The delegation clause explicitly identifies the “enforceability of [the] Arbitration Agreement” as an example of a “controversy or claim arising out of or relating” to a “Dispute” (or, alternatively, as a “Dispute” in its own right), and the enforceability of the arbitration agreement is undeniably a “threshold question[] of arbitrability.” Hunt, 2021-NMCA-043, ¶ 15 (emphasis omitted).

2022Compare Clay, 2012-NMCA-102, ¶ 12 (holding delegation clause 12 language of “disputes about the validity, enforceability, arbitrability or scope” are 13 subject to arbitration “was clear and unmistakable evidence of the parties’ intent to 14 ‘have an arbitrator decide threshold issues of arbitrability’” (internal quotation marks 15 and citation omitted)), and Felts, 2011-NMCA-062, ¶ 23 (holding delegation clause 16 language of “any and all claims, disputes or controversies arising out of [the 17 a]greement to [a]rbitrate [a]ll [d]isputes including disputes as to the matters subject 18 to arbit

2025See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 , 297 (2010); Dr.’s Assocs., Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (“The threshold question facing any court considering a motion to compel arbitration is whether the parties have indeed agreed to arbitrate.” (omission, internal quotation marks, and citation omitted)); McMillan v. Allstate Indem.

2025See 9 1 Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 , 297 (2010); Dr.’s Assocs., 2 Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (“The threshold question facing 3 any court considering a motion to compel arbitration is whether the parties have 4 indeed agreed to arbitrate.” (omission, internal quotation marks, and citation 5 omitted)); McMillan v. Allstate Indem.

2025Co., 21 F.4th 631, 635 (9th Cir. 2021) (holding that “parties cannot delegate issues of formation to the arbitrator”); Fedor, 976 F.3d at 1104 (“It is true that a delegation clause can typically be ‘severed’ from an arbitration agreement and can thus prevent a court from deciding certain arbitrability issues unless a litigant challenged the clause directly.

2025Co., 21 F.4th 631, 635 (9th Cir. 2021) (holding that “parties cannot delegate issues of formation to the arbitrator”); Fedor, 976 F.3d at 1104 (“It is true that a delegation clause can typically be ‘severed’ from an arbitration agreement and can thus prevent a court from deciding certain arbitrability issues unless a litigant challenged the clause directly.

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025Parts Antitrust Litig., 951 F.3d 377, 385-86 (6th Cir. 2020) (declining to enforce a delegation provision where the plaintiffs argued they did not form an agreement to arbitrate); K.F.C. v. Snap Inc., 29 F.4th 835, 837 (7th Cir. 2022) (“[T]he arbitrator cannot resolve any issues until the court has ascertained that there is an actual agreement; the breadth of a delegation is irrelevant if the parties did not enter into a contract.”); Neb.

2025Parts Antitrust Litig., 951 F.3d 377, 385-86 (6th Cir. 2020) (declining to enforce a delegation provision where the plaintiffs argued they did not form an agreement to arbitrate); K.F.C. v. Snap Inc., 29 F.4th 835, 837 (7th Cir. 2022) (“[T]he arbitrator cannot resolve any issues until the court has ascertained that there is an actual agreement; the breadth of a delegation is irrelevant if the parties did not enter into a contract.”); Neb.

2025Co. of Pittsburgh, Pa. v. Stucco Sys., LLC, 289 F. Supp. 3d 457, 466 (S.D.N.Y. 2018) (“To use the delegation clause to demand that arbitrators settle the question of who are the parties to the agreement puts the proverbial cart—the question of whether the arbitration agreement is valid—before the horse—whether a non-signatory has anything to do with a contract it did not clearly sign.”); Schoenfeld v. Mercedes-Benz USA, LLC, 532 F. Supp. 3d 506 , 510 (S.D.

2025Co. of Pittsburgh, Pa. v. Stucco Sys., LLC, 289 F. Supp. 3d 457, 466 (S.D.N.Y. 2018) (“To use the delegation clause to demand that arbitrators settle the question of who are the parties to the agreement puts the proverbial cart—the question of whether the 19 arbitration agreement is valid—before the horse—whether a non-signatory has anything to do with a contract it did not clearly sign.”); Schoenfeld v. Mercedes-Benz USA, LLC, 532 F. Supp. 3d 506 , 510 (S.D.

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025Grp., LLC, 483 S.W.3d 332, 342 (Ky. 2015) (holding that where questions regarding the valid formation of the arbitration agreement exist, “a court is the proper forum for determining whether the arbitration agreement is enforceable, a delegation provision notwithstanding”); Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432 , 437 (Mo. 2020) (noting that “the court is responsible for deciding in the first instance whether a party who did not sign an arbitration agreement can be bound to arbitrate because that party is challenging the very existence of any agreement, including the existence of

2025See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 , 297 (2010); Dr.’s Assocs., Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (“The threshold question facing any court considering a motion to compel arbitration is whether the parties have indeed agreed to arbitrate.” (omission, internal quotation marks, and citation omitted)); McMillan v. Allstate Indem.

2025See 9 1 Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 , 297 (2010); Dr.’s Assocs., 2 Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (“The threshold question facing 3 any court considering a motion to compel arbitration is whether the parties have 4 indeed agreed to arbitrate.” (omission, internal quotation marks, and citation 5 omitted)); McMillan v. Allstate Indem.

2025Ct. App. 2019) (“A determination of whether a party seeking to enforce an arbitration agreement actually entered into that agreement is one for the trial court, regardless of a delegation clause.”); Mikoff v. Unlimited Dev., Inc., 2024 IL App (4th) 230513, ¶¶ 35, 38 (“Where, as here, a party challenges the formation of an arbitration agreement, it is a question going to the making of the agreement to arbitrate and may be adjudicated by the court.” (internal quotation marks and citation omitted)); Dixon v. Daymar Colls.

2025Ct. App. 2019) (“A determination of whether a party seeking to enforce an arbitration agreement actually entered into that agreement is one for the trial court, regardless of a delegation clause.”); Mikoff v. Unlimited Dev., Inc., 2024 IL App (4th) 230513, ¶¶ 35, 38 (“Where, as here, a party challenges the formation of an arbitration agreement, it is a question going to the making of the agreement to arbitrate and may be adjudicated by the court.” (internal quotation marks and citation omitted)); Dixon v. Daymar Colls.

2025Parts Antitrust Litig., 951 F.3d 377, 385-86 (6th Cir. 2020) (declining to enforce a delegation provision where the plaintiffs argued they did not form an agreement to arbitrate); K.F.C. v. Snap Inc., 29 F.4th 835, 837 (7th Cir. 2022) (“[T]he arbitrator cannot resolve any issues until the court has ascertained that there is an actual agreement; the breadth of a delegation is irrelevant if the parties did not enter into a contract.”); Neb.

2025Parts Antitrust Litig., 951 F.3d 377, 385-86 (6th Cir. 2020) (declining to enforce a delegation provision where the plaintiffs argued they did not form an agreement to arbitrate); K.F.C. v. Snap Inc., 29 F.4th 835, 837 (7th Cir. 2022) (“[T]he arbitrator cannot resolve any issues until the court has ascertained that there is an actual agreement; the breadth of a delegation is irrelevant if the parties did not enter into a contract.”); Neb.

2022Compare Clay, 2012-NMCA-102, ¶ 12 (holding delegation clause 12 language of “disputes about the validity, enforceability, arbitrability or scope” are 13 subject to arbitration “was clear and unmistakable evidence of the parties’ intent to 14 ‘have an arbitrator decide threshold issues of arbitrability’” (internal quotation marks 15 and citation omitted)), and Felts, 2011-NMCA-062, ¶ 23 (holding delegation clause 16 language of “any and all claims, disputes or controversies arising out of [the 17 a]greement to [a]rbitrate [a]ll [d]isputes including disputes as to the matters subject 18 to arbit

2022See Clay, 2012-NMCA-102, ¶ 13 ; Felts, 2011-NMCA-062, ¶ 30 . 6 We therefore hold that Plaintiff did not specifically challenge the delegation clause. 7 {40} Because the parties clearly and unmistakably delegated questions of 8 arbitrability to the arbitrator, and Plaintiff did not specifically challenge the 9 delegation clause, the proper forum for Plaintiff to bring her claims and raise 10 defenses to the DRP is arbitration and not the district court.

2022“The 4 general rule is that the arbitrability of a particular dispute is a threshold issue to be 5 decided by the district court unless there is clear and unmistakable evidence that the 6 parties decided otherwise under the terms of their arbitration agreement.” Hunt, 7 2021-NMCA-043, ¶ 13 (internal quotation marks and citation omitted); see Rent-A- 8 Center, W., Inc. v. Jackson, 561 U.S. 63 , 68-69 (2010) (“We have recognized that 9 parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether 10 the parties have agreed to arbitrate or whether their agreement covers a

2022“The general rule is that the arbitrability of a particular dispute is a threshold issue to be decided by the district court unless there is clear and unmistakable evidence that the parties decided otherwise under the terms of their arbitration agreement.” Hunt, 2021-NMCA- 043, ¶ 13 (internal quotation marks and citation omitted); see Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63 , 68-69 (2010) (“We have recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular con

2017See State v. Johnson, 1988-NMCA- 7 029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the 8 summary calendar, an issue is deemed abandoned where a party fails to respond to the 9 proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 10 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary 11 calendar cases, the burden is on the party opposing the proposed disposition to clearly 12 point out errors in fact or law.”). 13 {4} With respect to Hooten’s first issue—that pursuant to the delegation clause, the 14 arbitrato

2017See State v. Johnson, 1988-NMCA- 7 029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the 8 summary calendar, an issue is deemed abandoned where a party fails to respond to the 9 proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 10 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary 11 calendar cases, the burden is on the party opposing the proposed disposition to clearly 12 point out errors in fact or law.”). 13 {4} With respect to Hooten’s first issue—that pursuant to the delegation clause, the 14 arbitrato

2017See State v. Johnson, 1988-NMCA- 7 029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the 8 summary calendar, an issue is deemed abandoned where a party fails to respond to the 9 proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 10 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary 11 calendar cases, the burden is on the party opposing the proposed disposition to clearly 12 point out errors in fact or law.”). 13 {4} With respect to Hooten’s first issue—that pursuant to the delegation clause, the 14 arbitrato

2017See State v. Johnson, 1988-NMCA- 7 029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the 8 summary calendar, an issue is deemed abandoned where a party fails to respond to the 9 proposed disposition of the issue); cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 10 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary 11 calendar cases, the burden is on the party opposing the proposed disposition to clearly 12 point out errors in fact or law.”). 13 {4} With respect to Hooten’s first issue—that pursuant to the delegation clause, the 14 arbitrato

2025Sheriff’s Dep’t, 2010-NMCA-021, ¶ 15 , 147 N.M. 720 , 228 P.3d 504 ; see also Corona v. Corona, 2014-NMCA-071, ¶ 26 , 329 P.3d 701 (declining to review a contention that a finding was in error because the party contesting the finding did not direct this Court to contrary evidence). {15} We now turn to Defendant’s argument regarding waiver of the delegation clause.

2024Both the federal district court for New Mexico and this Court, however, have decided against different plaintiffs on virtually identical language and facts as presented here. {14} In Evangelical Lutheran Good Samaritan Society v. Moreno, 277 F. Supp. 3d 1191, 1198 (D.N.M. 2017), the court noted that the delegation clause, similar to that at bar, gave the arbitrator the “exclusive authority to resolve any disputes related to the existence and/or enforceability of” the arbitration agreement.

2024Recognizing the authority of Rent-A-Center, the court found that the party challenging the delegation clause must do so specifically otherwise the court “‘must treat the delegation clause as valid and enforce it.’” Moreno, 277 F. Supp. 3d at 1212 (quoting Rent-A-Center, 561 U.S. at 70 ) (alteration omitted).