IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60631

RICHLAND EQUIPMENT COMPANY, INCORPORATED, a Mississippi 

Corporation, 

 Plaintiff - Appellant

v.

DEERE & COMPANY, a Delaware Corporation, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5:17-CV-88

Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

The issue on appeal is whether arbitration must be compelled when one

contract providing for arbitration of “any dispute” between the parties and

containing a valid delegation clause is terminated and claims thereunder are 

subsequently removed from a complaint but claims under related contracts are 

preserved. The district court held that it must and we AFFIRM.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2018

Lyle W. Cayce

Clerk

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FACTS AND PROCEEDINGS

Richland Equipment Company, Inc. (“Richland”) and Deere & Company 

(“Deere”) began their business relationship when the parties entered into two 

agreements in 1986: the John Deere Agricultural Dealer Agreement (“Ag DA”) 

and the John Deere Consumer Products Dealer Agreement (“CP DA”). In 2001, 

the parties entered into a third agreement, the Commercial Worksite Products 

Dealer Agreement (“CWP DA”). The CWP DA includes the following 

arbitration clause:

Although Dealer and John Deere are entering into this 

Agreement in a spirit of cooperation and mutual respect, it is 

possible that disputes may arise. Dealer, Affiliates . . . , Deere & 

Company and its affiliates agree that any dispute shall be 

finally resolved by binding arbitration pursuant to the terms set 

forth in Schedule 4.

Schedule 4 supplements the arbitration clause, providing that if the parties “to 

a dispute” disagree, “the dispute shall be finally resolved by binding arbitration 

in accordance with the arbitration rules of JAMS/Endispute.” JAMS provides 

that:

Jurisdictional and arbitrability disputes, including disputes 

over the formation, existence, validity, interpretation[,] or scope 

of the agreement under which Arbitration is sought, and who 

are proper Parties to the Arbitration, shall be submitted to and 

ruled on by the Arbitrator. The Arbitrator has the authority to 

determine jurisdiction and arbitrability issues as a preliminary 

matter. 

JAMS Rule 11(b), https://www.jamsadr.com/rules-comprehensivearbitration/#Rule-11.

The CWP DA cancellation provision states, in relevant part, that: “The 

Company may cancel the Dealer’s appointment at any time after the 

happening of . . . [a] [t]ermination (or notice of termination) of any John Deere 

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Dealer Agreement that the dealer . . . has with the Company.” As discussed, 

the only other contracts are the AG DA and the CP DA. Neither of those 

agreements contains an arbitration clause.

The parties have had ongoing disputes since the late 1990s. Deere sent 

a termination notice to Richland in 2011 because Richland allegedly stopped 

promoting Deere products. Richland filed suit, but the parties settled. As part 

of the settlement, Richland agreed to reach certain market share percentages 

for the following three years. Because Richland apparently never met any of 

these goals Deere sent a six-month notice that it had “elected to terminate 

[Richland’s] John Deere Agricultural Dealer Agreement, as well as any other 

agreements that may exist between Richland Equipment Co., Inc. and Deere &

Company.” In response to the termination notice, Richland claimed that “John 

Deere has elected to provide ‘certain dealers’ with better pricing . . . in violation

of the Robinson-Patman Act.” 

Richland filed the underlying lawsuit to enjoin Deere from terminating 

all three dealer agreements. Deere moved to compel arbitration based on the 

CWP DA’s arbitration clause. In response, Richland contended that it had 

“consented to the termination” of the CWP DA. Richland filed an amended 

complaint removing claims related to the CWP DA, and it asserted that the 

motion to compel should be denied because the contract containing the 

arbitration clause was no longer at issue. 

The district court rejected Richland’s attempt to avoid arbitration. It 

found that the arbitration clause survived the termination of the underlying 

agreement. Accordingly, the district court granted the motion to compel 

arbitration and dismissed the lawsuit without prejudice. 

Richland timely appealed. 

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STANDARD OF REVIEW

This court reviews the grant or denial of a motion to compel arbitration 

de novo. Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 471 (5th Cir. 2002). 

DISCUSSION

Richland contends that it cannot be compelled to arbitrate its claims 

because it did not agree to arbitration under the AG DA and the CP DA.1 It 

relies on Torrence v. Murphy for the proposition that “a party cannot be 

required to submit to arbitration any dispute which he has not agreed to so 

submit.” 815 F. Supp. 965, 971 (S.D. Miss. 1993). True enough. But, under the 

CWP DA, Richland did agree to arbitration of the present dispute. 

The two-step framework for analyzing enforcement of arbitration 

agreements is well established: (1) “whether the parties entered into any 

arbitration agreement at all,” and (2) “whether this claim is covered by the 

arbitration agreement.” Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 

201 (5th Cir. 2016) (emphasis in original). And where an arbitration agreement 

includes a delegation clause, the inquiry in step two is “limited.” Id. at 203.

The “first step is a question of contract formation only—did the parties 

form a valid agreement to arbitrate some set of claims.” IQ Prods. Co. v. WD40 Co., 871 F.3d 344, 348 (5th Cir. 2017), cert. denied, 138 S. Ct. 2620 (2018). 

It is undisputed that the CWP DA contained a valid arbitration agreement 

between the parties, binding them to arbitrate some set of claims. 

Further, the termination of an agreement containing an arbitration 

clause does not automatically extinguish the parties’ duty to arbitrate 

 

1 Richland also raises a new argument based on Douglas v. Regions Bank, 757 F.3d 

460 (5th Cir. 2014). This argument was raised in the district court only after that court’s 

ruling on Deere’s motion to compel arbitration. Thus it is waived on appeal. Rosedale 

Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 89 (5th Cir. 2011) (Preserving 

an argument on appeal requires that the argument “be raised to such a degree that the 

district court has an opportunity to rule on it.” (internal quotation marks omitted)).

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disputes. Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers 

Union, AFL-CIO, 430 U.S. 243, 251 (1977); see also Rive v. Briggs of Cancun, 

Inc., 82 F. App’x 359, 363 (5th Cir. 2003). To hold otherwise, the Supreme Court 

explained, would create disorder and unpredictability. See Nolde, 430 U.S. at 

250–51. The converse “would preclude the entry of a post-contract arbitration 

order even when the dispute arose during the life of the contract but 

arbitration proceedings had not begun before termination.” Id. at 251. 

Similarly, an arbitration clause would be unenforceable “if arbitration 

processes began[,] but were not completed, during the contract’s term.” Id. The 

Supreme Court contemplated this precise situation—where a contract 

requiring arbitration terminates after a dispute arises. As in Nolde, there is no 

evidence that the parties here intended for disputes to be resolved in

arbitration before termination of the CWP DA and in court afterward. Thus 

the court finds the parties are subject to a valid and enforceable arbitration 

agreement.

Next the court must address whether the parties’ intended to arbitrate 

arbitrability. In order to do this, “the court must determine whether the 

agreement contains a valid delegation clause.” IQ Prods. Co., 871 F.3d at 348.

“[A] valid delegation clause requires the court to refer a claim to arbitration to 

allow the arbitrator to decide gateway arbitrability issues.” Kubala, 830 F.3d 

at 202. The court “will not assume that the parties agreed to arbitrate 

arbitrability unless the parties clearly and unmistakably provide otherwise.” 

Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 

(5th Cir. 2012) (internal quotations and alterations omitted). Parties’ express 

incorporation of rules from specific arbitration services in their arbitration 

agreement delegates arbitrability. See, e.g., id. (incorporating the American 

Arbitration Association rules); Brittania-U Nigeria, Ltd. v. Chevron USA, Inc., 

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866 F.3d 709, 714 (5th Cir. 2017) (incorporating the United Nations 

Commission on International Trade Law rules).

The arbitration clause includes such a delegation. The CWP DA provided 

that the parties’ dispute “shall be finally resolved by binding arbitration in 

accordance with the arbitration rules of JAMS/Endispute.” If the court 

determines that “there is a delegation clause, the motion to compel should be 

granted in almost all cases.” Kubala, 830 F.3d at 202.

Kubala explains that where there is a delegation clause, the court must 

only consider whether the parties intended for “the arbitrator [to] decide 

whether a given claim must be arbitrated.” Id. Unlike some language which 

courts have characterized as narrow, the “any dispute” language in the CWP 

DA is not qualified or limited. Cf. Pennzoil Expl. & Prod. Co. v. Ramco Energy 

Ltd., 139 F.3d 1061, 1064 (5th Cir. 1998) (suggesting a narrow construction of

a clause providing for arbitration of “disputes arising out of [a particular] 

contract” (emphasis added) (quotation omitted)); Coffman v. Provost * 

Umphrey Law Firm, L.L.P., 161 F. Supp. 2d 720, 725 (E.D. Tex. 2001)

(narrowly construing a clause providing for arbitration of “any dispute arising

under” a particular agreement (emphasis added)), aff’d, 33 F. App’x 705 (5th 

Cir. 2002). The unqualified “any dispute” language in the CWP DA confirms 

that the delegation of arbitrability was intended to apply to all disputes

between the parties. The district court aptly reasoned that “the phrase ‘any 

dispute’ should be interpreted broadly because ‘disputes’ arising under the 

CWP DA could involve disputes under any previous dealer agreements because 

the contract contains a ‘cross-termination’ provision.” 

In sum, the parties’ express intent to enter into an arbitration clause, 

the terms of the arbitration clause, including its delegation and “any dispute” 

provisions, and the cross-termination clause all support the conclusion that the 

district court did not err in granting Deere’s motion to compel arbitration.

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CONCLUSION

For the foregoing reasons the judgment of the district court is 

AFFIRMED.

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