United States Court of Appeals

for the Fifth Circuit ____________

No. 21-30105 

____________

Axiall Canada, Incorporated, 

Plaintiff—Appellee, 

versus

MECS, Incorporated, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:20-CV-1535

______________________________

Before King, Smith, and Elrod, Circuit Judges.

Per Curiam:*

Axiall brought breach of contract, breach of warranty, and redhibition 

claims against MECS. MECS appeals the district court’s denial of its motion 

to compel arbitration and moves to expedite the appeal. We AFFIRM the 

judgment of the district court and DENY as moot the motion to expedite the 

appeal. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2023

Lyle W. Cayce

Clerk

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I.

Plaintiff-Appellee Axiall Canada, Inc. (“Axiall”) owns and operates a 

chlor-alkali manufacturing facility in Beauharnois, Quebec, Canada.

Defendant-Appellant MECS, Inc. (“MECS”) designs, produces, and sells 

equipment used and installed in chlor-alkali manufacturing facilities, 

including mist eliminators or “demisters.”

This case arises out of a series of demister sales between the parties 

beginning in July 2019. For almost all of these transactions, MECS first

issued a proposal to Axiall, Axiall next sent a Purchase Order, MECS then 

sent an Order Acknowledgement before shipping the demisters to Axiall, 

and, finally, Axiall accepted the demisters.1

Both of MECS’s forms (i.e., the proposals and Order 

Acknowledgements) contained language expressly limiting its acceptance of 

any purchase orders to MECS’s standard terms and conditions of sales.

Section 13 of these standard terms and conditions contained an arbitration 

clause stating that “[a]ny and all disputes arising out of, relating to or in 

connection with this Purchase Order . . . shall be finally and exclusively 

resolved by binding confidential arbitration.”

Similarly, Axiall’s forms (i.e., the Purchase Orders) contained 

language that acceptance of its Purchase Orders indicated “irrevocable 

agreement to [Axiall’s] General Terms and Conditions.” Axiall’s General 

Terms and Conditions contained two relevant provisions. First is a nomodification provision that a seller 

agrees to be bound to the exact terms specified herein, and that 

this [Purchase Order] constitutes a binding contract between 

_____________________

1 In one instance, Axiall told MECS to begin production in accordance with a prior 

proposal.

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Seller and the entity receiving any Product (“Purchaser”). 

Purchaser . . . hereby objects to and rejects any additional or 

modified terms proposed by Seller on which this sale would be 

rejected and any such proposed terms shall be deemed void.

Second is a forum selection clause stating that the seller “hereby agrees to 

exclusive and sole jurisdiction and venue in Lake Charles, Louisiana or 

Calvert City, Kentucky, as determined by [Axiall].” Arbitration is not 

mentioned in this provision or elsewhere in Axiall’s forms.

After sending the Order Acknowledgements to Axiall, MECS shipped 

the demisters, which Axiall accepted.

In sum, below were the relevant events common to these transactions:

1. MECS sent Axiall a proposal incorporating an arbitration 

clause and containing express limitations on acceptance;

2. Axiall sent MECS a Purchase Order incorporating the 

forum selection clause and containing express limitations 

on acceptance;

3. MECS sent Axiall an Order Acknowledgment

incorporating an arbitration clause and containing express 

limitations on acceptance (like MECS’s proposal);

4. MECS shipped Axiall the demisters; and

5. Axiall accepted the demisters from MECS.

On October 23, 2020, Axiall brought suit against MECS in Louisiana 

state court; in December, the case was removed to the United States District 

Court for the Western District of Louisiana. In its complaint, Axiall alleged 

breach of contract, breach of warranties, and redhibition claims stemming 

from problems with the purchased demisters. MECS then moved to dismiss,

or alternatively stay, and compel arbitration, arguing that Axiall was bound 

by a contract whose terms included the binding arbitration clauses in 

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MECS’s forms. Axiall opposed the motion. The district court denied 

MECS’s motion, holding that under Louisiana law, the parties had not 

agreed to the arbitration clauses. MECS appeals this denial and subsequently 

filed an opposed motion to expedite the appeal.

II.

“We review a denial of a motion to compel arbitration pursuant to the 

[Federal Arbitration Act] de novo.” Marino v. Dillard’s, Inc., 413 F.3d 530, 

532 (5th Cir. 2005). “Similarly, we review a district court’s interpretation of 

state law de novo.” Id.

When adjudicating a motion to compel arbitration, we “conduct a 

two-step inquiry. The first step is to determine whether the parties agreed to 

arbitrate the dispute in question.” Webb v. Investacorp, Inc., 89 F.3d 252, 257–

58 (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. “The second step is to determine ‘whether legal constraints 

external to the parties’ agreement foreclosed the arbitration of those 

claims.’” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, 

Inc., 473 U.S. 614, 628 (1985)). We hold that, in each of the transactions at 

issue, there was no valid agreement to arbitrate and that the parties thus did 

not agree to arbitrate this dispute. Accordingly, we need not and do not 

consider any external legal constraints foreclosing arbitration.

III.

This case presents a classic “battle of the forms.” The parties, having 

exchanged their own forms with different terms, now dispute the nature of 

their relationship and the terms incorporated into any contract that may have 

been formed. Two provisions of the Louisiana Civil Code govern this dispute. 

First, Article 2601 concerns additional terms in an acceptance of an offer to 

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sell movables such as demisters. La. Civ. Code Ann. art. 2601. Second, 

Article 2602 concerns contracts formed by the conduct of the parties. Id. art. 

2602. These two provisions are slightly different from but based on Section 

2-207 of the Uniform Commercial Code (“UCC”). See N. Stephan Kinsella, 

Smashing the Broken Mirror: The Battle of the Forms, UCC 2-207, and 

Louisiana’s Improvements, 53 La. L. Rev. 1555, 1556 (1993). 

In relevant part, Article 2601 states that “[a]n expression of 

acceptance of an offer to sell a movable thing suffices to form a contract of 

sale if there is agreement on the thing and the price . . . unless acceptance is 

made conditional on the offeror’s acceptance of the additional or different 

terms.” La. Civ. Code Ann. art. 2601. 

In its entirety, Article 2602 states that

[a] contract of sale of movables may be established by conduct 

of both parties that recognizes the existence of that contract 

even though the communications exchanged by them do not 

suffice to form a contract. In such a case the contract consists 

of those terms on which the communications of the parties 

agree, together with any applicable provisions of the suppletive 

law.

Id. art. 2602.

Applying these provisions to the present facts, we first consider 

whether the actions of the parties ever formed a contract. If so, we then 

consider whether MECS’s arbitration clauses were included as terms of said 

contract.

A. Contract Formation

Under Louisiana law, a contract is formed through the parties’ 

consent as established by offer and acceptance. See La. Civ. Code Ann.

art. 1927 (1985). Here, neither party disputes that a contractual relationship 

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existed; instead, the parties disagree as to when their contracts were formed.

At issue is thus which of the relevant forms exchanged between the parties, 

if any, constituted the offer and acceptance necessary for contract formation. 

Axiall argues that MECS’s proposals constituted the offers and 

Axiall’s Purchase Orders the acceptances that formed the relevant contracts 

and that, per Article 2602, these contracts included only the agreed-upon

terms contained in both MECS’s and Axiall’s forms, i.e., not MECS’s 

arbitration clauses. By contrast, MECS contends that the contracts were 

formed later in the parties’ dealings when Axiall accepted delivery of the 

demisters. According to MECS, its proposals and Axiall’s Purchase Orders

were not offers and acceptances; rather, MECS’s Order Acknowledgments 

operated as counteroffers to Axiall’s Purchase Orders’ proposed terms. 

Axiall then accepted these counteroffers through performance by accepting 

delivery of the demisters.

The proposals and Purchase Orders agree on the “thing” and price, 

which would normally suffice to form a contract under Article 2601. See La. 

Civ. Code Ann. art. 2601 (“An expression of acceptance of an offer to 

sell a movable thing suffices to form a contract of sale if there is agreement 

on the thing and the price . . . .”). But reading further, the text of Article 2601 

precludes formation when “acceptance is made conditional on the offeror’s 

acceptance of the additional or different terms.” Id. (emphasis added). That 

is the case here. Offeror MECS’s proposals were followed by Axiall’s 

Purchase Orders, which explicitly conditioned Axiall’s acceptances on

MECS’s subsequent acceptances of Axiall’s “different” forum selection 

clause. See id. at cmt. f (noting that a term is “different” “when it varies a 

term contained in the offer”). Accordingly, Axiall’s Purchase Orders did not 

constitute acceptances of MECS’s proposals sufficient for formation.

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For similar reasons, Axiall’s Purchase Orders cannot be construed as 

initial offers or counteroffers. MECS’s Order Acknowledgements do not 

constitute acceptances because these forms explicitly condition acceptance 

on an additional arbitration clause, which is absent from Axiall’s forms. See 

id. In short, neither party’s form communications—Axiall’s Purchase 

Orders or MECS’s Order Acknowledgements—were communications that, 

when read in succession, were sufficient to form contracts under Article 

2601.

But the lack of sufficient written communication does not end our 

search for an enforceable contract. In such a scenario, contracts can be 

established through performance. Per Article 2602, “[a] contract of sale of 

movables may be established by conduct of both parties that recognizes the 

existence of that contract even though the communications exchanged by them do 

not suffice to form a contract.” La. Civ. Code Ann. art. 2602 (emphasis 

added). Here, the relevant conduct by both parties is (1) MECS’s shipping 

the demisters following its sending of the Order Acknowledgement and (2) 

Axiall’s accepting delivery of said demisters. These actions constitute 

conduct by the parties that “recognizes the existence of [a] contract,” i.e., 

one formed by an agreed-upon quantity of demisters delivered at the agreedupon price, which is sufficient for formation of a contract under Article 2601.

See id. art. 2601. Thus, applying Article 2602, a contract was established 

through performance.

B. Contract Terms

We next consider whether the arbitration clause was included as a 

term of this contract. When, as here, a contract is established by the conduct 

of the parties, “the contract consists of those terms on which the 

communications of the parties agree, together with any applicable provisions 

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of the suppletive law.”2 La. Civ. Code Ann. art. 2602. The forms 

exchanged by the parties did not agree on MECS’s proposed arbitration 

clause. MECS included an arbitration provision in the terms incorporated in

its proposals and Order Acknowledgements, while Axiall’s forum selection 

clause in its Purchase Orders explicitly states that MECS agrees to 

“exclusive and sole jurisdiction and venue in Lake Charles, Louisiana or 

Calvert City, Kentucky, as determined by [Axiall].” Because these 

communications do not evince agreement regarding jurisdiction, neither 

term is a part of the contract subsequently formed by the parties’ conduct. 

MECS’s arguments to the contrary are unavailing. It primarily argues 

that its Order Acknowledgments were counteroffers whose terms Axiall 

accepted by performance (i.e., by accepting delivery of the demisters).

3 But 

this argument misses the import of Article 2602’s language governing which 

terms are part of a contract arising out of performance. Even if Axiall’s 

receiving of the demisters constituted acceptance by performance, Article 

2602 states that “the contract consists of those terms on which the 

communications of the parties agree.” Id. MECS’s arbitration clauses are not 

part of these agreed terms because Axiall objected to “any additional or 

modified terms proposed by [MECS] on which this sale would be rejected.”

This explicit rejection by Axiall distinguishes this case from Marino v. 

Dillard’s, Inc., where defendant Dillard’s sent the plaintiff Marino a written 

arbitration agreement. 413 F.3d 530, 531 (5th Cir. 2005). Marino signed an 

_____________________

2 MECS does not argue for any applicable provisions of suppletive law that would 

give rise to contracts that include its arbitration clauses.

3 Because there was no valid agreement to arbitrate, we need not and do not 

consider MECS’s arguments about whether this underlying dispute falls within the scope 

of that agreement or whether any statutes or policies foreclosed the arbitration of the 

specific claims at issue here.

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acknowledgment stating that continued employment (i.e., conduct) would be 

interpreted as consenting to arbitration. Id. at 531–32. We held that this 

continued employment was sufficient to enforce the arbitration agreement. 

Id. at 533. But the facts here are quite different from Marino’s. Unlike the 

continued employment by the Marino plaintiff constituting acceptance of a 

written arbitration agreement, Axiall’s accepting delivery cannot be 

interpreted as consenting to MECS’s proposed terms because, in its 

Purchase Orders, Axiall had already rejected contractual terms different from 

its own. By contrast, the Marino plaintiff maintained his employment after 

signing an acknowledgment indicating that continued employment would 

constitute consent to the specific proposed terms in the arbitration 

agreement. No such acceptance by Axiall—written or conduct-based—is 

present here. And nothing else in Marino suggests that we can contravene 

Article 2602’s straightforward language that, while performance can 

establish a contract where competing forms do not, said contract will only 

include terms on which the communications of the parties agree. And 

Axiall’s communications do not evince agreement to MECS’s proposed 

arbitration term.

In sum, there was no agreement between the parties to arbitrate

because the parties never mutually agreed to MECS’s proposed arbitration 

clauses. The district court thus correctly denied MECS’s motion to compel 

arbitration.

IV.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. The pending motion to expedite the appeal is DENIED as 

moot. The mandate shall issue forthwith.

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