Banks v. Mitsubishi Motor , 435 F.3d 538 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 26, 2006
December 9, 2005
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 04-61031
KATRINA BANKS, ET AL.
Plaintiffs,
KATRINA BANKS, ET AL.
Plaintiffs-Appellees,
versus
MITSUBISHI MOTORS CREDIT OF AMERICA, ET AL,
Defendants,
MITSUBISHI MOTORS CREDIT OF AMERICA, ET AL,
Defendants-Appellants.
Appeals from the United States District Court for
the Southern District of Mississippi
_________________________________________________________
Before REAVLEY, DAVIS and WIENER, Circuit Judges.
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PER CURIAM:
Reviewing the district court’s denial of Mitsubishi Motors Credit of America,
Inc. and Triad Financial Corporation’s (collectively “Appellants”) motions to
compel arbitration de novo, we reverse and remand for the following reasons:
1. The district court held that Appellants did not provide signed
arbitration agreements, and therefore, failed to show that there existed a
valid agreement to arbitrate between the parties. Appellants admit that they
did not produce a copy of the signed arbitration agreements, but argue that
they proffered the affidavit of John M. Thames, Jr., President of Thames
Autoplex (hereinafter “Thames affidavit”) establishing that: (1) Appellees
purchased cars from Thames Autoplex; (2) the signed arbitration agreements
could not be located; (3) “Thames requires that every customer purchasing or
attempting to purchase a vehicle from Thames execute an Arbitration
Agreement” and that “[Appellees] could not have purchased the vehicles
from Thames without having signed such an Arbitration Agreement”; and (4)
Thames’ standard arbitration agreement applies to “all claims, demands,
disputes or controversies of every kind or nature ... arising from, concerning
or relating to any of the negotiations involved in the sale, lease or financing of
the vehicle.” Because Appellees failed to provide any evidence in response
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to the Thames affidavit, it “was unimpeached and uncontradicted and its
credibility was in no manner brought into question.” United States v.
Johnson, 208 F.2d 729, 730 (5th Cir. 1953).
2. Based on the Thames affidavit, Appellants contend that they proved
by a preponderance of the evidence that the parties agreed to arbitrate this
dispute. We agree.
Arbitration must proceed by agreement: “[A]rbitration is a matter of
contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.” May v. Higbee Co., 372 F.3d 757,
763 (5th Cir. 2004) (quoting AT&T Techs., Inc. v. Communications Workers
of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L.Ed.2d 648 (1986)).
Therefore, when considering a motion to compel arbitration, the court must
initially “determine whether the parties agreed to arbitrate the dispute in
question.” Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996).
“This determination involves two considerations: (1) whether there is a valid
agreement to arbitrate between the parties; and (2) whether the dispute in
question falls within the scope of that arbitration agreement.” Id.Where the issue is whether the parties have a valid and enforceable
agreement to arbitrate, courts apply the contract law of the state governing the
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agreement. Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 264 (5th
Cir. 2004). Mississippi contract law applies here.*
Under Mississippi law, “where there is no writing to evidence the
contract or the writing itself has been destroyed or lost, the parties may use
‘parol evidence’ or outside evidence to prove that a valid contract existed and
what the terms of that contract were meant to be.” Murphree v. W.W.
Transp., 797 So.2d 268, 273 (Miss. App. 2001) (citing Williams v. Evans,
547 So.2d 54, 57 (Miss. 1989)). Accordingly, the loss or destruction of an
instrument will not prevent its enforcement. See Bolden v. Gatewood, 164
So.2d 721, 731 (Miss. 1964) (“It is also well settled that parol evidence is
admissible to show the making of a contract which has been lost or
destroyed.”). However, “a party must undertake a twofold burden in order
to recover on a document that he cannot produce. Such a party must
demonstrate both (a) the former existence and the present unavailability of the
missing document, and (b) the contents of the missing document.” Williams,
547 So.2d at 57 (quoting Connecticut Bank and Trust Co. v. Wilcox, 201
*
Neither party disputes that Mississippi law applies. Appellees are citizens
of Mississippi. In addition, the subject transactions were entered into in
Mississippi. Mississippi follows the “center of gravity” approach to choice-of-law
issues. See Boardman v. United Servs. Auto Ass’n, 470 So.2d 1024, 1031 (Miss.
1985).
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Conn. 570, 518 A.2d 928, 930 (1986)).
We hold that the uncontradicted Thames affidavit shows by a
preponderance of the evidence: (1) the existence of an agreement to arbitrate
between the parties, albeit through circumstantial evidence that Appellees
purchased a car from Thames, every car purchaser is made to sign an
arbitration agreement, and that Appellees could not have purchased a car
without executing an arbitration agreement; (2) the present unavailability of
the arbitration agreement; and (3) the contents of the missing arbitration
agreement. Accordingly, we conclude that there was a valid agreement to
arbitrate between the parties.
3. The district court determined that the other Plaintiffs’ claims in
this case, for which Appellants were able to produce signed copies of the
arbitration agreements, fell within the scope of the arbitration agreement.
Because Appellees asserted the same claims as the other Plaintiffs, their
arbitration agreements are identical, and Appellees do not contend that their
claims fall outside the scope of the arbitration agreement, we conclude that
Appellees’ claims fall within the scope of the arbitration agreement.
REVERSED AND REMANDED.
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