     Case: 12-60235   Document: 00512225136    Page: 1    Date Filed: 04/30/2013




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

                                                                 FILED
                                                                April 30, 2013
                                No. 12-60235
                                                                Lyle W. Cayce
                                                                     Clerk
AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS,

                                   Plaintiff - Appellee

v.

GLENDA C. BILES, Individually, Natural Mother of David Biles, Deceased, and
Administratix of Estate of David Biles, Deceased; BEVERLY GARRETT,
Individually and Natural Sister of David Biles, Deceased; PATRICIA FINNAN,
Individually and Natural Sister of David Biles, Deceased; MICHAEL
LOCKWOOD, Individually and Natural Brother of David Biles, Deceased,

                                   Defendants - Appellants



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:
      This case arises out of the payment of benefits pursuant to an American
Family Life Assurance Company of Columbus (“Aflac”) accident insurance
policy. The district court granted Aflac’s summary judgment motion and
awarded Aflac the relief it sought below: an order compelling Defendants-
Appellants to submit their state-law claims against Aflac and its agents to
arbitration. We AFFIRM.
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                                 No. 12-60235

                                       I.
      In late 2006, David Biles (“the decedent”) allegedly completed an
application for an Aflac accident insurance policy. The application included a
form that required applicants to acknowledge receipt of a statement outlining
the details of the accident policy’s binding arbitration clause (the “arbitration
acknowledgment form”). The application and the arbitration acknowledgment
form both contain a signature Aflac purports to be that of the decedent. Aflac
issued a policy to the decedent effective January 1, 2007 (the “Policy”).
Tragically, Aflac’s obligation to pay death benefits pursuant to the terms of the
Policy arose less than one year later when the decedent suddenly passed away.
Aflac paid death benefits to the two named beneficiaries: Glenda Biles (“Ms.
Biles”), the decedent’s mother, and Ken Ashley (“Ashley”), the decedent’s
roommate and life partner.
      In September 2010, Ms. Biles, and the decedent’s siblings Beverly Garrett,
Patricia Finnan, and Michael Lockwood (collectively “Appellants”), filed suit in
the Circuit Court of the First Judicial District of Hinds County, Mississippi,
alleging that Aflac should not have paid any portion of the death benefit from
the Policy to Ashley. Appellants named Aflac, Ashley, Brendan Hammond
(“Hammond”), the Aflac sales associate who sold the policy to the decedent, and
the bar and its owners where the decedent was drinking on the night of his
death, as defendants. The Appellants’ relevant state claims are premised on
allegations that Ashley conspired with Hammond to fraudulently obtain the
Policy with the intent to end the decedent’s life and collect the Policy’s death
benefits. Appellants further allege that Ashley’s actions on the night of the
decedent’s death caused or contributed to the death of the decedent and,
therefore, Aflac should have known that Ashley was prohibited from collecting
death benefits on the Policy.
      In early November 2010, Aflac sent a letter to Appellants demanding that
they submit their claims against Aflac and its agents to arbitration pursuant

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to the terms of the Policy. On November 17, 2010, after the Appellants refused
to comply with Aflac’s demand, Aflac filed a Petition to Compel Arbitration in
the district court, pursuant to Section 4 of the Federal Arbitration Act, 9 U.S.C.
§ 4, seeking an order that Appellants’ claims against Aflac and its agents must
be arbitrated.1
       Aflac moved for summary judgment. Appellants responded in opposition
to Aflac’s summary judgment motion, contending that Aflac’s federal action
should be dismissed based on Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976), and that the arbitration acknowledgment
form was invalid because the signature, purported to be that of the decedent,
was a forgery.2 The only evidence offered in support of Appellants’ response
was the affidavit of a handwriting expert—Robert Foley (“Foley”)—who
explained that it was probable that the signature was a forgery. In the
response, Appellants also requested discovery pursuant to Rule 56(d) of the
Federal Rules of Civil Procedure, explaining that Aflac had failed to make
Hammond available for a deposition and that Hammond’s deposition was
necessary to “fully and completely respond” to Aflac’s summary judgment
motion.     Aflac replied to the Appellants’ response by filing supplemental
evidence in support of its summary judgment motion and moving to strike
Foley’s affidavit. Appellants filed a response to Aflac’s motion to strike Foley’s


       1
         Aflac also filed a motion to compel arbitration in the state court proceedings in
December 2010. In May 2011, the state court judge issued an order explaining that there were
“issues regarding the validity of the signatures” on the application and arbitration
acknowledgment form. The state court judge ordered the parties to conduct discovery on
issues relating to the validity of the signatures and denied Aflac’s motion to compel arbitration
without prejudice, with permission to re-file the motion upon completion of the discovery.
Based on the parties’ briefing, no further progress has occurred in the state court proceedings
related to the validity of the signature on the arbitration acknowledgment form.
       2
         Appellants’ theory of the case is that the signature on the application for the Policy,
as well as the signature on the arbitration acknowledgment form, are both forgeries completed
by Ashley. Aflac notes that if the Appellants’ theory were proven, Ms. Biles would not be
entitled to any proceeds from the Policy because the Policy itself would be void.

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affidavit, and also renewed their motion for Rule 56(d) discovery.
      On September 8, 2011, the district court entered its memorandum opinion
and order (the “September 8th Order”) that, in relevant part: (1) denied
Appellants’ motion to dismiss based on Colorado River; (2) denied Appellants’
Rule 56(d) discovery request; and (3) reserved ruling on Aflac’s summary
judgment motion and motion to strike Foley’s affidavit pending a Daubert
hearing. Shortly thereafter, Appellants filed a motion for reconsideration of the
district court’s denial of Appellants’ Rule 56(d) discovery request. Appellants
also filed a motion to strike the affidavit of Aflac’s signature expert, William
Flynn (“Flynn”). The district court held a Daubert hearing focusing on each
parties’ challenge to the expert affidavits offered by the opposing party relating
to whether the signature on the arbitration acknowledgment form was the
decedent’s or, instead, was a forgery.
      On November 3, 2011, the district court entered its memorandum opinion
and order (the “November 3rd Order”) that: (1) denied Appellants’ motion for
reconsideration; (2) denied Appellants’ motion to strike Flynn’s affidavit; (3)
granted Aflac’s motion to strike Foley’s affidavit; and (4) granted Aflac’s
summary judgment motion. On the same day, the district court also entered an
order administratively closing the federal action pending notification by the
parties that the arbitration proceedings had been completed. On March 13,
2012, the district court, pursuant to Appellants’ motion for certification
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, entered a final
judgment compelling arbitration. Appellants timely filed a notice of appeal.
                                         II.
      Appellants first contend that the district court should have abstained
under Colorado River in deference to the state court proceedings ongoing in
Mississippi relating to Aflac’s payment of benefits to Ashley. “We apply a two-
tiered standard of review in abstention cases. Although we review a district


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court’s abstention ruling for abuse of discretion, we review de novo whether the
requirements of a particular abstention doctrine are satisfied.” Brown v. Pac.
Life Ins. Co., 462 F.3d 384, 394 (5th Cir. 2006) (quotation omitted).
      Colorado River abstention is appropriate only when the federal and state
“suits are parallel, having the same parties and the same issues.” Stewart v. W.
Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir. 2006) (citation omitted). The
federal and state lawsuits in this case are far from parallel. The state action
undisputedly involves additional defendants and issues not involved in the
federal action, which is limited to the narrow issue of whether arbitration
applies to the dispute between Appellants and Aflac and its agents. Although
we have noted that it might not be necessary that the parties and issues are
absolutely identical in every instance for Colorado River abstention to be
appropriate, see Brown, 462 F.3d at 395 n.7, this case is not an example of the
exception to the general rule.
      Even if the state and federal cases were sufficiently parallel, Colorado
River abstention would be inappropriate because exceptional circumstances are
not present here. Colorado River abstention allows a court to abstain from a
case only in “exceptional circumstances.” Brown, 462 F.3d at 394. Courts
consider six factors to determine whether “exceptional circumstances” exist:
      (1) assumption by either state or federal court over a res; (2)
      relative inconvenience of the fora; (3) avoidance of piecemeal
      litigation; (4) order in which jurisdiction was obtained by the
      concurrent fora; (5) extent federal law provides the rules of decision
      on the merits; and (6) adequacy of the state proceedings in
      protecting the rights of the party invoking federal jurisdiction.
Id. at 395 (citations omitted). Determining whether it is appropriate to dismiss
a case under this doctrine “does not rest on a mechanical checklist, but on a
careful balancing of the important factors as they apply in a given case, with the
balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone
Mem. Hosp. v. Mercury Constr. Co., 460 U.S. 1, 16 (1983).

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      In this case, none of the six factors weigh in favor of abstention. First,
neither the state nor federal court assumed jurisdiction over any res; therefore,
the first factor weighs in favor of exercising federal jurisdiction. See Stewart,
438 F.3d at 492 & n.4. Second, because the state and federal courthouses
hearing these cases are in the same city, the inconvenience factor weighs in
favor of exercising federal jurisdiction. Id. at 492 (“When courts are in the same
geographic location, the inconvenience factor weighs against abstention.”
(citation omitted)).    Third, any concern of piecemeal litigation here is
outweighed by the strong federal policy supporting arbitration. See, e.g.,
Brown, 462 F.3d at 396 (“Allowing a federal court to order arbitration, even
where a state court may construe an arbitration clause differently, is fully
consistent with . . . established congressional intent.”).
       The fourth factor also weighs in favor of exercising federal jurisdiction.
Appellants filed their complaint in state court on September 10, 2010, and Aflac
filed its federal complaint on November 17, 2010. Significant progress has been
made in the federal lawsuit; in fact, the only disputed issue has been fully
resolved (pending disposition of this appeal) by the district court’s order granting
summary judgment, which was entered after the district court considered
discovery and ruled on the parties’ motions to strike expert testimony after
holding a Daubert hearing. In the state court proceedings, although the judge
concluded that discovery was required to determine whether the disputed
signatures were forgeries, no discovery on the disputed issue has been completed
to date. Because this federal court proceeding has clearly progressed further
than the related state court proceeding, the fourth factor favors federal
jurisdiction. See, e.g., Stewart, 438 F.3d at 492–93 (explaining that the fourth
factor “only favors abstention when the federal case has not proceeding past the
filing of the complaint”).
      The fifth factor weighs in favor of exercising federal jurisdiction because


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the only legal issue disputed in the federal lawsuit was whether the Appellants’
underlying claims should be submitted to arbitration under 9 U.S.C. § 4—an
issue governed by federal law whether it is raised in state or federal court. See
Snap-on Tools Corp. v. Mason, 18 F.3d 1261, 1266 (5th Cir. 1994) (citing Moses
H. Cone, 460 U.S. at 941). Finally, although Aflac fully concedes that the state
court is an adequate forum, the sixth factor, by its very nature, does not weigh
in favor of abstention. Stewart, 438 F.3d at 493 (“The sixth factor is either a
neutral factor or one that weighs against abstention.” (citation omitted)).
      Because the federal and state lawsuits in this case are not parallel and
no factor weighs in favor of abstention, we conclude that the district court
correctly declined Appellants’ invitation to abstain pursuant to Colorado River.
                                      III.
      Appellants next maintain, without relevant case support, that Aflac’s
desired relief—an order compelling Appellants to arbitrate their claims against
Aflac and its agents and enjoining Appellants from continuing to litigate such
claims in state court—is barred under the Anti-Injunction Act. The Anti-
Injunction Act provides that “[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized
by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
effectuate its judgments.” 28 U.S.C. § 2283. An order compelling arbitration,
i.e., the district court’s order below, is a final decision that qualifies as a
“judgment” under the Anti-Injunction Act. Am. Heritage Life Ins. Co. v. Orr,
294 F.3d 702, 714 n.3 (5th Cir. 2002) (“Because an order compelling arbitration
entered in an independent proceeding is a final decision, it also qualifies as a
‘judgment’ under the Anti-Injunction Act.”). We have held that a district court
has the discretion to issue an order staying a related state court proceeding it
has determined must be submitted to arbitration if the district court concludes
that it is necessary to protect or effectuate its order compelling arbitration. Id.;


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Conseco Fin. Servicing Corp. v. Shinall, 2002 WL 31319368, at *7 (5th Cir. Oct.
1, 2002) (unpublished but persuasive); see also Great Earth Companies, Inc. v.
Simons, 288 F.3d 878, 894 (6th Cir. 2002) (explaining that an injunction of state
proceedings is necessary to protect the final judgment of a district court on the
validity of an arbitration clause).
      Accordingly, the district court’s order compelling Appellants to arbitrate
their claims against Aflac and its agents and enjoining Appellants from
continuing to litigate such claims in state court is not barred by the Anti-
Injunction Act because it falls within the exception for injunctions necessary to
protect or effectuate the district court’s prior judgment.
                                       IV.
      Appellants’ third contention on appeal is that the district court abused its
discretion by denying their timely request for additional discovery to overcome
Aflac’s summary judgment motion.             Initially, there is no dispute that
Appellants’ Rule 56(d) motion requesting additional discovery was filed before
the district court ruled on Aflac’s summary judgment motion and placed the
district court on notice that Appellants were seeking discovery pertaining to the
summary judgment motion. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291
(5th Cir. 1994) (listing the three requirements to receive a continuance for
additional discovery under Rule 56). The only issue on appeal is whether
Appellants demonstrated to the district court with “reasonable specificity” how
the requested discovery would influence the outcome of Aflac’s pending
summary judgment motion. See id.
                                       A.
      We review a district court’s denial of a Rule 56(d) motion for abuse of
discretion. Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citation
omitted). Rule 56(d) motions for additional discovery are “‘broadly favored and
should be liberally granted’ because the rule is designed to ‘safeguard


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non-moving parties from summary judgment motions that they cannot
adequately oppose.’” Id. (quoting Culwell v. City of Fort Worth, 468 F.3d 868,
871 (5th Cir. 2006)). Nevertheless, non-moving parties requesting Rule 56(d)
relief “may not simply rely on vague assertions that additional discovery will
produce needed, but unspecified, facts.” Id. (quoting SEC v. Spence & Green
Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Instead, the non-moving party
must “set forth a plausible basis for believing that specified facts, susceptible
of collection within a reasonable time frame, probably exist and indicate how
the emergent facts, if adduced, will influence the outcome of the pending
summary judgment motion.” Id. (quoting C.B. Trucking, Inc. v. Waste Mgmt.
Inc., 137 F.3d 41, 44 (1st Cir. 1998)); see also Washington v. Allstate Ins. Co.,
901 F.2d 1281, 1285 (5th Cir.1990) (“This court has long recognized that a
plaintiff’s entitlement to discovery prior to a ruling on a motion for summary
judgment is not unlimited, and may be cut off when the record shows that the
requested discovery is not likely to produce the facts needed by the plaintiff to
withstand a motion for summary judgment.” (citations omitted)).
                                             B.
       The only disputed fact issue relevant to Aflac’s summary judgment motion
was whether the decedent’s signature on the arbitration acknowledgment form
was a forgery. Appellants, both before the district court and now on appeal,
explain that deposing Hammond was necessary for them to adequately oppose
Aflac’s summary judgment motion.3 The district court, in relevant part, denied
Appellants’ Rule 56(d) motion, explaining that “it is clear that the [Appellants]
have failed to show that discovery is required in order to fully respond to the
motion.”


       3
         Appellants’ explanation for why Hammond’s deposition was necessary fails to specify
the facts that could be obtained in a deposition. Rather, the explanation merely focuses on the
underlying allegation that Hammond “was involved in the forgery of the signature on the
policy of insurance in this case.”

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       Importantly, the critical factual dispute was whether the signature on the
arbitration acknowledgment form was a forgery. Accordingly, the question for
the district court was whether it was likely that the requested discovery would
produce the facts Appellants needed to oppose Aflac’s summary judgment
motion. See Washington, 901 F.2d at 1285. At the time Appellants requested
the additional discovery, Hammond had already submitted an affidavit
attesting that he witnessed the decedent sign the policy and the arbitration
acknowledgment form.          Although Appellants were certainly hopeful that
Hammond would readily admit in a deposition that he actually forged the
signature at issue, the district court reasonably could have concluded that it
was not likely that Hammond would admit to perjury and fraud in a
deposition.4 Other than such a direct admission, it is unclear what evidence
could have been obtained from deposing Hammond that would have been
relevant to the dispositive legal issue, i.e., whether the decedent’s signature on
the arbitration acknowledgment form was a forgery.5 Because the burden is on
the party requesting additional discovery to show how the potential discovery,
if it is obtained, will influence the outcome of the summary judgment motion,
the fact that it is unclear what Appellants hoped for beyond a direct admission
weighs in favor of the district court’s decision.


       4
         Moreover, additional record evidence, independent of Hammond’s affidavit, strongly
indicated that the decedent signed the Policy application and arbitration acknowledgment
form. Specifically, the decedent’s former employer provided an affidavit stating that the
decedent informed her of his decision to purchase the Policy and requested that the Policy
premiums be paid via a payroll deduction. The employer authorized this request and made
payroll deductions to pay the Policy premiums. These statements by the decedent’s employer
further reduced the likelihood that Hammond would admit that the decedent did not sign the
Policy application and arbitration acknowledgment form.
       5
        The requested discovery was not relevant to the expert testimony that was the center
of the dispute below. Appellants’ expert admitted during the Daubert hearing that
Hammond’s deposition was not necessary for him to provide his opinion on whether the
signature was a forgery. Therefore, the critical testimony in this case—the expert opinions
relating to whether the signature was a forgery—would not have been impacted by
Hammond’s deposition.

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        In conclusion, although it might have been appropriate for the district
court to allow Appellants to depose Hammond prior to ruling on Aflac’s
summary judgment motion, the district court’s decision to deny the motion was
within its discretion. The discovery requested by Appellants was unlikely to
result in a direct admission by Hammond that he had committed perjury and
fraud and, therefore, would not have influenced the outcome of the summary
judgment motion. See id.
                                               V.
        Finally, Appellants raise a single challenge to the merits of the district
court’s grant of summary judgment in favor of Aflac. Specifically, Appellants
contend that the district court erred because Ms. Giles’s affidavit, which
includes her opinion that the signature on the arbitration acknowledgment form
was a forgery, is sufficient to create a genuine issue of material fact on the
authenticity of the decedent’s signature.6              Based on the limited scope of
Appellants’ arguments, the only summary-judgment-related question on appeal
is whether Ms. Biles’s affidavit is sufficient to create a genuine issue of material
fact.
                                               A.
        We review a grant of summary judgment de novo, applying the same
standard as the district court and viewing the evidence in the light most
favorable to the non-moving party. Amerisure Ins. Co. v. Navigators Ins. Co.,
611 F.3d 299, 304 (5th Cir. 2010) (citation omitted). “Summary judgment is
proper when ‘the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and



        6
        Importantly, Appellants have not briefed and, therefore, have waived any possible
challenge to any other aspect of the district court’s order, including its decision following the
Daubert hearing to strike Foley’s affidavit because it was unreliable. See, e.g., Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and
argued in its initial brief on appeal.” (emphasis in original)).

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that the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed.
R. Civ. P. 56(c)). “Although on summary judgment the record is reviewed de
novo, this court . . . will not consider evidence or arguments that were not
presented to the district court for its consideration in ruling on the motion.”
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992) (citation
omitted). A genuine issue of material fact exists if a reasonable jury could enter
a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). Because our review is de novo, our analysis is not limited to
that employed by the district court, and we “may affirm the district court’s
decision on any basis presented to the district court.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007) (citation omitted).
                                       B.
      Ms. Biles’s affidavit, in relevant part, contains her opinion that the
“signature on the Acknowledgment of Arbitration Agreement is not David Biles’
signature.”   Ms. Biles’s affidavit, however, was not part of the summary
judgment record.
      Rule 56(c)(1) provides that “[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion by . . . citing to particular parts
of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). Rule 56(c)(3) provides
that “[t]he court need consider only the cited materials, but it may consider
other materials in the record.” Fed. R. Civ. P. 56(c)(3). We have explained that
“Rule 56 does not impose upon the district court a duty to sift through the
record in search of evidence to support a party’s opposition to summary
judgment.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.
2006) (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998)); see also Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988) (concluding that a deposition “was never made part of the competent
summary judgment record before the district court” because the party opposing


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summary judgment “failed to designate, or in any way refer to, the deposition as
the source of factual support” for its response to the summary judgment motion).
       The record demonstrates that Appellants failed to comply with Rule 56(c)
with respect to Ms. Giles’s affidavit and, accordingly, the affidavit was never
made part of the summary judgment record before the district court. See, e.g.,
Kline, 845 F.2d at 1307. In Appellants’ responses to Aflac’s summary judgment
motions, the only evidence they cited in support of their assertion that the
authenticity of the signature was genuinely disputed was Foley’s affidavit.
After the district court reserved its ruling on Aflac’s summary judgment motion7
and denied Appellants’ Rule 56(d) motion for additional discovery in its
September 8th Order, Appellants filed a motion to reconsider the district court’s
denial of their Rule 56(d) motion. The motion to reconsider did not challenge
the district court’s discussion of the merits of Aflac’s summary judgment motion
but, instead, only challenged the district court’s decision to deny Appellants’
request for additional discovery. After Aflac filed a response to Appellants’
motion to reconsider, Appellants filed a reply with Ms. Biles’s affidavit attached.
In the reply itself—which primarily sought additional discovery—Appellants
did not explain what purpose Ms. Biles’s affidavit served. Appellants failed to
file a motion to expand the summary judgment record to include Ms Biles’s
affidavit.
       There is no indication in the record or briefing that Appellants properly
brought the affidavit to the district court’s attention in accordance with Rule 56.
Accordingly, we conclude that Ms. Giles’s affidavit was never made part of the
summary judgment record before the district court and therefore fails to create



       7
         The district court concluded that a Daubert hearing was necessary to determine if Mr.
Foley’s expert testimony was reliable. The district court noted in its order that if it concluded
that Mr. Foley’s testimony was inadmissible under Daubert, then it would grant Aflac’s
summary judgment motion because “defendants have offered no other evidence” that would
create a genuine issue of material fact on the forgery issue.

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a genuine issue of material fact on the authenticity of the decedent’s signature.
                                      VI.
      For the foregoing reasons, we AFFIRM the district court’s entry of
summary judgment and order compelling arbitration of Appellants’ claims
against Aflac and its agents.




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