proceed for the oppose thank you very much may it please the court greatly appreciate your taking the time during these circumstances to entertain oral argument in this case i am the lead attorney representing the plaintiff timothy boykin in this matter which is on appeal before this honorable panel and we greatly appreciate it i feel a little different being here in an arbor but what we're really we're going to make it work here and  that this is really not a complicated question that we stayed on appeal and that is in error by the district court in compelling arbitration without allowing any discovery on whether there was a meeting of the minds  essentially a rule fifty six was insufficient to create a genuine issue of serial fact so i'm curious how how your position on how arbitration and the statute and u s c for interrelates with the civil rules of procedure and so this is essentially a pleading stage does that mean we should just look at the complaint does that mean because of the congress as one team to have arbitrat arbitration done quickly we can actually even at this complaint states look at evidence i'm curious just how you think the process should work these are these are great questions and i wish i actually had a lot more time to to try to fully it's a let me try to give you the a question about arbitration is that approach it is appropriate in federal court to submit an affidavit on those issues in this case an affidavit was submitted there were certain evidence that was presented by the by the moving party i do not believe the court really sliced out those procedural issues that you're talking about judge maria judge murphy and i don't think the court really entertained an analysis of how it would make its conclusion but we w ould argue that under six circuit and us supreme court law whatever the procedure is there is a threshold question of whether the parties by clear and convincing evidence st agree to arbitrate we would say that's the very case in the court you know read with us that a longstanding policy of the th circuit is that no matter how strong the federal policy favoring arbitration and that may be in a statutory act arbitration is a matter of contract between the parties and one cannot be required to submit to arbitration dispute which it has not agreed to submit to arbitration and that's what happened here we did not have clear and convincing evidence that there was actually an agreement to arbitrate now once there is that clear and convincing evidence established then you get at the issues of who decides the arbiter ability and i just want to also note the supreme court has not wavered in rent a car the standard for the submitting the question  arbitrator ice clear and convincing evidence now what i was thinking of maybe if we thought of the motion to compel arbitration as a century a motion for summary judgment generally speaking you can file those things at any time six allows them to filed at any time and if you have a concern that you don't have the evidence that you need to respond you're allowed to object and say hey i need discovery before i respond you did you didn't necessarily do that in this case but i'm curious what discovery on this arbitration issue you think it's still outstanding no ex absolutely and i want to address that as well andro fifty six if it's going to be converted my understanding is the court does need to give which arbitration agreement apply and i want to try to make sure i get to this my client workfare with these convoluted companies that change repeatedly beginning when he was hired in two thousand and three there was no evidence of requirement to do it arbitration natalie who is with some different company it's not even clear that she was the employer how she's related that he has no firsthand knowledge and says in module training much was completed and that there has somewhere in it a remit to arbitra may have a number for my employer might call it the nice that he actually was required to or did execute knowingly did an arbitration agreement the questions for discovery are what is the chain of custody what's  completeness where did this open to an arbitration module come from who is this person that says that this is the procedure that you have to click on and if you look at the evidence submitted by the other side and relied upon by the court there is a m it in the st in house counsel says here's arbitration agreement one signed with some other company in a different state and you have to arbitrate another council comes along later and says no it's actually this arbitration agreement two in the courts  ruling he may no finding as to which agreement with clicked on with this model if you look at the module it is not attached now we when we got there really we just couldn't even figure out how we could even file arbitration if with jambs whatever trade with american american arbitration association but aren't they arguing i mean aren't they arguing that it's agreement number two or whatever i mean i guess that's a shorthand i've but what is it i mean if that's the agreement and they're saying that's the agreement then the case is focused on on whether that was the agreement that was agreed to right well that it be number two is not actually attached the not the module we'd like to do discovery and whether it was ever agreed to at all it was unclear that the judge was actually relying on agreement number two there are different on sorry here i just messed up it that's an issue effect which which clearly should be discovered before we make a finding that by clear and convincing evidence the parties agree to one of the other i want to just very quickly read to you the interchange that we had on the record with the agreement or that your client never did this module never participated in any of it that this these documents or the other side is producing it's just it's a mistake or they're misleading the corner what's what's going on well they say these companies are convoluted at some point they implemented something that has a module but our client absolutely did not sign it doesn't have any recollection of recollection of signing any arbitration agreement and it must be done knowingly and with consent and that didn't happen here can i ask you about the difference between the st affidavit in the nd affidavit is there a reason why the st affidavit had i don't know or remember signing the affidavit and resigning the arbitration or clicking on the button the nd affidavit was much more categorical saying essentially i could not do that we and i don't we were just trying to clarify when he met with us he said he absolutely did not have any knowledge been it didn't even come up till after we filed he said i don't recall anything like that our nd affidavit he just clarified that he denied actually executing it and it's significant in the request to know there was no arbitration agreement produced before we filed the complaint and now the complaints been filed and even after the court ruled the court cannot even determine which which agreeing with half a contract test be specific with specific terms the court stated as a matter to you  both very respectful does it matter to you which form this case goes to in terms of james versus a miss petroski said well i think the issue is the record evidence it's been perceived as presented establishes with courts that i don't know there but i'm just asking you as a practical matter does it matter to you he says it's just a matter of one going to pay and the other one going to jams there is in his st decision no reference to what or hal agreement number one is actually going to control it with the only want to tax the new the affidavit which is inadmissible hearsay we are already have identified the nd one that was presented to us we can't even figure out which poor and which rules would apply  of the district court granting the most members arbitration and by that effectively seeks to usurp well established legal precedent in forcing arbitration agreements and otherwise recognizing electronic signatures contrary to boykins arguments the district court properly concluded that family dollar had brought sufficient record evidence to the district court to support its contention the boy can agree to submit employment disputes to arbitration and that he signed a valid arbitration standard of review section recited twelve b six standards which are well known and require you to only look at the complaint but relied on evidence outside the complaint to compel arbitration i recognize that this and so we're in summary judgment right now the motion to compel arbitration basically is like a summary judgment if there's a fact question then at some point it might get tried is that so  summary judgment is that the answer i don't think so your honor but the court has to actually look at the arbitration agreement of course and right now can we consider the affidavits and other things that we would not consider it will be six and clearly that's what the court did here and i think the court had to do so in order to ensure that about an arbitration agreement with the intern into clearly the complaint itself the four corners of the complaint are not going to assert  situations in which the arbitration agreement is included with the complaint if it's a breach of contract claim or something you might include the entire contract in the contract might include an arbitration provision in that context you could just look at the complaint and the stuff attached to it i'm here of course that wasn't the case so i don't know that it's necessarily inconceivable that you want to follow the normal rules d of civil procedure in this context and it appeared that would mean it was just even if we were to analyze this under a summary judgment standard the report clearly found it the plaintiff that mr modi can have not presented sufficient evidence to establish a material question of fact as to whether a arbitration agreement was in or into the regardless get in there but then that gets to why the problem it's also at the pleading stage a motion to compel is filed here at the b for summary judgment you have a right to seek discovery as your friend on the other side suggested he might want to depose the person who did the affidavit d d if this because this was a pleading states none of this discovery about whether a valid arbitration agreement existed could take place  that seems somewhat unfair to me too if there is actual dispute about whether there is a meeting of the minds between the parties not to out we need to discover on this issue well into that eight say the court was satisfied with the record have been in that family dollar had presented as well as the michigan statutory requirement that electronic signatures be given the full force and weight of who law and that can't be a basis to undo a contract if there was a valid arbitration agreement in here and that is the question why you're going along just saw him clearly talking about whether there's a ballot arbitration agreement but i'm my understanding maybe it's over simplified is that the only factual issue here is the only real issue at all on this appeal ultimately is whether resigned so he either signed it night grant you it's not a physical signature so you could quibble about what issues about the scope of the agreement or or whether it leads to arbitrary bilinear whether leads to this it's all has to do with whether the signature is that correct that this seems to be b s you know but the court did also indicate whether you so he ask rist personnel records you're supposed to give them you don't get the arbitration agreements why couldn't i i guess we go back to judge murphy's question but let me phrase it this way why couldn't a rational trier of fact infer from that that he didn't sign any agreements with happy or what would that be a reasonable inference or would that be one inference too far that would be one inference too far let's take from the fact that an arbitration agreement may not have been produced in response to a request it does not require an arbitration agreement to be pretty well certain that it does require it to be i mean you assert that in your brief but i didn't see any citation or any argument on this point at all so assume for a moment that you had to produce it to him if we were to find that you had to produce it to him and you didn't would that irrational inference that at that point that it that it that it may not exist i don't think so your honor the buller lackey at clearly doesn't include it within its definition and also only provides that documentation can't be potentially could not be used in proceedings if there was an obligation to produce and that document wasn't otherwise available here it's always been our position that he completed the electronic signature process and also that the arbitration agreement would have been available to him throughout the course of his employment on a publicly available web site and as a manager he had the obligation to ensure the employees who he was responsible for awful well why isn't why isn't a flat so i know you have an argument that why isn't that enough to create a genuine issue of material facts about whether he did or did not i mean that and any other context that this personal knowledge i would think that like were you driving the car you know i was not driving the car ok there's a genuine issue material fact would have been required for him to log in and complete the electronic affirmation and also you'll know in his actual affidavit relative to the training slightly electronic process itself what he actually said in paragraph eighteen of his word was given at any time much less during the relevant time that this was completed and to anyone within the company and the process is such that he has to walk in he reviews the slides he downloads the arbitration agreement that's not with that's why it's not part of the slide to affirmatively except in a knowledge that he's agreed to arbitrate his claims and it's never been disputed that family records family dollars records confirm that that process was completed his contention seems to be that it wasn't completed by him yet absent from his affidavit is anything to suggest that he actually provided anyone with the passport information and that they would have needed to complete that for him and the record evidence substantiates that he in fact did complete the process michigan while requires that a court recognize now an electronic signatures and that doesn't require a signature of any type of sound or record that can be a tribute the individual and we determine whether something can be attributed to the individual by looking at the process and the process here reflects a process that required an individual to use a unique associate id number and password and go through a process to acknowledge and agree to the terms of the arbitration agreement and there's nothing in the record that belies that that was not done boy can try to create some factual issues that are simply transparent and don't exist he's claiming now that the schedule reflects that he wasn't at work that day because he's claiming now that he was a store manager even though in his own st affidavit he said he was an operations manager performance manager during that time and in fact that's what he alleges in his complaint so that's why he's not on the schedule that day because of his role not because he wasn't at work in fact the best evidence that he was at work is the fact that he completed the process and his briefing arsal speaks to the lack of a certification but there's no evidence presented in the record that any employee received a certification for this particular training and boy and in fact doesn't attest that he himself received sort of occasions in the documentation  related to the process clearly indicates in and of itself that that's the completion of the process acknowledges that the associate has completed it and stands its own certification that the process was completed so we're essentially trying to create a question of fact out of evidence that simply isn't there the district court correctly and appropriately found of the evidence records for it that can have entered into a valid signature signature in that instance there would be no signature not by him because he's claiming something like that one when are currently saying he is there not claiming that in his affidavit that he gave someone his password or authorize someone to complete that process for him he's doing lies to complete i say other people used oh he used it and i didn't do it it seems to me what he's saying there's nothing in h could it happen he says other people but your honor respectfully he does not say that in here he says other store managers an assistant store managers at that time shared their numbers he was neither of those things at that time and certainly information about whether he did provide his number to someone else two years would be well within his personal knowledge and that's not what's in his affidavit ever he never said that anyone ever had access to his numbers that's correct so you're saying but you're saying he's his affidavit is not specific enough on that on that point right let me ask you one guy no your time is up let me ask you one question do you agree that if this was if this were a normal summary judgment case he would be it would be normal i guess and appropriate for him to take the deposition of new either person you had the declaration that you submitted with the records attached right i mean that would be an appropriate if you want this to be a twelve b six we have to reverse right because we he looked at evidence that you would look at in a toby say x if it's a summary judgment then we look at all this evidence and then but wouldn't he be allowed to depose nearly as part of it is summary judgment case i mean that would we'd have a twenty six hour week figure out when the discovery deadline cut off we'd go through the process right even on a twelve b six they  believe that the work should be able to review the actual arbitration agreement and be satisfied that talking about the declaration come talking about not just the agreement i understand that if a complaint refers to a contract or other items  there that's considered part of the pleadings right i agree with that this is this is a little bit beyond that isn't it i mean isn't it just it's not just and i understand that if you attach a complaint to an answer perhaps you might have  to authenticate it ok but even then there might be a question about whether you can take that person's that position but the declaration here says a little bit more than just this is the arbitration agreement right it has some information in it about cooking things and what it's what the process is like doesn't that get beyond kind of just the face of an agreement it if the court were to allow full blown discovery every time an employer had to submit an affidavit to tronic signature process it would completely on do the court's ability to rule that arbitration agreements were in existence and that a matter should be compelled to arbitration based on the limited evidence that the court needs to review to do so and that's exactly what was done here i mean the law is clear that we can have these electronic signature process and to hold that party would be entitled to full blown discovery merely because they can't remember whether they signed it or not and then that spinning off of that seems to project a purported denial and you're talking about undoing an employer's ability to enforce a simple arbitration agreement through an electronic signature process without allowing extended discovery or certain some form of discovery and that's just not necessary to provide the court with sufficient evidence to be satisfied ok great now i get your panel and i think i'm on board with a lot of what the questioning here in this point to try to flesh out he did see people d who would as managers fill out employees training  modules using their number but he didn't but his affidavit he doesn't specifically say i gave my credentials to the people they had access to it i authorize them to go on line and do this or that he doesn't have any specifics about it he definitely didn't authorize it somebody should sign for him but i know from talking with him and if the issue is fleshing out the affidavit we work very hard to put as much as we can in there he didn't know the managers did that there is a real issue here about d whether there is admissible evidence and i think it's a summary judgment standard the court is using this is purely an authentic hated speculation by a party that we don't even know the association with going seven years bannock trying to say that there was some requirement for employment that there's no evidence of and he has the not i think the standard for creating an issue of fact has been met here i completely agree that the court relied in twelve b six which says you accept all the complaints by the plaintiff as true and the list somehow couldn't reasonably be forseeable i don't think there's anything a reason before basically plausible about what he's alleging the complaint and  adopted hearsay document that even in its face i would say cannot establish that there was a meeting of the minds here that there was actually an agreement to these terms the case you know i do i i do mics quite clear that it's supposed to be expeditious and not supposed to be let's let's get the same garbage trash and that's where it belongs if that's the appropriate course i wonder what what you would say in response to the notion that maybe maybe nine u s c section four should somehow correspond with the rules to only allow for very limited expedited discovery what would you think about that and i think your honor i think the statute speaks for itself  and i haven't done research on the exact interpretation of the scope of discovery but i would agree that the rule is completely consistent with their vehicle at least limited discovery if not regular discovery on the issue of whether the parties reached and signed and d binding agreement that case that is one case we cited actually a couple others i can't pronounce either don t v legal helpers if questions exist on whether the parties agree to arbitrate discovery should be allowed on that issue i think that's consistent with the statute your honor i think it's consistent with a party coming in and saying you've lost your right to go to federal court you can't if you all you gave it all right you would have to knowingly give that up by entering into a binding arbitration agreement and the courts there's a there's a we've cited several cases say that their type of discovery should be allowed and in this case the court under twelve b six really skipped over always materializations everything we're talking about here there are contested factual issues that have not been resolved the court did not certify this to be decided on  fifty six and i think if you if you even look at the dispute about what's attached the module i would i know you're have read the briefs know this but if you look at the exhibit there's a module it doesn't even show that you open up actually read or see any arbitration agreement it's just an affidavit by natalie neely saying that she wasn't working there but she works for an affiliate parrott or related company and she believes that that should have been the case then it's not admissible evidence  summary judgment and it's certainly not admissible evidence to decide twelve feet twelve b six motion your honor i think the record from looking at the court's comments the court really did not find evidence for the evidence here as to a meeting of the minds by the price of seven years ago while my client was a store manager best disputed whether it was even working as a store manager they say he was a performance manager i say let us at least have limited discovery if not full scale discovery on these issues and let the federal court try a fact come to a conclusion and we get a resolution from there otherwise i think my client is not going to justice your honor thank you very much