IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60861

Summary Calendar

NATIFRACURIA DANIELS

Plaintiff-Appellant,

v.

VIRGINIA COLLEGE AT JACKSON; VIRGINIA COLLEGE L.L.C.;

EDUCATION CORPORATION OF AMERICA; WILLIS-STEIN AND

PARTNERS

Defendants-Appellees,

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:11-CV-496

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order

compelling arbitration of her state-law tort and restitution claims against

Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C.,

Education Corporation of America, and Willis-Stein and Partners (collectively

“Virginia College”). Virginia College moved to compel arbitration in order to

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2012

Lyle W. Cayce

Clerk

 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.

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enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which

Daniels signed before enrolling as a student at Defendant Virginia College at

Jackson (individually, “the College”). On appeal, Daniels contends that the

Agreement’s arbitration clause does not cover her tort claims, and she contends

that the arbitration clause is unconscionable.

We AFFIRM.

The Enrollment Agreement’s arbitration clause requires arbitration of any

claim “arising out of or relating to [the Agreement], together will all other claims

. . . of any nature whatsoever arising out of or in relation to [Daniels’s]

enrollment and participation in courses at the College . . . .” Daniels alleges that

the College unlawfully retained the portion of her federal financial aid monies

that should have been disbursed to Daniels to cover her cost of living. She

brings state-law claims sounding in negligence, conversion, embezzlement, and

unjust enrichment. Because these claims arose “in relation to [Daniels’s]

enrollment and participation in courses at the College,” the district court was

correct in finding them subject to the arbitration clause.

Under Mississippi law, substantive unconscionability “is proven by 1

oppressive contract terms such that there is a one-sided agreement whereby one

party is deprived of all the benefits of the agreement or left without a remedy for

another party’s nonperformance or breach.” Covenant Health and Rehab. of

Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal

citation and quotation marks omitted). In Covenant Health, the Mississippi

Supreme Court found that a contract containing an arbitration clause “coupled

with a multitude of unconscionable provisions,” including asymmetrical

The Enrollment Agreement has an Alabama choice-of-law provision. But no party 1

raises this provision, and they have relied on Mississippi law throughout their briefing on

appeal and before the district court.

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limitations on liability, choice of forum, and other matters, was unenforceable

in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is

similarly laden with unconscionable provisions. 

First, there is language in the arbitration clause that allows the College,

but not Daniels, to seek injunctive relief in court. An agreement that requires

only one party to submit its claims to arbitration is unconscionable under

Mississippi law, but the language at issue here merely allows the College to

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seek a preliminary injunction to halt a student’s ongoing breach of the

Enrollment Agreement. The College must seek all other relief though

arbitration. An asymmetric exception so limited in scope does not make an

arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d

1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser

enforceable notwithstanding exception allowing car dealer to bring an action to

repossess the car in court).

Daniels also points to the arbitration clause’s language prohibiting the

arbitrator from awarding any damages not “measured by the prevailing party’s

actual compensatory damages.” Ostensibly bilateral limitations on punitive

damages are unconscionable under Mississippi law if they are one-sided in

practical effect due to the weaker party’s being “much more likely to be justified

in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d

507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages limitation in

contract of adhesion between nursing home and occupant unenforceable against

occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706

(Miss. 2009). However, as Virginia College concedes in its brief, the arbitration

clause does not bar the arbitrator from awarding damages in excess of

Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp.,

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88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)). 

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compensatory damages. It merely requires that the amount of such damages be

based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at

1036 (interpreting nearly identical language as requiring only that the parties

be “limited as to the amount of punitive damages which might be awarded, since

such an award would have to be ‘measured by the prevailing party’s actual

damages’”). Such provisions are not unconscionable. Id. 

Daniels next points to the Enrollment Agreement’s asymmetric liquidated

damages provision, which she contends would leave her without any remedy for

the wrongs she alleges because its language limits her recovery to “an amount

equal to any non-refunded tuition payments . . . .” Contractual provisions

intended to exculpate a party of liability for its own tortious conduct are

particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d

467, 469 (Miss. 1999)). As Virginia College concedes, however, the liquidated

damages provision in the Enrollment Agreement applies only to breach-ofcontract damages, and would not affect recovery for Daniels’s claims. 

Finally, a provision of the agreement permits the college to recover

attorney’s fees against Daniels if it prevails in any action or arbitration that is

“permitted” by the Enrollment Agreement or that “aris[es] out of [the

Agreement] and the subject matter contained [there]in.” However, while the

Enrollment Agreement is silent with respect to Daniels’s recovering fees if she

prevails, Virginia College disavows any interpretation of it that would preclude

Daniels from recovering attorneys’ fees to which she might otherwise be entitled

under the arbitration rules. Given Virginia College’s concessions regarding the

meaning of its provisions, enforcing the Enrollment Agreement’s arbitration

clause is not unconscionable under Mississippi law.

The district court’s judgment is AFFIRMED.

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