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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

| 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 ............
ee rien he eee
STATEMENT OF JURISDICTION ...........-.

STATUTES OR OTHER PROVISIONS
EE 2405544 se Nav cere eee Nsae Kee

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1225%3A2. Public record. Not legal advice.