                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit
                           FOR THE TENTH CIRCUIT
                       _________________________________                   February 5, 2019

                                                                          Elisabeth A. Shumaker
 JESSE ROMERO, on behalf of himself and                                       Clerk of Court
 all others similarly situated,

       Plaintiff - Appellee,

 v.                                                          No. 18-2077
                                                 (D.C. No. 1:17-CV-00775-KG-SCY)
 TITLEMAX OF NEW MEXICO, INC.,                                (D. N.M.)

       Defendant - Appellant,

 and

 TMX FINANCE, LLC; TRACY YOUNG,

       Defendants.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
                  _________________________________

       This is an interlocutory appeal from a partial denial of a motion to compel

arbitration. Plaintiff-Appellee Jesse Romero filed a class action complaint in New

Mexico state court against Defendants-Appellants TitleMax of New Mexico, Inc.,

TMX Finance LLC, and Tracy Young (collectively “TitleMax”) that alleged

TitleMax’s title loan business violates New Mexico consumer protection statutes and



       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
common law consumer protection principles. TitleMax then timely removed the case

to federal court based on 28 U.S.C. § 1332(a) or, in the alternative, 28 U.S.C.

§ 1332(d). Subsequently, TitleMax filed a motion with the district court to compel

arbitration pursuant to § 4 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. The

district court determined that some of Romero’s claims were subject to arbitration,

but that others were not, and accordingly granted the motion in part and denied it in

part. Exercising jurisdiction pursuant to 9 U.S.C. § 16(a)(1)(B), we AFFIRM.

                                           I

      TitleMax provides title loans. A title loan is a short-term loan with a high

interest rate where a car serves as collateral. On July 19, 2016, Jesse Romero took

out the first of three title loans from TitleMax. His 2004 Jaguar X-Type served as

collateral. The first loan was for $1,005.00 at an annual interest rate of 156.4484%.

On August 6, 2016, Romero took out a second title loan where the same car served as

collateral. This time the loan was for $2,074.26 at an annual interest rate of

144.0365%. Approximately nine months later, on May 15, 2017, Romero took out a

third title loan on the same car. This time the loan was for $1,940.44 at an annual

interest rate of 144.4116%. Each loan agreement had the same material terms,

headings, clauses, and title (Loan Agreement), and varied only in the dates that they

were signed, the identifying loan numbers, the amount of the loan, and the interest

rate charged. The second loan was used in part to pay off the first, and the third loan

was used to pay off the second loan.



                                           2
      Each loan agreement also contained an identical Waiver of Jury Trial and

Arbitration Provision (“Arbitration Clause”) provided in a question-and-answer table.

The Arbitration Clause provides in part:

             This [Arbitration] Clause covers Disputes that would usually be
      decided in court and are between us (or a Related Party) and you. In this
      [Arbitration] Clause, the word Disputes has the broadest meaning. It
      includes all claims related to your application, this Agreement, the
      Vehicle, the Loan, any Other Loan or your relationship with us. It
      includes claims related to any prior applications or agreements. It
      includes extensions, renewals, refinancings, or payment plans. It includes
      claims related to collections, privacy, and customer information. It
      includes claims related to the validity of this Agreement. But, it does not
      include disputes about the validity, coverage, or scope of this
      [Arbitration] Clause or any part of this [Arbitration] Clause. These
      are for a court and not the [third-party Arbiter] to decide.

App’x at 94, 99, 104. The Arbitration Clause also contains an opt-out provision:

             If you do not want this [Arbitration] Clause to apply, you must tell
      us in writing within 60 calendar days after signing this Agreement. Send
      your signed, written notice to the Notice Address. Give your name,
      address, loan number and loan date. State that you “opt out” of the
      arbitration clause. We do not allow electronic delivery.

Id. at 94, 99, 104. Romero did not opt out of the first or second loan agreements.

However, on May 22, 2017, Romero’s counsel sent compliant written notice to

TitleMax stating that Romero was exercising his opt-out right under the Arbitration

Clause for the third loan agreement.

      Shortly thereafter, on June 20, 2017, Romero filed a class action complaint in

New Mexico state court against TitleMax on behalf of all citizens of New Mexico

who took out a title loan with TitleMax on or after March 11, 2013. TitleMax timely

removed the case to the United States District Court for the District of New Mexico


                                           3
based on diversity of citizenship jurisdiction or, in the alternative, jurisdiction under

the Class Action Fairness Act. In the operative class action complaint Romero

alleges TitleMax’s lending practices are unconscionable trade practices under New

Mexico law. He seeks, among other relief, a rescission of each loan agreement

between TitleMax and each putative class member, restitution for the putative class,

treble damages pursuant to statute, a permanent injunction against TitleMax’s current

loan products, reasonable attorneys’ fees, and costs.

         TitleMax then filed a motion with the district court to, among other things,

compel all of Romero’s claims to arbitration, enforce the arbitration clause as to all

proposed class members who did not opt out of the Arbitration Clause, and stay all

court proceedings. The district court granted the motion in part and denied it in part

for reasons explained in a teleconference between the district court and the parties.

The district court held that Romero did not opt out of the Arbitration Clauses in the

first and second loan agreements, that Romero properly exercised his right to opt out

of the third loan agreement’s Arbitration Clause, and that the three loan agreements

were each individual loan agreements. As a result, the district court held that

Romero could litigate claims arising from the third loan agreement but had to

proceed to arbitration on claims related to the first and second loan agreements. The

district court further declined to compel arbitration for absent class members since no

class had been certified and hence the absent class members were not before the

court.



                                             4
                                                II

       TitleMax asserts that the district court erred when it ruled on the issue of

arbitrability as regards the third loan agreement when the threshold question of

arbitrability should have been determined by an arbitrator. TitleMax also appears to

argue that Romero did not properly opt out of arbitration under the third loan

agreement. We review a denial of a motion to compel arbitration de novo. Spahr v.

Secco, 330 F.3d 1266, 1269 (10th Cir. 2003).

       A party aggrieved by a failure to arbitrate under a written agreement can

petition a federal district court to compel arbitration. 9 U.S.C. § 4. But the FAA does

not require a party “to submit to arbitration any dispute which he has not agreed so to

submit.” Spahr, 330 F.3d at 1269 (quoting AT&T Techs. v. Commc’ns Workers of

Am., 475 U.S. 643, 648 (1986)). Furthermore, the Supreme Court has recognized

“the fundamental principal that arbitration is a matter of contract.” AT&T Mobility

LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation marks omitted). In

sum, “the question of arbitrability is an issue for judicial determination unless the

parties clearly and unmistakably provide otherwise.” Spahr, 330 F.3d at 1269

(quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)) (emphasis

and internal quotation marks omitted). We therefore examine the written agreement

itself to determine whether the parties intended to submit the threshold question of

arbitrability to an arbitrator or to a court.

       Our circuit uses a three-part test “[t]o determine whether a particular dispute

falls within the scope of an agreement’s arbitration clause.” Cummings v. FedEx

                                                5
Ground Package Sys., Inc., 404 F.3d 1258, 1261 (10th Cir. 2005) (quoting Louis

Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir.

2001)).

              First, recognizing there is some range in the breadth of arbitration
       clauses, a court should classify the particular clause as either broad or
       narrow. Next, if reviewing a narrow clause, the court must determine
       whether the dispute is over an issue that is on its face within the purview
       of the clause, or over a collateral issue that is somehow connected to the
       main agreement that contains the arbitration clause. Where the arbitration
       clause is narrow, a collateral matter will generally be ruled beyond its
       purview. Where the arbitration clause is broad, there arises a presumption
       of arbitrability and arbitration of even a collateral matter will be ordered
       if the claim alleged implicates issues of contract construction or the
       parties’ rights and obligations under it.

Id. (emphasis omitted). The arbitration clause at issue does not neatly fit within this

three-part test. Here, the Arbitration Clause is broad, but it also clearly provides that

“disputes about the validity, coverage, or scope of this [Arbitration] Clause or any

other part of this [Arbitration] Clause . . . are for a court . . . to decide.” App’x at 94,

99, 104 (emphasis omitted). Thus, while the range of “Disputes” which may be sent

to arbitration is “broad” under the Arbitration Clause, the Arbitration Clause also

grants “broad” authority to courts to interpret the Clause’s validity, coverage, scope,

or any other part of the Clause.

       TitleMax presents a straightforward arbitrability argument. TitleMax contends

Romero did not opt out of arbitration in the second loan agreement, which means he

must arbitrate all claims related to the second loan and refinancings of the second

loan. From this, TitleMax argues not only that Romero’s third loan agreement is

actually a refinancing of his second loan, but also that the loan agreements grant an

                                              6
arbitrator (rather than a court) the authority to determine this arbitrability question

because none of the loan agreements define “refinancing.” Consequently, TitleMax

argues the district court erred when it refused to compel arbitration for Romero’s

claims stemming from the third loan agreement.

      This argument, however, conflicts with the plain language of the Arbitration

Clause in the third loan agreement. The Arbitration Clause provides that disputes

about the “validity, coverage, or scope of this [Arbitration] Clause or any other part

of this [Arbitration] Clause” will be determined by a court, and the opt-out provision

is part of the Arbitration Clause. While TitleMax attempts to argue otherwise,

whether the third loan agreement is a refinancing of the second loan agreement is

actually a dispute about the coverage, scope, or another part (the opt-out provision)

of the Arbitration Clause. And, under the plain language of the Arbitration Clause,

such a dispute is for a court to decide, not an arbitrator. Therefore, the district court

properly decided the arbitrability issue.

      Even so, TitleMax asserts that Romero did not properly opt out of arbitration

in the third loan agreement. The opt-out provision provides:

             If you do not want this [Arbitration] Clause to apply, you must tell
      us in writing within 60 calendar days after signing this Agreement. Send
      your signed, written notice to the Notice Address. Give your name,
      address, loan number and loan date. State that you “opt out” of the
      arbitration clause. We do not allow electronic delivery.

App’x at 94, 99, 104. One week after Romero signed the third loan agreement, his

attorney mailed compliant written notice to TitleMax pursuant to the opt-out

provision. TitleMax does not—and cannot—dispute that Romero performed all the

                                            7
necessary steps to opt out of the Arbitration Clause in the third loan agreement. He

did. Instead, TitleMax appears to argue that Romero never could have opted out of

arbitration in the third loan agreement because he failed to opt out of arbitration in

the second loan agreement.

      The district court disagreed and refused to compel arbitration for claims

related to the third loan agreement. The district court determined that all three loan

agreements were separate, individual agreements because each contained different

identifying loan numbers, assessed different interest rates, and lent different amounts

of money. Another fact supports the district court’s conclusion that each loan

agreement is an individual contract: Each loan agreement contains its own, albeit

identical, arbitration clause. Hence, consistent with New Mexico case law, the

Arbitration Clause in the third loan agreement must mean something. See, e.g., Pub.

Serv. Co. of N.M. v. Diamond D Const. Co., 33 P.3d 651, 662 (N.M. Ct. App. 2001)

(explaining that New Mexico courts “will not read a particular provision of a contract

such that another provision is rendered meaningless”). Despite this, and in the

absence of any supporting authority, TitleMax asks us to render an entire clause in

the third loan agreement meaningless. We decline to do so and instead give full

effect to the parties’ decision to include an opt-out provision in the third loan

agreement’s Arbitration Clause.




                                            8
                                           III

      TitleMax also raises several alternative theories in support of its motion to

compel arbitration. These arguments are either premature or procedurally improper.

For example, the district court never ruled on the portion of TitleMax’s motion

requesting a stay pending arbitration. Therefore, this court lacks interlocutory

jurisdiction over TitleMax’s stay request because the district court never refused a

stay. See 9 U.S.C. § 16(a)(1)(A) (“An appeal may be taken from . . . an order . . .

refusing a stay of any action under section 3 of [the FAA] . . . .” (emphasis added)).

      Further, the majority of TitleMax’s briefing addresses class action

considerations under Federal Rule of Civil Procedure 23(a) such as numerosity,

commonality, and typicality, but nothing in the record demonstrates that either party

has moved for class certification or sought discovery related to class certification.1

The district court is in a better position to address these concerns when presented

with a proper Rule 23 motion for class certification or a “pre-emptive” motion to

deny class certification. See, e.g., Adams-Chevalier v. Spurlock, No. 16-cv-02691-

WYD-STV, 2017 WL 5665149, at *6–7 (D. Colo. Sept. 25, 2017) (acknowledging

pre-emptive motions to deny class certification). Accordingly, we decline to address


      1
         TitleMax appears to have relied on a misunderstanding of In re Cox Enters.,
Inc. Set-top Cable Television Box Antitrust Litigation, 790 F.3d 1112 (10th Cir.
2015), for its Rule 23 arguments. In re Cox addressed whether a party had waived the
right to compel arbitration by waiting to assert that right after extensive briefing—
literally thousands of pages—and multiple hearings regarding a range of topics
including motions to dismiss, admissible expert testimony, expansive discovery, and
(importantly) highly contested class certification. Id. at 1116–18. When compared to
In re Cox, the present case is only in its preliminary stages.
                                            9
these premature or procedurally improper arguments.

                                       IV

      Affirmed.


                                         Entered for the Court


                                         Mary Beck Briscoe
                                         Circuit Judge




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