Marino v. Dillard's, Inc., 413 F.3d 530 (5th Cir. 2005). · Go Syfert
Marino v. Dillard's, Inc., 413 F.3d 530 (5th Cir. 2005). Cases Citing This Book View Copy Cite
34 citation events (34 in the last 25 years) across 8 distinct courts.
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At page 532 Determining written consent to arbitration agreements14 citing cases“comment (b) to article 1927 . . . . 'reflects the view of the louisiana jurisprudence that when special formalities are prescribed for a contract the same formalities are required for an offer or acceptance intended to form that contract.”3 citing courts quote it
  • Pradier v. Starbucks Corp., No. 2:23-cv-05769 (E.D. La. Sept. 30, 2024).
    Marino v. Dillard's, Inc., 413 F.3d 530, 532 (5th Cir. 2005). 3.
  • Evergreen Assocs., Inc. Evergreen Lions Club v. Indep. Specialty Ins. Co., No. 2:23-cv-01689 (E.D. La. Aug. 18, 2023).
    R.S. 9:4201. 22 Duhon, 2016-0818 (La. 10/19/16). 23 Id. (citing Marino v. Dillard's, Inc., 413 F.3d 530, 532 (5th Cir. 2005)). 24 Woodson Const. Co. v. R.L.
  • Axiall Canada v. MECS, No. 21-30105 (5th Cir. June 14, 2023).unpublished 3 cites
    “We review a denial of a motion to compel arbitration pursuant to the [Federal Arbitration Act] de novo”
  • Le Place of Jefferson v. Certain Underwriters at Lloyd's London, No. 2:22-cv-04559 (E.D. La. Jan. 20, 2023).
    In support of its argument, Plaintiff contends “[r]equiring Le Place to arbitrate in New York is unreasonable and will be so gravely difficult and inconvenient that Le Place may for all practical purposes be deprived of its day in court.”2…
  • Kirlew v. Golden Nugget Lake Charles L L C, No. 2:22-cv-00309 (W.D. La. July 28, 2022).
    Marino v. Dillard’s, Inc., 413 F.3d 530, 532 (5th Cir. 2005).
  • Morel v. U.S. Xpress, Inc., No. 2:20-cv-01348 (E.D. La. Dec. 11, 2020).
    La. May 1, 2020) (citing Marino v. Dillard’s, Inc., 413 F.3d 530, 532-33 (5th Cir. 2005)). 70 R.
  • Hanna v. J. P. Morgan Chase & Co., No. 3:19-cv-00887 (M.D. La. Aug. 24, 2020).
    La. 2020) (“Even if Boxley's electronic signature were insufficient to show express written acceptance, her continued employment after receipt of the Arbitration Agreement has been deemed sufficient to constitute acceptance under Louisiana…
  • Dunn v. JPMorgan Chase Bank, N.A., No. 2:20-cv-00483 (E.D. La. Apr. 27, 2020).
    Doc. 1. 3 Hanlon v. Monsanto Ag Prod., LLC, 48,010 (La. App. 2 Cir. 10/9/13), 124 So. 3d 535, 539 (citing Tubbs Rice Dryers, Inc. v. Martin, 44,800 (La.App.2d Cir.2/24/10), 33 So.3d 926 , recons. denied, 2010-1105 (La.4/29/11), 62 So.3d 10…
  • Shirley Cotton v. GGNSC Batesville, L.L.C., 817 F.3d 169 (5th Cir. 2016).published
    Marino v. Dillard’s, Inc., 413 F.3d 530, 532 (5th Cir.2005).
  • Fitz v. Islands Mech. Contractor, Inc., 53 V.I. 806 (D.V.I. 2010).published 2 cites
    (holding that, under FAA, arbitration agreements need only be written, not signed)
Show 4 more citing cases
  • Lee Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005).published
    The Fifth Circuit reached the same conclusion under Louisiana law in Marino v. Dillard’s, Inc., 413 F.3d 530, 532 (5th Cir.2005). 18 *1376 We thus conclude that the plaintiffs’ continued employment with Gulfstream after receipt of the DRP…
  • Boxley v. Fam. Dollar Stores Inc, No. 5:19-cv-00568 (W.D. La. May 1, 2020).
    See Marino v. Dillard’s, Inc., 413 F.3d 530 , 532–33 (5th Cir. 2005).
  • Banks v. Waitr Holdings Inc, No. 2:19-cv-00898 (W.D. La. Dec. 17, 2019).
  • Sewell v. Waitr Holdings Inc, No. 2:19-cv-00698, 2020 WL 208929 (W.D. La. Jan. 13, 2020).
At page 533 Acceptance of arbitration agreement by continued employment4 citing cases“the plain language of article 1927, however, permits offer and acceptance to be made orally, in writing, or by action or inaction unless the law or the offer itself prescribes certain formalities for the offer and acceptance of a specific contract.”3 citing courts quote it
At page 531 Distinguishing the current case from prior rulings2 citing cases
  • Axiall Canada v. MECS, No. 21-30105 (5th Cir. June 14, 2023).unpublished 3 cites
    “We review a denial of a motion to compel arbitration pursuant to the [Federal Arbitration Act] de novo.” Marino v. Dillard’s, Inc., 413 F.3d 530, 532 (5th Cir. 2005).
  • Jasper Contractors, Inc. v. E-Claim.com, LLC, 94 So. 3d 123 (La. Ct. App. 2012).published
    In addition to a claim that a contract, which includes mandated arbitration, was ever signed by a party, other claims, evoking a question as to whether a party has agreed to arbitration, thus presenting a question for the courts, not arbit…
Other citing cases3 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Karen A. MARINO, Plaintiff-Appellee,
v.
DILLARD’S, INC., Formerly Known as Dillard’s Department Stores, Inc., Defendant-Appellant
04-30911.
Court of Appeals for the Fifth Circuit.
Jun 21, 2005.
Published opinion
413 F.3d 530
2005 U.S. App. LEXIS 11837
2005 WL 1439892
Dale Edward Williams, Metairie, LA, for Marino., Jacqueline Marie Stroh, Crofts & Calla-way, San Antonio, TX, Michael P. Burke, Bryan Cave, St. Louis, MO, David G. Rad-lauer, Tara G. Richard, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, fro Dillard’s, Inc.
Garwood, Garza, Benavides.
Cited by 17 opinions  |  Published
EMILIO M. GARZA, Circuit Judge:

Karen Marino sued her former employer, Dillard’s, Inc. (“Dillard’s”), for unlawful termination and failure to accommodate her alleged disability under the Americans with Disabilities Act (“ADA”). Dillard’s moved to compel arbitration and to dismiss or stay the judicial proceedings pending arbitration. The district court denied the motion, ruling that Marino had not assented to arbitration. Dillard’s implemented an arbitration program and provided its employees — including Marino — with two documents: (1) the “Rules of Arbitration” and (2) a guidance memo concerning the new arbitration program. Under the program, employees who believed they had “been treated unlawfully, forced to resign or ... were terminated illegally” agreed to allow Dillard’s to conduct an internal review and, if the review did not resolve the dispute, have the dispute resolved by “an independent, neutral arbitrator.” The Rules of Arbitration state that Dillard’s and the employee “agree that the procedures provided in these Rules will be the sole method used to resolve any covered dispute arising between them” and that “[b]y accepting or continuing employment with Dillard’s, [the employee has] agreed to accept the Program known as the Agreement to Arbitrate Certain Claims.”

Several days after receiving the Rules of Arbitration and guidance memo, Dillard’s asked each employee, including Marino, to sign an “Acknowledgment of Receipt of Rules for Arbitration” (the “Acknowledgment Form”). The Acknowledgment Form states that “[ejmployees are deemed to have agreed to the provisions of the Rules [of Arbitration] by virtue of accepting employment with [Dillard’s] and/or by continuing employment therewith.” Below this language, and immediately above the signature line, the Acknowledgment Form states, “I acknowledge receipt of the[*532] agreement to arbitrate certain claims and rules of arbitration.” Marino signed the Acknowledgment Form and continued working for Dillard’s.

Subsequently, Dillard’s terminated Mar-ino. Marino sued Dillard’s, alleging that Dillard’s unlawfully terminated her employment and failed to reasonably accommodate her disability in violation of the ADA. Dillard’s filed a motion to compel arbitration under the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 1-9. Dillard’s also requested a dismissal or stay of the judicial proceedings pending arbitration. The district court denied Dillard’s’ motion to compel. The district court found that consent to an arbitration agreement must be in writing under Louisiana law — not, as Dillard’s argued, through Marino’s continued employment. Dillard’s appealed, and the district court stayed all trial proceedings pending this appeal.

We review a denial of a motion to compel arbitration pursuant to the FAA de novo. Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 471 (5th Cir.2002). Similarly, we review a district court’s interpretation of state law de novo. Concise Oil & Gas P’ship v. La. Intrastate Gas Corp., 986 F.2d 1463, 1471 (5th Cir.1993).

Article 1927 of the Louisiana Civil Code, which governs consent to contracts, provides:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

La. Civ. Code ANN. art. 1927 (West 1987). This language makes clear that consent need not be written.

Louisiana state courts recognize that contract law does not require written acceptance of an arbitration agreement. For example, in Hurley v. Fox, the Louisiana Court of Appeal held that the Louisiana state arbitration law — which tracks the language of the FAA and, like the FAA, requires arbitration agreements to be in writing — “does not require that the written agreement to arbitrate be signed by the parties.” 520 So.2d 467, 467 (La. Ct. App. 4 Cir. 2/10/88) (citing Cook v. AAA Worldwide Travel Agency, 352 So.2d 243 (La. Ct.App. 4 Cir. 9/8/77), rev’d on other grounds, 360 So.2d 839 (La.1978)). The court found it “necessary- ... to distinguish between the requirement that an agreement be in writing and the requirement that an agreement be signed. An agreement may be written and the consent thereto may be made orally or by the action or inaction of the parties, thus no signing of the writing is required.” Id. at 469 (emphasis added). See also Alford v. Johnson Rice & Co., LLC, 773 So.2d 255, 258 (La.App. 4 Cir. 11/15/00) (concluding that an arbitration agreement governed by the FAA does not have to be signed); In re Succession of Taravella, 734 So.2d 149, 151 (La.App. 5 Cir. 4/27/99) (“When an agreement [to arbitrate] lacks a signature, the actions and the conduct of the party or parties, who did not sign, may show the effect or validity of the agreement.”).

We acknowledge that Comment (b) to Article 1927 provides, “[t]his Article reflects the view of the Louisiana jurisprudence that when special formalities are prescribed for a contract the same formalities are required for an offer or acceptance intended to form that contract.” La. Civ.[*533] Code ANN. art. 1927, cmt. (b) (West 1987). The plain language of Article 1927, however, permits offer and acceptance to be made orally, in writing, or by action or inaction unless the law or the offer itself prescribes certain formalities for the offer and acceptance of a specific contract. Because the language of Article 1927 is clear and unambiguous, it is unnecessary to look beyond the text of the statute itself. See La. Crv. Code Ann. art. 9 (West 1999) (“When a law is clear and unambiguous ... the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”).

Marino contends that even if written acceptance of an agreement to arbitrate is not required under Louisiana state law, the district court’s judgment should be affirmed on the alternative ground that the arbitration document's are ambiguous. We disagree. In May v. Higbee Co., we found that arbitration documents identical to those here were unambiguous. 372 F.3d 757, 764 (5th Cir.2004). As in May, the Acknowledgment Form here is clear in advising Marino of the new Rules of Arbitration and of the means of consent, i.e., Marino’s continued employment with Dillard’s.

Accordingly, we REVERSE the district court’s denial of the motion to compel arbitration and REMAND the case for further proceedings not inconsistent with this opinion.