            Case: 18-10380   Date Filed: 05/03/2019   Page: 1 of 20


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 18-10380
                        ________________________

                  D.C. Docket No. 6:17-cv-00938-GAP-GJK



LAWREN FREEMAN,

                                                                Plaintiff-Appellee,

                                   versus


SMARTPAY LEASING, LLC,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (May 3, 2019)

Before MARCUS, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge:
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        Defendant SmartPay Leasing, LLC (“SmartPay”) appeals the district court’s

order granting Plaintiff Lawren Freeman’s motion to vacate the order referring the

case to arbitration, lifting the stay of litigation, and directing the clerk to reopen the

case.

                                  I. FACTUAL BACKGROUND

        To place this interlocutory appeal in context, SmartPay purchases

smartphones and provides them to its customers on a lease-to-own basis.

SmartPay enters into a written lease-purchase agreement with every customer.

Each SmartPay customer must digitally sign the lease-purchase agreement and

agree to its terms and conditions before receiving a smartphone from SmartPay.

        In February 2015, Plaintiff Freeman entered into a lease-purchase agreement

with SmartPay, 1 in which Freeman agreed to lease, with an option to purchase, a

Samsung Galaxy S5 smartphone.

A.      The Parties’ Arbitration Agreement

        In their lease-purchase agreement, Freeman and SmartPay agreed that “any

claim or dispute arising from or in any way related to the [lease-purchase

agreement] must be resolved by binding arbitration instead of a lawsuit.” Freeman




        1
        SmartPay was formerly a division of BillFloat, Inc. BillFloat spun off the SmartPay
business into a separate company and assigned certain BillFloat lease agreements, including the
lease-purchase agreement between BillFloat and Freeman, to SmartPay.
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had the right to opt out of binding arbitration within ten days of signing the

lease-purchase agreement, but she did not do so.

      The parties “agree[d] to use one of the two national arbitration organizations

and their rules for conducting arbitrations,” which are identified in the agreement

as the American Arbitration Association (“AAA”) and JAMS, the Resolution

Experts. The agreement provided that the party bringing the claim could choose to

file it with either AAA or JAMS. If SmartPay brought a claim against Freeman,

Freeman had the right to choose the other arbitration organization within 30 days

after receiving notice of SmartPay’s forum choice.

      Further, the agreement specified that if Freeman filed a claim, Smartpay

would pay the filing fee as follows:

      If [Freeman] file[s] a claim against [SmartPay], [SmartPay] will pay the
      initial filing fee. Each party must pay its own attorneys’ fees and other
      costs of the arbitration. However, the arbitrator can award reasonable
      attorneys’ fees and costs to the party who wins the arbitration.

B.    Freeman’s Suit

      In June 2017, Freeman filed an amended complaint in federal district court

against SmartPay, alleging violations of the Telephone Consumer Protection Act,

47 U.S.C. § 227 et seq., the Fair Debt Collection Practices Act, 15 U.S.C. § 1692

et seq., and Florida law based on SmartPay’s “robocalls” to Freeman’s cell phone.

Freeman claimed that SmartPay made at least 250 “robocalls” to her cell phone

using an “automatic telephone dialing system” that made use of an artificial or
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prerecorded voice. Freeman stated that she demanded that SmartPay stop placing

“robocalls” to her cell phone and revoked any consent she may have given to

SmartPay to call her.

      Shortly thereafter, the parties filed a joint motion to stay and to refer the

entire case to binding arbitration, under which they stipulated that “this cause is

subject to arbitration pursuant to the Lease-Purchase Agreement Terms and

Conditions entered into by the Parties.” In July 2017, the district court granted the

motion and stayed the case pending arbitration.

C.    JAMS Arbitration

      Freeman selected JAMS as the arbitration forum and, on August 7, 2017, she

filed a demand for arbitration with JAMS, using a standard form supplied by

JAMS.

      On the very first page of JAMS’s form, JAMS set forth its requirement that

the initial filing fee of $1,200 must be paid in full, of which the consumer pays

only $250, as follows:

      For two-party matters, the filing fee is $1,200 . . . . The entire filing fee
      must be paid in full to expedite the commencement of the proceedings.
      Thereafter, a Case Management Fee of 12% will be assessed against all
      Professional Fees, including time spent for hearings, pre- and
      post-hearing reading and research and award preparation. For matters
      involving consumers, the consumer is only required to pay $250 . . . .

      On JAMS’s form, Freeman checked the box to indicate that her matter was a

“consumer arbitration.” JAMS defined “consumer arbitration” to be: “an
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arbitration conducted under a pre-dispute arbitration provision contained in a

contract that meets [three] criteria . . . (1) [t]he contract is with a consumer party

. . .; (2) [t]he contract was drafted by or on behalf of the non-consumer party; and

(3) [t]he consumer party was required to accept the arbitration provision in the

contract.”

      In addition, JAMS’s form stated that JAMS is guided by its Consumer

Minimum Standards when determining whether a matter is a consumer matter.

JAMS’s Consumer Minimum Standards state that JAMS will administer

arbitrations pursuant to mandatory pre-dispute arbitration clauses between

companies and consumers only if the contract arbitration clause and specified

applicable rules comply with its own minimum standards. One of JAMS’s listed

Consumer Minimum Standards includes the following about the costs of

arbitration:

      [W]hen a consumer initiates arbitration against the company, the only
      fee required to be paid by the consumer is $250 . . . . All other costs
      must be borne by the company including any remaining JAMS Case
      Management Fee and all professional fees for the arbitrator’s services.

      On August 11, SmartPay wrote to JAMS to express its view that the instant

arbitration did not meet the requirements for a consumer arbitration under JAMS’s

rules. SmartPay argued that, pursuant to the parties’ arbitration agreement,

Freeman had the right to opt out of arbitration and, therefore, the arbitration clause

was not mandatory, which indicated that their dispute was not a consumer
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arbitration under JAMS’s standards. Further, SmartPay stated that its arbitration

agreement provided that SmartPay would pay the filing fee and that this diverges

from JAMS’s Consumer Minimum Standards, which require the consumer to pay

$250 of the $1,200 fee, as follows:

      The JAMS Consumer Minimum Standards state that JAMS will
      administer arbitrations between companies and consumers only if the
      contract arbitration clause complies with the standards stated therein.
      Standard number 7 states:

      7. With respect to the cost of the arbitration, when a consumer initiates
      arbitration against the company, the only fee required to be paid by the
      consumer is $250 . . . . All other costs must be borne by the company
      ....

      The parties’ arbitration provision specifies the costs to be borne by each
      party. It states that if [Freeman] files a claim against SmartPay,
      SmartPay will pay the initial filing fee, but that each party must
      otherwise cover its costs of arbitration, including attorneys’ fees
      (except that the arbitrator may award fees to the prevailing party). This
      obviously diverges from the minimum standard in the rules.

      On August 22, a representative of JAMS responded with an e-mail to

SmartPay, stating that the claim—filed by a consumer against a corporation—

would be governed by JAMS’s Consumer Minimum Standards. JAMS stated that

Freeman had paid $250 of the filing fee and, therefore, SmartPay had to pay the

remaining $950 of the filing fee. SmartPay never paid the $950; instead the

following correspondence ensued.

      On September 5, a second representative from JAMS sent SmartPay a letter,

stating that JAMS had reviewed the parties’ correspondence and that:
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      [JAMS’s] policy is that consumers should not be required to pay any
      portion of an arbitration fee (above $250) that is imposed through an
      arbitration clause which is required as a condition of the purchase/lease
      of goods for personal use and where the consumer then has to take
      affirmative action to opt-out of the arbitration clause.

JAMS acknowledged that this policy might go further than the law requires, but

that JAMS provides additional protections to consumers where the clause is not

negotiated and the transaction is for personal use.

      The JAMS representative stated that JAMS would not administer the claim

unless SmartPay agreed to waive the provisions of the parties’ agreement that were

contrary to JAMS’s Consumer Minimum Standards. The JAMS representative

also noted that the parties were “free to raise any additional questions regarding the

application of the [Consumer] Minimum Standards with the Arbitrator, once

appointed, and may participate in any strike and rank process without waiving any

objections.”

      On September 15, SmartPay responded to JAMS, indicating that it would

not agree to waive the provisions of the parties’ agreement that were contrary to

JAMS’s Consumer Minimum Standards. SmartPay stated that it understood, based

upon JAMS’s letter, that JAMS would not administer the claim and that it must be

dismissed. However, SmartPay noted that the parties’ agreement permitted

Freeman to utilize either JAMS or AAA, and it therefore presumed that the claim

would be refiled with AAA.


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      On September 18, SmartPay received an e-mail from a JAMS representative,

who acknowledged SmartPay’s position. JAMS offered to refund Freeman’s filing

fee if the parties decided to use a different arbitration provider. However, JAMS

noted that AAA has its own set of consumer arbitration rules, and it understood

that AAA has a similar process regarding payment of fees. JAMS requested that

SmartPay inform JAMS how SmartPay intended to proceed within 30 days.

      On October 7, SmartPay received an invoice for $950 from a third

representative at JAMS. In response, on October 9, SmartPay sent an e-mail

seeking confirmation from JAMS that payment of the invoice was unnecessary.

Within minutes, a JAMS representative sent an e-mail to both parties, responding

that it had not received formal confirmation from the parties that JAMS would not

administer the arbitration.

      On October 11, Freeman responded to JAMS, agreeing with JAMS that the

Consumer Minimum Standards were applicable, as the dispute was a consumer

matter. Freeman stated that it appeared that SmartPay had decided not to honor its

agreement to follow the rules set forth by JAMS and had stated that SmartPay

would not pay the amounts required of it for JAMS to conduct the arbitration.

Therefore, in light of SmartPay’s refusal, Freeman recognized that JAMS had little

choice but to dismiss the arbitration due to SmartPay’s failure to pay. She

requested that JAMS forward an order of dismissal for her records that


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documented that reason for dismissal. Also, Freeman stated that SmartPay’s

assumption that she would refile with AAA was unwarranted, noting that she did

not intend to reward SmartPay for its noncompliance with the arbitration

agreement through a change to its apparently favored venue.

       On October 19, the parties received a letter from JAMS confirming that the

file would be closed. The letter stated that “[w]e have made multiple requests for

full payment of the [f]iling [f]ee from [SmartPay], which is required to commence

the proceedings. As of today it remains unpaid and as such the arbitration file will

be closed effective October 19, 2017.”

D.     Motion to Vacate Order Referring Case to Arbitration and to Lift Stay

       In November 2017, Freeman filed a motion in the district court, arguing that

SmartPay had refused to pay JAMS’s initial arbitration fees and, therefore, the

district court should lift the stay and allow the federal litigation to resume.

Freeman contended that SmartPay’s refusal to pay JAMS constituted either a

waiver of arbitration, a breach of the arbitration agreement, or both. SmartPay

argued that the district court should not lift the stay because it had not refused to

arbitrate.

E.     District Court’s Order Lifting Stay

       In January 2018, the district court granted Freeman’s motion to vacate the

order referring the case to arbitration, lifted the stay, and directed the clerk to


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reopen the case. The district court stated that SmartPay was obligated to comply

with JAMS’s procedures and to pay the initial filing fee because it drafted an

agreement requiring arbitration and designating JAMS as an acceptable forum.

The district court determined that SmartPay breached the arbitration agreement and

waived its right to compel arbitration by refusing to pay the initial filing fee.

      The district court cited Section 3 of the Federal Arbitration Act (“FAA”), 9

U.S.C. § 3, and stated that SmartPay’s refusal to pay caused JAMS to refuse to

administer the arbitration. Therefore, the district court concluded that the stay was

due to be lifted, because the arbitration underlying the stay had proceeded in

accordance with the terms of the agreement and because SmartPay was in default

in proceeding with the arbitration.

      SmartPay filed an interlocutory appeal of the district court’s order, pursuant

to Federal Rule of Appellate Procedure 3 and Section 16(a)(1)(A)–(B) of the FAA,

9 U.S.C. § 16(a)(1)(A).

                                II. JURISDICTION

      We begin, as we must, by deciding whether we have jurisdiction over an

appeal from an order vacating a prior order that had stayed a civil action pending

arbitration and lifting that stay. The FAA embodies a liberal federal policy

favoring arbitration agreements. Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 941 (1983). In a proceeding involving an


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issue that is referable to arbitration under a written agreement, a district court,

being satisfied that the issue is in fact referable to arbitration, and upon application

of a party, shall stay the trial “until such arbitration has been had in accordance

with the terms of the agreement, providing the applicant for the stay is not in

default in proceeding with such arbitration.” 9 U.S.C. § 3.

       Section 16 of the FAA governs appeals as of right from the district court’s

arbitration decisions. Section 16(a)(1)(A) permits immediate appeal from an order

“refusing a stay” under § 3. 9 U.S.C. § 16(a)(1)(A).

       Here, the district court’s July 12, 2017, order stayed the civil action and

referred the case to arbitration. The district court’s subsequent January 18, 2018,

order entered pursuant to § 3 and vacating the prior order, lifting the stay, and

reopening the civil case was effectively an order refusing a stay of the civil action

under § 3. Therefore, the district court’s order was immediately appealable under

§ 16(a)(1)(A), and we have jurisdiction to review the instant appeal. 2




       2
         Several other circuits have considered this issue and have similarly concluded that an
order lifting a stay of a civil action is functionally equivalent to an order refusing a stay and is,
therefore, immediately appealable. See Moss v. First Premier Bank, 835 F.3d 260, 264 (2d Cir.
2016) (“Because the order appealed from was effectively one ‘refusing a stay,’ we have
jurisdiction to review it.” (quotation marks omitted)); Pre-Paid Legal Servs., Inc. v. Cahill, 786
F.3d 1287, 1290 (10th Cir. 2015) (“The order lifting the stay here was effectively one ‘refusing a
stay.’”); Dobbins v. Hawk’s Enters., 198 F.3d 715, 716 (8th Cir. 1999); Corpman v. Prudential-
Bache Sec., Inc., 907 F.2d 29, 30 (3d Cir. 1990) (“[T]he district court’s order is in essence an
order refusing to stay an action.”).
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                                    III. MERITS

      On appeal, SmartPay argues that the district court erred in determining that it

breached the arbitration agreement and waived its right to insist on arbitration by

demanding compliance with the cost-sharing provision in the parties’ arbitration

agreement.

      We review an order denying a motion to stay proceedings and compel

arbitration de novo. Paladino v. Avnet Computer Tech., Inc., 134 F.3d 1054,

1056-57 (11th Cir. 1998). We review the district court’s factual findings for clear

error. White Springs Agric. Chems., Inc. v. Glawson Inv. Corp., 660 F.3d 1277,

1280 (11th Cir. 2011). “Clear error is a highly deferential standard of review,” and

“[a] factual finding is clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Morrissette-Brown v. Mobile

Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (quotation marks

omitted).

A.    Waiver of Arbitration for Failure to Pay Initial Filing Fee

      The FAA provides that—if a valid arbitration clause exists and governs a

dispute—then a district court should stay the litigation “until such arbitration has

been had in accordance with the terms of the agreement, providing the applicant

for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3. So


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a district court may lift a stay if the applicant for the stay has defaulted in the

arbitration. One way that an applicant can “default in proceeding with such

arbitration” is by waiving the right to arbitrate. Id.; see also Pre-Paid Legal Servs.,

Inc. v. Cahill, 786 F.3d 1287, 1296 (10th Cir. 2015) (explaining that “‘default’ in

§ 3 includes ‘waiver’”). A district court therefore may lift a stay if the party who

seeks to arbitrate has waived its right to do so. Krinsk v. SunTrust Banks, Inc., 654

F.3d 1194, 1200 (11th Cir. 2011). We review de novo whether a party waived its

right to arbitration. Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1316

(11th Cir. 2002). To determine whether a party has waived its contractual right to

arbitrate, courts apply a two-part test: “First, [they] decide if, under the totality of

the circumstances, the party has acted inconsistently with the arbitration right, and,

second, [they] look to see whether, by doing so, that party has in some way

prejudiced the other party.” Id. at 1315-16 (quotation marks omitted).

      “There is no settled rule, however, as to what constitutes a waiver or

abandonment of the arbitration agreement.” Howard Hill, Inc. v. George A. Fuller

Co., 473 F.2d 217, 218 (5th Cir. 1973) (quotation marks omitted). Rather, whether

waiver has occurred “depends upon the facts of each case.” Burton-Dixie Corp. v.

Timothy McCarthy Constr. Co., 436 F.2d 405, 408 (5th Cir. 1971). However,

“because federal law favors arbitration, any party arguing waiver of arbitration

bears a heavy burden of proof.” Stone v. E.F. Hutton & Co., 898 F.2d 1542, 1543


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(11th Cir. 1990) (quotation marks and alteration omitted). “But the doctrine of

waiver is not an empty shell.” In re Checking Account Overdraft Litig., 754 F.3d

1290, 1294 (11th Cir. 2014) (quotation marks omitted).

      Under the particular factual circumstances here, the district court did not

clearly err in finding that JAMS declined to administer the claim due to

SmartPay’s refusal to pay the initial filing fee. The district court properly relied on

JAMS’s letter dated October 19, 2017, in which JAMS stated that “[w]e have made

multiple requests for full payment of the [f]iling [f]ee from [SmartPay], which is

required to commence the proceedings. As of today it remains unpaid and as such

the arbitration file will be closed effective October 19, 2017.” Indeed, JAMS

required that “[t]he entire filing fee must be paid in full to expedite the

commencement of the [arbitration] proceedings.”

      Moreover, the parties’ arbitration agreement states that the parties “agree to

use one of the two national arbitration organizations and their rules for conducting

arbitrations,” specifying JAMS and AAA. Although the arbitration agreement

arguably may have a different cost-sharing arrangement than JAMS’s standards, it

is clear that SmartPay drafted a lease-purchase agreement that (1) required

arbitration, (2) designated JAMS as an acceptable forum, and (3) obligated

SmartPay to pay the initial filing fee. Indeed, in the parties’ arbitration agreement,




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SmartPay expressly agreed to pay the filing fee, stating that “[i]f you file a claim

against us, we will pay the initial filing fee.”

       In sum, SmartPay acted inconsistently with its contractual right to arbitrate

when it refused to pay the initial filing fee, as expressly required by the arbitration

agreement. See Ivax Corp., 286 F.3d at 1315-16. SmartPay therefore waived its

right to arbitration by failing to pay arbitration fees.

       As to whether SmartPay prejudiced Freeman by refusing to pay the filing

fee, SmartPay’s refusal to pay the initial filing fee prematurely terminated the

arbitration and effectively precluded Freeman from seeking relief through the

arbitration proceeding. Freeman had a contractual right to choose between JAMS

and AAA in the parties’ arbitration agreement, but her choice of JAMS was

thwarted due to SmartPay’s refusal to pay. She was delayed and forced to proceed

with litigation in the district court.3 As a result, SmartPay’s refusal to pay JAMS’s

filing fee prejudiced Freeman. Therefore, the district court did not err in




       3
         Although SmartPay contends that Freeman was required to file a claim with AAA when
JAMS refused to administer the claim, the district court did not err in not requiring Freeman to
arbitrate in front of AAA. Freeman had a contractual right to choose to arbitrate with JAMS or
AAA. The parties’ arbitration agreement did not require that she choose AAA when SmartPay
failed to pay the initial filing fee to JAMS. Also, in any event, AAA and JAMS have similar
cost-sharing procedures for consumer arbitrations, with AAA’s consumer expenses capped at
$200 and JAMS’s consumer expenses capped at $250.

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concluding that SmartPay waived its right to compel arbitration by refusing to pay

the initial filing fee. 4

B.     Waiver of Arbitration for Noncompliance with JAMS’s Standards

       On appeal, SmartPay argues that JAMS did not decline to administer the

claim due to SmartPay’s refusal to pay the initial filing fee. Rather, SmartPay

insists that JAMS declined to administer the claim because the arbitration

agreement had provisions that were inconsistent with JAMS’s Consumer Minimum

Standards, and SmartPay refused to waive such provisions inconsistent with

JAMS’s standards. We are not persuaded by this argument because the provisions

of the parties’ arbitration agreement can be reconciled with JAMS’s standards.

       Specifically, the parties’ arbitration agreement states that the parties “agree

to use one of the two national arbitration organizations [JAMS or AAA] and their

rules for conducting arbitrations.” (emphasis added). As for costs, the arbitration


       4
           For the same reasons that the district court did not err in concluding that SmartPay
waived its right to compel arbitration, the district court did not err in concluding that SmartPay
breached the arbitration agreement when it refused to pay JAMS’s initial filing fee. As
explained above, SmartPay drafted a lease-purchase agreement requiring arbitration and
designating JAMS as an acceptable forum and, therefore, SmartPay was obligated to pay the
initial filing fee. Indeed, in the parties’ arbitration agreement, SmartPay expressly agreed to pay
the initial filing fee, which it failed to do. See Pre-Paid Legal Servs., 786 F.3d at 1294 (holding
that “a party’s failure to pay its share of arbitration fees breaches the arbitration agreement and
precludes any subsequent attempt by that party to enforce that agreement”); Brown v. Dillard’s,
Inc., 430 F.3d 1004, 1008-09, 1011 (9th Cir. 2005) (explaining the defendant “breached the
arbitration agreement by refusing to participate in properly initiated arbitration proceedings” by
paying its share of arbitration fees and that the “breach was tantamount to a repudiation of the
arbitration agreement”); Sink v. Aden Enters., 352 F.3d 1197, 1201 (9th Cir. 2003) (“[F]ailure to
pay required costs of arbitration was a material breach of its obligations in connection with the
arbitration.”).
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agreement provides that “[i]f [Freeman] files a claim against us, [SmartPay] will

pay the initial filing fee,” but other than that “[e]ach party must pay its own

attorneys’ fees and other costs of the arbitration.”

      The parties’ arbitration agreement does not provide an express breakdown of

costs. Rather, each party must pay “its own” costs, which, in connection with the

provision stating that the parties would follow the rules of the chosen arbitration

provider, suggests that the parties must pay their own costs as determined by that

organization without any further cost-sharing. If the two provisions are read

together, JAMS’s Consumer Minimum Standards provide content to the

cost-sharing provision in the parties’ arbitration agreement by specifying what

each party’s “own” costs are: Freeman’s costs were capped at $250, and the

remaining amount constituted SmartPay’s own “costs of the arbitration.” Rather

than SmartPay paying the full $1,200, SmartPay could have paid the $950, given

that the consumer Freeman had quickly paid the $250 JAMS requested. To the

extent that SmartPay wanted to pay the full $1,200, SmartPay could have readily

paid the $950 and taken that $250 up with the selected arbitrator.

      Indeed, any dispute that SmartPay had with the fee-sharing arrangement

could and should have been submitted to the arbitrator. JAMS stated in a letter

that “[t]he Parties are also free to raise any additional questions regarding the

application of the [Consumer] Minimum Standards with the Arbitrator, once


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appointed, and may participate in any strike and rank process without waiving any

objections.” SmartPay could have paid the filing fee, as it expressly agreed to do

in the arbitration agreement, and then, once an arbitrator was appointed, SmartPay

could have disputed whether there was a conflict between the arbitration clause in

the lease-purchase agreement and JAMS’s standards or whether they could be

reconciled.

      In short, any alleged conflict between the arbitration agreement’s

cost-sharing provision, the provision requiring the parties to follow the chosen

arbitration organization’s rules, and JAMS’s Consumer Minimum Standards is

reconcilable. See Inter-Active Servs., Inc. v. Heathrow Master Ass’n, 721 So. 2d

433, 435 (Fla. Dist. Ct. App. 1998) (“Where the contract is susceptible to an

interpretation that gives effect to all of its provisions, the court should select that

interpretation over an alternative interpretation that relies on negation of some of

the contractual provisions.”). When SmartPay refused to comply with JAMS’s

Consumer Minimum Standards, SmartPay acted inconsistently with and, therefore,

waived its contractual right to arbitration.

      And SmartPay’s refusal to comply with JAMS’s Consumer Minimum

Standards prejudiced Freeman in the same way its failure to pay JAMS’s initial

filing fee prejudiced her. SmartPay prematurely terminated the arbitration and




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effectively precluded Freeman from seeking relief through arbitration rather than

in the district court.

C.     Lifting the Order Staying the Civil Action

       As stated above, in a proceeding involving an issue that is referable to

arbitration under a written agreement, the court, being satisfied that the issue is in

fact referable to arbitration, and upon application of a party, shall stay the trial

“until such arbitration has been had in accordance with the terms of the agreement,

providing the applicant for the stay is not in default in proceeding with such

arbitration.” 9 U.S.C. § 3.

       Despite SmartPay’s argument that the arbitration had not proceeded in

accordance with the terms of the agreement because no arbitration occurred, no

arbitrator was appointed, and no arbitration award was awarded, Freeman initiated

an arbitration that was terminated by JAMS after SmartPay failed to pay the filing

fee. The district court did not err in concluding that the “stay [was] due to be

lifted, because the arbitration underlying the stay ‘ha[d] been had in accordance

with the terms of the agreement’” and because SmartPay was “in default in

proceeding with the arbitration” by failing to pay the filing fee. See Hernandez v.

Acosta Tractors Inc., 898 F.3d 1301, 1303, 1305 (11th Cir. 2018) (“Once [the

employer] defaulted in the arbitration [by failing to pay the required arbitration

fees], the [d]istrict [c]ourt would have been within its power to find that [the


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employer] could no longer require [the employee] to proceed in arbitration.”);

Pre-Paid Legal Servs., 786 F.3d at 1294 (“Under the AAA rules, the panel

terminated the proceedings. As such, the arbitration ‘ha[d] been had in accordance

with the terms of the agreement’ . . . . Failure to pay arbitration fees constitutes a

‘default’ under § 3.”).

                                 IV. CONCLUSION

      For the foregoing reasons, the district court’s January 18, 2018, order

granting Plaintiff Freeman’s motion to vacate the order referring the case to

arbitration, lifting the stay of litigation, and directing the clerk to reopen the case is

affirmed.

      AFFIRMED.




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