Opposition Brief — Samadi v. MBNA America America America Bank, N.A. (No. 06-122)

| Court, U.S

a) FILED

SEP 25 2006

No. 06-122 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MIKE H. SAMADI,

Petitioner,

r V,

MBNA AMERICA, INC.,

Respondent.

ON PETITION FOR A Writ OF CERTIORARI TO THE

Unitep StaTes COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

GREGORY M. TAUBE

Counsel of Record

MICHELLE W. JOHNSON

NELSON MULLINS RILEY

& SCARBOROUGH LLP

999 Peachtree Street

Suite 1400

Atlanta, Georgia 30309

(404) 817-6000

Counsel for Respondent

203585

COUNSEL PRESS

(300) 274-3321 * (800) 359-6859

i

QUESTION PRESENTED

Whether, pursuant to the Federal Arbitration Act, the

district court properly honored the Delaware choice of law

provision in the parties’ revolving credit card agreement and,

pursuant to settled statutory and case law authority, correctly

enforced the agreement’s mandatory arbitration requirement.

ii

CORPORATE DISCLOSURE STATEMENT

Respondent MBNA America Bank, N.A., has the

following parent corporation:

Bank of America Corporation

The only publicly held corporation that owns 10% or

more of Respondent’s stock is:

Bank of America Corporation

lil

TABLE OF CONTENTS

QUESTION PRESENTED .............--200--

CORPORATE DISCLOSURE STATEMENT .....

TAMLB OP CONTENTS |... oo. ecisesiccss.

TABLE OF CITEDAUTHORITIES ............

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STATEMENT OF JURISDICTION ...........-.

STATUTES OR OTHER PROVISIONS

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RR URMEE Geb ae dbae wise etek eone eval

SIALEMEN) OF THE CASE .. usec w cee svess

REASONS FOR DENYING THE PETITION .....

A. The Eleventh Circuit’s Decision Does Not

Conflict With Any Decision of This Court or

of Any Other Court of Appeals ...........

B. Most of the Issues Listed in Samadi’s Petition

Have Been Waived Due to Samadi’s Failure

to Ratse Them Below ..................

C. In Any Event, the Eleventh Circuit’s Decision

RTE aR eile SA aie dn te tee eae

[ES nh Ko id edceeueoueedeie ces

Page»

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson y. United States, 966 F.2d 487 (9" Cir.

A ee oe peg gd y's 4 dc bc ba bese bee 12

Bank One, N.A. v. Coates, 125 F. Supp. 2d 819

(S.D. Miss. 2001), aff’d mem., 34 Fed. Appx. 964

ss 5 Su eas 9

Blanchard v. MBNA America Bank, N.A., No. 05-

81, 2005 U.S. Dist. LEXIS 18450 (W.D.N.C.

Ot, EG a St ene oe 9

Edelist v. MBNA America Bank, 790 A.2d 1249

I NO oe pce cep kd xceees ene 9,13

Grasso v. First USA Bank, 713 A.2d 304 (Del. Super.

ee ek a x 6 9’ 04 Ge vesueus y

Green Tree Financial Corp. v. Randolph, 531 U.S.

I eee gag cg Wb bo 6.4.00 deo 8

Hagner v. United States, 285 U.S. 427 (1932) ..... 12

Jaimez v. MBNA America Bank, N.A., No. 05-2478,

2006 U.S. Dist. LEXIS 7526 (D. Kan. Feb. 27,

esp dere e dd cee eeeowes 9

Joseph v. MBNA America Bank, N.A., 148 Ohio Ct.

App. 3d 660, 775 N.E.2d 550 (2002) .......... 9

Vv

Cited Authorities

Page

Judge v. Am. Motors Corp., 908 F.2d 1565 (11th Cir.

Le os wee wb pau theese es 11

Kerr v. McDonald’s Corp., 427 F.3d 947 (11" Cir.

a OOS SU: hal ee 12

Konst v. Florida East Coast Ry., 71 F.3d 850

ge SE a ee 12

Kurz v. Chase Manhattan Bank USA, N.A.,

319 F. Supp. 2d 457 (S.D.N.Y. 2004) ......... 9

Lloyd v. MBNA America Bank, N.A., 27 Fed. Appx.

ne Es. wie nie uv b 62 B90 0 0-0 9

Mackey v. MBNA America Bank, N.A., 343 F. Supp.

2d 966 (W.D. Wash. 2004) .................. 9,13

Marsh v. First USA Bank, N.A., 103 F. Supp. 2d 909

ean way bo o0see bb exes oe 8 9,13

Meckei v. Continental Resources Co., 758 F.2d 811

ee ek os wie bebe secevees 12, 13

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

ee 8 8

Nationwide Logistics, Inc. v. Condor Transp., Inc.,

606 S.E.2d 319 (Ga. Ct. App. 2004) .......... 11

vi

Cited Authorities

Page

Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939

PEED «a5 o waanwd ines so 20% kde ee ee 12

Powell v. Nevada, 511 U.S. 79 (1994) ........... 10

Rodriguez de Quijas v. Shearson/American Express,

es ee es SEEN bc de we nes eeaeeeewen 8

Samadi v. MBNA America Bank, N.A., 178 Fed.

Se PURE GAs MEE ook sewueewennewe 1,7,8

Shearson/American Express, Inc. v. McMahon,

ke Bees Ee rey yey me 8

Sunseri v. Macro Cellular Partners, 412 F.3d 1247

SUM I od Shs gb ee gee a a 14

Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d

Ta WOES soo cone ce we eee ses iw eses 12

Wisniewski v. United States, 353 U.S. 901 (1957) .... 10

Youakim v. Miller, 425 U.S. 231 (1976) .......... 10

Statutes and Rules

IPED sins 0k Oe kde 6 Che ada a eee 1,8

Sh S 8 ag A gE erry ener 5

eT ee ee ee err ret 5

Vil

Cited Authorities

Page

IS U.S.C. = 1004, CR 65 ieee 5

PO UBAL.§ TIGR) os vackinecdes cree l

DEL. CODE ANN. as § § FSO) bsciscs deere 11

GA. CODE ANN. § 7-5-4(c) rarer | eh 11

GA. CODE ANN. § 7-6A-1, et seg. ...........4.. 5

Federal Rule of Civil Procedure 43(e) ........... 14

l

OPINIONS BELOW

The opinion of the court of appeals (Pet. 20-23) is not

reported in the Federal Reporter but is available at 178 Fed.

Appx. 863 (11 Cir. 2006). The opinion of the district court

(Pet. 59) and the Magistrate Judge’s Report and

Recommendation (Pet. 70-77) are unreported.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on

April 21, 2006. The petition for writ of certiorari was filed

on July 20, 2006. Jurisdiction in this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTES OR OTHER PROVISIONS INVOLVED

This case involves the Federal Arbitration Act (“FAA”),

which provides:

A written provision in any maritime

transaction or a contract evidencing a transaction

involving commerce to settle by arbitration a

controversy thereafter arising out of such contract

or transaction, or the refusal to perform the whole

or any part thereof, or an agreement in writing to

submit to arbitration an existing controversy

arising out of such a contract, transaction, or

refusal, shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at

law or in equity for the revocation of any contract.

9U.S.C. § 2.

2

INTRODUCTION

There are no “compelling reasons” to grant the petition

for writ of certiorari. The Eleventh Circuit’s decision

followed established Supreme Court and Eleventh Circuit

precedent, and is also consistent with rulings from other

jurisdictions in similar cases. There is no circuit split, nor

any important unsettled federal question. Simply stated, there

is nothing certworthy about this case.

STATEMENT OF THE CASE

Respondent MBNA America Bank, N.A.' (“MBNA”)

cannot accept Petitioner’s statement of the case (entitled

“Background and Facts”) because it mischaracterizes the

evidence and contains statements and conclusions not

supported by the record. Accordingly, MBNA submits the

following statement of the case.

MBNA 1s a national banking association that, among its

other businesses, issues credit cards. (R1-17, Affidavit of

Margaret Simpkins at 2, 4 2, 3). MBNA’s principal offices

are in Delaware. (Simpkins Aff. at 2, 4 2). In 1996, MBNA

issued a credit card to Petitioner Mike H. Samadi (“Samadi”),

who is a Georgia resident. (Simpkins Aff. at 2, { 3; R1-1-2,

{| 9). The terms of use and operation of the credit card and

related credit card account were governed by a Credit Card

Agreement (“Agreement”). (Simpkins Aff. at 2, 4 3).’ Samadi

1. The true respondent in interest in this case is, and has always

been, MBNA America Bank, N.A., which has been incorrectly

identified as MBNA America, Inc. (See R1-3-! (identifying correct

name in MBNA’s answer)).

—2.-A copy of the Agreement is attached to the Simpkins Affidavit

as Exhibit 1.

3

admits that he entered into the Agreement with MBNA

(Affidavit of Mike Samadi, attached to R1-22 and RI-23, at

| (hereinafter “Samadi Aff.”’)), and has never disputed that

he is bound by the original terms of the Agreement.

The Agreement states that it is made in Delaware and

governed by the laws of Delaware. (Simpkins Aff., Ex. | at

8 (hereinafter “Agreement at _’)). The Agreement requires

all litigation to be brought in a court located in Delaware.

(Agreement at 8). It also states that the cardholder agrees to

the terms of the Agreement when the cardholder uses the

credit card. (Agreement at 1). On the back of each MBNA

credit card, including all credit cards issued to Samadi in

1996 and thereafter, is a statement that by using the credit

card, the cardholder agrees to the terms contained in the

Agreement. (Simpkins Aff. at 2, € 4). Samadi used the credit

card and account after receiving the Agreement.

(See, generally, account statements attached to RI-1

(Complaint)). The Agreement states that MBNA may amend

the Agreement “by complying with the applicable notification

requirements of federal] law and the laws of the State of

Delaware.” (Agreement at 6).

On or about December 20, 1999, MBNA, through its

agent, mailed to Samadi written notification that MBNA was

amending the Agreement, effective February 1, 2000.

(Simpkins Aff. at 2, 4| 5). In addition to other changes, the

notice of amendment (“Amendment”) added an “Arbitration

Section” that includes a mandatory arbitration provision

(“Arbitration Provision”). (Simpkins Aff., Ex. 2 at 1-2

(hereinafter “Amendment at __”); Simpkins Aff. at 2, 4 5).

The Amendment was sent to cardholders in a separate

mailing, not as part of cardholders’ monthly account

statements. (Simpkins Aff. at 2, 4 5).

4

MBNA maintains records of the names and addresses of

its cardholders. (Simpkins Aff. at 3, © 7). MBNA updates

this information when the cardholder notifies MBNA of a

change. (/d.). When mail sent by MBNA to the cardholder is

returned by the United States Post Office as undeliverable,

a notation is entered in the customer record. (/d.). From at

least March 1999 through May 2000, MBNA’s records

showed Samadi as residing at 372 Annie Laurie Drive in

Grovetown, Georgia, and MBNA sent Samadi’s account

statements to this address. (/d. at 4, § 10). MBNA’s records

do not show that account statements mailed to that address

were returned as undeliverable. (/d.). During this time period,

Samadi received account statements that were mailed to that

address. (R1-1, Ex. G at 1, 2). The Amendment was mailed

to Samadi at the same address to which MBNA mailed

Samadi’s account statements during this period. (Simpkins

Aff. at 4, §§ 10, 11). Samadi used the credit card after the

Amendment was mailed to him. (R1-1, Ex. G at 3).

The Amendment provided that cardholders would be

permitted to opt out of the Arbitration Provision by providing

MBNA with written notification by January 25, 2000.

(Simpkins Aff. at 3, § 6; Amendment at 1). To track the

identity of cardholders who opted out, MBNA created an

electronic spreadsheet of their account numbers (the

“Opt Out File”). (Simpkins Aff. at 3, 4 8). MBNA also noted

the “opt out” in these cardholders’ customer information files.

(Id.). Neither Samadi’s cardholder customer information file

nor the Opt Out File indicates that Samadi opted out of the

Arbitration Provision. (/d. at 4, § 9).

The Arbitration Provision in the Amendment states that

“(t]his arbitration agreement is made pursuant to a transaction

involving interstate commerce.” (Amendment at 1). The

5

Arbitration Provision does not limit the remedial relief the

arbitrator may provide; rather, the “arbitrator shall follow

existing substantive law to the extent consistent with the FAA

and applicable statutes of limitation and shall honor any

claims or privileges recognized by law.” (/d. at 1-2). It also

contains a severability provision, which states “[i]f any part

of this Arbitration Section is found to be invalid or

unenforceable under any law or statute consistent with the

FAA, the remainder of this Arbitration Section shall be

enforceable without regard to such invalidity or

unenforceability.” (Jd. at 2). The Arbitration Provision limits

the arbitration fees that can be charged to Samadi to an

amount equal to his hypothetical court costs if his claims

were litigated in state court. (/d. at 1).

MBNA subsequently charged off the amounts owed on

Samadi’s account and sold its rights in the account to a third

party. (R1-1-11, 13, 14 at §§ 40, 44, 48 and Ex. J at 3). Some

time thereafter, Samadi sued MBNA and others in the United

States District Court for the Southern District of Georgia.

(R1-1). Samadi’s Complaint alleged violations of various

state and federal laws including the Fair Debt Collection

Practices Act, 15 U.S.C. § 1692, et seg., Consumer Credit

Protection Act, 15 U.S.C. § 1601, et seg., Fair Credit

Reporting Act, 15 U.S.C. § 1681, et seg., “Georgia Fair Credit

Extension Act,”* and Georgia Fair Lending Act, GA. CODE

ANN. § 7-6A-1, ef seg. (Ri-1 at “4 1, 59). MBNA timely

filed an Answer denying liability to Samadi and asserting

numerous specific defenses, including the mandatory

arbitration provision. (R1-3-7, 10 at 4 33, 44).

3. Samadi provided no statutory cite for this legislation, and

the undersigned counsel could not find any Georgia statute titled

“Georgia Fair Credit Extension Act.”

6

On May 6,.2005. MBNA filed a motion to stay the case

and to compel arbitration based on the Arbitration Provision

in the Agreement and, accordingly, all discovery ceased.

(R1-17). Attached to the motion to compel was the affidavit

of Margaret Simpkins, a vice president of MBNA. (R1-17).

Copies of the motion to compel (including the Simpkins

Affidavit) and the brief in support were served on Samadi

on May 6, 2005, by U.S. Mail. (RI-17, R1-18). MBNA

notified Samadi telephonically on Sunday, May 8, that the

motion to compel had been filed and transmitted a copy of

the motion to compel and supporting brief to Samadi via

facsimile no later than May 9. (R2-1-15 at lines 15-21; R2-

1-16 at lines 6-7). 3

The district court initially scheduled a hearing on the

motion to compel before the Magistrate Judge for May 18,-

2005. (R1-20). The docket indicates that Samadi and MBNA

were notified of the initial hearing telephonically on May 9.

(Docket #20). The district court subsequently rescheduled

the hearing for June 1, 2005. (R1-21). The day before the

hearing on the motion to compel, Samadi filed a document

objecting to the motion to compel and requesting injunctive

relief. * (R1-22, R1-23)-In his objection, Samadi argued that

he had not agreed to arbitrate. (/d.). Samadi has never

disputed that the Agreement provides a procedure for

amending it through notice and failure to opt out, but he

denies that he received the notice. (Samadi Aff. attached to

R1-22 and R1-23). As evidence, however, he offered only

4. Referring to Samadi’s request for injunctive relief, the

Magistrate Judge wrote that “the Court notes that Samadi has not

explained just what relief he seeks or why he is entitled to it; rather,

the motion seems chiefly aimed at expressing Samadi’s distaste for

arbitration.” (R1-26-8, n.10).

7

his own affidavit in which he merely claimed that he did not

receive notice of the amendment from MBNA. (/d.).

At the June 1, 2005, hearing the parties presented

arguments based upon the affidavits and the law. (R2-1).

Neither party requested an evidentiary hearing (see, generally,

Docket), nor offered any oral testimony at the hearing.

(R2-1). The day after the hearing, Samadi filed a motion to

strike the Simpkins Affidavit. (R1-25). He argued that the

district court should strike the affidavit because

Ms. Simpkins did not testify at the hearing. (/d.).

In his Report and Recommendation, the Magistrate Judge

found that the Agreement requires arbitration of Samadi’s

claims and recommended that the case be dismissed without

prejudice. (R1-26). After a careful de novo review of the file,

on July 8, 2005, the district court adopted the Magistrate

Judge’s Report and Recommendation as the opinion of the

district court. (/d.). The district court denied Samadi’s motion

to strike and request for injunctive relief, and it dismissed

the case without prejudice. (R1-30).

Samadi appealed the district court’s decision to the

Eleventh Circuit Court of Appeals. In its opinion, the

Eleventh Circuit noted that under the FAA, general state law

contract principles apply to arbitration agreements. Samadi

v. MBNA Am. Bank, N.A., 178 Fed. Appx. 863, 865 (11th

Cir. 2006). The court determined that under Georgia’s conflict

of law rules, Delaware law would apply because the parties’

Agreement designated Delaware law, and no contrary public

policy had been identified. (/d.). Delaware law explicitly

permits banks to amend a revolving credit plan agreement

Via notice to the borrower. (/d. at 865-66), Further, Delaware

courts have enforced the same arbitration provision when

8

notice was sent out in the same manner as was Samadi’s

notice. (/d. at 866). Thus, the Eleventh Circuit concluded

that under Delaware law, Samadi was bound by the

Arbitration Provision and affirmed the district court’s

dismissal of the case without prejudice.

Samadi then filed a petition for writ of certiorari in this

Court on July 20, 2006.

REASONS FOR DENYING THE PETITION

A. The Eleventh Circuit’s Decision Does Not Conflict

With Any Decision of This Court or of Any Other

Court of Appeals

The FAA requires that arbitration agreements be enforced

“save upon such grounds as exist at law or in equity for the

revocatior of any contract.” 9 U.S.C. § 2. Pursuant to the

FAA’s dictates, this Court has repeatedly enforced agreements

to arbitrate federal statutory claims. See, e.g., Green Tree

Financial Corp. v. Randolph, 531 U.S. 79 (2000) (claims

under Truth in Lending Act and Equal Credit Opportunity

Act); Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) (Securities Act of 1933); Shearson/

American Express, Inc. v. McMahon, 482 U.S. 220 (1987)

(Securities Exchange Act of 1934 and Racketeer Influenced

and Corrupt Organizations Act); Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)

(Sherman Act). Samadi has not identified a single Supreme

Court decision with which the Eleventh Circuit’s opinion

conflicts, nor has the undersigned counsel found any such

case.

9

The Eleventh Circuit’s decision is also consistent with

similar cases from other jurisdictions. For example, in Edelist

v. MBNA America Bank, 790 A.2d 1249 (Del. Super. Ct.

2001), the Superior Court of Delaware held that what appears

to be the same arbitration provision, communicated to the

cardholder in the same way, was valid ard enforceable under

Delaware law. Jd. at 1261. A number of other courts have

also upheld the same MBNA arbitration provision and

noticing method. See, e.g., Llovd v. MBNA America Bank,

N.A., 27 Fed. Appx. 82 (3% Cir. 2002) (MBNA’s Credit Card

Agreement was properly amended and arbitration provision

was binding on the parties); Joseph v. MBNA America Bank,

N.A., 148 Ohio Ct. App. 3d 660, 775 N.E.2d 550 (2002);

Jaimez v. MBNA America Bank, N.A., No. 05-2478, 2006

U.S. Dist. LEXIS 7526 (D. Kan. Feb. 27, 2006); Blanchard

v. MBNA America Bank, N.A., No. 05-81, 2005 U.S. Dist.

LEXIS 18450 (W.D.N.C. Aug. 9, 2005); Mackey v. MBNA

America Bank, N.A., 343 F. Supp. 2d 966 (W.D. Wash. 2004).

Still more courts have enforced amendments to credit card

agreements of other credit card companies that were made

and noticed in a manner similar to that of MBNA. See, e.g.,

Marsh vy. First USA Bank, N.A., 103 F. Supp. 2d 909

(N.D. Tex. 2000); Grasso v. First USA Bank, 713 A.2d 304

(Del. Super. Ct. 1998); Bank One, N.A. v. Coates, 125

F. Supp. 2d 819 (S.D. Miss. 2001), aff ’dmem., 34 Fed. Appx.

964 (5" Cir. 2002); Kurz v. Chase Manhattan Bank USA,

N.A., 319 F. Supp. 2d 457 (S.D.N.Y. 2004). Again, Samadi

has not cited any contrary authority from other circu:

Samadi does cite several Eleventh Circuit decisions, and

apparently argues that these cases are inconsistent with the

Eleventh Circuit’s opinion here. Samadi is incorrect; the

panel’s opinion is firmly rooted in established Eleventh

Circuit and Supreme Court precedent. Moreover, even if the

10

decision below departed in some way from other Eleventh

Circuit cases (which it does not), the proper recourse would

be a petition for rehearing in the Eleventh Circuit rather than

for a writ of certiorari. See Wisniewski v. United States, 353

U.S. 901, 902 (1957).

B. Most of the Issues Listed in Samadi’s Petition Have

Been Waived Due to Samadi’s Failure to Raise Them

Below

Samadi lists eleven questions at pages 3-4 of his petition.

Few, if any, of these issues were raised below. Samadi’s briefs

to the Eleventh Circuit (broadly construed) contended that

Delaware law should not apply; that the Arbitration Provision

in the Agreement should not be enforced; and that the district

court should not have considered the Simpkins Affidavit in

connection with MBNA’s motion to compel arbitration.

To the extent Samadi attempts to raise any constitutional

arguments or other issues in this Court, he has waived them

by failing to argue them below. See Powell v. Nevada,

511 U.S. 79, 85 (1994) (“Because the issue was not raised,

argued, or decided below, we should not settle it here.”);

Youakim vy, Miller, 425 U.S. 231, 234 (1976) (“Ordinarily,

this Court does not decide questions not raised or resolved

in the lower court.”).

C. In Any Event, the Eleventh Circuit’s Decision Was

Correct

This case presents a straightforward contract dispute that

is governed by clear-cut Delaware law. The parties’

Agreement provided that Delaware law would apply.

(Agreement at 8). “A federal district Court 1s bound to apply

the conflict of laws rules prevailing in the forum state.”

ll

Judge v. Am. Motors Corp., 908 F.2d 1565, 1577 (11th Cir.

1990). Absent contrary public policy, Georgia courts will

normally enforce a contractual choice-of-law provision.

Nationwide Logistics, Inc. v. Condor Transp., Inc., 606

S.E.2d 319, 322 (Ga. Ct. App. 2004).

Under Delaware law, “a bank may at any time” amend a

revolving credit plan agreement “in any respect, whether or

not the amendment or the subject of the amendment was

originally contemplated or addressed by the parties or is

integral to the relationship between the parties.” Del. Code

Ann. Tit. 5, § 952(a). Arbitration is specifically listed as one

of the terms of an agreement that may be altered. /d. “Any

notice of an amendment sent by the bank may be included in

the same envelope with a periodic statement or as part of the

periodic statement or in other materials sent to the borrower.”

Id.°

MBNA fully complied with 5 Del. C. § 952(a) by mailing

the Amendment in December 1999. (Simpkins Aff. at 2,

4 5). The Amendment informed Samadi that he had the right

to opt out of the Arbitration Provision by giving notice to

MBNA by January 25, 2000. (/d. at 3, 4 6; Amendment at 1,

5. Georgia’s similar statute also permits credit card companies

to amend a credit card agreement upon written notice. Official Code

of Georgia Annotated § 7-5-4(c) provides that a credit card company

may, as specified in the written agreement governing a

credit card account, modify in any respect any terms or

conditions of such credit card account, upon such prior

written notice of such modification as specified by the

terms of the written agreement governing the credit card

account or by the Truth in Lending Act.

12

2). Samadi did not opt out, and the Arbitration Provision

became binding on February 1, 2000. (Amendment at 1).

Samadi used the credit card after the Arbitration Provision’s

effective date. (See, e.g., Rl-1 at 6, 8, 4 22, 30). Thus,

Samadi was required to arbitrate his dispute with MBNA.

The courts below also correctly held that Samadi failed

to rebut the presumption of receipt created by the Simpkins

Affidavit. It is settled law that an item properly mailed

establishes the rebuttable presumption of receipt. Hagner v.

United States, 285 U.S. 427, 430 (1932) (“The rule is well

settled that proof that a letter properly directed was placed

in a post office-creates a presumption that it reached its

destination in usual time and was actually received by the

person to whom it was addressed”’); Konst v. Florida E. Coast

Ry., 71 F.3d 850, 851-52 (11" Cir. 1996); Anderson v. United

States, 966 F.2d 487 (9" Cir. 1992); Nikwei v. Ross School of

Aviation, Inc., 822 F.2d 939 (10" Cir. 1987); Meckel v.

Continental Resources Co., 758 F.2d 811 (2¢ Cir. 1985). The

presumption is established, as in this case, when there ts |

evidence of the office procedures regarding mail transmission

and receipt of other mail at the same address. See, e.g., Kerr

v. McDonald's Corp., 427 F.3d 947, 952 (11 Cir. 2005);

Meckel, 758 F.2d at 817; Wells Fargo Bus. Credit v. Ben

Kozloff, Inc., 695 F.2d 940, 944 (5" Cir. 1983). The Simpkins

Affidavit details MBNA’s procedures in maintaining and

updating its customer records; how it enters notations when

addresses change or mail is returned as undeliverable; how

it established and abided by procedures to track cardholders

that chose to opt out of the Arbitration Provision; and how

the Amendment was mailed by MBNA’s agent. Exhibits to

Samadi’s Complaint show that Samadi received mail at the

same address to which the Amendment was mailed and during

the same time period that the Amendment was mailed.

13

(R1i-1, Ex. G at 1, 2 (showing statements mailed to Samadi’s

Grovetown address immediately before and after December

20, 1999)). This is sufficient to establish the rebuttable

presumption that Samadi received the Amendment via

U.S. Mail.

Samadi’s mere denial of receipt was insufficient to rebut

the established presumption; Samadi was required to provide

proof that made the presumption that the sender mailed

the item unreasonable. Mecke/, 758. F.2d at 817; Marsh,

103 F. Supp. 2d at 919. Samadi failed to make this showing

and therefore failed to rebut the presumption that he received

the Amendment. Mackey, 343 F. Supp. 2d at 969, 970; Marsh,

103 F. Supp. 2d at 919; Edelist, 790 A.2d at 1254.

This analysis is not altered by Samadi’s argument that

the district court shouid not have considered the Simpkins

Affidavit. The Eleventh Circuit was correct when it held the

district court did not err when it considered the Simpkins

Affidavit in conjunction with MBNA’s motion to compel

arbitration. Samadi moved to strike the Simpkins Affidavit

solely on the grounds that he was denied an opportunity to

cross-examine Ms. Simpkins. (R1-25-1-2). Samadi did not

allege the Simpkins Affidavit was defective or deficient on

its face nor that it was submitted improperly or in

contravention of any rule or law. Samadi provided absolutely

no basts for striking the Simpkins Affidavit, and the district

court correctly denied his motion.

Even if Samadi’s motion to strike were construed as a

claim that the Magistrate Judge abused his discretion in

deciding MBNA’s motion to compel without holding an

evidentiary -hearing, the Eleventh Circuit was correct.

Federal Rule of Civil Procedure 43(e) provides that “[w]hen

14

a motion is based on facts not appearing of record the court

may hear the matter on affidavits presented by the respective

parties, but the court may direct that the matter be heard

wholly or partly on oral testimony or deposition.” Neither

party requested an evidentiary hearing. (See, generally,

Docket). A magistrate judge does not abuse his discretion

when he or she decides a motion “on the basis of affidavits

and other documents when neither party makes a timely and

unequivocal request for an evidentiary hearing.” Sunseri vy.

Macro Cellular Partners, 412 F.3d 1247, 1251 (11th Cir.

2005). Accordingly, the Eleventh Circuit was correct when

it held the district court did not abuse its discretion in relying

on the Simpkins Affidavit.

In summary, the courts below correctly interpreted and

followed applicable state and federal law. Samadi has

identified no error of fact or law that would merit a grant of

certiorari.

15

=

CONCLUSION

Samadi has not established any compelling reason

for this Court to grant his petition for writ of certiorari.

Accordingly, MBNA respectfully requests that the petition

be denied.

Respectfully submitted,

Grecory M. TAUBE

Counsel of Record

MICHELLE W. JOHNSON

NELSON MULLINS RILEY

& SCARBOROUGH LLP

999 Peachtree Street

Suite 1400

Atlanta, Georgia 30309

(404) 817-6000

Counsel for Respondent