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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30113

CAROLYN HALL–WILLIAMS,

Plaintiff - Appellee

v.

LAW OFFICE OF PAUL C. MINICLIER, PLC,

Intervenor Plaintiff - Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CV-04257

Before KING, GARZA, and HAYNES, Circuit Judges.

PER CURIAM:*

Intervenor plaintiff–appellant, the Law Office of Paul C. Miniclier, PLC,

appeals the district court’s judgment awarding him partial attorney’s fees and

costs in his attorney’s fees dispute with his former client, plaintiff-appellee

Carolyn Hall–Williams. We determine that the district court erred in denying

Miniclier’s motion to stay proceedings pending arbitration, and accordingly, we

VACATE the judgment of the district court and REMAND for entry of an

appropriate order referring Hall–Williams and Miniclier to arbitration and

United States Court of Appeals

Fifth Circuit

F I L E D

January 13, 2010

Charles R. Fulbruge III

Clerk

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No. 09-30113

 Paul Miniclier, one of the attorneys in Miniclier who worked on Hall-Williams’s case 1

against Allstate, is referred to herein as Paul Miniclier.

2

staying proceedings pending arbitration.

I. BACKGROUND

In September 2006, Carolyn Hall–Williams (Hall–Williams) retained the

Law Office of Paul C. Miniclier, PLC (Miniclier) to represent her in a dispute 1

with her homeowner’s insurance provider, Allstate Insurance Company

(Allstate), concerning damages to her home caused by Hurricane Katrina.

Hall–Williams and Miniclier entered into a retainer contract that provided for

a 33a% contingency fee if the case settled before suit was filed and a 40%

contingency fee thereafter. The contract further provided, in relevant part:

5. [I]n the event either party desires to terminate this contract,

termination shall be effective only upon receipt of written notice of

one party to the other expressing the desire to terminate the

contract. However, should I [Hall–Williams] elect to terminate this

contract, the [contingency fee] shall still be due payable to the Law

Office of Paul C. Miniclier, P.L.C. by me upon judgment or

compromise of this matter.

6. It is further agreed that, should any and all disputes and/or

claims of any kind or nature arising [sic] under or from this

contract, I [Hall–Williams] specifically agree that said disputes

and/or claims shall be submitted to binding arbitration before the

Louisiana State Bar Association, pursuant to its rules and

procedures.

Miniclier filed suit in federal court, on behalf of Hall–Williams, against

Allstate in August 2007. Hall–Williams and Miniclier dispute what occurred

after suit was initiated: Miniclier contends that it performed substantial work

on Hall–Williams’s matter, and Hall–Williams denies these contentions. 

Also at this time, David Binegar and Tiffany Christian—the two lawyers

who comprise the firm that currently represents Hall–Williams—were employed

by Miniclier and worked on Hall–Williams’s lawsuit against Allstate for

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Miniclier. On March 7, 2008, Binegar and Christian resigned from Miniclier to

form Binegar Christian, LLC (Binegar Christian). Hall–Williams decided to

retain Binegar Christian as her counsel in her suit against Allstate sometime in

early March 2008. Hall–Williams then entered into a retainer contract with

Binegar Christian.

After retaining Binegar Christian, Hall–Williams mailed Miniclier a letter

on March 12, stating: “I have decided to retain the services of Binegar Christian

and no longer require your services. Please release my file to Binegar

Christian.” Hall–Williams claims that she terminated Miniclier as counsel

because Miniclier refused to agree to a confidential settlement with Allstate even

though she was amenable to such an arrangement. She also alleges that

Miniclier told her it was using her case for purposes that she believes did not

advance her claim.

Miniclier initially opposed substitution of counsel. However, after the

district court ruled in favor of Allstate on a pair of motions that were earlier filed

by Miniclier, Miniclier voluntarily moved to withdraw as Hall–Williams’s

counsel, and the district court granted this motion. Miniclier then moved to file

an intervention complaint on April 9, 2008, seeking “to protect its financial

interest and lien privilege under Louisiana law in the outcome of the

litigation[.]” Hall–Williams objected to the intervention based on the merits of

Miniclier’s claim and not on Miniclier’s right to intervene. The district court

granted Miniclier’s intervention on April 30, expressing no opinion as to the

intervention’s merits.

Hall–Williams and Allstate settled their dispute on May 13, 2008, for a

confidential amount. In a May 7 email to Binegar Christian, Paul Miniclier

refused to attend the settlement conference because of a mediation with another

client; however, he insisted that Miniclier was due a full 40% (plus costs) of

whatever settlement was reached. Following this settlement, the magistrate

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judge overseeing the matter entered an order requiring Miniclier to file a fee

application by May 23 and Hall–Williams to respond to the fee application.

Miniclier then moved on May 23 to stay its intervention into the suit,

pending arbitration. Although the motion is not pellucid, we read it as also

requesting a referral to arbitration. In the memorandum in support of this

motion, Miniclier claimed that the motion to stay should be granted since the fee

dispute should be referred to arbitration. The same day, Minicler also filed

several objections to the magistrate judge’s order requiring a fee application. In

these objections, Miniclier again argued that the proceedings should be stayed,

pending referral to arbitration pursuant to Miniclier’s contract with

Hall–Williams.

Hall–Williams responded on June 5 and sought denial of Miniclier’s

motion to stay by claiming that the fee dispute was not referable to arbitration

because either the arbitration clause was unenforceable due to the termination

of Miniclier’s representation or, in the alternative, that Miniclier had waived its

right to seek arbitration. On June 20, the district court denied Miniclier’s

motion to stay intervention and overruled Miniclier’s objections to the

magistrate judge’s order; Miniclier’s arbitration contentions, along with several

other objections, were denied as not addressing the magistrate judge’s fee

application order.

Miniclier then filed a fee application with the magistrate judge, requesting

40% of Hall–Williams’s settlement with Allstate or, in the alternative,

$32,328.12, supported by a 19-page “pre-bill worksheet” claiming services

performed by Paul Miniclier, David Binegar, Tiffany Christian, and support

staff. Hall–Williams responded by filing documents that allegedly showed that

Miniclier’s “pre-bill worksheet” contained erroneous time entries. Hall–Williams

also disputed Paul Miniclier’s billing rate. In its reply, Miniclier claimed that

the documents, presented by Binegar Christian in response to its application,

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were misappropriated from its office, and that this misappropriation required

resort to only the pre-bill worksheet Miniclier had submitted. The magistrate

judge issued a recommendation on October 8 that Miniclier be awarded $350 as

the cost of intervention but be denied attorney’s fees because it determined that

Miniclier’s billing was inaccurate and that Miniclier was fired “for cause.” 

Miniclier objected to the magistrate judge’s recommendation by again

reiterating that the court should have stayed proceedings once arbitration was

invoked or, alternatively, that the magistrate judge’s treatment of Miniclier’s

claim for attorney’s fees was improper. On November 14, the district court

ordered that Miniclier’s fee application would be treated as a motion for

summary judgment and requested that the parties file corresponding

memoranda. Both parties filed the requested documents, with Hall–Williams

requesting that the court treat her memorandum as a cross-motion for summary

judgment. 

After these filings, the district court issued an opinion and rendered

judgment on January 28, 2009. The district court granted Miniclier’s fee

application in part and entered judgment in favor of Miniclier, awarding $350

for the cost of filing Hall–Williams’s lawsuit and $2,600 in attorney’s fees to

Miniclier. The court found that there were no genuine issues of material fact on

several issues and made the following findings and conclusions: Miniclier’s

motion to stay pending arbitration was properly denied because, by filing the

motion to intevene, it had submitted its fee dispute to the court; Miniclier was

terminated for cause; Miniclier’s pre-bill worksheet failed to carry its summary

judgment burden; and Paul Miniclier had worked only thirteen hours on

Hall–Williams’s case. Miniclier appeals this judgment, arguing that the district

court erred by (1) denying its motion to stay pending arbitration; (2) denying its

objections to the magistrate judge’s order requiring a fee application; and (3)

employing summary procedures and denying Miniclier the full amount of

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attorney’s fees that it requested.

II. DISCUSSION

We first consider whether the district court erred in denying Miniclier’s

motion to stay its intervention pending arbitration with Hall–Williams. We

review a denial of a motion to stay a proceeding pending arbitration de novo.

Tittle v. Enron Corp., 463 F.3d 410, 417 (5th Cir. 2006).

The district court determined that “[b]y filing the motion to intervene,

Miniclier submitted the matter of determining fees and costs to the court” and

thus denied Miniclier’s motion to stay pending arbitration. This was erroneous.

The Federal Arbitration Act (FAA) states, in relevant part:

If any suit or proceeding be brought in any of the courts of the

United States upon any issue referable to arbitration under an

agreement in writing for such arbitration, the court in which such

suit is pending, upon being satisfied that the issue involved in such

suit or proceeding is referable to arbitration under such an

agreement, shall on application of one of the parties stay the trial of

the action until such arbitration has been had in accordance with

the terms of the agreement . . . .”

9 U.S.C. § 3. Thus, when determining whether a motion to stay pending

arbitration should be granted, we first determine whether there is a written

agreement to arbitrate; then whether any of the issues raised are referable to

arbitration. In re Complaint of Hornbeck Offshore Corp., 981 F.2d 752, 754 (5th

Cir.1993) (citing Midwest Mech. Contractors, Inc. v. Commonwealth Constr. Co.,

801 F.2d 748, 750 (5th Cir. 1986)). In undertaking this analysis, we note that

“[the FAA] establishes 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. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983); see also Harvey

v. Joyce, 199 F.3d 790, 793 (5th Cir. 2000) (discussing Moses H. Cone).

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Here, the parties do not dispute that there is a written agreement to

arbitrate and that the attorney’s fee dispute is covered by the arbitration clause.

Instead, Hall–Williams argues that the arbitration clause in her contract with

Miniclier is unenforceable because she terminated her relationship with

Miniclier or, alternatively, that Miniclier waived its right to arbitrate by

invoking the litigation process. Both of these arguments are without merit. 

With respect to the enforceability of the arbitration clause, Hall–Williams

does not argue that the contract or the arbitration clause between Miniclier and

Hall–Williams was revocable or was revoked by the parties. As such, under the

FAA, the arbitration clause is enforceable. See 9 U.S.C. § 2 (“A written provision

in any . . . contract evidencing a transaction involving commerce to settle by

arbitration a controversy thereafter arising out of such contract . . . , shall be

valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract.” (emphasis added)); see also Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46, 448 (2008) (reiterating

that “as a matter of substantive federal arbitration law, an arbitration provision

is severable from the remainder of the contract[]” and thus is enforceable, even

if there is a question whether the putative contract itself is void); Hornbeck, 981

F.2d at 755 (citing In re Complaint of Sedco, Inc., 767 F.2d 1140, 1148 (5th Cir.

1985) (“[a]bsent allegations of fraud in the inducement of the arbitration clause

itself, arbitration must proceed when an arbitration clause on its face appears

broad enough to encompass the party’s claims.”)). 

Hall–Williams’s argument that Miniclier waived its right to arbitrate also

lacks merit. The right to arbitration may be waived, but courts apply a

presumption against waiver. Williams v. Cigna Fin. Advisors, Inc., 56 F.3d 656,

661 (5th Cir. 1995). “Waiver will be found when the party seeking arbitration

substantially invokes the judicial process to the detriment or prejudice of the

other party.” Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497

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(5th Cir. 1986). In this context, prejudice “refers to the inherent unfairness—in

terms of delay, expense, or damage to a party’s legal position—that occurs when

the party’s opponent forces it to litigate an issue and later seeks to arbitrate that

same issue.’” Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 327 (5th Cir.

1999) (quoting Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 134 (2d Cir. 1997)).

Waiver thus occurs when the party seeking arbitration “‘engage[s] in some overt

act in court that evinces a desire to resolve the arbitrable dispute through

litigation rather than arbitration.’” Keytrade USA v. Ain Temouchent M/V, 404

F.3d 891, 897 (5th Cir. 2005) (quoting Republic Ins. Co. v. PAICO Receivables,

LLC, 383 F.3d 341, 344 (5th Cir. 2004)).

Hall–Williams alleges that Miniclier waived its right to arbitrate the

dispute by (1) filing the April 9, 2008, motion to intervene; (2) sending an email

on May 7, 2008, declining to attend the settlement conference; and (3) failing to

invoke arbitration in response to the magistrate judge’s May 13, 2008, order

requiring a fee application from Miniclier. However, these events do not

demonstrate that Miniclier waived its right to arbitration.

Miniclier filed a motion for leave to intervene on April 9, 2008, which was

granted on April 30. Miniclier’s next filing was the motion to stay intervention

pending arbitration on May 23. The motion to stay was filed within the specified

time frame ordered by the magistrate judge to file a fee application and before

any substantial litigation concerning the fee dispute had occurred. Indeed, the

motion to stay pending arbitration was filed only ten days after the May 13

settlement between Allstate and Hall–Williams that provided the award from

which the contingency fee is derived. 

The request for a stay pending arbitration was therefore invoked in the

second court filing only one and one-half months after the initial motion to

intervene and less than four weeks after the motion to intervene was granted.

Thus, assuming arguendo that Miniclier “delayed” arbitration at all by waiting

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 We do not see how Miniclier’s May 7 email to Binegar Christian, allegedly declining 2

the invitation to attend the settlement conference with Hall–Williams and Allstate, is relevant

to the matter of waiver. The email is an out-of-court statement to opposing counsel that

neither references arbitration nor concerns the arbitrability of the fee dispute. As such, we

cannot say that this email constitutes (or contributes to) any invocation of the litigation

process, much less a substantial invocation of the litigation process, nor can we say that this

email suggests any delay in seeking arbitration. See Miller Brewing, 781 F.2d at 497. 

9

six weeks between its intervention and motion to stay, we conclude that this

delay is not of sufficient duration to warrant a finding of waiver in the absence

of prejudice, which Hall–Williams has not alleged. Cf. Republic Ins., 383 F.3d

at 344–45 (finding waiver where party requesting arbitration did so days before

trial after answering a complaint, conducting discovery, and filing numerous

motions); Tenneco Resins, Inc. v. Davy Int’l, AG, 770 F.2d 416, 421 (5th Cir.

1985) (“[T]his and other courts have allowed [eight months before filing and

participation in discovery] as well as considerably more activity without finding

that a party has waived a contractual right to arbitrate.” (citing cases)). Thus,

we conclude that Miniclier has not waived its right to arbitrate the fee dispute.2

Accordingly, because the underlying fee dispute is “referable to

arbitration” under Hall–Williams and Miniclier’s retainer contract, the district

court erred in denying Miniclier’s motion to stay pending arbitration. 9 U.S.C.

§ 3; Subway Equip. Leasing, 169 F.3d at 327 (holding that because their was no

waiver of the right to arbitrate, the FAA “require[s] the district court to stay

litigation pending arbitration” (citing Hornbeck, 981 F.2d at 754)). We remand

for entry of an appropriate order referring Hall–Williams and Miniclier to

arbitration and staying proceedings pending arbitration.

Because the district court erred in denying Miniclier’s motion to stay

pending arbitration, we also vacate, without expressing any opinion as to the

results, the district court’s subsequent judgment, awarding partial attorney’s

fees and costs to Miniclier. Because we vacate the judgment of the district court

and remand for referral to arbitration, we need not decide the two other issues

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 Under the circumstances, Hall–Williams and Binegar Christian may have conflicting

3

interests which both should carefully consider. Cf. LA. R. OF PROF’L CONDUCT R. 1.7(a)(2)

(2004).

 Under Louisiana substantive law, when a client discharges one lawyer operating 4

under a contingent fee contract and subsequently hires, for representation in the same matter,

another lawyer, also operating under a contingent fee contract, the presence of the client's

subsequent counsel may be necessary to the resolution of an attorney’s fee dispute between

the client and his former counsel. See Saucier v. Hayes Dairy Prods., Inc., 373 So. 2d 102, 119

(La. 1978) (opinion on rehearing) (remanding attorney's fee dispute to join subsequent counsel

as an indispensable party); see also O’Rourke v. Cairns, 683 So. 2d 697, 704 (La. 1996) (holding

that, even when counsel is terminated for cause, the terminated counsel is entitled to a

recovery, reduced based on the “nature and gravity of the cause which contributed to the

dismissal,” from the apportioned total attorney’s fee award). Binegar Christian may thus be

a required party for resolution of this litigation. See FED. R. CIV.P. 19. However, we leave the

question whether Binegar Christian should be added to the litigation as a required party for

the district court to decide in light of subsequent developments. 

 In supplemental briefing before us, Binegar Christian averred that it also has an 5

arbitration clause in its contract with Hall–Williams. Further, at oral argument, Binegar

Christian proffered that it had already paid itself from the Allstate settlement funds held in

its client trust account, leaving only a small amount of those funds in that account. However,

whether Binegar Christian and Hall–Williams actually have an agreement to arbitrate

disputes and whether Binegar Christian has actually handled the settlement funds as it

claims are questions that we must leave to the district court to consider in the first instance.

10

Miniclier presents on appeal—whether the district court erred by (1) denying

Miniclier’s objection to the magistrate judge’s order requesting a fee application

and (2) employing summary procedures and denying Miniclier the full amount

of attorney’s fees that it requested.

In Hall–Williams’s original briefing to this court, one argument was made

that should be briefly addressed, although not resolved, in light of the

arbitration that will shortly ensue. Specifically, Hall–Williams argued that

Binegar Christian could not be added as a party to the Hall–Williams–Miniclier

arbitration. Given the Louisiana law and the statements offered by Binegar 3 4

Christian, we were not convinced by Hall–Williams’s briefing that there was 5

any impediment to adding Binegar Christian as a party to the

Hall–Williams–Miniclier arbitration. We are not required to decide that

question, however, and we leave that decision to the district court if such a

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motion is made. Suffice it to say that this argument does not support affirmance

of the district court’s order denying arbitration.

 CONCLUSION

For the foregoing reasons, we VACATE the judgment of the district court

and REMAND for entry of an appropriate order referring Hall–Williams and

Miniclier to arbitration and staying proceedings pending arbitration.

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