     Case: 11-60730     Document: 00511810122         Page: 1     Date Filed: 04/03/2012




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

                                                                            FILED
                                                                            April 3, 2012

                                     No. 11-60730                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DANIEL B. O’FALLON, individually and on behalf of all others similarly
situated,

                                                  Plaintiff-Appellant
v.

ENCORE RECEIVABLE MANAGEMENT, INCORPORATED; DISCOVER
FINANCIAL SERVICES, L.L.C., also known as DFS Services, L.L.C.,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:11-CV-36


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff filed this suit on February 23, 2011 against his former credit card
company, alleging the company and agents acting on its behalf attempted to
collect a debt against it in a manner prohibited by the Fair Debt Collection
Practices Act. Plaintiff had a cardholder contract with the company containing
a valid arbitration agreement, and the parties do not dispute that Plaintiff’s

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60730       Document: 00511810122         Page: 2     Date Filed: 04/03/2012



                                       No. 11-60730

claims here are encompassed by that agreement. On April 12, 2011, Defendant
moved to compel arbitration. Plaintiff contested on various grounds. The
district court granted the motion, dismissing the action without prejudice and
compelling arbitration.
       The sole issue here is whether, as Plaintiff argues, one of various
Mississippi statutes of limitations for contracts bars Defendants’ demand to
arbitrate, because that demand is based on a contract that was signed several
years ago.1 This argument misunderstands the applicability of statutes of
limitations to arbitration agreements. As stated by the district court, a party’s
right to compel arbitration accrues when the opposing party refuses to arbitrate,
not when the contract is signed.2 Defendants moved to compel arbitration less
than two months after Plaintiff filed this action, well within all of the multi-year
statutes of limitations that Plaintiff claims could apply. For this reason, and for
the reasons given by the district court in its careful decision of August 3, 2011,
we affirm the district court’s order to compel arbitration.
       AFFIRMED




       1
        We assume only arguendo that this is a proper question for this court, rather than for
the arbitrator.
       2
         E.g., Reconstruction Finance Corp. v. Harrisons & Crosfield, 204 F.2d 366, 369 (2nd
Cir. 1953); see also Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 21
(1983) ("An indispensable element of Mercury's cause of action under § 4 for an arbitration
order is the Hospital's refusal to arbitrate").

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