James Dillon v. BMO Harris Bank, N.A.

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying Motion to dismiss appeal [999411301-2] Originating case number: 1:13-cv-00897-CCE-LPA. [999592500]. [14-1728]

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 1 of 19

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1728

JAMES DILLON,
Plaintiff – Appellee,
v.
BMO HARRIS BANK, N.A.; GENERATIONS FEDERAL CREDIT UNION; BAY
CITIES BANK,
Defendants – Appellants,
and
FOUR OAKS BANK & TRUST COMPANY,
Defendant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00897-CCE-LPA)

Argued:

March 27, 2015

Decided:

May 29, 2015

Before DUNCAN, KEENAN, and THACKER, Circuit Judges.

Vacated and remanded by published opinion.
Judge Duncan wrote
the opinion, in which Judge Keenan and Judge Thacker joined.

ARGUED: Kevin Scott Ranlett, MAYER BROWN LLP, Washington, D.C.,
for Appellants.
Stephen N. Six, STUEVE SIEGEL HANSON LLP,
Kansas City, Missouri, for Appellee.
ON BRIEF: Lucia Nale,
Debra Bogo-Ernst, MAYER BROWN LLP, Chicago, Illinois; Mary K.

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 2 of 19

Mandeville, ALEXANDER RICKS PLLC, Charlotte, North Carolina, for
Appellant BMO Harris Bank, N.A.; Eric A. Pullen, Leslie Sara
Hyman, Etan Tepperman, PULMAN, CAPPUCCIO, PULLEN, BENSON &
JONES, LLP, San Antonio, Texas; Reid C. Adams, Jr., Garth A.
Gersten, Jonathan R. Reich, WOMBLE CARLYLE SANDRIDGE & RICE,
LLP, Winston-Salem, North Carolina, for
Appellant Generations
Federal Credit Union; Eric Rieder, New York, New York, Michael
P. Carey, Atlanta, Georgia, Mark Vasco, BRYAN CAVE LLP,
Charlotte, North Carolina, for Appellant Bay Cities Bank.
Darren T. Kaplan, DARREN KAPLAN LAW FIRM, P.C., New York, New
York; F. Hill Allen, THARRINGTON SMITH, L.L.P., Raleigh, North
Carolina; Norman E. Siegel, J. Austin Moore, STUEVE SIEGEL
HANSON LLP, Kansas City, Missouri; Jeffrey M. Ostrow, KOPELOWITZ
OSTROW P.A., Fort Lauderdale, Florida; Hassan A. Zavareei, TYCKO
& ZAVAREEI LLP, Washington, D.C., for Appellee.

2

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 3 of 19

DUNCAN, Circuit Judge:
After Plaintiff-Appellee James Dillon obtained loans from
online lenders and then sued Defendants-Appellants BMO Harris
Bank, N.A., Generations Federal Credit Union, and Bay Cities
Bank (the “Banks”) for facilitating collection of those loans,
the

Banks

sought

to

enforce

arbitration

agreements between Dillon and the lenders.
denied
seeking

these
to

motions,
cure

the

and

the

Banks

deficiencies

dismissing their claims.

the

clauses

in

the

loan

The district court

filed
court

renewed
relied

motions
on

in

The district court then denied the

renewed motions without considering their merits; it construed
them as motions for reconsideration, and denied them on that
basis.

The Banks appealed.

For the reasons that follow, we

vacate the district court’s order denying the renewed motions
and remand for further proceedings.

I.
A.
In October 2013, Dillon, a North Carolina resident, filed
this putative class action against the Banks. 1

He alleges that

he applied in late 2012 and mid 2013 for four online payday

1

A fourth Defendant, Four Oaks Bank & Trust, is not a party
to this appeal.

3

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 4 of 19

loans from tribal and out-of-state lenders. 2

As a part of the

application process, Dillon authorized the lenders to collect
the

amount

due

under

checking account.

the

loan

agreements

by

debiting

his

The lenders approved Dillon’s applications

and deposited a total of $3,575 into his checking account.

Soon

after, the lenders began collecting loan payments by initiating
electronic

fund

transfers

from

that

account.

The

Banks,

although not parties to the loan agreements, processed these
transfers

on

behalf

of

the

lenders,

thereby

acting

as

prohibits

the

intermediaries between the lenders and Dillon.
Dillon

maintains

that

North

Carolina

law

loans he took out because, among other reasons, they carried
interest rates that substantially exceed the maximum allowable
rate under State law.
sue

the

lenders

or

In this action, however, Dillon does not
any

other

party

2

to

his

loan

agreements.

Payday loans are small, high-interest, short-term cash
loans.
“Because of the dangers to consumers and potential for
predatory lending practices, many states have undertaken to
regulate or eliminate such transactions.”
Cmty. State Bank v.
Knox, 523 F. App’x 925, 926 n.1 (4th Cir. 2013). North Carolina
is one such state.
According to the North Carolina Department
of Justice, “storefront payday lenders” are barred from the
State, “but lenders are still using the Internet to offer these
loans.”
Payday
Loans,
N.C.
Dep’t
Just.,
http://www.ncdoj.gov/Consumer/Credit-and-Debt/Payday-Loans.aspx
(last visited May 7, 2015) (saved as ECF opinion attachment).
The
Department
explains
that
these
Internet
loans
are
unenforceable under North Carolina law, but notes that “some
Internet
lenders
who
are
based
overseas
or
on
Indian
reservations claim not to be subject to North Carolina law.”
Id.
4

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 5 of 19

Rather, he sues the Banks, alleging that they were complicit in,
and

necessary

parties

to,

the

lenders’

unlawful

practices.

Specifically, Dillon claims that the Banks made it possible for
the lenders to make and collect payday loans in North Carolina
by providing the lenders with access to the Automated Clearing
House

(“ACH”)

payments

were

Network,
due

an

under

electronic
the

loan

payment

system.

agreements,

the

When
lenders

initiated direct payment transactions through the ACH network.
The

Banks,

Institutions,
Network.

known
then

as

Originating

entered

the

Depository

transactions

into

Financial
the

ACH

Soon after, a central clearing facility transmitted

funds from Dillon’s account to the lenders’ accounts.

According

to Dillon, this process enabled the lenders to “debit payday
loan payments from customers’ bank accounts in states where the
loans are illegal and unenforceable.”

J.A. 28 ¶ 7.

B.
In November and December 2013, the Banks filed motions to
compel

arbitration

“Initial Motions”). 3

and

stay

further

court

proceedings

(the

They argued that Dillon agreed to submit

any claims arising from those loans to arbitration as a part of

3

Specifically, Generations moved to dismiss Dillon’s
complaint for failure to arbitrate, and the other two banks each
filed a motion to compel arbitration and stay further court
proceedings.
5

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 6 of 19

the application process for the loans themselves. 4

The Banks

substantiated their position by attaching copies of electronic
loan

agreements

containing

arbitration

clauses

and

bearing

Dillon’s name.
Dillon
appeal,

opposed

Dillon

the

argued

Initial

that

the

Motions.
Banks

Relevant

failed

burden of showing an agreement to arbitrate.

to

to

carry

this
their

He claimed that

the loan agreements were inadmissible hearsay because they did
not bear his physical signature and because the Banks did not
offer proof that they had been authenticated.
The Banks replied that the loan agreements were properly
before the court for three reasons.
agreements

were

integral

to

First, they argued that the

Dillon’s

complaint

loans form the entire basis for his claims.”
also

J.A.

162–63,

172.

Second,

they

because

“the

J.A. 170 n.2; see

argued

that

Dillon’s

position was disingenuous because Dillon, and not the Banks, was
a signatory to the loan agreements.
that

Dillon

had

not

actually

4

Third, they pointed out

questioned

the

agreements’

For example, Dillon’s purported loan agreement with one of
the lenders, Great Plains Lending, LLC, states: “UNLESS YOU
EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION [IN WRITING WITHIN
60 DAYS OF RECEIVING THE LOAN], ANY DISPUTE YOU HAVE WITH LENDER
OR ANYONE ELSE UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING
ARBITRATION.” J.A. 133.

6

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

authenticity.

Pg: 7 of 19

Rather, his argument concerned the Banks’ burden

of proof.
In

March

2014,

the

district

court

denied

the

Initial

Motions, holding that the Banks “ha[d] not met their burden to
establish the existence of an agreement to arbitrate,” J.A. 173,
because

they

failed

to

provide

authenticating

evidence,

J.A.

175–76, which, the court held, was necessary to discharge the
Banks’

burden,

ruling;

J.A.

instead,

176–78.

they

The

Banks

attempted

to

did

not

cure

appeal

the

this

deficiency

identified by the district court. 5
C.
After the district court denied the Initial Motions, the
Banks

obtained

from

the

lenders

authenticate the loan agreements.

declarations

purporting

to

The Banks then filed renewed

motions to compel arbitration and stay further court proceedings
(the “Renewed Motions”).
Dillon opposed the Renewed Motions.
court

to

construe

the

Renewed

He urged the district

Motions

as

motions

for

reconsideration because, in Dillon’s view, the court had “fully
and

finally

decided”

‘renewed’ motion[s].”

the

“issues

J.A. 331.

5

raised

in

[the

Banks’]

He submitted that the court

Because the Banks did not appeal the district court’s
order denying the Initial Motions, its correctness is not before
us.
7

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 8 of 19

should deny the Renewed Motions without considering their merits
because “the law of the case doctrine and public policy weigh
strongly against reconsideration.”

J.A. 337.

The Banks argued in reply that the reconsideration standard
was inapplicable because “the Court ha[d] not previously decided
the merits of [the Initial Motions].”

J.A. 364.

The Banks

pointed out that they were “not asking the Court to revisit” its
prior

ruling,

but

were

instead

seeking

a

determination

of

whether “the authenticating declaration[s] [were] sufficient to
address the Court’s concerns.”

J.A. 364.

The district court adopted Dillon’s proposed construction
of the Renewed Motions.

The court noted that it had “previously

denied motions to compel arbitration,” and observed that the
Banks had “offered no legal basis to revisit this previously
decided issue.”
ruled

that,

J.A. 430.

regardless

of

In other words, the district court
whether

Dillon

actually

agreed

to

submit his claims to arbitration, Dillon’s right to litigate
those claims had become law of the case.

It therefore held that

it would grant the Renewed Motions “only if ‘(1) there ha[d]
been an intervening change in controlling law; (2) there [wa]s
additional evidence that was not previously available; or (3)
[its] prior decision was based on clear error or would work
manifest injustice.’”

J.A. 433 (quoting Akeva L.L.C. v. Adidas

Am., Inc., 385 F. Supp. 2d 559, 566 (M.D.N.C. 2005)).
8

The court

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 9 of 19

then found that the Banks had satisfied none of these factors,
and

it

denied

the

reconsideration.

Renewed

Motions

for

failure

to

justify

The Banks timely appealed.

II.
Our analysis proceeds in three parts.
brief

discussion

of

the

Federal

We begin with a

Arbitration

Act

(“FAA”),

U.S.C. § 1 et seq., as necessary context for our analysis.

9
We

then explain why the FAA provides us with jurisdiction over this
interlocutory appeal. 6
court

erred

were,

in

by

both

Finally, we conclude that the district

treating
form

and

as

motions

substance,

for

reconsideration

renewed

motions

to

what

compel

arbitration and stay further court proceedings.
A.
Congress

enacted

the

FAA

in

1925

“to

reverse

the

longstanding judicial hostility to arbitration agreements that
had

existed

at

English

common

law

and

had

been

adopted

by

American courts, and to place arbitration agreements upon the
same footing as other contracts.”
Lane

Corp.,

500

U.S.

20,

24

Gilmer v. Interstate/Johnson

(1991).

6

The

FAA

manifests

an

In August 2014, Dillon moved to dismiss this appeal for
lack of subject matter jurisdiction. After the Banks responded
and Dillon filed a reply, we deferred ruling on the motion until
after oral argument.
We resolve Dillon’s motion in Part II.B
below.
9

Appeal: 14-1728

Doc: 52

“emphatic

Filed: 05/29/2015

federal

policy

Pg: 10 of 19

in

favor

of

arbitral

dispute

resolution,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc.,

473

U.S.

“rigorously

614,

enforce

631

(1985),

agreements

and

to

requires

courts

Dean

arbitrate,”

that

Witter

Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).
Section

2

provision.”

of

the

FAA

is

its

“primary

substantive

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 24 (1983).

This section “provides that written

agreements to arbitrate controversies arising out of an existing
contract
upon

‘shall

such

be

grounds

valid,
as

irrevocable,

exist

revocation of any contract.’”

at

law

and
or

enforceable,

in

equity

for

save
the

Dean Witter Reynolds, 470 U.S. at

218 (quoting 9 U.S.C. § 2).
Sections

3

and

4

“provide[]

two

parallel

devices

for

enforcing an arbitration agreement: a stay of litigation in any
case raising a dispute referable to arbitration, 9 U.S.C. § 3,
and an affirmative order to engage in arbitration, § 4.”
H. Cone Mem’l Hosp., 460 U.S. at 22.

Moses

Under § 3, a district

court must grant a party’s motion to stay further proceedings if
(1) the court is “satisfied that the issue . . . is referable to
arbitration”

pursuant

to

“an

agreement

in

writing

for

such

arbitration,” and (2) the “applicant for the stay is not in
default in proceeding with such arbitration.”
The

circumstances

giving

rise

to
10

default

under

9 U.S.C. § 3.
the

FAA

“are

Appeal: 14-1728

Doc: 52

limited

Filed: 05/29/2015

and,

in

light

of

Pg: 11 of 19

the

federal

policy

arbitration, are not to be lightly inferred.”

favoring

Maxum Founds.,

Inc. v. Salus Corp., 779 F.2d 974, 981 (4th Cir. 1985).

A party

is in default only if it has “so substantially utiliz[ed] the
litigation

machinery

that

to

subsequently

would prejudice the party opposing the stay.”

permit

arbitration

Id.

Section 4 provides that “[a] party aggrieved by the alleged
failure, neglect, or refusal of another to arbitrate under a
written agreement may petition [a] district court . . . for an
order directing that such arbitration proceed.”

9 U.S.C. § 4.

If the court determines “that an agreement for arbitration was
made in writing,” it must “make an order summarily directing the
parties to proceed with the arbitration in accordance with the
terms thereof.”

Id.

If a party’s motion under §§ 3 or 4 presents unresolved
questions of material fact, the FAA “call[s] for an expeditious
and summary hearing” to resolve those questions.

Moses H. Cone

Mem’l Hosp., 460 U.S. at 22; see also 9 U.S.C. § 4 (“If the
making of the arbitration agreement or the failure, neglect, or
refusal to perform the same be in issue, the court shall proceed
summarily

to

the

trial

thereof.”).

Thus,

“[o]ne

thing

the

district court may never do is find a material dispute of fact
does exist” and then deny the motion without holding “any trial
to

resolve

that

dispute

of

fact.”
11

Howard

v.

Ferrellgas

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 12 of 19

Partners, L.P., 748 F.3d 975, 978 (10th Cir. 2014) (emphasis
omitted).
Section
“refusing

a

16

authorizes

stay

of

any

immediate

action

appeal

under

from

an

order

3

. . .

[or]

section

denying a petition under section 4 . . . to order arbitration to
proceed.”

9 U.S.C. § 16(a)(1).

appellate

jurisdiction

‘strong

policy

for

favoring

“Congress’s purpose in creating

these

orders

arbitration’

was

to

through

effectuate
appeal

a

rules,

whereby ‘an order that favors litigation over arbitration . . .
is immediately appealable, even if interlocutory in nature.’”
Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 696
(4th Cir. 2012) (quoting Stedor Enterprises, Ltd. v. Armtex,
Inc.,

947

F.2d

727,

730

(4th

Cir.

1991)).

Against

this

background, we now turn to the issues before us.
B.
Our first determination is whether we have jurisdiction.
Dillon

argues

that

the

Banks

are

appealing

an

interlocutory

order denying motions for reconsideration--rather than an order
denying motions seeking arbitration under §§ 3 or 4 of the FAA-and therefore that § 16(a) of the FAA, which would otherwise
confer jurisdiction, does not apply.
Renewed

Motions

by

their

very

We disagree.

terms

sought

Because the

enforcement

of

Dillon’s purported arbitration agreements, we have jurisdiction

12

Appeal: 14-1728

Doc: 52

over

this

Filed: 05/29/2015

appeal

Pg: 13 of 19

regardless

of

the

district

court’s

characterization of those motions.
We

determine

whether

the

Renewed

Motions

are

petitions

under either §§ 3 or 4, and thus whether § 16(a) affords us
jurisdiction, by looking to whether they “evidence[] a clear
intention to seek enforcement of an arbitration clause.”
McLarty, 700 F.3d at 698.

Rota-

We conclude below that the motions

did so.
BMO Harris and Bay Cities each labeled their motions as a
“RENEWED MOTION TO COMPEL ARBITRATION AND TO STAY LITIGATION.”
J.A. 298, 375.
respectively.
and

surest

§ 16(a).”

The terms “compel” and “stay” invoke §§ 4 and 3,
The two banks thus employed the “first, simplest,

way

to

guarantee

appellate

jurisdiction

under

Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio

Valley, Inc., 683 F.3d 577, 585 (4th Cir. 2012) (quoting Conrad
v. Phone Directories Co., 585 F.3d 1376, 1385 (10th Cir. 2009)).
Indeed, we generally do not look beyond the caption of a denied
motion when determining our jurisdiction under the FAA unless we
“suspect[] that the motion has been mis-captioned in an attempt
to take advantage of § 16(a).”
1385).

Id. (quoting Conrad, 585 F.3d at

There is no basis for suspicion here: BMO Harris and Bay

Cities both made clear in their respective motions that they
were seeking enforcement of arbitration clauses.
300 (BMO

Harris

repeatedly

describing
13

its

See J.A. 299-

motion

as

one

“to

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 14 of 19

compel arbitration”); J.A. 376 (Bay Cities asking the court to
enter

an

“order

compelling

plaintiff

James

Dillon

.

.

.

to

arbitrate each of [his] claims” and “staying this action pending
arbitration”).
Unlike

BMO

Harris

and

Bay

Cities,

dismiss Dillon’s claims against it.

Generations

moved

to

We have previously held

that a motion to dismiss is an appropriate vehicle to “invoke
the full spectrum of remedies under the FAA, including a stay
under § 3.”

Choice Hotels Int’l, Inc. v. BSR Tropicana Resort,

Inc., 252 F.3d 707, 710 (4th Cir. 2001).
we

have

appellate

jurisdiction

over

We determine whether

such

a

motion

by

asking

whether the movant “made it clear within the four corners of its
motion

to

dismiss

that

arbitration agreement.”

it

was

seeking

enforcement

of

Wheeling Hosp., 683 F.3d at 586.

the
Here,

Generations asked the district court to dismiss Dillon’s claims
against it because Dillon “agreed that any disputes related to
the Loan Agreement . . . would be determined exclusively . . .
through arbitration.”

J.A. 317.

This language makes clear that

Generations moved to enforce an arbitration agreement.
We conclude that § 16(a) provides us with jurisdiction over
this

interlocutory

appeal

because

the

“the

essence

of

the

requested relief [in the Renewed Motions] ‘is that the issues
presented be decided exclusively by an arbitrator and not by any
court.’”

Rota-McLarty, 700 F.3d at 699 (quoting Wheeling Hosp.,
14

Appeal: 14-1728

683

Doc: 52

F.3d

at

Filed: 05/29/2015

585)

(internal

Pg: 15 of 19

quotation

marks

omitted).

We

therefore deny Dillon’s motion to dismiss this appeal for lack
of jurisdiction.
C.
We turn now to the merits of this appeal, reviewing the
district court’s order denying the Renewed Motions de novo.

See

Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380
F.3d 200, 203-04 (4th Cir. 2004).

We proceed mindful that, “as

a matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration,
whether the problem at hand is the construction of the contract
language itself or an allegation of waiver, delay, or a like
defense to arbitrability.”

Moses H. Cone Mem’l Hosp., 460 U.S.

at 24–25.
We are compelled to conclude that the district court erred
by construing the Renewed Motions as motions for reconsideration
and then denying them on that basis.
elaborate

beyond

concluding

The district court did not

that

the

motions

sought

reconsideration of a previously decided question.

We see two

possible

neither

availing.

bases

for

the

court’s

approach,

but

is

The court could have refused to consider the Renewed

Motions on the merits because it believed that the Banks had
only one opportunity to invoke the FAA’s enforcement mechanisms.
Or, alternatively, the court could have relied on the law of the
15

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 16 of 19

case doctrine to deny the Renewed Motions if resolution of those
motions turned on a rule of law that the court had already
decided.

We briefly consider each rationale.

First,

no

authority--not

the

FAA,

the

Federal

Rules

of

Civil Procedure, or any other source of law of which we are
aware--limits a party to only one motion under §§ 3 or 4 of the
FAA. 7

Section 4 provides that a party seeking to enforce an

arbitration

agreement

compelling arbitration.

“may

petition”

the

9 U.S.C. § 4.

court

for

an

order

And § 3 states that

courts “shall on application of one of the parties stay the
trial of the action” if certain conditions are met.

Id. § 3.

Indeed, the FAA lists only one circumstance under which “a party
may lose its right to compel arbitration,” Rota-McLarty, 700
F.3d at 702: when that party “is in default in proceeding with
such arbitration,” id. (quoting 9 U.S.C. § 3).

The district

court’s order cannot rest upon this ground because the court did
not find that the Banks were in default.
7

Nor did the district court make clear to the Banks that it
expected them to file only one round of motions under the FAA.
We point this out not to imply that such an instruction
necessarily would have been permissible; rather, we note that
this appeal would present different issues if the district court
had, with fair notice, limited the parties to only one motion.
A court reviewing such an instruction would likely consider
whether that instruction were consistent with “Congress’s clear
intent . . . to move the parties to an arbitrable dispute out of
court and into arbitration as quickly and easily as possible.”
Moses H. Cone Mem’l Hosp., 460 U.S. at 22.

16

Appeal: 14-1728

Doc: 52

Second,

Filed: 05/29/2015

because

the

Pg: 17 of 19

Renewed

Motions

presented

different

issues than did the Initial Motions, the district court could
not have relied on the law of the case doctrine to deny the
Renewed

Motions.

That

doctrine

“posits

that

when

a

court

decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
L.J. v. Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (emphasis
added) (quoting TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th
Cir. 2009)).
denying

the

It does not apply here because the court’s order
Initial

Motions

contained

no

rule

of

law

that

maintained,

not

dictated the resolution of the Renewed Motions.
In

the

Initial

Motions,

the

Banks

unreasonably, that because Dillon’s complaint was based on and
incorporated

by

reference

the

very

loan

agreements

that

the

Banks sought to introduce, the pleadings themselves established
Dillon’s agreement to arbitrate.

Although the district court

disagreed, ruling that the pleadings were insufficient because
authenticated loan agreements were necessary, the Banks did not
challenge this ruling in their Renewed Motions.

Rather, they

attempted to cure the evidentiary deficiencies the court relied
on

and

asked

the

court

to

determine

whether

agreed to submit his claims to arbitration.

Dillon

actually

The court’s prior

ruling--that the pleadings did not establish arbitrability--did
not

determine

whether

Dillon
17

consented

to

arbitration.

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 18 of 19

Accordingly, the district court should have resolved the Renewed
Motions on the merits.
At bottom, neither the fact that the district court denied
the

Initial

Motions

nor

the

court’s

reasoning

for

dictated the resolution of the Renewed Motions.
resolving

“any

issues . . .
Hosp.,

460

doubts

in

favor

U.S.

at

concerning

scope

of

arbitration,”

Moses

H.

24–25,

the

district

so

Rather than

the

of

doing

court

arbitrable
Cone

Mem’l

impermissibly

denied the Renewed Motions without considering their merits.

We

must therefore vacate the court’s order as inconsistent with the
“emphatic

federal

resolution.”
On

policy

in

favor

of

arbitral

dispute

Mitsubishi Motors Corp., 473 U.S. at 631.

remand,

the

district

court

must

determine

whether

Dillon’s claims are “referable to arbitration under an agreement
in writing for such arbitration,” unless it finds that the Banks
are “in default in proceeding with such arbitration.”
§

3.

And,

compelling

with

respect

arbitration,

to

the

the
court

two

banks

must

that

decide

9 U.S.C.

seek

orders

whether

those

banks are “aggrieved by the . . . failure, neglect, or refusal
of

[Dillon]

to

arbitration.”

arbitrate

Id. § 4.

under

a

written

agreement

for

If unresolved questions of material

fact prevent the court from ruling on the Renewed Motions, the
court shall hold “an expeditious and summary hearing” to resolve
those questions.

Moses H. Cone Mem’l Hosp., 460 U.S. at 22.
18

Appeal: 14-1728

Doc: 52

Filed: 05/29/2015

Pg: 19 of 19

III.
For the foregoing reasons, we vacate the district court’s
order and remand for further proceedings.
VACATED AND REMANDED

19