      Case: 14-60247          Document: 00513024605           Page: 1   Date Filed: 04/29/2015




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

                                                                                       FILED
                                                                                     April 29, 2015
                                            No. 14-60247
                                                                                     Lyle W. Cayce
                                                                                          Clerk
JACK S. CHESTER, Individually, and on Behalf of all Similarly Situated
Individuals,

                 Plaintiff - Appellee

v.

DIRECTV, L.L.C.,

                 Defendant - Appellant

-----------------------------------------------------------

Consolidated with 14-60249

JACK S. CHESTER,

                 Plaintiff - Appellee

v.

DIRECTV, L.L.C.,

                Defendant - Appellant




                     Appeals from the United States District Court
                        for the Southern District of Mississippi
                          USDC 3:12-CV-710 & 3:13-CV-111
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                              No. 14-60247 c/w 14-60249
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       In these consolidated appeals, DIRECTV, L.L.C. (“DIRECTV”) appeals
the denials of its motions to compel arbitration. We AFFIRM.
                              FACTS AND PROCEEDINGS
       In the summer of 2008, DIRECTV acquired Bruister & Associates
(“Bruister”) and hired most of the former employees of Bruister’s Brookhaven,
Mississippi office, including Jack S. Chester. DIRECTV maintains that it gave
arbitration agreements to all new employees, who were required to sign them
before beginning employment. Offer letters from DIRECTV and a company
Frequently Asked Questions (“FAQ”) page also provided that new employees
from Bruister were obligated to sign arbitration agreements before beginning
employment.      Thus, DIRECTV argues that Chester must have signed an
arbitration agreement, even though DIRECTV is now unable to locate it.
Chester disputes that he signed an arbitration agreement. In an affidavit, he
avers that he cannot remember having signed one, he would not have signed
one unless he was threatened with termination, and he was not threatened
with termination, so he must not have signed one.
       In 2012, Chester was terminated.            He brought two federal lawsuits
against DIRECTV, which were assigned to different district judges. In Case
Number 14-60247 (the “unpaid overtime case”), he sued for unpaid overtime;
in Case Number 14-60249 (the “age-discrimination case”), he sued for age
discrimination. DIRECTV filed motions to compel arbitration in each case.
The district court in the unpaid overtime case held an evidentiary hearing on



       * 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.

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whether an arbitration agreement existed.         It ultimately concluded that
DIRECTV had not proven that an agreement ever existed, so it denied the
motion to compel arbitration. The district court in the age-discrimination case
denied the motion to compel arbitration based on the parties’ paper filings and
the order in the unpaid overtime case.
                                     DISCUSSION
I. Jurisdiction
      We have appellate jurisdiction over the denials of DIRECTV’s motions to
compel arbitration. 9 U.S.C. § 16(a)(1)(D).
II. Standard of Review
      We typically review orders denying motions to compel arbitration de
novo. Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 708 (5th Cir. 2002). In
particular, “[t]his Court reviews de novo a district court’s interpretation of an
agreement to arbitrate and whether it binds the parties to arbitrate.” Cal.
Fina Grp., Inc. v. Herrin, 379 F.3d 311, 315 (5th Cir. 2004). But “[t]he district
court’s factual findings are subject to review only for clear error.” Id.
III. Evidentiary Burdens
      A district court must hold a trial on the existence of an arbitration
agreement if a motion to compel arbitration is filed and “the making of the
arbitration agreement . . . [is] in issue.” 9 U.S.C. § 4. To put the making of the
arbitration agreement “in issue,” Chester was required to “unequivocal[ly]
den[y]” that he agreed to arbitrate and produce “some evidence” supporting his
position. T & R Enters., Inc. v. Cont’l Grain Co., 613 F.2d 1272, 1278 (5th Cir.
1980) (quoting Almacenes Fernandez S. A. v. Golodetz, 148 F.2d 625 (2d Cir.
1945)).
      If Chester met this threshold burden, DIRECTV was then required to
prove the existence of an agreement to arbitrate by a preponderance of the
evidence. See Banks v. Mitsubishi Motors Credit of Am., Inc., 435 F.3d 538,

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540 (5th Cir. 2005) (per curiam). The question of whether an agreement exists
is governed by state law, id., and, as the parties agree, Mississippi law applies
here. 1 We have held that, under Mississippi law, the party seeking to recover
on a lost contract must prove “both (a) the former existence and the present
unavailability of the missing document, and (b) the contents of the missing
document.”      Id. (internal quotation marks omitted).               Thus, as DIRECTV
recognizes, it had to prove by a preponderance of the evidence: (1) that an
agreement to arbitrate existed, (2) that it was lost, and (3) its contents. 2
IV. The Unpaid Overtime Case
       The district court in the unpaid overtime case properly applied this
burden-shifting framework.
A. Putting the Making of the Arbitration Agreement in Issue
       First, the making of the arbitration agreement was properly in issue
because, contrary to DIRECTV’s argument, Chester unequivocally denied
making it and produced an affidavit providing as such. DIRECTV argues that
Chester did not unequivocally deny signing an arbitration agreement because
he said he did not remember doing so. But he did more than that. Specifically,
he introduced an affidavit 3 stating that “I do not remember signing any
arbitration agreement, and dispute that I signed an arbitration agreement with
Directv, LLC at anytime.”           He also stated that, “[h]ad I been offered an
arbitration agreement I would have attempted to continue my employment



       The lawsuits concern Chester’s employment in Mississippi, and the arbitration
       1

agreement was allegedly executed in Mississippi.
       2 We note that DIRECTV seemingly fails to recognize that Chester’s burden in this
case is a threshold burden. Instead, it seems to argue that the burden shifts to him once it
carries its own burden. This is incorrect; if it carries its burden, it wins its case, obviating
the need to shift the burden to Chester.
       3 This so-called “affidavit” actually appears to be an unsworn declaration, but that is
sufficient under federal law. See 28 U.S.C. § 1746.

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without signing it, and only would have signed it if the employer threatened to
terminate me if it was not signed.” Further, he stated, “[i]f I was threatened
with termination if I did not sign an arbitration agreement I would remember
it. Since I do not remember any such threat I am sure I did not sign an
arbitration agreement.” Chester therefore unequivocally denied signing an
arbitration agreement. Chester also provided some evidence that he did not
sign an arbitration agreement—his affidavit. 4
       Accordingly, we hold that Chester fulfilled his threshold burden and put
the making of an arbitration agreement in issue.                  The district court was
therefore correct to summarily proceed to a trial on this issue. 9 U.S.C. § 4.
B. Evidentiary Hearing
       After determining that the making of the arbitration agreement was in
issue, the district court held an evidentiary hearing. In effect, this hearing was
essentially a bench trial confined to the issue of whether Chester signed an
arbitration agreement. 5       The district court found that DIRECTV had not
proven that Chester entered into an agreement to arbitrate. This finding was
not clearly erroneous.
       DIRECTV admitted that incoming Bruister employees signed one of two
possible arbitration agreements (or sometimes both).                 One of DIRECTV’s
witnesses admitted that there is no way of knowing which arbitration


       4 In Orr, we held that a party’s “self-serving affidavits” that contain “nothing more
than hollow, bald assertions” of fraudulent inducement are insufficient to put the making of
an arbitration agreement in issue. 294 F.3d at 710. But the present case differs from Orr in
at least two ways. First, Chester provides more than “hollow, bald assertions”; he explains
why he is convinced that he did not sign the arbitration agreement. Second, there is some
corroborating evidence that Chester did not sign the agreement, given that DIRECTV has
admitted that it cannot find the agreement. It is difficult to imagine what other evidence
Chester could have presented to prove a negative (i.e., to prove that he did not sign the
arbitration agreement).
       5Chester may have been entitled to a jury trial on this issue if he had requested one,
but he did not. See 9 U.S.C. § 4.

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agreement Chester signed.        DIRECTV argues that this uncertainty is
irrelevant because both agreements require the arbitration of overtime and age
discrimination claims. But the two agreements have substantially different
terms in other respects. For example, one of the agreements contains an opt-
out clause, while the other does not. Further, one agreement allows all of the
discovery permitted by the forum state’s rules of civil procedure, whereas the
other agreement generally permits the deposition of only one witness.
Mississippi law requires the proponent of a missing contract to prove its
contents. Banks, 435 F.3d at 540. DIRECTV has failed to do so.
      Further, we are unconvinced that DIRECTV proved that Chester signed
the arbitration agreement. It argues that the fact that it lost all of Chester’s
employment documents, not just the arbitration agreement, supports its
position that his file was simply misplaced. But DIRECTV’s argument is
undermined by the fact that it cannot find approximately 26 of the 87 other
arbitration agreements that were supposedly collected during the acquisition
of Bruister’s Brookhaven office. Only the arbitration agreements were lost for
these other incoming employees.        This fact supports an inference that
DIRECTV did not actually collect arbitration agreements from many Bruister
employees, including Chester.
      Also, DIRECTV admits that it discovered that Chester’s arbitration
agreement was missing by 2010. It admits that it did not ask Chester or other
employees whose arbitration agreements were missing to sign new
agreements.    This fact tends to undermine DIRECTV’s claim that it was
vigilant in ensuring that all employees signed arbitration agreements. The
district court did not clearly err by making this inference, even if there may be
other plausible explanations for why DIRECTV chose not to replace the
missing arbitration agreements.


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       DIRECTV points out that one of its employees testified that she and
another employee collected all new hire packets during a Brookhaven meeting
that Chester purportedly attended. She testified that they checked to make
sure that all of these packets were signed and complete. The district court was
permitted to disbelieve this testimony, given that many of the arbitration
agreements were signed in the days following the meeting. Thus, even if her
testimony is to be believed, the DIRECTV employees must not have accurately
checked each of the arbitration agreements. This same employee testified that
DIRECTV would never have performed the background check that it did
perform if it had not received Chester’s signed arbitration agreement. The
district court was not required to credit this assertion.             While DIRECTV
supposedly had a policy of not beginning background checks without receiving
signed arbitration agreements, policies are sometimes broken, either by
mistake or by design. DIRECTV also argues that another employee (who did
not testify) created a spreadsheet showing that almost all of the paperwork,
including all of Chester’s, was complete within a week of the Brookhaven
meeting. But the district court was permitted to discount the accuracy of a
spreadsheet created by a non-testifying employee.
      DIRECTV also relies upon the fact that Chester essentially admits that
he signed an offer letter that provided that he was required to sign an
arbitration agreement. It also points out that new employees coming from
Bruister were directed to a FAQ page stating that they were obligated to sign
arbitration agreements. While this evidence could support an inference that
Chester signed an arbitration agreement, it does not require this inference. 6




      6 We note that DIRECTV does not argue that the signed offer letter itself constitutes
an agreement to arbitrate.

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       Considering the entire record, it is clear that, somewhere along the way,
DIRECTV’s purported practice of collecting and filing arbitration agreements
for all new employees broke down during the acquisition of Bruister’s
Brookhaven office. DIRECTV argues that the practice went awry during filing
rather than collection. But, given the record before us, the district court was
entitled to find that the process broke down during collection, particularly
given that the district court specifically found that two of DIRECTV’s
witnesses were not credible.
       Thus, even though some evidence might cut the other way, the district
court did not clearly err by finding that DIRECTV failed to prove by a
preponderance of the evidence that Chester signed an arbitration agreement.
Accordingly, it did not err in denying DIRECTV’s motion to compel arbitration.
V. The Age-Discrimination Case
       As in unpaid overtime case, Chester met his burden of unequivocally
denying that he signed an arbitration agreement, and he produced some
evidence of this denial by submitting an affidavit. See Section IV.A, supra.
Thus, Chester met his initial burden of putting the making of the arbitration
agreement in issue.
       Unless the unpaid overtime case’s order denying the motion to compel
arbitration deserved preclusive effect, the court in the age-discrimination case
should have proceeded to a bench trial on the issue of whether an arbitration
agreement existed. 7 9 U.S.C. § 4. Rather than proceeding to a bench trial, the
district court instead denied the motion to compel arbitration outright. But,
on appeal, DIRECTV does not argue that we should remand for an evidentiary
hearing or bench trial. Instead, it requests only that we “reverse and [ ] render



       7We need not and do not decide whether the denial of the motion to compel arbitration
in the unpaid overtime case was entitled to preclusive effect.

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with instructions that Chester must arbitrate all claims against the company.”
“Obviously, a party is bound by, or limited to, the relief it seeks on appeal.”
Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir. 1998). Thus,
DIRECTV has waived any argument that we should remand based on the
district court’s failure to hold a bench trial.
      As we have discussed, Chester met his threshold burden of putting the
making of an arbitration agreement in issue, so the district court could not
have granted DIRECTV’s motion to compel arbitration based on the paper
pleadings. For this same reason, we cannot provide DIRECTV’s requested
relief of rendering judgment in its favor.
                                   CONCLUSION
      For the foregoing reasons, we AFFIRM.




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