     Case: 11-60861     Document: 00511900640         Page: 1     Date Filed: 06/26/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 26, 2012

                                     No. 11-60861                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



NATIFRACURIA DANIELS

                                                  Plaintiff-Appellant,
v.

VIRGINIA COLLEGE AT JACKSON; VIRGINIA COLLEGE L.L.C.;
EDUCATION CORPORATION OF AMERICA; WILLIS-STEIN AND
PARTNERS

                                                  Defendants-Appellees,



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-496


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order
compelling arbitration of her state-law tort and restitution claims against
Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C.,
Education Corporation of America, and Willis-Stein and Partners (collectively
“Virginia College”). Virginia College moved to compel arbitration in order to

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60861      Document: 00511900640        Page: 2     Date Filed: 06/26/2012



                                    No. 11-60861
                                  Summary Calendar

enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which
Daniels signed before enrolling as a student at Defendant Virginia College at
Jackson (individually, “the College”). On appeal, Daniels contends that the
Agreement’s arbitration clause does not cover her tort claims, and she contends
that the arbitration clause is unconscionable.
       We AFFIRM.
       The Enrollment Agreement’s arbitration clause requires arbitration of any
claim “arising out of or relating to [the Agreement], together will all other claims
. . . of any nature whatsoever arising out of or in relation to [Daniels’s]
enrollment and participation in courses at the College . . . .” Daniels alleges that
the College unlawfully retained the portion of her federal financial aid monies
that should have been disbursed to Daniels to cover her cost of living. She
brings state-law claims sounding in negligence, conversion, embezzlement, and
unjust enrichment.       Because these claims arose “in relation to [Daniels’s]
enrollment and participation in courses at the College,” the district court was
correct in finding them subject to the arbitration clause.
       Under Mississippi law,1 substantive unconscionability “is proven by
oppressive contract terms such that there is a one-sided agreement whereby one
party is deprived of all the benefits of the agreement or left without a remedy for
another party’s nonperformance or breach.” Covenant Health and Rehab. of
Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal
citation and quotation marks omitted). In Covenant Health, the Mississippi
Supreme Court found that a contract containing an arbitration clause “coupled
with a multitude of unconscionable provisions,” including asymmetrical



      1
         The Enrollment Agreement has an Alabama choice-of-law provision. But no party
raises this provision, and they have relied on Mississippi law throughout their briefing on
appeal and before the district court.

                                            2
   Case: 11-60861      Document: 00511900640         Page: 3     Date Filed: 06/26/2012



                                    No. 11-60861
                                  Summary Calendar

limitations on liability, choice of forum, and other matters, was unenforceable
in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is
similarly laden with unconscionable provisions.
       First, there is language in the arbitration clause that allows the College,
but not Daniels, to seek injunctive relief in court. An agreement that requires
only one party to submit its claims to arbitration is unconscionable under
Mississippi law,2 but the language at issue here merely allows the College to
seek a preliminary injunction to halt a student’s ongoing breach of the
Enrollment Agreement.           The College must seek all other relief though
arbitration. An asymmetric exception so limited in scope does not make an
arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d
1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser
enforceable notwithstanding exception allowing car dealer to bring an action to
repossess the car in court).
       Daniels also points to the arbitration clause’s language prohibiting the
arbitrator from awarding any damages not “measured by the prevailing party’s
actual compensatory damages.” Ostensibly bilateral limitations on punitive
damages are unconscionable under Mississippi law if they are one-sided in
practical effect due to the weaker party’s being “much more likely to be justified
in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d
507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages limitation in
contract of adhesion between nursing home and occupant unenforceable against
occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706
(Miss. 2009). However, as Virginia College concedes in its brief, the arbitration
clause does not bar the arbitrator from awarding damages in excess of


       2
        Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp.,
88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)).

                                             3
   Case: 11-60861    Document: 00511900640      Page: 4   Date Filed: 06/26/2012



                                 No. 11-60861
                               Summary Calendar

compensatory damages. It merely requires that the amount of such damages be
based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at
1036 (interpreting nearly identical language as requiring only that the parties
be “limited as to the amount of punitive damages which might be awarded, since
such an award would have to be ‘measured by the prevailing party’s actual
damages’”). Such provisions are not unconscionable. Id.
      Daniels next points to the Enrollment Agreement’s asymmetric liquidated
damages provision, which she contends would leave her without any remedy for
the wrongs she alleges because its language limits her recovery to “an amount
equal to any non-refunded tuition payments . . . .” Contractual provisions
intended to exculpate a party of liability for its own tortious conduct are
particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d
467, 469 (Miss. 1999)). As Virginia College concedes, however, the liquidated
damages provision in the Enrollment Agreement applies only to breach-of-
contract damages, and would not affect recovery for Daniels’s claims.
      Finally, a provision of the agreement permits the college to recover
attorney’s fees against Daniels if it prevails in any action or arbitration that is
“permitted” by the Enrollment Agreement or that “aris[es] out of [the
Agreement] and the subject matter contained [there]in.” However, while the
Enrollment Agreement is silent with respect to Daniels’s recovering fees if she
prevails, Virginia College disavows any interpretation of it that would preclude
Daniels from recovering attorneys’ fees to which she might otherwise be entitled
under the arbitration rules. Given Virginia College’s concessions regarding the
meaning of its provisions, enforcing the Enrollment Agreement’s arbitration
clause is not unconscionable under Mississippi law.
      The district court’s judgment is AFFIRMED.




                                        4
