by Michael Fox
When the principal fight is over whether or not the court has appellate jurisdiction, you can usually bet one side is pursuing victory on a "technicality." That is not meant as a slam, since "technicalities" are what keeps the law from sliding down a slippery slope into general courts of equity. Here the issue was a recent per curiam decision by the 5th Circuit, Cerveceria Cuauhtemoc Moctezuma S.A. de C.V. v. Montana Beverage Co., 330
F.3d 284 (5th Cir. 2003)(per curiam)[pdf] which contained language permitting the plaintiff employee to argue that the appeals court only had jurisdiction if the district court had first found that an agreement to arbitrate existed, and then failed to enforce it for other grounds. Since the court below had concluded there was not an agreement, there was no jurisdiction. A good argument but unavailing, as the Court declined to read Cerveceria in such a manner, instead saying if it in fact did say that, it would have been wrong and a violation of prior 5th Circuit law. May v. Higbee Company (5th Cir. 6/8/04) [pdf].
It was just not the plaintiff's day on the merits either. The Court held that Dillard's construction of how its mandatory arbitration plan documents worked was correct. When the employee signed the acknowledgement of receipt of the plan, it was not inconsistent to have the plan say that she agreed to arbitration by her continued employment. The trial court had used those phrases to find ambiguity and allow the employee's oral testimony that she had been told that the arbitration agreement would not apply to her and that she was only signing an acknowledgement that she received the document. Instead, the Court noted the purpose of the acknowledgement was to inform her how she was to assent, which was to continue to be employed. She remained employed, she assented -- not only under the governing law of Mississippi, but also of a number of other states including Texas. So, on to arbitration.