### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 to r t a n d restitution claims against Defendants- Ap pellees Virginia College at Jackson, Virginia College, L.L.C., Education Corporation of America, and Willis-Stein and Partners (collectively “Virginia College” )

. Vi r ginia College moved to compel arbitration in order to U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 26 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60861 Document: 00511900640 Page: 1 Date Filed: 06/26/2012No. 11-60861 Summary Calendar enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which Daniels signed before enrolling a s a s tudent at Defendant Virginia College at Jackson (individua l l y , “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. Th e E nroll m e nt Agre e m e nt’ 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 h av e b een 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 “i n relation to [Daniels’s] enrollment and participation in courses at the College,” t h e di s trict 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 nonperf o r m a n c e 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 Cove n a n t Health , the Mississippi Supreme Court found that a contract containing an arbitration clause “coupled with a multitude of unconscion ab l e provisions,” including asymmetrical

The Enroll me nt Agreem ent has an Alabam a choi ce- of- law pr ovis ion. But n o p a r ty 1 rais es this pr ovis ion, and they have reli e d on Mis sis sip pi law thr oughout thei r brie fing on app eal and bef

oret he dis tri ct cour t. 2 Case: 11-60861 Document: 00511900640 Page: 2 Date Filed: 06/26/2012No. 11-60861 Summary Calendar limitations on liability, choice o f forum, and other matters, was unenforceable in its enti r e t y . 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 un c o n s c i onable under M ississippi law, but the language at issue here merely allows the College t o 2 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 a s y m metric exception so limited in scope does not make an arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co. , 26 So. 3d 1026, 1035 (Mi s s . 2010) (arbitration clause between car dealer and purchaser enforceable notwithstanding exception allowing car dealer to bring an action to repossess the car in court). Dan i e l s 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 li m itations on punitive da m a g e s a re 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- 2 4 (Miss 2005) (ostensibly bilateral punitive-damages limitation in contract of adhesion between nursing home and occupant unenforceable against occupant), overrule d o n 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 arbitrato r f rom awarding damages in excess of

Cove nant He al th , 14 So. 3d at 700 (c itin g Pri dgen v. Green Tre e Fin. Serv ic ing Corp

. , 2 88 F. S upp . 2d 655, 658( S. D. M iss

. 2000) ). 3 Case: 11-60861 Document: 00511900640 Page: 3 Date Filed: 06/26/2012No. 11-60861 Summary Calendar compensatory damages. It merely requires that the amount of such damages be based on the prevailing party’s compensatory damages. Sa wyers , 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 exculp at e a p a r ty 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 C ollege concedes, however, the liquidated damages provisi o n 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 p e r mits 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] o u t o f [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 Agreemen t ’ s a rbitration clause is not unconscionable under Mississippi law. The district court’s judgment is AFFIRMED.

4 Case: 11-60861 Document: 00511900640 Page: 4 Date Filed: 06/26/2012