#### GULFSIDE CASINO PARTNERSHIP, Plaintiff-Appellee v. MISSISSIPPI RIVERBOAT COUNCIL; Unite Here; International Brotherhood of Teamsters; International Union of Operating Engineers, Defendants-Appellants.

No. 07-60807

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 18, 2008.

Armin J. Moeller, Jr., Balch & Bingham, Jackson, MS, for Plaintiff-Appellee.

Dennis L. Horn, Horn & Payne, Madison, MS, for Defendants-Appellants.

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellee Gulfside Casino Partnership (“Gulfside”) initiated this action, seeking a declaratory judgment that the Memorandum of Agreement (“MOA”) entered into between (1) Defendants-Appellants Mississippi Riverboat Council, UNITE HERE, International Brotherhood of Teamsters, and International Union of Operating Engineers (collectively, the “Unions”) and (2) Grand Casinos of Mississippi LLC-Gulfport (“Grand Casino-Gulfport”) is not enforceable as to Gulfside. The MOA, which addresses representational and union organizing issues affecting employee rights at the Grand Casino-Gulfport, contains an arbitration *329clause providing in part that “[t]he parties agree that any disputes over the interpretation or application of this Agreement shall be submitted to expedited and binding arbitration.” The Unions ask us to reverse the district court’s denial of their alternative motion to compel arbitration and to dismiss or stay Gulfside’s declaratory-judgment action. We decline this request and affirm.

First, the Unions contend that the district court erred when it ruled that it, not the arbitrator, had to determine whether Grand Casino-Gulfport’s rights and obligations under the MOA were assigned to Gulfside. Second, the Unions insist that, assuming, *arguendo,*the district court was the proper arbiter, it erred in ruling that Grand Casino-Gulfport’s rights and obligations under the MOA were not assigned to Gulfside, especially because it did not require Gulfside to introduce evidence supporting the allegations in its complaint before ruling.

Having reviewed the record on appeal, the parties’ briefs, and the applicable law, we are convinced that the district court properly denied the Unions’ motion. When a party challenges the very existence of an agreement, as opposed to its continued validity or enforcement, the court, not the arbitrator, must first resolve the dispute.1 Even though Grand CasinoGulfport entered into the MOA with the Unions, and later entered into a side agreement with Gulfside in which it purported to assign its rights and obligations under the MOA, Gulfside — which was not a signatory to the MOA — insists that Grand Casino-Gulfport’s rights and obligations were not properly assigned to it. In other words, Gulfside contends that it is *not*a party to the MOA, and therefore challenges the very existence of the agreement *with respect to itself.*Accordingly, we hold that the district court properly ruled that it, not the arbitrator, had to resolve the question whether Grand Casino-Gulfport’s rights and obligations under the MOA were assigned to Gulfside.

Furthermore, we hold that the district court properly ruled that Grand Casino-Gulfport’s rights and obligations were *not*assigned to Gulfside. The MOA, by its own terms, applied only to active casino and associated landside operations. Following Hurricane Katrina, Grand CasinoGulfport was forced to cease all riverboat casino and associated landside operations and to terminate all employees. It follows that there were no rights or obligations remaining under the MOA that could be assigned to Gulfside when it entered into the side agreement with Grand CasinoGulfport.2 The Unions’ contention to the contrary is rejected. Moreover, because of the Unions’ prior insistence that the district court rule expeditiously on their motion, their contention that the court decided the issue prematurely is unavailing.

The district court’s ruling denying the Unions’ alternative motion to compel arbitration and to dismiss or stay Gulfside’s declaratory-judgment action is, in all respects, AFFIRMED.

*

 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.

1

. *See, e.g., Will-Drill Res., Inc. v. Samson Res. Co.,*352 F.3d 211, 214-19 (5th Cir.2003); *EEOC v. Waffle House, Inc.,*534 U.S. 279, 293-94, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002).

2

. *See United Mine Workers of America v. Apogee Coal Co.,*330 F.3d 740, 745 (6th Cir.2003) (holding that term “operations" in successor-ship clause — which language is analogous to that in MOA at issue — “connoted actively producing mines and does not include mines closed in good faith for economic reasons”).