Inetianbor v. Cashcall, Inc.

Citation768 F.3d 1346
Decision Date02 October 2014
Docket NumberNo. 13–13822.,13–13822.
PartiesAbraham INETIANBOR, Plaintiff–Appellee, v. CASHCALL, INC., Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

768 F.3d 1346

Abraham INETIANBOR, Plaintiff–Appellee,
CASHCALL, INC., Defendant–Appellant.

No. 13–13822.

United States Court of Appeals,
Eleventh Circuit.

Oct. 2, 2014.

[768 F.3d 1347]

Aaron Goss, John S. Hughes, Mona Lisa Wallace, Cathy Anne Williams, Wallace

[768 F.3d 1348]

and Graham, PA, Salisbury, NC, Janet R. Varnell, Brian W. Warwick, Varnell & Warwick, PA, Lady Lake, FL, for Plaintiff–Appellee.

Christopher Stephen Carver, Stacy Jaye Rodriguez, Andrew Mikel Shapiro, Akerman, LLP, Miami, FL, Barry Levenstam, Jenner & Block, LLP, Chicago, IL, Katherine E. Giddings, Akerman, LLP, Tallahassee, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:13–cv–60066–JIC.
Before MARTIN, Circuit Judge, and RESTANI,* Judge, and HINKLE,** District Judge.

MARTIN, Circuit Judge:

This appeal arises out of a disagreement between Abraham Inetianbor, who borrowed money at a high interest rate, and CashCall, Inc., the servicer of Mr. Inetianbor's loan. Mr. Inetianbor filed a lawsuit against CashCall, which then sought to compel arbitration based on the loan agreement. The District Court ultimately refused to compel arbitration because the arbitration agreement in the loan document contained a forum selection clause that was integral to the agreement, and the specified forum was not available to arbitrate the dispute. CashCall appeals that decision here. After careful review, and with the benefit of oral argument, we affirm.


According to Mr. Inetianbor's complaint, he borrowed $2600 from Western Sky Financial, LLC in January 2011. After Mr. Inetianbor paid CashCall—the servicer of his loan—$3252.65 over the course of twelve months, he believed he satisfied his obligations under the loan agreement. CashCall disagreed and sent Mr. Inetianbor a bill the following month, which he refused to pay. Mr. Inetianbor alleges that CashCall then reported the purported default to credit agencies, which caused his credit score to drop significantly. Mr. Inetianbor sued CashCall for defamation and usury violations, as well as a violation of the federal Fair Credit Reporting Act.

Early in the litigation, CashCall filed a motion to compel arbitration, pursuant to the terms of the loan agreement. In the loan agreement, Mr. Inetianbor “agree[s] that any Dispute ... will be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.” The loan agreement contains a number of other references to dispute resolution by the Cheyenne River Sioux Tribal Nation (the “Tribe”), rather than in a court.

Initially, the District Court granted CashCall's request to compel arbitration. Mr. Inetianbor attempted to comply with this order, but returned to the District Court once he received a letter from the Tribe explaining that it “does not authorize Arbitration.” The District Court agreed with Mr. Inetianbor that the chosen arbitral forum was not available, and decided to entertain the case in federal court in light of its finding that the forum selection clause was integral to the arbitration agreement. Then, the District Court reversed course again and deemed the forum available after CashCall submitted clarification from the Tribe that “Arbitration, as

[768 F.3d 1349]

in a contractual agreement, is permissible,” even though the tribal court does not involve itself in the arbitration process.

Mr. Inetianbor, as he had after the District Court's first arbitration order, attempted to comply. Eventually, however, he came back to the District Court again with more evidence that the Tribe has nothing to do with the arbitration process. With this new information, the District Court came back to agree with Mr. Inetianbor that the arbitral forum was not available to hear his dispute with CashCall, and so refused to compel arbitration.

CashCall appeals this decision on several grounds. First, CashCall takes issue with our precedent holding that if a forum selection clause is integral to an arbitration agreement, and the forum is unavailable, then arbitration cannot be compelled. Second, CashCall maintains that, even assuming the integral provision rule is good law, it does not operate to preclude arbitration here because the forum selection clause is not integral. Finally, CashCall argues that the District Court erred when it found that the arbitral forum is unavailable. None of these arguments carry the day.


The Federal Arbitration Act (FAA) provides that a written agreement in any contract to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. This provision “reflect[s] both a liberal federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of contract.” AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, ––––, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) (quotation marks and citation omitted). “In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms.” Id. (citations omitted); see also, e.g., Am. Express Co. v. Italian Colors Restaurant, –––U.S. ––––, ––––, 133 S.Ct. 2304, 2309, 186 L.Ed.2d 417 (2013) (“This text reflects the overarching principle that arbitration is a matter of contract. And consistent with that text, courts must rigorously enforce arbitration agreements according to their terms....” (quotation marks and citation omitted)); Rent–A–Center, W., Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010) (same).

The FAA includes several provisions to ensure that an arbitration agreement is enforced. Two are relevant here. First, the FAA provides that, when a recalcitrant party refuses to proceed with an arbitration agreement, District Courts “shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. 9 U.S.C. § 4 (emphasis added). The FAA also includes some provisions for what to do if the agreement contains no method for selecting an arbitrator, or if “any party thereto shall fail to avail himself of [a provided] method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy.” Id. § 5. In those cases, “upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein.” Id. The question this case presents is what to do when the principle that arbitration is a matter of contract comes into conflict with § 5's substitution provision.

This is not the first time this issue has been presented to this Court. We

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have said that, § 5 notwithstanding, “the failure of the chosen forum preclude[s] arbitration” whenever “the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern.” Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir.2000) (quotation marks omitted). This rule is not without controversy. See Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787, 790–92 (7th Cir.2013) (criticizing and rejecting the integral provision rule). Nevertheless, it remains the majority rule among Circuit Courts.1 Most important, of course, is that the integral provision rule remains the law of our Circuit under our strong prior panel precedent rule. See United States v. Hanna, 153 F.3d 1286, 1288 (11th Cir.1998) (per curiam) (“In this circuit, only the court of appeals sitting en banc, an overriding United States Supreme Court decision, or a change in the statutory law can overrule a previous panel decision.”). We must, therefore, apply the rule here.


“This Court reviews de novo questions of law, such as a district court's interpretation of an agreement to arbitrate (and whether it binds the parties to arbitrate), but accepts the district court's findings of fact that are not clearly erroneous.” Multi–Fin. Sec. Corp. v. King, 386 F.3d 1364, 1366 (11th Cir.2004). Applying this standard of review, and bearing in mind the legal background against which we must decide this case, the District Court is due to be affirmed.

A. Is the Forum Selection Clause Integral?

To decide whether the forum selection clause is integral, we must consider how important the term was to one or both of the parties at the time they entered into the agreement. See In re Salomon, 68 F.3d at 561 (looking to whether the forum selection clause was “central” to the agreement to arbitrate, or “as important a consideration as the agreement to arbitrate itself”); Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.Supp. 1359, 1364 (N.D.Ill.1990) (“Where one term of an arbitration agreement has failed, the decision between substituting a new term for the failed provision and refusing to enforce the agreement altogether turns on the intent of the parties at the time the agreement was executed....” (quotation mark omitted)). To answer this question, we look primarily to the language of the contract. E.g., Rose v. M/V Gulf Stream Falcon ”, 186 F.3d 1345, 1350 (11th Cir.1999) (“It is well settled that the actual language used in the contract is the best evidence of the intent of the parties and, thus, the plain meaning of that language controls.”); Nat'l Iranian Oil Co., 817 F.2d at 333 (“Whether the agreement to arbitrate is entire or severable turns on the parties' intent at the time the agreement was executed, as determined from the language of the contract and the surrounding circumstances.”).

It is clear that the parties here intended the forum...

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