[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12037

Non-Argument Calendar

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D.C. Docket No. 6:19-cv-01723-WWB-GJK

JESSICA GRAULAU, 

 Plaintiff-Appellant,

 versus

CREDIT ONE BANK, N.A., 

a foreign corporation, 

 Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 6, 2021)

Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.

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PER CURIAM: 

Plaintiff Jessica Graulau, proceeding pro se,

1 appeals the district court’s 

order (1) dismissing Plaintiff’s civil action against Defendant Credit One Bank, 

N.A. (“Credit One”) and (2) referring Plaintiff’s case to arbitration. In her 

complaint, Plaintiff asserted against Credit One violations of the Telephone 

Consumer Protection Act, 47 U.S.C. § 277 (“TCPA”), and of the Florida 

Consumer Collection Practices Act, Fla. § 559.72 (“FCCPA”). No reversible error 

has been shown; we affirm.

This appeal arises from alleged attempts by Credit One to collect Plaintiff’s 

consumer debt. Plaintiff says she -- over a period of fifteen months -- received 

thousands of robocalls from Credit One, despite having instructed Credit One’s

agents to stop calling her. 

In January 2018, Plaintiff filed a counseled complaint against Credit One, 

asserting violations of the TCPA and the FCCPA (“Graulau I”). The parties later 

filed a “Joint Stipulation Dismissing and Referring Case to Arbitration.” In 

pertinent part, the joint stipulation provided that “Plaintiff, through counsel, . . . 

agrees this case is subject to arbitration pursuant to the cardholder agreement.” 

1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 

(11th Cir. 2008). 

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The parties requested that the district court dismiss the case and refer the matter to 

binding arbitration. On 10 April 2018, the district court entered an order referring 

Graulau I to arbitration and dismissing the case. 

Then, in September 2019, Plaintiff filed pro se the civil action underlying 

this appeal. Plaintiff again asserted against Credit One claims for violation of the 

TCPA and the FCCPA based on the same factual allegations asserted in Graulau I. 

Plaintiff alleged that she had been unable to file an arbitration demand due to a 

lack of financial resources.

Credit One moved to dismiss Plaintiff’s complaint and to enforce the 10 

April 2018 order entered in Graulau I. 

A magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court grant Credit One’s motion, refer Plaintiff’s 

claims to arbitration, and dismiss the case. The magistrate judge noted the parties’ 

joint stipulation in Graulau I that Plaintiff’s claims against Credit One were subject 

to binding arbitration. The magistrate judge then determined that Plaintiff had 

failed to show that arbitration would be prohibitively expensive or that 

enforcement of the arbitration agreement would preclude Plaintiff from effectively 

vindicating her rights. Plaintiff filed no timely objections to the R&R.2

 

2 Generally speaking, a party that fails to object to the magistrate judge’s R&R waives the right 

to challenge on appeal a district court’s order based on the unobjected-to factual and legal 

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The district court adopted the R&R, granted Credit One’s motion, ordered 

Plaintiff to “submit to arbitration in accordance with the Joint Stipulation,” and 

dismissed the case.

We review de novo a district court’s order compelling arbitration. See 

Emp’rs Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1321 (11th 

Cir. 2001). 

Through the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), Congress 

“declare[d] a national policy favoring arbitration of claims that parties contract to 

settle in that manner.” See Burch v. P.J. Cheese, 861 F.3d 1338, 1345 (11th Cir. 

2017) (quotation omitted). We have said that this “strong federal preference for 

arbitration of disputes . . . must be enforced where possible.” See Musnick v. King 

Motor Co., 325 F.3d 1255, 1258 (11th Cir. 2003). Among other things, the FAA 

authorizes a district court “to issue an order compelling arbitration if there has been 

a failure, neglect, or refusal to comply with an arbitration agreement.” Id. (citing 9 

U.S.C. § 4). 

In ruling on a motion to compel arbitration pursuant to section 4 of the FAA, 

a district court follows a two-step inquiry. Klay v. PacifiCare Health Sys., Inc., 

conclusions. See 11th Cir. R. 3-1. That waiver rule does not apply in this case, however, 

because the R&R never informed Plaintiff about the time for objecting and about the 

consequences on appeal for failing to object. See id. 

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389 F.3d 1191, 1200 (11th Cir. 2004). First, the district court must “determine

whether the parties agreed to arbitrate the dispute.” Id. If so, the district court 

must then determine “whether ‘legal constraints external to the parties’ agreement 

foreclosed arbitration.’” Id. 

About the first step, that Plaintiff and Capital One agreed to arbitrate the 

matters at issue in this case is clear. In Graulau I, the parties stipulated that 

Plaintiff’s claims -- claims identical to those asserted in this case -- were subject to 

binding arbitration under the applicable cardholder agreement. 

Nevertheless, Plaintiff now contends that the arbitration agreement is 

unenforceable for these reasons: (1) Credit One waived its right to arbitration; 

(2) Plaintiff lacks the financial resources to pay the costs of arbitration; and (3) 

Plaintiff’s claims are exempt from arbitration under 28 U.S.C. § 654(a) and Middle 

District of Florida Local Rule 8.02(a). We are unpersuaded. 

First, nothing evidences that Credit One waived its right to arbitration. To 

establish waiver, a party must show two things: “(1) the party seeking arbitration 

substantially participated in litigation to a point inconsistent with an intent to 

arbitrate; and (2) that this participation resulted in prejudice to the opposing party.” 

Burch, 861 F.3d at 1350. Never has Credit One engaged in substantial 

participation in this litigation. To the contrary -- in both this case and in Graulau I

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-- Credit One’s conduct consisted only of efforts to enforce the arbitration 

agreement. 

Plaintiff’s argument about the cost of arbitration also fails. An arbitration 

agreement may be rendered unenforceable when arbitration would be prohibitively 

expensive. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000). 

The party seeking to avoid arbitration based on cost bears the “burden of 

establishing that enforcement of the agreement would preclude him from 

effectively vindicating his federal statutory right in the arbitral forum.” Musnick, 

325 F.3d at 1259 (quotations and alterations omitted). To satisfy this burden, a 

party “has an obligation to offer evidence of the amount of fees he is likely to 

incur, as well as of his inability to pay those fees.” Id. at 1260. 

Here, Plaintiff offered no specific evidence about the costs she might incur

in arbitration. Plaintiff’s mere conclusory assertion that she lacks the financial 

resources to pay for arbitration is not enough to invalidate the arbitration 

agreement. See Musnick, 325 F.3d at 1260 (in deciding the enforceability of an 

arbitration agreement’s fee-shifting provision, concluding a statement that plaintiff

would “be unable to pay” a potential award of attorney’s fees was speculative and 

“wholly inadequate to establish that the arbitration would result in prohibitive costs 

that force him to relinquish his claim under Title VII.”).

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We also reject Plaintiff’s arguments under 28 U.S.C. § 654 and the Middle 

District of Florida’s local rules: provisions that are inapplicable to the FAA-based 

arbitration agreement at issue in this case. See 28 U.S.C. § 651(e) (the statutory 

provisions in 28 U.S.C. §§ 651 et seq. “shall not affect title 9, United States 

Code.”); M.D. Fla. Local Rule 8.01(a) (repealed 1 February 2021) (implementing 

rules in accord with 28 U.S.C. §§ 651-58). 

Plaintiff has failed to show that the parties’ arbitration agreement is invalid 

or unenforceable. We affirm the district court’s order dismissing the case and 

referring the case to arbitration. 

AFFIRMED.

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