A recent order in the Middle District of North Carolina highlights a potential pitfall for defendants in the perennial cat-and-mouse game of enforcing arbitration agreements.

It’s a common litigation tactic: a plaintiff tries to dance around an inconvenient arbitration clause by ignoring it in her pleadings. Even when the complaint asserts a host of contract-related claims, a copy of the contract is often notably absent. With the troublesome arbitration text safely out of sight, the plaintiff can hope that it stays out of mind.

That rarely happens in practice, of course. The defendant can always attach the full agreement to his motion to dismiss on the theory that the plaintiff incorporated the contract into the complaint by reference. See generally § 1327 Exhibits as Part of the Pleadings, 5A Fed. Prac. & Proc. Civ. § 1327 (3d ed.). With the arbitration clause on full display, the defendant can then move to dismiss or stay the proceedings pursuant to the Federal Arbitration Act. 9 U.S.C. § 3.

Dillon v. BMO Harris Bank, N.A. seemed to be following this well worn choreography. Plaintiff sued several banks, claiming that they were liable for debiting his bank account. The debits were payments for loans (from third-party lenders) that Plaintiff claimed were void due to excessive interest rates. When the banks dug up the loan agreements referenced by the Plaintiff, they found that the contracts included arbitration clauses governing disputes as to the contracts’ validity. Needless to say, the agreements were Exhibit A for the banks’ motions to dismiss or compel arbitration.

Plaintiff astutely noted, however, that the agreements were merely attached to the motions, but not authenticated. The court was swayed. Noting that unsworn exhibits to a brief or motion are not evidence, Judge Eagles found that “[n]o moving defendant has presented any evidence to support the contention that the documents presented are in fact the loan agreements referenced in the complaint.” Although she recognized that the actual loan agreements could be considered on a motion to dismiss because they were referenced in the Complaint, Judge Eagles held that Defendants had not provided any sworn evidence that these documents were actually the referenced loan agreements. Motion denied.

The lesson? Exhibit A should be a sworn statement authenticating the arbitration agreement—not just the agreement itself.