Green Tree Servicing, L.L.C. v. Henry House , 890 F.3d 493 ( 2018 )

Case: 17-60164 Document: 00514471076 Page: 1 Date Filed: 05/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2018
No. 17-60164
Lyle W. Cayce
Clerk
GREEN TREE SERVICING, L.L.C.; WALTER INVESTMENT
MANAGEMENT CORPORATION; BEST INSURORS, INCORPORATED;
MID STATE CAPITAL, L.L.C.; MID STATE TRUST II; MID STATE TRUST
III; MID STATE TRUST IV; MID STATE TRUST V; MID STATE TRUST VI;
MID STATE TRUST VII; MID STATE TRUST VIII; MID STATE TRUST IX;
MID STATE TRUST X; MID STATE TRUST XI; WILMINGTON TRUST
COMPANY; MID-STATE CAPITAL CORPORATION 2004-1 TRUST; MID-
STATE CAPITAL CORPORATION 2005-1 TRUST; MID-STATE CAPITAL
CORPORATION 2006-1 TRUST; MID-STATE CAPITAL TRUST 2010-1,
Plaintiffs–Appellees,
v.
HENRY HOUSE; LINDA MURRELL,
Defendants–Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Henry House, Linda Murrell (the House Parties), and other plaintiffs
sued Green Tree Servicing and various other entities (the Green Tree Parties)
in a related action. 1 The Green Tree Parties initiated the present suit in
1 Green Tree Servicing, L.L.C. v. Billy Brown, No. 17-60105.
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federal district court seeking to compel arbitration of claims asserted by the
House Parties. The district court granted the motion to compel, holding that
(1) all of the Green Tree Parties had standing to compel arbitration even
though some were not signatories to the arbitration agreement; and (2) the
parties had agreed to delegate questions regarding arbitrability to the
arbitrator. We affirm.
I
Henry House purchased a house and surrounding real property from Jim
Walter Homes, Inc. and Mid-State Trust IV in 1998. To obtain financing from
the sellers, House pledged the real property as collateral. The parties
memorialized the transaction by executing a sales contract, promissory note,
and deed of trust. The sales contract expressly incorporated four exhibits,
including an Arbitration Agreement. The Arbitration Agreement provided:
The parties agree that, at the election of either party, any
controversy or claim arising out of or relating to this contract, or
the breach thereof, whether asserted as in tort or contract, or as a
federal or state statutory claim, arising before, during or after
performance of this contract, shall be settled by binding
arbitration in accordance with the Comprehensive Arbitration
Rules and Procedures administered by J●A●M●S/Endispute, and
judgment upon the award rendered by the arbitrator may be
entered in any Court having jurisdiction thereof. The parties agree
and understand that they choose arbitration instead of litigation
to resolve disputes.
In 2016, the House Parties and other plaintiffs commenced a lawsuit—
Green Tree Servicing, L.L.C. v. Billy Brown—in Mississippi state court
(Brown). The suit alleged that Jim Walter Homes and some of the Green Tree
Parties induced House to sign the sales contract by promising to construct a
house in accordance with manufacturer specifications, house plans, and
building codes, but that those defendants actually delivered a dwelling that
was “substandard, incomplete, defective, and dangerous.” Based on these
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allegations, House and the other plaintiffs brought claims that included civil
conspiracy, breach of contract, negligence, false statements/fraud, and deceit.
The complaint in Brown alleged that Jim Walter Homes “sold, assigned,
or conveyed” the sales contract and related documents “to Walter Mortgage
Company, LLC, then to Walter Investment Management Corp. or one of the
Mid State Trust Entities, and ultimately to Wilmington Trust Co., Green Tree
[Servicing], and their predecessors, who in turn attempted to sell, assign, or
convey said instruments” to the other defendants. This “lending engine,” the
Brown complaint alleged, facilitated the “home built on your lot” scheme in
which the Green Tree Parties and Jim Walter Homes acted as conspirators and
joint venturers to originate, pool, and securitize mortgages like House’s.
According to the complaint, “[w]ithout a willingness of [these parties] to
purchase such ill-gotten paper, there would be no market or incentive to
perpetuate this wrongful scheme.” The complaint in Brown asserted that each
of the Green Tree Parties “aided and abetted each other in each and every
act . . . that is the subject of this action” and that each was “liable jointly and
severally for the unlawful, deceptive, deceitful and misleading acts and/or
omissions of each and every one” of its co-parties. The Green Tree Parties
removed Brown to federal district court.
While the Brown case was pending, the Green Tree Parties filed the
present suit and sought to compel arbitration of the House Parties’ claims
against the Green Tree Parties. The district court granted the motion to
compel arbitration, ruling that even though Green Tree Servicing (Green Tree)
and the Walter Investment Management Corporation (WIMC) were not
signatories to the arbitration agreement, they had standing to enforce it under
Mississippi law’s intertwined claims test. The court held that, by incorporating
the JAMS rules, the parties agreed to delegate questions as to arbitrability to
the arbitrator. The district court referenced the version of the JAMS
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Comprehensive Arbitration Rules and Procedures, effective as of 2014, which
provide:
Jurisdictional and arbitrability disputes, including disputes over
the formation, existence, validity, interpretation or scope of the
agreement under which Arbitration is sought, and who are proper
Parties to the Arbitration, shall be submitted to and ruled on by
the Arbitrator. The Arbitrator has the authority to determine
jurisdiction and arbitrability issues as a preliminary matter. 2
Based on this clause, the district court also held that the House Parties’ claims
that the sales contract was procedurally and substantively unconscionable
must be decided by the arbitrator. The district court remanded the Brown case
to state court due to lack of diversity jurisdiction.
On appeal, the House Parties contend that (1) under Mississippi law, the
intertwined claims test does not apply to Green Tree and WIMC, which did not
exist at the time the arbitration agreement was signed; (2) they did not assent
to delegate arbitrability and that, in any event, the district court relied on the
wrong version of the JAMS rules; and (3) the district court failed to address
claims in their pleadings regarding fraud in the inducement.
II
We first address our jurisdiction. There are three issues: (1) did the
district court’s “Final Judgment” administratively close the case, (2) in light of
this court’s precedent, 3 how does the fact that the district court had another
case pending before it that involved many of the parties in the present case
and similar issues affect the finality of the “Final Judgment” compelling
arbitration, and (3) was the notice of appeal premature, and if so, was it
nevertheless effective.
2 Rule 11(b), JAMS Comprehensive Arbitration Rules & Procedures (2014).
3 See Green Tree Servicing, L.L.C. v. Charles, 872 F.3d 637 (5th Cir. 2017);
CitiFinancial Corp. v. Harrison, 453 F.3d 245 (5th Cir. 2006).
4
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This court has jurisdiction over “a final decision with respect to an
arbitration that is subject to this title.” 4 A decision is final if it “ends the
litigation on the merits and leaves nothing more for the court to do but execute
the judgment.” 5 An order compelling arbitration is typically appealable
because “once the court compel[s] arbitration, there [is] nothing more for it to
do but execute the judgment.” 6 However, when a district court stays or
administratively closes a case pending arbitration, the order is not appealable
because the “substantive claims have not been dismissed by any district
court.” 7
The district court entered upon the record a document captioned “Final
Judgment,” which provides in its entirety:
In accordance with the Opinion and Order of the Court by which
Plaintiffs’ Motion to Compel Arbitration was granted, this case is
hereby dismissed with prejudice. Any party may move to re-open
this case if further judicial intervention is necessary to enforce the
rulings of this Court, or to enforce the rulings of the arbitrators.
SO ORDERED this the 6th day of February, 2017.
The Green Tree Parties argue that because the district court permitted any
party to move to re-open the case, the judgment was not final for purposes of
appeal.
The district court labeled its decision “Final Judgment” and dismissed
the case with prejudice. Although the order recited that either party may move
to re-open the case after or during arbitration, this is simply a recognition of
rights that the parties may have upon the conclusion of arbitration. As the
Supreme Court has recognized, “[t]he FAA does permit parties to arbitration
agreements to bring a separate proceeding in a district court to enter judgment
4 9 U.S.C. § 16(a)(3).
5 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000) (citations omitted).
6 Harrison, 453 F.3d at 249 (citations omitted).
7 Id. at 251.
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on an arbitration award once it is made (or to vacate or modify it), but the
existence of that remedy does not vitiate the finality of the District Court's
resolution of the claims in the instant proceeding.” 8 The federal district court’s
order in the present case does nothing more than state the law, and its
recognition that post-arbitration proceedings may be initiated is not
tantamount to a statement that the court retains jurisdiction of the suit or that
it has only administratively closed the case. Our court concluded in Green Tree
Servicing, L.L.C. v. Charles that an order virtually identical to the “Final
Judgment” in the present case would be a final, appealable order if the court
were only examining that order. 9 Accordingly, the statement in the “Final
Judgment” that the parties may return to federal court during or after the
arbitration does not affect the finality of the order compelling arbitration.
An unpublished order in Green Tree Servicing, L.L.C. v. Keyes does not
purport to reach a contrary conclusion. 10 It considered a district court’s order
granting arbitration that also stated that the parties could return to district
court during or after arbitration. 11 This court’s order in Keyes concluded that
appellate jurisdiction was lacking. 12 However, our order reflects that the
quorum was under the impression that the district court, after ordering
arbitration, had “stayed the remainder of the case, and directed the clerk to
administratively close the case.” 13 The order held that the judgment was not
final because “[b]y entering a stay and allowing for reactivation of the case, the
8 Randolph, 531 U.S. at 86.
9 872 F.3d 637, 639 (5th Cir. 2017); id. at 638 (reflecting that the district court granted
the motion to compel arbitration and that the order also “stated that ‘each party may move
to re-open this case if further judicial intervention is necessary to enforce the rulings of this
Court, or to enforce the rulings of the arbitrators’”).
10 No. 17-60107 (5th Cir. May 31, 2017) (quorum opinion).
11 Id.12 Id.13 Id.; see also id. (“[I]n addition to compelling arbitration, the district court stayed the
rest of the case and ordered it administratively closed.”).
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district court demonstrated that it was postponing, not terminating, the
proceedings.” 14 Regardless of how the district court’s order in Keyes is properly
interpreted, the district court in this case did not stay or administratively close
the Green Tree Parties’ case.
Other issues regarding our jurisdiction remain, however. We must
consider other aspects of this court’s decision in Charles. 15 In Charles, as in
the present case, another case “involving the same parties and essentially the
same dispute” remained pending before the same federal district court when
the order compelling arbitration was entered. 16 But unlike the present case,
the district court in Charles had stayed further proceedings in the related case,
and the related case remained pending in the federal district court when we
considered the appeal of the order compelling arbitration. 17 We held in Charles
that the order compelling arbitration was not a final, appealable order and that
we therefore lacked jurisdiction. 18 We cited and followed CitiFinancial Corp.
v. Harrison, in which our court held that when two proceedings with common
parties and issues were pending in the same United States District Court,
although before two different federal district court judges, and the two judges
had respected one another’s orders regarding arbitration and a stay, we were
obliged to look at the orders from both courts to resolve whether a final,
appealable order had been entered. 19 We concluded in Harrison that there was
no final order. 20 This court reasoned, “[f]unctionally, this case sits in a posture
no different than had both orders been issued by a single district court judge.” 21
14 Id.15 Green Tree Servicing, L.L.C. v. Charles, 872 F.3d 637 (5th Cir. 2017).
16 Id. at 638-39.
17 Id.18 Id. at 639-40.
19 453 F.3d 245, 249-52 (5th Cir. 2006).
20 Id. at 251.
21 Id.7
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Because, in one of the courts, the matter had been “administratively
dismissed,” which we deemed to be the same as “administratively close[d]”
pending arbitration, and the substantive claims of the plaintiffs had not been
dismissed, there was no final judgment. 22
The Brown suit, involving some of the same parties and arbitration issue
as the present case, remained pending before Judge Barbour when the “Final
Judgment” at issue here was entered. Judge Barbour had stayed further
proceedings in the Brown suit. Although the Brown suit was a separate action
that had not been consolidated with the present suit, our decisions in Charles
and Harrison compel the conclusion that the “Final Judgment” was not a final,
appealable order when it was entered. However, Judge Barbour subsequently
remanded the Brown case to state court.
The remand of the Brown suit places this case in a materially different
procedural posture than Charles and Harrison. The remand of the Brown suit
left nothing pending before Judge Barbour in either Brown or the present case,
so the “Final Judgment” became final and appealable. 23 The remand to state
court disposed of all remaining issues and parties in the two related actions.
The federal district court had ordered arbitration, “the federal action did not
contain any substantive claims,” and “there was nothing more for it to do.” 24
The fact that Judge Barbour also stayed the state-court litigation
pending arbitration when he remanded the Brown case to state court does not
render the “Final Judgment” non-appealable. The stay of the state-court action
was to protect the effectiveness of the federal district court’s judgment
22Id. at 251-52.
23See American Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 705 (5th Cir. 2002) (“[A]s
a matter of law, the district court order compelling arbitration, which also stays the
underlying state court proceedings and closes the case in federal court, is an immediately
appealable, final decision under the ambit of 9 U.S.C. § 16(a)(3) of the FAA.”).
24 Harrison, 453 F.3d at 249 (citations omitted).
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compelling arbitration. 25 A stay by a federal district court of parallel
state-court proceedings pending arbitration does not render the federal court’s
order compelling arbitration non-final or non-appealable. 26 In the present
case, when the remand occurred, nothing remained pending in the federal
district court, and the “Final Judgment” became final.
The third jurisdictional issue is whether the notice of appeal in this case
is effective. The House Parties filed a notice of appeal on March 8, 2017, after
entry of the “Final Judgment,” which occurred on February 6, 2017. The “Final
Judgment” did not become a final, appealable order until the federal district
court remanded the Brown suit on March 15, 2017. Accordingly, the notice of
appeal was prematurely filed. We must determine whether that notice is
effective, and we conclude that it was.
Our court confronted a similar situation in Boudreaux v. Swift
Transportation Co., Inc. 27 The district court granted one party’s motion for
summary judgment, but another party’s summary judgment motion remained
pending when the notice of appeal was filed. 28 The district court granted the
pending motion one day after the notice of appeal was filed. 29 We discussed
the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage
Ins. Co., 30 and held that the prematurely filed notice of appeal was effective
because the order from which the appeal was taken “would have been
25 See generally Aptim Corp. v. McCall, 888 F.3d 129 (5th Cir. 2018).
26 See American Heritage Life Ins. Co., 294 F.3d at 708 (“We hold that where a district
court with nothing before it but whether to compel arbitration and stay state court
proceedings issues an order compelling arbitration, staying the underlying state court
proceedings, and closing the case, thereby effectively ending the entire matter on its merits
and leaving nothing more for the district court to do but execute the judgment, appellate
jurisdiction lies, as the decision is ‘final’ within the contemplation of § 16(a)(3) of the FAA.”).
27 402 F.3d 536 (5th Cir. 2005).
28 Id. at 539 and n.1.
29 Id.30 498 U.S. 269 (1991).
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appealable if immediately followed by the entry of judgment pursuant to
Federal Rule of Civil Procedure 54(b).” 31 The district court’s February 6 “Final
Judgment” would have been appealable had it been followed immediately by
certification under FRCP 54(b).
An opinion of the District of Columbia Circuit Court of Appeals, authored
by then-Judge John Roberts, also analyzes when a prematurely filed notice of
appeal is effective, 32 and we commend that opinion to those who wish to plumb
the issue more deeply. It similarly concluded that because the district court’s
order would have been appealable had the court issued a certification under
F.R.C.P 54(b), the order was appealable. 33
In the present case, we conclude that the premature notice of appeal was
effective. 34
III
The House Parties contend that Green Tree and WIMC cannot enforce
the arbitration agreement because the latter corporate entities are not
signatories, and do not come within Mississippi’s intertwined claims test
because they did not exist at the time the sales agreement was signed.
Mississippi law establishes that, as a general rule, a party may not enforce an
arbitration provision to which it is not a signatory. 35 One exception to this rule
is the intertwined claims test. 36 It permits a non-signatory to compel
31 Boudreaux, 402 F.3d at 539 n.1 (quoting Barrett v. Atl. Richfield Co., 95 F.3d 375,
379 (5th Cir. 1996)).
32 Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 161 (D.C. Cir.
2005); see also United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998).
33 Outlaw, 412 F.3d at 161-63.
34 See Boudreaux, 402 F.3d at 539 (quoting Barrett, 95 F.3d at 379); see also Swope v.
Columbian Chems. Co., 281 F.3d 185, 192 (5th Cir. 2002); In re Seiscom Delta, Inc., 857 F.2d
279, 283 (5th Cir. 1988); Outlaw, 412 F.3d at 161.
35 Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So. 3d 1026, 1038 (Miss. 2010) (citing
Qualcomm, Inc. v. American Wireless License Grp., LLC, 980 So. 2d 261, 269 (Miss. 2007)).
36 Id.10
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arbitration when a litigant makes “allegations of substantially interdependent
and concerted misconduct” between a non-signatory and a signatory that have
a close legal relationship. 37 For example, in Sawyers, the Supreme Court of
Mississippi applied the intertwined claims test to a car-buyer’s claims against
a car dealership and the underwriter of a GAP insurance policy sold by the
dealership. 38 Even though the underwriter was not a party to the arbitration
agreement between the dealer and the buyer, the court allowed it to compel
arbitration. 39 The dealer and underwriter had a close legal relationship, the
court held, because the underwriter acted on the dealer’s behalf by
administering the insurance policy and supervising payment of the claim. 40
Because the buyer based its claims against the underwriter on its contract with
the dealership, she “[could not] deny [the underwriter] the benefit of the
arbitration agreement which was an integral part of the transaction at issue.” 41
The House Parties’ allegations support application of the intertwined
claims test to permit Green Tree and WIMC to compel arbitration as non-
signatories. First, based on the allegations in the complaint, both entities had
a close legal relationship with a signatory to the arbitration agreement. The
House Parties allege that Green Tree, the current servicing agent of the
mortgage, or its predecessor, financed the home at a high interest rate and
worked with Jim Walter Homes as the “‘business end’ of a lending engine”
scheme that also involved WIMC and the other Green Tree Parties. These
allegations support the conclusion that Green Tree has a close relationship
37 Id. (quoting B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483, 491-92 (Miss.
2005)).
38 Id. at 1028-30.
39 Id. at 1038-39.
40 Id. at 1038.
41 Id. at 1039.
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with a signatory because it serviced the mortgage created in the initial
transaction between House and Jim Walter Homes.
With respect to WIMC, Green Tree’s parent company, the House Parties
allege that “without the assistance and cooperation of [WIMC] . . . th[e]
fraudulent scheme could not have been possible.” The complaint also alleges
that “Jim Walter Homes . . . transformed itself into publicly traded, billion
dollar entities such as Walter Energy, Inc. and [WIMC].” The complaint
alleges that both Green Tree and WIMC were joint venturers and
co-conspirators with Jim Walter Homes, the entity that signed the sales
contract and other documents. It further alleges that Jim Walter Homes “sold,
assigned, or conveyed the contracts, promissory notes, and deeds of trust made
the subject of this civil action generally to Walter Mortgage Company, LLC,
[now Green Tree] then to WIMC” or other entities. As an alleged
assignee/conveyee, co-conspirator, and joint venturer that was integral to
perpetuating the harms described in the complaint, WIMC has a close legal
relationship with Jim Walter Homes, a signatory.
The complaint alleges that Green Tree and WIMC engaged in
“substantially interdependent and concerted misconduct” with Jim Walter
Homes. Not only does the complaint assert that Green Tree and WIMC acted
as co-conspirators and joint venturers in a scheme to originate and securitize
sub-prime loans, it also claims that these entities aided and abetted and are
“liable jointly and severally for the unlawful, deceptive, deceitful and
misleading acts and/or omissions of each and everyone one” of the other named
defendants. Accordingly, Green Tree and WIMC have standing to enforce the
arbitration agreement.
The House Parties contend that because Green Tree and WIMC did not
exist at the time the sales contract was executed, they are ineligible for the
intertwined claims test. The intertwined claims test is not a doctrine of
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imputed assent, such that any non-signatory must have existed when the
agreement was signed so that House could have anticipated that the entity
could later compel arbitration. Rather, the test governs the application of the
doctrine of equitable estoppel. 42 Mississippi courts apply the intertwined
claims test to estop parties from making claims against non-signatories based
on a contract, then seeking to avoid an arbitration provision that “was an
integral part of the transaction at issue.” 43 In this case, the House Parties
allege that Green Tree and WIMC have a close legal relationship with Jim
Walter Homes, a signatory to the sales contract, and the House Parties invoked
that contract to allege that Green Tree and WIMC engaged in substantially
interdependent misconduct with Jim Walter Homes. That Green Tree and
WIMC were formed after the sales contract was signed is irrelevant.
IV
The House Parties also challenge the district court’s determination that
the parties agreed to delegate the “gateway” question of arbitrability to the
arbitrator. Like the broader question of whether a dispute is subject to
arbitration, “the question ‘who has the primary power to decide arbitrability’
turns upon what the parties agreed about that matter.” 44 A determination that
the parties agreed to arbitrate arbitrability must be supported by evidence
showing that the parties “clearly and unmistakably” intended to do so. 45 In
such cases, so long as “the assertion of arbitrability” is not “wholly
42 Id. at 1038-39.
43 Id.; see B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483, 491 (Miss. 2005).
44 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th
Cir. 2012) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (internal
citations omitted)); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249,
262 (5th Cir. 2014).
45 Petrofac, 687 F.3d at 675 (quoting AT&T Techs., Inc. v. Commc’ns Workers of
Am., 475 U.S. 643, 649 (1986)).
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groundless,” 46 meaning that there is a “plausible argument[] that the dispute
was covered by the [arbitration] agreement,” the question of arbitration is to
be resolved in arbitration. 47 In Petrofac, this court held that by incorporating
the American Arbitration Association Rules—which state that arbitrators
have power to rule on questions of arbitrability—into their arbitration
agreement, the parties had clearly and unmistakably agreed to arbitrate
arbitrability. 48 A number of our sister circuits share this view. 49
The House Parties contend that, as unsophisticated parties, they could
not have assented to delegate arbitrability simply by agreeing to be bound by
the JAMS arbitration rules. The House Parties did not raise this argument
before the district court despite extensive argument from the Green Tree
Parties that the JAMS rules gave the arbitrator power to determine
arbitrability. Instead, the House Parties argued that because the arbitration
agreement was unconscionable and invalid since it had not been properly
executed, the delegation provision was invalid by extension. The House
Parties do not renew these arguments on appeal, relying only on their new
arguments that they could not have assented to delegation by the incorporation
of a set of arbitration rules. This court generally does not consider arguments
raised for the first time on appeal unless the party shows “extraordinary
circumstances”—that “the issue . . . is a pure question of law and a miscarriage
46 Douglas v. Regions Bank, 757 F.3d 460, 463 (5th Cir. 2014) (quoting Agere Sys., Inc.
v. Samsung Elecs. Co., 560 F.3d 337 (5th Cir. 2009)); see also Qualcomm Inc. v. Nokia Corp.,
466 F.3d 1366, 1371 (Fed. Cir. 2006).
47 Douglas, 757 F.3d at 463.
48 Petrofac, 68 F.3d at 675.
49 See, e.g., Fallo v. High–Tech Inst., 559 F.3d 874, 878 (8th Cir. 2009); Qualcomm, 466
F.3d at 1372-73; Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1332-33
(11th Cir. 2005); Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208 (2d Cir. 2005); Apollo
Comput., Inc. v. Berg, 886 F.2d 469, 473 (1st Cir. 1989).
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of justice would result from our failure to consider it.” 50 That standard is not
met here. By failing to bring their “assent” theory before the district court, the
House Parties forfeited it for purposes of appeal.
The House Parties also argue that the district court erred by considering
the JAMS rules effective in 2014, rather than the year the arbitration
agreement was signed. The House Parties forfeited this argument as well by
failing to raise it before the district court. Even though the Green Tree Parties
specifically referenced the 2014 version of the JAMS rules in their
memorandum brief in support of their motion to compel arbitration, the House
Parties did not object to that version of the rules in the proceedings below. The
district court did not err in ruling that the parties’ express incorporation of the
JAMS rules provides clear evidence that they agreed that the arbitrator would
decide arbitrability.
V
Finally, the House Parties argue that the district court failed to consider
their allegations that the Green Tree Parties obtained the arbitration
agreement by fraud. Pursuant to 9 U.S.C § 2, arbitration agreements are valid
and enforceable “save upon such grounds as exist at law or in equity for the
revocation of any contract.” 51 Because arbitration agreements are severable
as a matter of federal arbitration law, parties seeking to avoid arbitration
under § 2 must challenge the validity of the arbitration agreement specifically,
rather the contract as a whole. 52 If the party challenges the “precise agreement
to arbitrate at issue, the federal court must consider the challenge” before
50 AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009) (quoting N. Alamo
Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996)).
51 9 U.S.C § 2.
52 Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010) (citing Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-46 (2006)).
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ordering compliance with a delegation provision. 53 Even in cases “where the
alleged fraud that induced the whole contract equally induced the agreement
to arbitrate which was part of that contract,” the Supreme Court “nonetheless
require[s] the . . . challenge to be directed specifically to the agreement to
arbitrate” as a prerequisite to judicial intervention. 54
The House Parties’ fraud allegations are not specific to the arbitration
agreement. In their pleadings, the House Parties argued generally that the
Green Tree Parties “wrongfully obtain[ed] the [House Parties’] signatures on
contracts, promissory notes, deeds of trusts, insurance payment plans, and
completion certificates” and that “[a]ll the signatures of [House] on the
aforementioned documents were generally procured under duress, with deceit,
and/or through coercion, trickery, and/or other wrongful conduct.” These
blanket allegations of fraud fall well short of the specificity that Rent-A-Center
requires. The district court correctly referred the question of fraud to the
arbitrator.
* * *
We AFFIRM the judgment of the district court.
53 Id. at 71.
54 Id.
16