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United States Court of Appeals

Fifth Circuit

FILED

December 9, 2005

Charles R. Fulbruge III

Clerk

REVISED JANUARY 26, 2006

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-61031

 

KATRINA BANKS, ET AL.

Plaintiffs,

KATRINA BANKS, ET AL.

 Plaintiffs-Appellees, 

versus

MITSUBISHI MOTORS CREDIT OF AMERICA, ET AL,

Defendants,

MITSUBISHI MOTORS CREDIT OF AMERICA, ET AL,

 Defendants-Appellants.

 

Appeals from the United States District Court for

the Southern District of Mississippi

_________________________________________________________

Before REAVLEY, DAVIS and WIENER, Circuit Judges.
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PER CURIAM:

Reviewing the district court’s denial of Mitsubishi Motors Credit of America,

Inc. and Triad Financial Corporation’s (collectively “Appellants”) motions to

compel arbitration de novo, we reverse and remand for the following reasons:

1. The district court held that Appellants did not provide signed 

arbitration agreements, and therefore, failed to show that there existed a 

valid agreement to arbitrate between the parties. Appellants admit that they

did not produce a copy of the signed arbitration agreements, but argue that

they proffered the affidavit of John M. Thames, Jr., President of Thames

Autoplex (hereinafter “Thames affidavit”) establishing that: (1) Appellees

purchased cars from Thames Autoplex; (2) the signed arbitration agreements

could not be located; (3) “Thames requires that every customer purchasing or

attempting to purchase a vehicle from Thames execute an Arbitration

Agreement” and that “[Appellees] could not have purchased the vehicles

from Thames without having signed such an Arbitration Agreement”; and (4)

Thames’ standard arbitration agreement applies to “all claims, demands,

disputes or controversies of every kind or nature ... arising from, concerning

or relating to any of the negotiations involved in the sale, lease or financing of

the vehicle.” Because Appellees failed to provide any evidence in response
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to the Thames affidavit, it “was unimpeached and uncontradicted and its

credibility was in no manner brought into question.” United States v.

Johnson, 208 F.2d 729, 730 (5th Cir. 1953). 

2. Based on the Thames affidavit, Appellants contend that they proved 

by a preponderance of the evidence that the parties agreed to arbitrate this

dispute. We agree. 

Arbitration must proceed by agreement: “[A]rbitration is a matter of 

contract and a party cannot be required to submit to arbitration any dispute

which he has not agreed so to submit.” May v. Higbee Co., 372 F.3d 757,

763 (5th Cir. 2004) (quoting AT&T Techs., Inc. v. Communications Workers

of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L.Ed.2d 648 (1986)). 

Therefore, when considering a motion to compel arbitration, the court must

initially “determine whether the parties agreed to arbitrate the dispute in

question.” Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996). 

“This determination involves two considerations: (1) whether there is a valid

agreement to arbitrate between the parties; and (2) whether the dispute in

question falls within the scope of that arbitration agreement.” Id. 

Where the issue is whether the parties have a valid and enforceable 

agreement to arbitrate, courts apply the contract law of the state governing the
*

 Neither party disputes that Mississippi law applies. Appellees are citizens

of Mississippi. In addition, the subject transactions were entered into in

Mississippi. Mississippi follows the “center of gravity” approach to choice-of-law

issues. See Boardman v. United Servs. Auto Ass’n, 470 So.2d 1024, 1031 (Miss.

1985). 

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agreement. Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 264 (5th

Cir. 2004). Mississippi contract law applies here.* 

Under Mississippi law, “where there is no writing to evidence the

contract or the writing itself has been destroyed or lost, the parties may use

‘parol evidence’ or outside evidence to prove that a valid contract existed and

what the terms of that contract were meant to be.” Murphree v. W.W.

Transp., 797 So.2d 268, 273 (Miss. App. 2001) (citing Williams v. Evans,

547 So.2d 54, 57 (Miss. 1989)). Accordingly, the loss or destruction of an

instrument will not prevent its enforcement. See Bolden v. Gatewood, 164

So.2d 721, 731 (Miss. 1964) (“It is also well settled that parol evidence is

admissible to show the making of a contract which has been lost or

destroyed.”). However, “a party must undertake a twofold burden in order

to recover on a document that he cannot produce. Such a party must

demonstrate both (a) the former existence and the present unavailability of the

missing document, and (b) the contents of the missing document.” Williams,

547 So.2d at 57 (quoting Connecticut Bank and Trust Co. v. Wilcox, 201
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Conn. 570, 518 A.2d 928, 930 (1986)). 

We hold that the uncontradicted Thames affidavit shows by a 

preponderance of the evidence: (1) the existence of an agreement to arbitrate

between the parties, albeit through circumstantial evidence that Appellees

purchased a car from Thames, every car purchaser is made to sign an

arbitration agreement, and that Appellees could not have purchased a car

without executing an arbitration agreement; (2) the present unavailability of

the arbitration agreement; and (3) the contents of the missing arbitration

agreement. Accordingly, we conclude that there was a valid agreement to

arbitrate between the parties.

3. The district court determined that the other Plaintiffs’ claims in 

this case, for which Appellants were able to produce signed copies of the

arbitration agreements, fell within the scope of the arbitration agreement. 

Because Appellees asserted the same claims as the other Plaintiffs, their

arbitration agreements are identical, and Appellees do not contend that their

claims fall outside the scope of the arbitration agreement, we conclude that

Appellees’ claims fall within the scope of the arbitration agreement. 

REVERSED AND REMANDED.