Allen v. Vaksman Law Offices

United States Court of Appeals
for the Fifth Circuit

No. 19-60936
Summary Calendar

Timothy Allen,

Plaintiff—Appellee,

versus

Vaksman Law Offices, P.C.,

Defendant—Appellant.

Appeals from the United States District Court
for the Southern District of Mississippi
USDC 2:19-CV-30

Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Vaksman Law Offices, P.C. (“Vaksman”), appeals the denial of its
Motion to Dismiss or Compel Arbitration in a case arising from its earlier
representation of the appellee, Timothy Allen. Vaksman contends that the

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 25, 2020

Lyle W. Cayce
Clerk
Case: 19-60936 Document: 00515579722 Page: 1 Date Filed: 09/25/2020

No. 19-60936
2
record establishes by a preponderance of the evidence that there is a valid
arbitration agreement between the parties.
No finding to the contrary is present in the district court’s order,
though. Instead, the district court found only that Allen plausibly denied the
existence of a valid arbitration agreement. There is no reason to doubt that
the district court will, as Vaksman requests, hold “an evidentiary hearing and
[make] a factual finding based on the preponderance of the evidence as to
whether there exists a valid and binding arbitration agreement between the
parties.”
Vaksman would prefer that this court “REVERSE the judgment of the
District Court . . . and REMAND with instructions to grant the motion to
compel arbitration.” Yet, Allen has raised an issue of fact, albeit slim, by
unequivocally denying, in his (self-serving) affidavit, the formation of an
arbitration agreement. See, e.g., In re Yarn Processing Patent Validity Litig.,
498 F.2d 271, 287 (5th Cir. 1974); cf. Am. Heritage Life Ins. Co. v. Orr,
294 F.3d 702, 710 (5th Cir. 2002) (holding that certain self-serving
affidavits—such as those only alleging incomplete understanding of, but not
denying actual consent to, an agreement—may fail to create a fact issue).
Fact issues must be addressed first in the district court.
The judgment of the district court is AFFIRMED.
Case: 19-60936 Document: 00515579722 Page: 2 Date Filed: 09/25/2020