William A. Anderson v. American GeneralInsurance , 688 F. App'x 667 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15909
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00278-LGW-GRS
WILLIAM A. ANDERSON,
Plaintiff-Appellant,
versus
AMERICAN GENERAL INSURANCE,
d.b.a. AIG Life and Retirement C/O,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 11, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
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William Anderson began working for AIG Life and Retirement in 2003. At
that time he signed an employment agreement, which contained a provision stating
that AIG’s dispute resolution program governed disputes involving employment
related legal claims. AIG revised that employment agreement in 2008, and
Anderson and an AIG general manager signed the revised agreement. That revised
agreement incorporated documents, which Anderson acknowledged receiving,
setting out AIG’s dispute resolution program. That dispute resolution program
included an agreement to arbitrate certain employment related claims.
In 2014 Anderson sued AIG for discriminating and retaliating against him in
violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act, and the Americans
with Disabilities Act. AIG filed a motion to compel arbitration and dismiss, or
alternatively stay, the proceedings. The district court granted that motion and
dismissed the lawsuit without prejudice. Anderson now appeals.
We review de novo a district court’s grant of a motion to compel arbitration
and dismiss. Dale v. Comcast Corp., 498 F.3d 1216, 1219 (11th Cir. 2007). Under
the Federal Arbitration Act, “arbitration agreements are valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation
of the contract.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th
Cir. 2005) (quotation marks omitted). And under the Act a court must “either stay
or dismiss a lawsuit and . . . compel arbitration upon a showing that (a) the plaintiff
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entered into a written arbitration agreement that is enforceable under ordinary
state-law contract principles and (b) the claims before the court must fall within the
scope of that agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir.
2008) (quotation marks omitted). Anderson contends that the arbitration
agreement is not enforceable under Georgia contract law — which governs the
agreement — because it lacks valid consideration. See id. (“Under Georgia law, a
contract is enforceable if there is (a) a definite offer and (b) complete acceptance
(c) for consideration.”).
Specifically, Anderson contends that the agreement to arbitrate lacks
consideration because AIG’s promise to be bound to the dispute resolution plan
was illusory. “To satisfy the consideration requirement under Georgia law, an
accepting party to a contract can either tender bargained-for performance or make a
mutual promise.” Id. While mutual promises, such as a mutual promise to
arbitrate, is sufficient consideration, “where a party offers an illusory promise, a
court will find inadequate consideration and deem the contract unenforceable.” Id.
at 1196. And “[a]n illusory promise exists when ‘words of promise . . . by their
terms make performance entirely optional with the “promisor” whatever may
happen, or whatever course of conduct in other respects he may pursue.’” Id.(quoting Kemira, Inc. v. Williams Investigative & Sec. Servs., Inc., 450 S.E.2d
427, 431 (Ga. Ct. App. 1994)) (alteration in original).
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The 2008 revised employment agreement states that, as consideration for
agreeing to follow the dispute resolution program, “[b]oth the Company and the
Sales Employee are agreeing to resolve all disputes covered by the Employment
Dispute Resolution Program through the Employment Dispute Resolution Program
and, therefore, to waive their right to a trial in a judicial forum before a jury . . . .”
In other words the consideration came in the form of mutual promises to be bound
by the dispute resolution program.
While the briefing is unclear, Anderson appears to first argue that the
agreement to arbitrate is illusory because AIG failed to honor its obligations under
the open door provision of the dispute resolution program. That argument fails
however, because to the extent AIG breached an agreement to follow its open door
policy, breaching the contract does not render the arbitration agreement illusory
under Georgia law. “It has long been the rule in Georgia that the test of mutuality
is to be applied at the time the contract is to be enforced. If at that time the
contract contains mutual obligations equally binding on both parties to the
contract, then the contract is not unilateral and unenforceable.” Jones v. Quigley,
315 S.E.2d 59, 60 (Ga. Ct. App. 1984) (citations omitted). AIG’s alleged failure to
honor the open door policy did not render the agreement to arbitrate illusory.
Anderson alternatively contends that AIG’s promise to arbitrate is illusory
because the dispute resolution program allows AIG to choose whether to arbitrate
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claims instead of requiring it to arbitrate. He bases that contention on the
arbitration provision in the dispute resolution program, which states that “[i]f your
dispute involves a legally protected right that was not resolved [by internal dispute
resolution methods], then you or the AIG company may request . . . Arbitration.”
Anderson focuses on the word “may” as indicating that AIG is not required under
the agreement to arbitrate claims, which means that AIG’s mutual promise to be
bound to arbitration is illusory.
Anderson failed, however, to contend that in the district court. While in the
district court Anderson asserted other reasons why the agreement was illusory, he
did not raise this contention and, as a result, we will not consider it. See OPIS
Mgmt. Res., LLC v. Sec’y, Fla. Agency for Health Care Admin., 713 F.3d 1291,
1297 n.7 (11th Cir. 2013) (reviewing the district court’s grant of summary
judgment and declining to consider an argument not made in the district court
because the party’s reliance on a certain regulation in the district court did not
allow that party to make a different argument based on that same regulation on
appeal). 1
Anderson alternatively contends that the district court erred by dismissing
the action instead of staying the proceedings pending arbitration of his claims.
1
Anderson also contends that the agreement to arbitrate is unconscionable, indefinite,
and ambiguous. He failed to raise those arguments in the district court, and as a result, he
waived them. See OPIS Mgmt. Res., LLC, 713 F.3d at 1297 n.7.
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Specifically, he contends that the Federal Arbitration Act’s plain language requires
that a district court stay the proceedings pending arbitration, instead of dismissing
the action, when a party requests a stay. Anderson failed, however, to preserve
that argument in the district court. “It is well established in this circuit that, absent
extraordinary circumstances, legal theories and arguments not raised squarely
before the district court cannot be broached for the first time on appeal.” Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
While Anderson, in his brief in opposition to AIG’s motion to compel
arbitration, requested that the district court stay the proceedings if it found that his
claims were subject to arbitration, he did not argue that the district court was
required under the Federal Arbitration Act to stay the proceedings. As a result, he
failed to preserve the issue he raises now: that under the Federal Arbitration Act
the district court must stay the proceedings and cannot dismiss the action.
AFFIRMED.
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