Little v. Cellco P'ship

304 F.Supp.3d 508

Judy LITTLE, Plaintiff,

v.CELLCO PARTNERSHIP d/b/a Verizon Wireless, Defendant.

CIVIL ACTION NO. 1:17–03931

United States District Court, S.D. West Virginia, at Bluefield.

Signed January 19, 2018

Christopher B. Frost, Jed Robert Nolan, Ralph C. Young, Steven R. Broadwater, Jr., Hamilton Burgess Young & Pollard, Fayetteville, WV, for Plaintiff.

Joseph Kendall Merical, M. David Griffith, Jr., Thomas Combs & Spann, David A. Bosak, Matthew A. Nelson, Lewis Brisbois Bisgaard & Smith, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

David A. Faber, Senior United States District Judge

This matter is about whether Verizon's Customer Agreement, which contains an arbitration clause, binds the defendant, Judy Little, and requires the court to submit this action to arbitration. For the reasons that follow, the defendant's Motion to Compel Arbitration and Stay Proceeding pursuant to the Federal Arbitration Act (ECF No. 5) is hereby GRANTED and plaintiff's action is DISMISSED without prejudice.

I. BACKGROUND

Judy Little purchased a mobile hotspot device on October 21, 2015, at a Verizon Wireless retail location in Princeton, West Virginia. See ECF No. 5–1, ¶ 4. Before activation, Verizon required Little to sign a standardized electronic sales receipt agreeing to the terms and conditions of Verizon Wireless' Customer Agreement. See ECF No. 5–1, Ex. A ("Verizon Sales Receipt"). The electronically signed sales receipt stated in pertinent part:

I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER AGREEMENT ... INCLUDING THE TERMS AND CONDITIONS OF MY PLAN ... I UNDERSTAND THAT I AM AGREEING TO ... SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF JURY TRIALS... I AM AWARE THAT I CAN VIEW THE CUSTOMER AGREEMENT ANYTIME AT VERIZONWIRELESS.COM OR IN MY VERIZON ACCOUNT.

See id. at 3 (emphasis added). The sales receipt states "JUDY LITTLE" as the "Account Owner Name" and includes a signature. See id. While Little's signature does not appear to be a full signature, see id., plaintiff does not claim that she did not sign the sales receipt. The Customer Agreement referenced in the sales receipt is a 10–page document that includes an arbitration provision within a section titled "HOW DO I RESOLVE DISPUTES WITH VERIZON WIRELESS?" See ECF No. 5–1, Ex. B, at 7–9 ("Verizon Customer Agreement"). This section expounds upon the arbitration clause announced in the sales receipt. Id.

Little used the wireless hotspot for "less than two weeks," but the device "failed to work properly." See ECF No. 7–1, Ex. A, ¶¶ 9. As a result, she returned the device but Verizon continued to charge her. See id. at Ex. A, ¶¶ 9–11. Later, Verizon allegedly contacted Little in an attempt to collect the outstanding balance owing. See Amended Complaint at ¶¶ 3, 7–33. These telephone calls form the basis of Little's allegation that Verizon engaged in violations of federal and state debt collection laws. Id. at ¶ 3.

II. APPLICABLE LAW

A. Standard of Review

Motions to compel arbitration " ‘exist in the netherworld between a motion to dismiss and a motion for summary judgment.’ " U.S. ex rel. TBI Investments, Inc. v. BrooAlexa, LLC, 119 F.Supp.3d 512, 523 (S.D.W. Va. 2015) (quoting Shaffer v. ACS Government Servs., Inc., 321 F.Supp.2d 682, 683 (D. Md. 2004) ). The defendant, as the party seeking to enforce the arbitration agreement, bears the initial burden of "persuading this court that the parties entered into an enforceable arbitration agreement." Drake v. Mallard Creek Polymers, Inc., 2014 WL 7405762, at *1 (W.D.N.C. Dec. 30, 2014). If the defendant succeeds, then "the burden shifts to the plaintiff to show that even though there was some written contract, [she] did not actually agree to it—because the signature was forged, the terms of the contract were misrepresented, or some other reason evincing lack of true agreement." Czopek v. TBC Retail Grp., Inc., 2014 WL 5782794, at *4 (M.D. Fla. Nov. 6, 2014) ; see also BrooAlexa, LLC, 119 F.Supp.3d 512, 524 (applying summary judgment standard to a motion to compel arbitration and stating that "[o]nce the moving party has met its burden, the burden shifts to the nonmoving party to demonstrate that a genuine issue of material fact exists for trial.").

B. Federal Arbitration Act

The Federal Arbitration Act ("FAA") embodies "a liberal federal policy favoring arbitration," AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (citations and quotations omitted) and provides in pertinent part:

A written provision in ... a contract ... to settle by arbitration a controversy thereafter arising out of such contract ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. If the parties execute a valid agreement to arbitrate disputes, federal courts are required to compel arbitration. Sydnor v. Conseco Financial Servicing Corp., 252 F.3d 302, 305 (4th Cir. 2001) ; see also Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 23–24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration ... [and] any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.").

A party can compel arbitration under the FAA if it establishes: "(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the [opposing party] to arbitrate the dispute." Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991) (cited by Thomas v. Progressive Leasing, No. CV RDB–17–1249, 2017 WL 4805235, at *2 (D. Md. Oct. 25, 2017) ).

"When deciding whether the parties agreed to arbitrate a certain matter, courts generally [...] should apply ordinary state-law principles that govern the formation of contracts." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ; see also Heller v. TriEnergy, Inc., 877 F.Supp.2d 414, 423–24 (N.D.W. Va. 2012) (explaining that the "one important caveat to the reach of the FAA" is that state law governs the formation of the contract). Thus, "generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2" of the FAA. See Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (citations omitted). If, however, there is doubt or ambiguity "concerning the scope of arbitrable issues," the doubt or ambiguity "should be resolved in favor of arbitration." Id.

III. Discussion

A. The Arbitration Agreement is Valid and Enforceable

Little alleges that she never agreed to arbitrate any dispute with Verizon and that defendant has failed to meet its burden of demonstrating she entered into an enforceable arbitration agreement. See Plaintiff's Response in Opposition (ECF No. 7). Accordingly, the first, third, and fourth factors in Whiteside v. Teltech Corp. are not in dispute.¹ Plaintiff narrows the court's inquiry further by conceding that the arbitration provision "purport[s] to cover the dispute." See ECF No. 7, at 1. Thus, the court's inquiry hinges on whether a valid written arbitration agreement exists. Whiteside v. Teltech Corp., 940 F.2d at 102. As stated above, state law governs the matter of whether a valid and enforceable agreement to arbitrate exists. First Options of Chicago, 514 U.S. at 944, 115 S.Ct. 1920. The parties do not dispute that West Virginia law governs whether a valid contract exists.

Plaintiff hangs her hat on State ex rel. U–Haul Co. of W. Virginia v. Zakaib, wherein the West Virginia Supreme Court of Appeals held that "a general reference in one writing to another document is not sufficient to incorporate that other document into a final agreement." 232 W.Va. 432, 752 S.E.2d 586, 589 (2013), cert. denied sub nom., ––– U.S. ––––, 135 S.Ct. 59, 190 L.Ed.2d 33 (2014) (" U–Haul"). In U–Haul, prospective customers were required to sign a Rental Contract either in paper or electronic form that essentially stated: "I acknowledge that I have received and agree to the terms and conditions of this Rental Contract and the Rental Contract Addendum." Id. at 590 (emphasis added). Nevertheless, this Rental Contact Addendum was only provided to customers after the Rental Contract was signed (if ever). Id. at 591. Therefore, customers agreed to the provisions of the Rental Contract Addendum, which included the only reference to the arbitration provision, without actually being able to read the Addendum until after their acceptance. Id.

Nevertheless, U–Haul argued that since the Addendum was incorporated by reference in the Rental Contract, plaintiffs' acceptance of the Rental Contract resulted in their acceptance of the Addendum as well. Id. at 590. The court disagreed, stating a "general reference is not enough," rather:

(1) the writing must make a clear reference to the other document so that the parties' assent to the reference is unmistakable; (2) the writing must describe the other document in such terms that its identity may be ascertained beyond doubt; and (3) it must be certain that the parties to the agreement had knowledge of and assented to the incorporated document so that the incorporation will not result in surprise or hardship.

See Syl. Pt. 2, id. (cited by Covol Fuels No. 4, LLC v. Pinnacle Min. Co., LLC, 785 F.3d 104, 114 (4th Cir. 2015) ). In striking down U–Haul's arbitration provision, the court stated, "Finally, and most troubling to this Court, is the fact that U–Haul's practice was to provide...