United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
civil action was originally filed on February 16, 2018, in
the Circuit Court of Calhoun County, Alabama by the
Plaintiff, William Lester, Jr., against the Defendant,
Portfolio Recovery Associates, LLC (“PRA”). (Doc.
1-1 at 7). The Complaint primarily alleges that the Defendant
violated various provisions of the Fair Credit Reporting Act,
15 U.S.C. §§ 1681-1681x (the “FCRA”)
(Count One) and the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692-1692p (the “FDCPA”)
(Counts Two through Eight). In addition, the Complaint
alleges the Alabama state law claims of: Invasion of Privacy
(Count Nine); “Negligent, Wanton, [and/or] Intentional
Hiring, Training and Supervision of Incompetent Debt
Collectors” (Count Ten); and “Negligence,
[Wantonness]/[Intentional]/Malicious Conduct” (Count
Eleven). The case was removed to this Court on February 16,
2018. (Doc. 1).
case comes before the Court on PRA's “Motion To
Stay or Dismiss Proceedings and Compel Arbitration”
(the “Motion”). (Doc. 16). The Motion has been
fully briefed and was the subject of a hearing held on June
20, 2018. For the reasons stated at the hearing and herein,
the Motion will be DENIED.
Federal Arbitration Act, 9 U.S.C. §§1-307 (the
A party aggrieved by the alleged failure, neglect, or refusal
of another to arbitrate under a written agreement for
arbitration may petition any United States district court
which, save for such agreement, would have jurisdiction under
title 28, in a civil action or in admiralty of the subject
matter of a suit arising out of the controversy between the
parties, for an order directing that such arbitration proceed
in the manner provided for in such agreement.
9 U.S.C.A. § 4. In the instant case, the dispute is
about whether the parties to this action, PRA and Lester,
agreed to arbitrate the claims in this case. The Eleventh
Circuit has held that
[w]hether a party has agreed to arbitrate an issue is a
matter of contract law and interpretation. See Doe v.
Princess Cruise Lines, Ltd., 657 F.3d 1204, 1208 (11th
Cir. 2011). “[I]t is the language of the contract that
defines the scope of disputes subject to arbitration.”
E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289,
122 S.Ct. 754, 151 L.Ed.2d 755 (2002). “[N]othing in
the [Federal Arbitration Act] authorizes a court to compel
arbitration of any issues, or by any parties, that are not
already covered in the agreement.” Id.
Gamble v. New England Auto Fin., Inc., No. 17-15343,
2018 WL 2446607, at *1 (11th Cir. May 31, 2018).
Further, in addressing the underlying question of whether
parties have a valid arbitration agreement, no presumption in
favor of arbitration applies. . . . Rather, the
well-recognized national policy favoring arbitration comes
into play later, when addressing whether a particular claim
is covered by an otherwise valid and enforceable arbitration
Dasher v. RBC Bank (USA), 882 F.3d 1017, 1022-23
(11th Cir. 2018) (citations omitted). Instead, the Eleventh
Circuit has stated:
We agree with our sister circuits that a summary
judgment-like standard is appropriate and hold that a
district court may conclude as a matter of law that parties
did or did not enter into an arbitration agreement only if
“there is no genuine dispute as to any material
fact” concerning the formation of such an agreement.
Fed.R.Civ.P. 56(a). A dispute is not “
‘genuine' if it is unsupported by the evidence or
is created by evidence that is ‘merely colorable'
or ‘not significantly probative.' ”
Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th
Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202
(1986)), cert. denied, __ U.S. __, 136 S.Ct. 410, 193 L.Ed.2d
317 (2015). “This court has consistently held that
conclusory allegations without specific supporting facts have
no probative value” for a party resisting summary
judgment. See Leigh v. Warner Bros., 212 F.3d 1210,
1217 (11th Cir. 2000) (quotation marks omitted).
Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d
1325, 1333 (11th Cir. 2016).
time prior to June 2016, William Lester incurred debt on a
Lowes Home Improvement (“Lowes”) credit card with
an account ending in numbers -4658 (the
“Account”). The card was issued by Synchrony Bank
(“Synchrony”), as successor in interest to GE
Capital Retail Bank (“GE”).
credit card and cardholder agreement for the account (the
“Agreement”) contained two provisions relevant to
the instant motion. The first, the Arbitration Provision,
provides, in pertinent part:
- What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and
we must arbitrate any dispute or claim between you or any
other user of your account, and us, our affiliates, agents
and/or Lowe's Companies, Inc., if it relates to your
account, except as noted below.
2. We will not require you to arbitrate: (1) any individual
case in small claims court . . ., so long as it remains an
individual case in that court; or (2) a case we file to
collect money you owe us. However, if you respond to the
collection lawsuit by claiming any wrongdoing, we may require
you to arbitrate.
3. Notwithstanding any other language in this section, only a
court, not an arbitrator, will decide disputes about the
validity, enforceability, coverage or scope of this section
or any part thereof . . . . However, any dispute or argument
that concerns the validity or enforceability of the Agreement
as a whole is for the arbitrator, not a court, to decide.
- Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the
Federal Arbitration Act (FAA). Utah law shall apply to the