United States District Court, M.D. Florida, Tampa Division
JAMES A. JULIAN, Plaintiff,
ROLLINS, INC., Defendant.
S. MOODY. JR. UNITED STATES DISTRICT JUDGE.
Julian entered into a Service Agreement and a separate
Finance Agreement with Orkin Pest Control. The Service
Agreement contained an arbitration clause; the Finance
Agreement did not. Orkin assigned the Finance Agreement to
Defendant Rollins, Inc., which Julian is suing for alleged
statutory violations. Now Rollins moves to compel
arbitration. Because the arbitration clause extends to the
Finance Agreement under Florida law, Rollins' motion to
compel arbitration should be granted.
November 11, 2014, Julian entered into a termite pest control
service contract (the “Service Agreement”) with
Orkin. (Doc. 9, p. 4). Rather than paying the full contract
price for the Service Agreement, Julian entered into a
separate financing contract (the “Finance
Agreement”) the same day. (Doc. 9, pp. 6-7). Orkin then
assigned the Finance Agreement to Rollins, Inc. (Doc. 1,
¶ 30; and Doc. 10).
Service Agreement between Julian and Orkin contains an
arbitration clause, which provides in pertinent part as
MEDIATION/ARBITRATION: ANY CONTROVERSY OR CLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE SERVICES PERFORMED
BY ORKIN UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT,
REGARDLESS OF WHETHER THE CONTROVERSY OR CLAIM AROSE BEFORE
OR AFTER THE EXECUTION, TRANSFER, OR ACCEPTANCE OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY TORT AND
STATUTORY CLAIMS, AND ANY CLAIMS FOR PERSONAL, OR BODILY
INJURY OR DAMAGE TO REAL OR PERSONAL PROPERTY, SHALL BE
SETTLED BY BINDING ARBITRATION. UNLESS THE PARTIES AGREE
OTHERWISE, THE ARBITRATION SHALL BE ADMINISTERED UNDER THE
RULES OF THE AMERICAN ARBITRATION ASSOCIATION
(“AAA”) AND SHALL BE CONDUCTED BY AAA.…
THE CUSTOMER AND ORKIN AGREE THAT THE ARBITRATOR SHALL FOLLOW
THE SUBSTANTIVE LAW, INCLUDING THE TERMS AND CONDITIONS OF
THIS AGREEMENT. THE ARBITRATOR'S POWERS TO CONDUCT ANY
ARBITRATION PROCEEDING UNDER THIS AGREEMENT SHALL BE LIMITED
AS FOLLOWS: ANY ARBITRATION PROCEEDING UNDER THIS AGREEMENT
WILL NOT BE CONSOLIDATED OR JOINED WITH ANY ACTION OR LEGAL
PROCEEDING UNDER ANY OTHER AGREEMENT OR INVOLVING ANY OTHER
PREMISES, AND WILL NOT PROCEED AS A CLASS ACTION, PRIVATE
ATTORNEY GENERAL ACTION, OR SIMILAR REPRESENTATIVE ACTION
… CUSTOMER AND ORKIN ACKNOWLEDGE AND AGREE THAT THIS
ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION
INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE
FEDERAL ARBITRATION ACT.…
(Doc. 9). The Service Agreement also specifically references
the Finance Agreement in the “Method of Payment”
section, which has a check in the box next to “FINANCED
- See Separate Finance Agreement.” (Doc. 9). The
Finance Agreement does not contain an arbitration clause.
now claims that the Finance Agreement is usurious and that
Rollins violated federal and Florida statutes protecting
consumers when collecting on the Finance Agreement. In
response, Rollins moves to compel arbitration pursuant to the
arbitration clause in the Service Agreement.
Federal Arbitration Act (“FAA”) provides that a
written arbitration agreement in any contract involving
commerce “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.
“The FAA places arbitration agreements on equal footing
with all other contracts and sets forth a clear
presumption-‘a national policy'-in favor of
arbitration.” Parnell v. CashCall, Inc., 804
F.3d 1142, 1146 (11th Cir. 2015) (citing Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006));
accord AT & T Mobility LLC v. Concepcion, 563
U.S. 333, 337-39 (2011); Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. 63, 72 (2010); Inetianbor v.
CashCall, Inc., 768 F.3d 1346, 1349 (11th Cir. 2014).
parties may agree to commit even threshold determinations to
an arbitrator, such as whether an arbitration agreement is
enforceable. The Supreme Court has upheld these so-called
‘delegation provisions' as valid.”
Rent-A-Center, 561 U.S. at 68- 70. And the Eleventh
Circuit and the majority of other Circuits hold that explicit
delegation provisions are unnecessary to delegate the issue
of arbitrability to the arbitrator. Rather, incorporation of
the arbitration rules is sufficient. See Terminix
Int'l Co. v. Palmer Ranch Ltd., 432 F.3d 1327,
1332-33 (11th Cir. 2005); U.S. Nutraceuticals, LLC v.
Cyanotech Corp., 769 F.3d 1308, 1311 (11th Cir. 2014).
In Terminix, the Eleventh Circuit considered whether
an arbitration clause stating “arbitration shall be
conducted in accordance with the Commercial Arbitration Rules
then in force of the American Arbitration Association”
delegated the question of arbitrability to the arbitrator.
432 F.3d at 1332. The Eleventh Circuit concluded that
“[b]y incorporating the AAA Rules … into their
agreement, the parties clearly and unmistakably agreed that
the arbitrator should decide whether the arbitration clause
is valid.” Id.
arbitration clause here incorporates the AAA Rules.
Accordingly, Terminix compels the Court to delegate
the question of arbitrability to the arbitrator.
Cyanotech, 769 F.3d at 1311 (quoting
Terminix and holding, “But when parties
incorporate the rules of the Association into their contract,
they ‘clearly and unmistakably agree[ ] that the
arbitrator should decide whether the arbitration clause
[applies].'). See Supply Basket, Inc. v. Glob. Equip.
Co., No. 1:13-CV-3220-RWS, 2014 WL 2515345, at *2
(N.D.Ga. June 4, 2014) (noting that incorporation of AAA
rules generally, without identifying any particular
subject-specific rules was sufficient to provide “clear
and unmistakable evidence of intent to delegate the
determination of arbitrability to the arbitrator.”).
motions to compel arbitration are reviewed under the summary
judgment standard. See Johnson v. KeyBank Nat'l
Assoc.,754 F.3d 1290, 1294 (11th Cir. 2014) (describing
an order compelling arbitration as
“summary-judgment-like” because it is
“‘a summary disposition of the issue of whether
or not there has been a meeting of the minds on the agreement
to arbitrate'”) (quoting Magnolia Capital
Advisors, Inc. v. Bear Stearns & Co., 272 F.