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Campbell v. Verizon Wireless, LLC

United States District Court, S.D. Alabama, Southern Division

January 29, 2015

ALLEN CAMPBELL, Plaintiff,
v.
VERIZON WIRELESS, LLC, et al., Defendants.

ORDER

WILLIAM H. STEELE, Chief District Judge.

This matter comes before the Court on the Motion to Compel Arbitration and Stay Judicial Proceedings (doc. 5) filed by defendants Verizon Wireless, LLC, Verizon Wireless and Verizon (collectively, "Verizon"). Also pending are dueling Motions to Strike Affidavits (docs. 15 & 26) filed by plaintiff and Verizon during the course of briefing the Motion to Compel Arbitration.[1]

I. Relevant Background.

Allen Campbell, a retired attorney proceeding pro se, [2] commenced this action by filing a Complaint (doc. 1) against Verizon Wireless (VAW) LLC, Verizon Wireless, Verizon, Diversified Consultants, Inc., Experian Information Solutions, Inc. and TransUnion LLC. Well-pleaded factual allegations in the Complaint reflect that Campbell entered into a contract with Verizon for wireless communications service in February 2008, and remained in such a contractual relationship with Verizon until he canceled the contract in April 2013. Plaintiff acknowledges in his pleading that it was "understood that existing wireless service under the 02/04/[2008] contract would continue until cancellation, " without regard to any otherwise specified contract end date. (Doc. 1, ¶ 10.)

Sometime after terminating his Verizon contract, the Complaint alleges, Campbell learned that Verizon claimed that he owed $148.44 for a contract for 4G Internet service that Campbell had allegedly entered into at a Verizon store in Harvey, Louisiana in October 2011. Campbell denies having agreed to a service contract with Verizon in October 2011. He further denies signing up for or receiving 4G service or equipment from Verizon, or having any contact in October 2011 with a Verizon store in Harvey, Louisiana. Far from signing up for 4G service, as Verizon's bills reflected, Campbell alleges that he "had declined an upgrade to 4G service" from Verizon on his existing service contract. ( Id., ¶ 17.) The Complaint states that, even as Verizon representatives apologized and acknowledged the error, Verizon continued to bill Campbell for the disputed $148.44 amount, referred the matter to defendant Diversified Consultants, Inc. for collections, and made derogatory credit reports about Campbell to defendants Experian Information Solutions, Inc. and TransUnion, LLC. According to the Complaint, Experian and TransUnion both failed to conduct reasonable investigations or correct Verizon's erroneous reporting information when Campbell notified them of the dispute. As for Diversified Consultants, the Complaint alleges that this defendant harassed Campbell with repeated collection calls to his cell phone demanding immediate payment of both the Verizon invoice and a separate collection fee, despite being placed on notice that Campbell had disputed the debt, and informing him that the harassing calls would never stop unless he paid Diversified Consultants directly.

Based on these factual allegations, Campbell's Complaint interposes claims against defendants for violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"); violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 ("FCRA"); violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); negligence per se for "caller ID spoofing" by Diversified Consultants, in violation of the Truth in Caller ID Act, 47 U.S.C. § 277;[3] and fraud. Focusing on the Verizon defendants, the causes of action outlined in the Complaint are as follows: (i) Verizon violated the FDCPA by making false or misleading representations about the character, amount or status of Campbell's debt, using false or unfair means to collect a debt, and falsely implying that Campbell had failed to fulfill contractual promises with the intent of causing him humiliation and disgrace; (ii) Verizon violated the FCRA by failing to conduct and/or report the results of a reasonable investigation into Campbell's dispute of the adverse credit reporting information it supplied to TransUnion and Experian; and (iii) Verizon engaged in fraud by representing that Campbell had requested and received 4G wireless service and equipment, knowing such representations to be false and intending to harm Campbell, and by knowingly making false representations to TransUnion and Experian about his alleged debt.

The Verizon defendants now seek to compel arbitration of Campbell's claims against them, reasoning that such claims are within the ambit of arbitration provisions in a pair of written agreements that Campbell executed in February 2008 and May 2010. As to the former, on February 4, 2008, Campbell entered into a two-year agreement with Verizon for a "BroadbandAccess" calling plan.[4] (Dalmida Decl. (doc. 5, Exh. A), at Exh. 1.) This plan gave Campbell "Mobile Broadband 3G portable wireless unlimited 3G hotspot' service." (Doc. 1, ¶ 8.) In that agreement, Campbell expressly agreed "to the current Verizon Wireless Customer Agreement (CA).... I understand that I am agreeing to... settlement of disputes by arbitration and other means instead of jury trials and other important terms in the CA." (Dalmida Decl., at Exh. 1.) The subject "Customer Agreement" includes a provision styled "Dispute Resolution and Mandatory Arbitration" (the "2008 Arbitration Clause"), whose terms are set forth in all capital letters and contained in a separate box in the Agreement.[5] The 2008 Arbitration Clause provides that "we each agree to settle disputes (except certain small claims) only by arbitration" under the Federal Arbitration Act ("FAA") and reflects that this requirement applies to "any controversy or claim arising out of or relating to this agreement, or any prior agreement for wireless service with us..., or any product or service provided under or in connection with this agreement or such a prior agreement." ( Id. at Exh. 2, p. 6.)[6] It appears undisputed that Campbell received a copy of this Customer Agreement (including the 2008 Arbitration Clause) as of February 4, 2008.

As to the latter agreement, on May 25, 2010, Campbell visited a Verizon store, "likely for a replacement wireless card." (Doc. 1, ¶ 10.). At that time, Campbell signed another agreement in which he acknowledged, "I agree to the current Verizon Wireless Customer Agreement (CA)... for services and selected features I have agreed to purchase as reflected on the receipt.... I understand that I am agreeing to... settlement of disputes by arbitration and other means instead of jury trials and other important terms in the CA." (Dalmida Decl., at Exh. 3.) The referenced "Customer Agreement" includes a provision labeled "How Do I Resolve Disputes with Verizon Wireless?" (the "2010 Arbitration Clause") and set off from the remainder of the Agreement in a separate box. The 2010 Arbitration Clause states that "[y]ou and Verizon Wireless both agree to resolve disputes only by arbitration or in small claims court, " confirms that "[t]he Federal Arbitration Act applies to this agreement, " and specifies that "any dispute that results from this agreement or from the Services you receive from us... will be resolved by one or more neutral arbitrators." ( Id. at Exh. 4, p. 4.) The parties appear to concur that Campbell received a copy of this iteration of the Customer Agreement (including the 2010 Arbitration Clause) contemporaneously with signing the agreement on May 25, 2010.

II. Analysis.

A. Legal Standard Governing Arbitration Agreements.

The Federal Arbitration Act ("FAA") provides that written agreements to arbitrate "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.[7] In accordance with the FAA, it is well settled that "courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms." Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1349 (11th Cir. 2014) (citations omitted); see also In re Checking Account Overdraft Litigation MDL No. 2036, 674 F.3d 1252, 1255 (11th Cir. 2012) (recognizing that "[a]rbitration is a matter of contract" and that "interpretation of an arbitration agreement is generally a matter of state law, " subject to the FAA's limitation that such agreements are "on an equal footing with other contracts") (citations omitted). "We must interpret the agreement by reading the words of the contract in the context of the entire contract and construing the contract to effectuate the parties' intent." Inetianbor, 768 F.3d at 1353 (citation and internal quotation marks omitted); see also Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) ("Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must give effect to the contractual rights and expectations of the parties.") (citation and internal quotation marks omitted).

In construing arbitration agreements under the FAA to give effect to the parties' intent, courts must take into account the strong federal policy favoring enforcement of arbitration agreements. In that regard, "federal courts interpret arbitration clauses broadly where possible, " such that "any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration." Solymar Investments, Ltd. v. Banco Santander S.A., 672 F.3d 981, 988 (11th Cir. 2012) (citations omitted). "When interpreting an arbitration agreement, due regard must be given to the federal policy favoring arbitration, and ambiguities to the scope of the arbitration clause itself resolved in favor of arbitration." Inetianbor, 768 F.3d at 1353 (citation and internal quotation marks omitted); see also Martinez v. Carnival Corp., 744 F.3d 1240, 1246 (11th Cir. 2014) ("When parties agree to arbitrate some matters pursuant to an arbitration clause, the law's permissive policies in respect to arbitration counsel that any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.") (citation and internal quotation marks omitted). Of course, this presumption in favor of arbitrability is applied "only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand, and where the presumption is not rebutted." Martinez, 744 F.3d at 1246 (citation and internal quotation marks omitted). Notwithstanding the federal policy favoring arbitration agreements, "this policy does not override the wishes of parties who have restricted the circumstances under which they agree to arbitrate disputes." Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1288 (11th Cir. 2011); see also Klay v. All Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004) ("the FAA's strong proarbitration policy only applies to disputes that the parties have agreed to arbitrate"). These principles inform the Court's analysis of the pending Motion to Compel Arbitration.[8]

B. Whether Arbitration Is Properly Compelled as to Campbell's Claims Against the Verizon Defendants.

In the Motion to Compel Arbitration, Verizon makes a substantial, uncontested showing that Campbell and Verizon entered into two agreements containing binding arbitration clauses and that such contracts involved interstate commerce. By doing so, Verizon has satisfied its initial burden in support of its Motion. See King v. Cintas Corp., 920 F.Supp.2d 1263, 1267 (N.D. Ala. 2013) (recognizing that under Alabama law, "a party seeking to compel arbitration must prove (1) the existence of a contract containing an arbitration agreement and (2) that the underlying contract evidences a transaction affecting interstate commerce") (citation omitted). Accordingly, the burden shifts to Campbell "to ...


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