Cory T. Wilson, Circuit Judge

Fisseha Gezu, Dallas, TX, Pro Se.

Jasmine Wynton, Thompson Coburn, L.L.P., Dallas, TX, Amy E. Oslica, Thompson Coburn, L.L.P., Saint Louis, MO, for Defendant-Appellee.

Before Owen, Chief Judge, and Jones and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Fisseha Gezu appeals the district court's grant of Charter Communications's motion to compel arbitration and to dismiss under FED. R. CIV. P. 12(b)(3). Finding no error, we affirm.

I.

Gezu worked for Charter from December 2007 to May 2019. On October 6, 2017, Charter sent an email to all active, non-union employees announcing a new employment-based legal dispute resolution program dubbed Solution Channel (the "Program"). The pertinent part of the email stated:

In the unlikely event of a dispute not resolved through the normal channels, Charter has launched Solution Channel , a program that allows you and the company to efficiently resolve covered employment-related legal disputes through binding arbitration.

By participating in Solution Channel , you and Charter both waive the right to initiate or participate in court litigation (including class, collective and representative actions) involving a covered claim and/or the right to a jury trial involving any such claim .... Unless you opt out of participating in Solution Channel within the next 30 days, you will be enrolled. Instructions for opting out of Solution Channel are also located on Panorama.

The email also hyperlinked the term "Solution Channel" to send recipients to Charter's intranet, where additional information on the Program and opt-out instructions were available.

The arbitration agreement, which was available in full on Charter's intranet, required arbitration of

all disputes, claims, and controversies that could be asserted in court or before an administrative agency or for which you or Charter have an alleged cause of action related to pre-employment, employment, employment termination or post-employment-related claims, whether the claims are denominated as tort, contract, common law, or statutory claims (whether under local, state or federal law), including without limitation claims for: ... unlawful discrimination or harassment (including such claims based upon race, color, national origin, sex, pregnancy, age, religion, sexual orientation, disability, and any other prohibited grounds), [and] claims for unlawful retaliation ....

These provisions in mind, we turn to the actions leading to this lawsuit and the relevant procedural history.

During his employment, Gezu allegedly suffered discrimination based on his race and national origin. According to Gezu, Charter did not take any action to address the discrimination despite being made aware of it. Instead, Charter ultimately terminated Gezu on May 8, 2019, based on what Gezu alleges were pretextual reasons. As a result of these events, Gezu filed the underlying complaint against Charter on June 8, 2020. Proceeding pro se , he asserted claims under Title VII of the Civil Rights Act and 42 U.S.C. § 1981.

In response, Charter moved to compel arbitration and to dismiss under Rule 12(b)(3), contending that Gezu and Charter were parties to a binding arbitration agreement. Charter attached various exhibits to its brief in support of its motion, including, among other things, a declaration of John Fries, its Vice President of HR Technology. Gezu responded in opposition and moved to strike Fries's declaration. According to Gezu, no consensual arbitration agreement existed and Fries's declaration was inadmissible because it was not sworn or notarized. Charter filed a reply in support of its motion and a response in opposition to Gezu's motion to strike, attaching a declaration of Daniel Vasey, Charter's senior director of records management and eDiscovery. Gezu then filed a second response to Charter's motion to compel arbitration and dismiss, which Charter moved to strike as an unauthorized surreply.

Ultimately, the magistrate judge entered her findings, conclusions, and recommendation in favor of granting Charter's motion to compel arbitration and to dismiss. The magistrate also denied Gezu's motion to strike Fries's affidavit and granted Charter's motion to strike Gezu's second response to Charter's motion. Gezu filed objections to the magistrate's recommendation, but the district court overruled the objections and entered an order accepting it. The district court then entered a judgment granting Charter's motion to compel arbitration and dismissing the action without prejudice to Gezu's right to demand arbitration. Gezu timely appealed.

Gezu primarily contends that the district court erred by adopting the magistrate's recommendation to grant Charter's motion to compel arbitration and to dismiss under Rule 12(b)(3). Gezu also asserts that the court erred by (1) finding Fries's declaration admissible; (2) not seeking responses to a list of questions that Gezu requested the court ask of Charter; (3) accepting new evidence, i.e., Vasey's declaration, presented for the first time in Charter's reply brief; and (4) granting Charter's motion to strike his second response (the surreply) to Charter's motion to compel. We address these issues in turn.

II.

A. Grant of Charter's Motion to Compel and Dismiss

We review de novo a district court's grant of both a motion to compel arbitration and a Rule 12(b)(3) motion to dismiss. Ambraco, Inc. v. Bossclip B.V. , 570 F.3d 233, 238 (5th Cir. 2009) ; Dealer Comput. Servs., Inc. v. Old Colony Motors, Inc. , 588 F.3d 884, 886 (5th Cir. 2009).

Determining whether a party should be compelled to arbitrate claims requires a two-step inquiry. Kubala v. Supreme Prod. Servs., Inc. , 830 F.3d 199, 201 (5th Cir. 2016). Step one focuses on "contract formation—whether the parties entered into any arbitration agreement at all ." Id . Step two "involves contract interpretation to determine whether this claim is covered by the arbitration agreement." Id . Our analysis for both steps is governed by Texas law. First Options of Chi., Inc. v. Kaplan , 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Under Texas law, "[a]rbitration agreements between employers and their employees are broadly enforceable." Kubala , 830 F.3d at 202. When, like here, an at-will employee is "not initially subject to an arbitration agreement" with his employer, but one is later imposed, the question becomes "whether the arbitration agreement [is] a valid modification of the terms of his employment." Id . at 202–03.

To show that such an agreement is a valid modification, the employer must demonstrate that the employee "(1) received notice of the change and (2) accepted the change." Id . at 203 (citing In re Halliburton Co. , 80 S.W.3d 566, 568 (Tex. 2002) ). An employer demonstrates notice by proving "that [it] unequivocally notified the employee of definite changes in employment terms." Halliburton , 80 S.W.3d 566 at 568 (quoting Hathaway v. Gen. Mills, Inc ., 711 S.W.2d 227, 229 (Tex. 1986) ). And "acceptance need not be anything more complicated than continuing to show up for the job and accept wages in return for work." Kubala , 830 F.3d at 203.

Here, Gezu urges that he did not "agree" to arbitrate his claims against Charter. However, the record shows a valid modification to his employment contract—i.e., notice and acceptance. On October 6, 2017, Charter sent an email notice to Gezu of its new Program aimed at "efficiently resolv[ing] covered employment-related legal disputes through binding arbitration ." (Emphasis added). The email stated that by participating, the recipient and Charter "both waive[d] the right to initiate or participate in court litigation ... involving a covered claim" and that recipients "would be automatically enrolled in the Program unless they chose to "opt out of participating ... within ... 30 days." This language, along with the referenced links to additional information about the Program provided in the email, was sufficient to notify Gezu unequivocally of the arbitration agreement. See Kubala , 830 F.3d at 203 (finding valid notice through a meeting in which employer announced a new policy requiring employees to arbitrate employment disputes).

Moreover, Charter's valid notice is not frustrated by Gezu's assertion that he did not read the October 16, 2017 email. As noted by the district court, the mailbox rule comes into play when, like here, "there is a material question as to whether a document was actually received." Duron v. Albertson's LLC , 560 F.3d 288, 290 (5th Cir. 2009) (quoting Custer v. Murphy Oil USA, Inc. , 503 F.3d 415, 419 (5th Cir. 2007) ). Under the mailbox rule, "[a] sworn statement is credible evidence of mailing" and creates a presumption of receipt. Id . ; see also Custer , 503 F.3d at 420 (quoting Schikore v. BankAmerica Supplemental Ret. Plan , 269 F.3d 956, 964 (9th Cir. 2001) ). We agree with the district court that the declarations of Fries and Vasey—averring that Charter sent and that Gezu both received and opened the October 16, 2017 email—were enough to create that presumption here.

Gezu fails to rebut the presumption that he received notice of the modification to his employment contract, so we next address whether he accepted it. He did. The October 6, 2017 email "conspicuously warned that employees were deemed to accept" the Program unless they opted out within 30 days. In re Dillard Dep't Stores, Inc ., 198 S.W.3d 778, 780 (Tex. 2006). The email also provided recipients with directions on how to opt out. Nonetheless, Gezu did not opt out of the Program and continued working for Charter for over a year until he was terminated in May 2019. Accordingly, the district court correctly concluded that Gezu accepted the terms of the Program. See Garrett v. Cir. City Stores, Inc. , 449 F.3d 672, 675 n.2 (5th Cir. 2006) ; Dillard , 198 S.W.3d at 780.

Because Charter sufficiently demonstrated that Gezu both received notice of and accepted the modification to his employment contract, a valid agreement to arbitrate employment-related disputes exists between Gezu and Charter. And because Gezu does not assert on appeal that his particular claims are not covered by the arbitration agreement, we affirm the district court's grant of Charter's motion to compel arbitration.

We likewise affirm the district court's grant of Charter's Rule 12(b)(3) motion to dismiss. Although Gezu generally asserts that the district court erred in granting Charter's motion, he does not contend that Rule 12(b)(3) is an improper avenue for dismissal. Further, to the extent the district court interpreted Gezu's response to Charter's motion to raise new allegations under the Texas Deceptive Trade Practices Act (DTPA) or the Fair Labor Standards Act (FLSA), we find no error in the court's conclusion that allowing Gezu to amend his complaint to include such claims would be futile. See Legate v. Livingston , 822 F.3d 207, 211 (5th Cir. 2016) ("[A] district court need not grant a futile motion to amend."). As noted by the district court, "[t]he DTPA protects consumers" and "Gezu was an employee of Charter, not a consumer." Along the same lines, the district court correctly reasoned that the FLSA "focuses on wages—minimum hourly rates and overtime pay," and "Gezu offer[ed] no evidence that Charter required or even encouraged him to read the [October 16, 2017] email outside of working hours."

B. Gezu's additional assertions of error

The additional issues raised by Gezu also fail. First, Gezu asserts that the district court erred by finding Fries's declaration admissible "because it was not sworn and notarized." However, as noted by the district court, and in Gezu's own brief, " 28 U.S.C. § 1746 ... permits unsworn declarations to substitute for an affiant's oath if the statement contained therein is made ‘under penalty of perjury’ and verified as ‘true and correct.’ " Nissho-Iwai Am. Corp. v. Kline , 845 F.2d 1300, 1306 (5th Cir. 1988). In his declaration, Fries "declare[d] under penalty of perjury under the laws of the United States of America that [his averments were] true and correct." Fries also signed the declaration. The district court thus did not err in finding Fries's declaration admissible.

Gezu next contends the district court erred by not seeking responses to a list of questions that Gezu requested the court ask of Charter. However, Gezu did not serve Charter with discovery requests pursuant to the Federal Rules of Civil Procedure, and Gezu fails to direct this court to any authority supporting his position that he was entitled to have either the magistrate judge or district court do so for him. Accordingly, Gezu has effectively abandoned this issue, and we will not address it further. City of Austin v. Paxton , 943 F.3d 993, 1003 n.4 (5th Cir. 2019) ; Yohey v. Collins , 985 F.2d 222, 224–25 (5th Cir. 1993) ; see also FED. R. APP. P. 28(a)(8)(A) ("[T]he appellant's brief must contain ... appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies ....").

Lastly, Gezu contends that the district court erred in considering Vasey's declaration, which was submitted as an exhibit to Charter's reply in support of its motion to compel arbitration and to dismiss, and in striking Gezu's second response (a surreply) in opposition to Charter's motion to compel arbitration and to dismiss. We disagree.

Gezu did not file a motion to strike Vasey's declaration before the district court. And "[a] party forfeits an argument by failing to raise it in the first instance in the district court—thus raising it for the first time on appeal." Rollins v. Home Depot USA , 8 F.4th 393, 397 (5th Cir. 2021). As to Gezu's second response to Charter's motion, the district court did not abuse its discretion in granting Charter's motion to strike the surreply. See Cambridge Toxicology Grp., Inc. v. Exnicios , 495 F.3d 169, 178 (5th Cir. 2007) ("This court reviews a motion to strike for abuse of discretion."). The district court correctly noted that "[n]either the local rules of [the district] court nor the Federal Rules of Civil Procedure allow a party to file a surreply as a matter of right." Corbello v. Sedgwick Claims Mgmt. Servs., Inc. , 856 F. Supp. 2d 868, 890 (N.D. Tex. 2012) ; see also N.D. Tex. Loc. Civ. R. 7.1. Because the rules do not provide for surreplies as a matter of right, the district court only accepts such filings "in exceptional or extraordinary circumstances." Lacher v. West , 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001) (mem.). Because we discern no abuse of discretion in the district court's conclusion that Gezu had "not shown the existence of any extraordinary circumstances that necessitate[d] the filing of a surreply," this issue lacks merit.

* * *

For the foregoing reasons, the district court's judgment is

AFFIRMED.