Case: 19-60936     Document: 00515579722         Page: 1     Date Filed: 09/25/2020




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                    September 25, 2020
                                  No. 19-60936
                                                                       Lyle W. Cayce
                                Summary Calendar
                                                                            Clerk


   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   opinion should not be published and is not precedent except under the limited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.
Case: 19-60936      Document: 00515579722           Page: 2     Date Filed: 09/25/2020




                                     No. 19-60936


   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.,
   

, 287 (5th Cir. 1974); cf. Am. Heritage Life Ins. Co. v. Orr,
   

, 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.




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