IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60164

GREEN TREE SERVICING, L.L.C.; WALTER INVESTMENT 

MANAGEMENT CORPORATION; BEST INSURORS, INCORPORATED; 

MID STATE CAPITAL, L.L.C.; MID STATE TRUST II; MID STATE TRUST 

III; MID STATE TRUST IV; MID STATE TRUST V; MID STATE TRUST VI; 

MID STATE TRUST VII; MID STATE TRUST VIII; MID STATE TRUST IX; 

MID STATE TRUST X; MID STATE TRUST XI; WILMINGTON TRUST 

COMPANY; MID-STATE CAPITAL CORPORATION 2004-1 TRUST; MIDSTATE CAPITAL CORPORATION 2005-1 TRUST; MID-STATE CAPITAL 

CORPORATION 2006-1 TRUST; MID-STATE CAPITAL TRUST 2010-1, 

 Plaintiffs–Appellees,

v.

HENRY HOUSE; LINDA MURRELL, 

 Defendants–Appellants.

Appeal from the United States District Court

for the Southern District of Mississippi

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Henry House, Linda Murrell (the House Parties), and other plaintiffs 

sued Green Tree Servicing and various other entities (the Green Tree Parties)

in a related action.1 The Green Tree Parties initiated the present suit in 

 

1 Green Tree Servicing, L.L.C. v. Billy Brown, No. 17-60105. 

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2018

Lyle W. Cayce

Clerk

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2

federal district court seeking to compel arbitration of claims asserted by the 

House Parties. The district court granted the motion to compel, holding that 

(1) all of the Green Tree Parties had standing to compel arbitration even 

though some were not signatories to the arbitration agreement; and (2) the 

parties had agreed to delegate questions regarding arbitrability to the 

arbitrator. We affirm. 

I

Henry House purchased a house and surrounding real property from Jim 

Walter Homes, Inc. and Mid-State Trust IV in 1998. To obtain financing from 

the sellers, House pledged the real property as collateral. The parties 

memorialized the transaction by executing a sales contract, promissory note, 

and deed of trust. The sales contract expressly incorporated four exhibits, 

including an Arbitration Agreement. The Arbitration Agreement provided:

The parties agree that, at the election of either party, any 

controversy or claim arising out of or relating to this contract, or 

the breach thereof, whether asserted as in tort or contract, or as a 

federal or state statutory claim, arising before, during or after 

performance of this contract, shall be settled by binding 

arbitration in accordance with the Comprehensive Arbitration 

Rules and Procedures administered by J●A●M●S/Endispute, and 

judgment upon the award rendered by the arbitrator may be 

entered in any Court having jurisdiction thereof. The parties agree 

and understand that they choose arbitration instead of litigation 

to resolve disputes.

In 2016, the House Parties and other plaintiffs commenced a lawsuit—

Green Tree Servicing, L.L.C. v. Billy Brown—in Mississippi state court

(Brown). The suit alleged that Jim Walter Homes and some of the Green Tree 

Parties induced House to sign the sales contract by promising to construct a 

house in accordance with manufacturer specifications, house plans, and 

building codes, but that those defendants actually delivered a dwelling that

was “substandard, incomplete, defective, and dangerous.” Based on these 

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allegations, House and the other plaintiffs brought claims that included civil 

conspiracy, breach of contract, negligence, false statements/fraud, and deceit.

The complaint in Brown alleged that Jim Walter Homes “sold, assigned, 

or conveyed” the sales contract and related documents “to Walter Mortgage 

Company, LLC, then to Walter Investment Management Corp. or one of the 

Mid State Trust Entities, and ultimately to Wilmington Trust Co., Green Tree

[Servicing], and their predecessors, who in turn attempted to sell, assign, or 

convey said instruments” to the other defendants. This “lending engine,” the 

Brown complaint alleged, facilitated the “home built on your lot” scheme in 

which the Green Tree Parties and Jim Walter Homes acted as conspirators and 

joint venturers to originate, pool, and securitize mortgages like House’s. 

According to the complaint, “[w]ithout a willingness of [these parties] to 

purchase such ill-gotten paper, there would be no market or incentive to 

perpetuate this wrongful scheme.” The complaint in Brown asserted that each 

of the Green Tree Parties “aided and abetted each other in each and every 

act . . . that is the subject of this action” and that each was “liable jointly and 

severally for the unlawful, deceptive, deceitful and misleading acts and/or 

omissions of each and every one” of its co-parties. The Green Tree Parties 

removed Brown to federal district court.

While the Brown case was pending, the Green Tree Parties filed the 

present suit and sought to compel arbitration of the House Parties’ claims 

against the Green Tree Parties. The district court granted the motion to 

compel arbitration, ruling that even though Green Tree Servicing (Green Tree)

and the Walter Investment Management Corporation (WIMC) were not

signatories to the arbitration agreement, they had standing to enforce it under 

Mississippi law’s intertwined claims test. The court held that, by incorporating 

the JAMS rules, the parties agreed to delegate questions as to arbitrability to 

the arbitrator. The district court referenced the version of the JAMS 

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Comprehensive Arbitration Rules and Procedures, effective as of 2014, which 

provide:

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.2

Based on this clause, the district court also held that the House Parties’ claims 

that the sales contract was procedurally and substantively unconscionable 

must be decided by the arbitrator. The district court remanded the Brown case 

to state court due to lack of diversity jurisdiction.

On appeal, the House Parties contend that (1) under Mississippi law, the 

intertwined claims test does not apply to Green Tree and WIMC, which did not 

exist at the time the arbitration agreement was signed; (2) they did not assent 

to delegate arbitrability and that, in any event, the district court relied on the 

wrong version of the JAMS rules; and (3) the district court failed to address 

claims in their pleadings regarding fraud in the inducement.

II

We first address our jurisdiction. There are three issues: (1) did the 

district court’s “Final Judgment” administratively close the case, (2) in light of 

this court’s precedent,3 how does the fact that the district court had another

case pending before it that involved many of the parties in the present case 

and similar issues affect the finality of the “Final Judgment” compelling 

arbitration, and (3) was the notice of appeal premature, and if so, was it 

nevertheless effective.

 

2 Rule 11(b), JAMS Comprehensive Arbitration Rules & Procedures (2014).

3 See Green Tree Servicing, L.L.C. v. Charles, 872 F.3d 637 (5th Cir. 2017);

CitiFinancial Corp. v. Harrison, 453 F.3d 245 (5th Cir. 2006).

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This court has jurisdiction over “a final decision with respect to an 

arbitration that is subject to this title.”4 A decision is final if it “ends the 

litigation on the merits and leaves nothing more for the court to do but execute 

the judgment.”5 An order compelling arbitration is typically appealable 

because “once the court compel[s] arbitration, there [is] nothing more for it to 

do but execute the judgment.”6 However, when a district court stays or 

administratively closes a case pending arbitration, the order is not appealable 

because the “substantive claims have not been dismissed by any district 

court.”7

The district court entered upon the record a document captioned “Final 

Judgment,” which provides in its entirety:

In accordance with the Opinion and Order of the Court by which 

Plaintiffs’ Motion to Compel Arbitration was granted, this case is 

hereby dismissed with prejudice. Any party may move to re-open 

this case if further judicial intervention is necessary to enforce the 

rulings of this Court, or to enforce the rulings of the arbitrators.

SO ORDERED this the 6th day of February, 2017.

The Green Tree Parties argue that because the district court permitted any 

party to move to re-open the case, the judgment was not final for purposes of 

appeal.

The district court labeled its decision “Final Judgment” and dismissed

the case with prejudice. Although the order recited that either party may move 

to re-open the case after or during arbitration, this is simply a recognition of 

rights that the parties may have upon the conclusion of arbitration. As the 

Supreme Court has recognized, “[t]he FAA does permit parties to arbitration 

agreements to bring a separate proceeding in a district court to enter judgment 

 

4 9 U.S.C. § 16(a)(3).

5 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000) (citations omitted). 6 Harrison, 453 F.3d at 249 (citations omitted).

7 Id. at 251.

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on an arbitration award once it is made (or to vacate or modify it), but the 

existence of that remedy does not vitiate the finality of the District Court's 

resolution of the claims in the instant proceeding.”8 The federal district court’s 

order in the present case does nothing more than state the law, and its 

recognition that post-arbitration proceedings may be initiated is not 

tantamount to a statement that the court retains jurisdiction of the suit or that 

it has only administratively closed the case. Our court concluded in Green Tree 

Servicing, L.L.C. v. Charles that an order virtually identical to the “Final 

Judgment” in the present case would be a final, appealable order if the court 

were only examining that order.9 Accordingly, the statement in the “Final 

Judgment” that the parties may return to federal court during or after the 

arbitration does not affect the finality of the order compelling arbitration. 

An unpublished order in Green Tree Servicing, L.L.C. v. Keyes does not 

purport to reach a contrary conclusion.10 It considered a district court’s order 

granting arbitration that also stated that the parties could return to district 

court during or after arbitration.11 This court’s order in Keyes concluded that

appellate jurisdiction was lacking.12 However, our order reflects that the 

quorum was under the impression that the district court, after ordering 

arbitration, had “stayed the remainder of the case, and directed the clerk to 

administratively close the case.”13 The order held that the judgment was not 

final because “[b]y entering a stay and allowing for reactivation of the case, the 

 

8 Randolph, 531 U.S. at 86.

9 872 F.3d 637, 639 (5th Cir. 2017); id. at 638 (reflecting that the district court granted 

the motion to compel arbitration and that the order also “stated that ‘each party may move 

to re-open this case if further judicial intervention is necessary to enforce the rulings of this 

Court, or to enforce the rulings of the arbitrators’”).

10 No. 17-60107 (5th Cir. May 31, 2017) (quorum opinion).

11 Id. 12 Id. 13 Id.; see also id. (“[I]n addition to compelling arbitration, the district court stayed the 

rest of the case and ordered it administratively closed.”).

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district court demonstrated that it was postponing, not terminating, the 

proceedings.”14 Regardless of how the district court’s order in Keyes is properly 

interpreted, the district court in this case did not stay or administratively close 

the Green Tree Parties’ case.

Other issues regarding our jurisdiction remain, however. We must 

consider other aspects of this court’s decision in Charles.15 In Charles, as in 

the present case, another case “involving the same parties and essentially the 

same dispute” remained pending before the same federal district court when

the order compelling arbitration was entered.16 But unlike the present case, 

the district court in Charles had stayed further proceedings in the related case, 

and the related case remained pending in the federal district court when we 

considered the appeal of the order compelling arbitration.17 We held in Charles

that the order compelling arbitration was not a final, appealable order and that 

we therefore lacked jurisdiction.18 We cited and followed CitiFinancial Corp. 

v. Harrison, in which our court held that when two proceedings with common 

parties and issues were pending in the same United States District Court, 

although before two different federal district court judges, and the two judges 

had respected one another’s orders regarding arbitration and a stay, we were 

obliged to look at the orders from both courts to resolve whether a final, 

appealable order had been entered.19 We concluded in Harrison that there was 

no final order.20 This court reasoned, “[f]unctionally, this case sits in a posture 

no different than had both orders been issued by a single district court judge.”21 

 

14 Id. 

15 Green Tree Servicing, L.L.C. v. Charles, 872 F.3d 637 (5th Cir. 2017).

16 Id. at 638-39.

17 Id. 18 Id. at 639-40. 19 453 F.3d 245, 249-52 (5th Cir. 2006).

20 Id. at 251.

21 Id.

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Because, in one of the courts, the matter had been “administratively

dismissed,” which we deemed to be the same as “administratively close[d]”

pending arbitration, and the substantive claims of the plaintiffs had not been 

dismissed, there was no final judgment.22

The Brown suit, involving some of the same parties and arbitration issue 

as the present case, remained pending before Judge Barbour when the “Final 

Judgment” at issue here was entered. Judge Barbour had stayed further 

proceedings in the Brown suit. Although the Brown suit was a separate action 

that had not been consolidated with the present suit, our decisions in Charles

and Harrison compel the conclusion that the “Final Judgment” was not a final, 

appealable order when it was entered. However, Judge Barbour subsequently 

remanded the Brown case to state court.

The remand of the Brown suit places this case in a materially different 

procedural posture than Charles and Harrison. The remand of the Brown suit 

left nothing pending before Judge Barbour in either Brown or the present case, 

so the “Final Judgment” became final and appealable.23 The remand to state 

court disposed of all remaining issues and parties in the two related actions. 

The federal district court had ordered arbitration, “the federal action did not 

contain any substantive claims,” and “there was nothing more for it to do.”24

The fact that Judge Barbour also stayed the state-court litigation

pending arbitration when he remanded the Brown case to state court does not 

render the “Final Judgment” non-appealable. The stay of the state-court action 

was to protect the effectiveness of the federal district court’s judgment 

 

22 Id. at 251-52.

23 See American Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 705 (5th Cir. 2002) (“[A]s 

a matter of law, the district court order compelling arbitration, which also stays the 

underlying state court proceedings and closes the case in federal court, is an immediately 

appealable, final decision under the ambit of 9 U.S.C. § 16(a)(3) of the FAA.”). 24 Harrison, 453 F.3d at 249 (citations omitted).

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compelling arbitration.25 A stay by a federal district court of parallel

state-court proceedings pending arbitration does not render the federal court’s 

order compelling arbitration non-final or non-appealable.26 In the present 

case, when the remand occurred, nothing remained pending in the federal 

district court, and the “Final Judgment” became final.

The third jurisdictional issue is whether the notice of appeal in this case 

is effective. The House Parties filed a notice of appeal on March 8, 2017, after

entry of the “Final Judgment,” which occurred on February 6, 2017. The “Final 

Judgment” did not become a final, appealable order until the federal district

court remanded the Brown suit on March 15, 2017. Accordingly, the notice of 

appeal was prematurely filed. We must determine whether that notice is 

effective, and we conclude that it was.

Our court confronted a similar situation in Boudreaux v. Swift 

Transportation Co., Inc.27 The district court granted one party’s motion for 

summary judgment, but another party’s summary judgment motion remained 

pending when the notice of appeal was filed.28 The district court granted the 

pending motion one day after the notice of appeal was filed.29 We discussed 

the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage 

Ins. Co.,30 and held that the prematurely filed notice of appeal was effective 

because the order from which the appeal was taken “would have been 

 

25 See generally Aptim Corp. v. McCall, 888 F.3d 129 (5th Cir. 2018).

26 See American Heritage Life Ins. Co., 294 F.3d at 708 (“We hold that where a district 

court with nothing before it but whether to compel arbitration and stay state court 

proceedings issues an order compelling arbitration, staying the underlying state court 

proceedings, and closing the case, thereby effectively ending the entire matter on its merits 

and leaving nothing more for the district court to do but execute the judgment, appellate 

jurisdiction lies, as the decision is ‘final’ within the contemplation of § 16(a)(3) of the FAA.”).

27 402 F.3d 536 (5th Cir. 2005).

28 Id. at 539 and n.1.

29 Id. 30 498 U.S. 269 (1991).

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appealable if immediately followed by the entry of judgment pursuant to 

Federal Rule of Civil Procedure 54(b).”31 The district court’s February 6 “Final 

Judgment” would have been appealable had it been followed immediately by 

certification under FRCP 54(b).

An opinion of the District of Columbia Circuit Court of Appeals, authored

by then-Judge John Roberts, also analyzes when a prematurely filed notice of 

appeal is effective,32 and we commend that opinion to those who wish to plumb 

the issue more deeply. It similarly concluded that because the district court’s 

order would have been appealable had the court issued a certification under 

F.R.C.P 54(b), the order was appealable.33

In the present case, we conclude that the premature notice of appeal was 

effective.34

III

The House Parties contend that Green Tree and WIMC cannot enforce 

the arbitration agreement because the latter corporate entities are not 

signatories, and do not come within Mississippi’s intertwined claims test 

because they did not exist at the time the sales agreement was signed. 

Mississippi law establishes that, as a general rule, a party may not enforce an 

arbitration provision to which it is not a signatory.35 One exception to this rule

is the intertwined claims test.36 It permits a non-signatory to compel 

 

31 Boudreaux, 402 F.3d at 539 n.1 (quoting Barrett v. Atl. Richfield Co., 95 F.3d 375, 

379 (5th Cir. 1996)).

32 Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 161 (D.C. Cir. 

2005); see also United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998).

33 Outlaw, 412 F.3d at 161-63.

34 See Boudreaux, 402 F.3d at 539 (quoting Barrett, 95 F.3d at 379); see also Swope v. 

Columbian Chems. Co., 281 F.3d 185, 192 (5th Cir. 2002); In re Seiscom Delta, Inc., 857 F.2d 

279, 283 (5th Cir. 1988); Outlaw, 412 F.3d at 161. 35 Sawyers v. Herrin-Gear Chevrolet Co., Inc., 26 So. 3d 1026, 1038 (Miss. 2010) (citing 

Qualcomm, Inc. v. American Wireless License Grp., LLC, 980 So. 2d 261, 269 (Miss. 2007)).

36 Id.

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arbitration when a litigant makes “allegations of substantially interdependent 

and concerted misconduct” between a non-signatory and a signatory that have

a close legal relationship.37 For example, in Sawyers, the Supreme Court of 

Mississippi applied the intertwined claims test to a car-buyer’s claims against 

a car dealership and the underwriter of a GAP insurance policy sold by the 

dealership.38 Even though the underwriter was not a party to the arbitration 

agreement between the dealer and the buyer, the court allowed it to compel 

arbitration.39 The dealer and underwriter had a close legal relationship, the 

court held, because the underwriter acted on the dealer’s behalf by 

administering the insurance policy and supervising payment of the claim.40 

Because the buyer based its claims against the underwriter on its contract with 

the dealership, she “[could not] deny [the underwriter] the benefit of the 

arbitration agreement which was an integral part of the transaction at issue.”41

The House Parties’ allegations support application of the intertwined 

claims test to permit Green Tree and WIMC to compel arbitration as nonsignatories. First, based on the allegations in the complaint, both entities had 

a close legal relationship with a signatory to the arbitration agreement. The 

House Parties allege that Green Tree, the current servicing agent of the 

mortgage, or its predecessor, financed the home at a high interest rate and 

worked with Jim Walter Homes as the “‘business end’ of a lending engine” 

scheme that also involved WIMC and the other Green Tree Parties. These 

allegations support the conclusion that Green Tree has a close relationship 

 

37 Id. (quoting B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483, 491-92 (Miss. 

2005)). 

38 Id. at 1028-30.

39 Id. at 1038-39.

40 Id. at 1038.

41 Id. at 1039.

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with a signatory because it serviced the mortgage created in the initial 

transaction between House and Jim Walter Homes.

With respect to WIMC, Green Tree’s parent company, the House Parties 

allege that “without the assistance and cooperation of [WIMC] . . . th[e] 

fraudulent scheme could not have been possible.” The complaint also alleges 

that “Jim Walter Homes . . . transformed itself into publicly traded, billion 

dollar entities such as Walter Energy, Inc. and [WIMC].” The complaint 

alleges that both Green Tree and WIMC were joint venturers and 

co-conspirators with Jim Walter Homes, the entity that signed the sales 

contract and other documents. It further alleges that Jim Walter Homes “sold, 

assigned, or conveyed the contracts, promissory notes, and deeds of trust made 

the subject of this civil action generally to Walter Mortgage Company, LLC, 

[now Green Tree] then to WIMC” or other entities. As an alleged 

assignee/conveyee, co-conspirator, and joint venturer that was integral to 

perpetuating the harms described in the complaint, WIMC has a close legal 

relationship with Jim Walter Homes, a signatory. 

The complaint alleges that Green Tree and WIMC engaged in 

“substantially interdependent and concerted misconduct” with Jim Walter 

Homes. Not only does the complaint assert that Green Tree and WIMC acted 

as co-conspirators and joint venturers in a scheme to originate and securitize 

sub-prime loans, it also claims that these entities aided and abetted and are 

“liable jointly and severally for the unlawful, deceptive, deceitful and 

misleading acts and/or omissions of each and everyone one” of the other named 

defendants. Accordingly, Green Tree and WIMC have standing to enforce the 

arbitration agreement. 

The House Parties contend that because Green Tree and WIMC did not 

exist at the time the sales contract was executed, they are ineligible for the 

intertwined claims test. The intertwined claims test is not a doctrine of 

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imputed assent, such that any non-signatory must have existed when the 

agreement was signed so that House could have anticipated that the entity 

could later compel arbitration. Rather, the test governs the application of the 

doctrine of equitable estoppel.42 Mississippi courts apply the intertwined 

claims test to estop parties from making claims against non-signatories based 

on a contract, then seeking to avoid an arbitration provision that “was an 

integral part of the transaction at issue.”43 In this case, the House Parties 

allege that Green Tree and WIMC have a close legal relationship with Jim 

Walter Homes, a signatory to the sales contract, and the House Parties invoked 

that contract to allege that Green Tree and WIMC engaged in substantially 

interdependent misconduct with Jim Walter Homes. That Green Tree and 

WIMC were formed after the sales contract was signed is irrelevant.

IV

The House Parties also challenge the district court’s determination that 

the parties agreed to delegate the “gateway” question of arbitrability to the

arbitrator. Like the broader question of whether a dispute is subject to 

arbitration, “the question ‘who has the primary power to decide arbitrability’ 

turns upon what the parties agreed about that matter.”44 A determination that 

the parties agreed to arbitrate arbitrability must be supported by evidence 

showing that the parties “clearly and unmistakably” intended to do so.45 In 

such cases, so long as “the assertion of arbitrability” is not “wholly 

 

42 Id. at 1038-39.

43 Id.; see B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483, 491 (Miss. 2005).

44 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th 

Cir. 2012) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (internal 

citations omitted)); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 

262 (5th Cir. 2014).

45 Petrofac, 687 F.3d at 675 (quoting AT&T Techs., Inc. v. Commc’ns Workers of 

Am., 475 U.S. 643, 649 (1986)).

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groundless,”46 meaning that there is a “plausible argument[] that the dispute 

was covered by the [arbitration] agreement,” the question of arbitration is to 

be resolved in arbitration.47 In Petrofac, this court held that by incorporating 

the American Arbitration Association Rules—which state that arbitrators 

have power to rule on questions of arbitrability—into their arbitration 

agreement, the parties had clearly and unmistakably agreed to arbitrate 

arbitrability.48 A number of our sister circuits share this view.49

The House Parties contend that, as unsophisticated parties, they could 

not have assented to delegate arbitrability simply by agreeing to be bound by 

the JAMS arbitration rules. The House Parties did not raise this argument 

before the district court despite extensive argument from the Green Tree 

Parties that the JAMS rules gave the arbitrator power to determine 

arbitrability. Instead, the House Parties argued that because the arbitration 

agreement was unconscionable and invalid since it had not been properly 

executed, the delegation provision was invalid by extension. The House 

Parties do not renew these arguments on appeal, relying only on their new 

arguments that they could not have assented to delegation by the incorporation 

of a set of arbitration rules. This court generally does not consider arguments 

raised for the first time on appeal unless the party shows “extraordinary 

circumstances”—that “the issue . . . is a pure question of law and a miscarriage

 

46 Douglas v. Regions Bank, 757 F.3d 460, 463 (5th Cir. 2014) (quoting Agere Sys., Inc. 

v. Samsung Elecs. Co., 560 F.3d 337 (5th Cir. 2009)); see also Qualcomm Inc. v. Nokia Corp., 

466 F.3d 1366, 1371 (Fed. Cir. 2006). 47 Douglas, 757 F.3d at 463.

48 Petrofac, 68 F.3d at 675.

49 See, e.g., Fallo v. High–Tech Inst., 559 F.3d 874, 878 (8th Cir. 2009); Qualcomm, 466 

F.3d at 1372-73; Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1332-33 

(11th Cir. 2005); Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208 (2d Cir. 2005); Apollo 

Comput., Inc. v. Berg, 886 F.2d 469, 473 (1st Cir. 1989).

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of justice would result from our failure to consider it.”50 That standard is not 

met here. By failing to bring their “assent” theory before the district court, the 

House Parties forfeited it for purposes of appeal.

The House Parties also argue that the district court erred by considering 

the JAMS rules effective in 2014, rather than the year the arbitration 

agreement was signed. The House Parties forfeited this argument as well by 

failing to raise it before the district court. Even though the Green Tree Parties 

specifically referenced the 2014 version of the JAMS rules in their

memorandum brief in support of their motion to compel arbitration, the House 

Parties did not object to that version of the rules in the proceedings below. The 

district court did not err in ruling that the parties’ express incorporation of the 

JAMS rules provides clear evidence that they agreed that the arbitrator would 

decide arbitrability.

V

Finally, the House Parties argue that the district court failed to consider 

their allegations that the Green Tree Parties obtained the arbitration 

agreement by fraud. Pursuant to 9 U.S.C § 2, arbitration agreements are valid 

and enforceable “save upon such grounds as exist at law or in equity for the 

revocation of any contract.”51 Because arbitration agreements are severable 

as a matter of federal arbitration law, parties seeking to avoid arbitration

under § 2 must challenge the validity of the arbitration agreement specifically, 

rather the contract as a whole.52 If the party challenges the “precise agreement 

to arbitrate at issue, the federal court must consider the challenge” before 

 

50 AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009) (quoting N. Alamo 

Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996)). 

51 9 U.S.C § 2. 52 Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010) (citing Buckeye Check

Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-46 (2006)). 

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ordering compliance with a delegation provision.53 Even in cases “where the 

alleged fraud that induced the whole contract equally induced the agreement 

to arbitrate which was part of that contract,” the Supreme Court “nonetheless 

require[s] the . . . challenge to be directed specifically to the agreement to 

arbitrate” as a prerequisite to judicial intervention.54

The House Parties’ fraud allegations are not specific to the arbitration 

agreement. In their pleadings, the House Parties argued generally that the 

Green Tree Parties “wrongfully obtain[ed] the [House Parties’] signatures on 

contracts, promissory notes, deeds of trusts, insurance payment plans, and 

completion certificates” and that “[a]ll the signatures of [House] on the 

aforementioned documents were generally procured under duress, with deceit, 

and/or through coercion, trickery, and/or other wrongful conduct.” These 

blanket allegations of fraud fall well short of the specificity that Rent-A-Center

requires. The district court correctly referred the question of fraud to the 

arbitrator.

* * *

We AFFIRM the judgment of the district court.

 

53 Id. at 71.

54 Id.

 Case: 17-60164 Document: 00514471076 Page: 16 Date Filed: 05/14/2018