* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not

be published and is not prec e dent except under the limit ed circumstances set forth in 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 5, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-61092

____________

MERRIDITH KEE,

Plaintiff-Appellant,

versus

MARINER HEALTH CARE MANAGEMENT COMPANY, INC,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC 1:04-CV-60-GHD-JAD

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Merridith Kee appeals the district court’s order compelling arbitration. Kee claims t hat

M ariner Health Care Management Company (“Mariner”) fired her for not ifying the Mi ssissippi

Department of Nursing of nursing violations. Kee sued Mariner in federal district court. The district

court granted Mariner’s motion to compel arbitration. There are two issues on appeal: (1) whether

the district court’s order compelling arbitration is a final appealable order and (2) whether the district2

court properly granted the motion to compel arbitration.

Section 16(a)(3) of the FAA states, “[a]n appeal may be taken fro m a final decision with

respect to an arbitration that is subject to this title.” 9 U.S.C. § 16(a)(3). Mariner claims that since

the district court “closed” the case in granting the motion to compel, it is not a final decision, thus,

precluding appellate jurisdiction. This argument holds not merit. S ee American Heritage Life Ins.

Co. v. Orr

, 294 F.3d 702, 708 (5th Cir. 2002). Thus, the motion to dismiss for lack of jurisdiction

is denied.

Kee claims that she did not assent to the arbitration agreement because she did not read it and

was not told what it contained. Fai l ure to read a contract does not precl ude contract form ati on.

Washington Mut. Fin. Group, L.L.C. v. Bailey

, 364 F.3d 260, 264-65 (5th Cir. 2004) (“we hold that

under Mississippi law, the inabilit y to read and understand the arbitration agreement does not render

the agreement unconscionable or otherwise unenforceable.”). As she continued employment, she

agreed to arbitrate. S ee May v. Higbee , 372 F.3d 757, 764-65 (5th Cir. 2004) (“Continuing one’s

employment after receiving notice that continued employment will constitute assent is a recognized

manner of forming a contract.”).

Kee claims that the arbitration agreement is unenforceable on grounds of unconscionablility.

Specifically, she claims that she was not given an opportuni ty to bargain and that she would not get

her paycheck if she did not sign it. Under Mississippi law, a contract can be unconscionable in two

ways: procedurally and/or substantively. Russell v. Performance Toyota, Inc ., 826 So.2d 719, 725

(Miss.2002). Here, Kee claims procedural unconscionability. Procedural unconscionability is proved

by showing “a lack of knowledge, lack of voluntariness, incons picuous print, the use of com pl ex

legalistic language, disp arity in sophistication or bargaining power of the parties and/or a lack of3

opportuni ty to study the contract and inquire about the contract terms.” Id. The facts here do not rise

to the level of unconscionability. S ee Carter v. Countryw ide Credit Industries, Inc ., 362 F.3d 294,

301 (5th Cir. 2004).

Accor dingly, the motion to dismiss for lack of jurisdiction is DENIED and the order

compelling arbitration is AFFIRMED.