United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss Complaint and
Compel Arbitration and Incorporated Memorandum of Law (Doc.
23 (“Motion to Compel”)), to
which Plaintiff responded (Doc. 24). For the following
reasons, the Motion to Compel is due to be granted, and the
action is due to be stayed.
February 28, 2017, Plaintiff initiated this action against
Defendant for violations of the Telephone Consumer Protection
Act and Florida's Consumer Collection Protection Act.
(Doc. 1 (“Complaint”).) After
successfully moving for an extension (Doc. 14), Defendant
answered the Complaint on June 19, 2017, and asserted several
affirmative defenses, including its intent to arbitrate based
on a binding arbitration provision in Plaintiff's
cardholder agreement (Doc. 18
(“Answer”)). Now-more than six
months after its Answer-Defendant moves the Court pursuant to
Federal Rule of Civil Procedure 12(b)(1) or 12(b)(3) to
compel arbitration and dismiss this action or, alternatively,
to stay it pending the outcome of the forthcoming arbitration
proceedings. (Doc. 23.)
to the Motion to Compel, Plaintiff applied for and received a
credit card from Defendant in February of 2014. (See
Doc. 23-1, 12.) Attached to its standard cardholder agreement
is an arbitration agreement (“Arbitration
Agreement”), which provides:
PLEASE READ THIS PROVISION OF YOUR CARD AGREEMENT
CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT
ANY CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING
ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT,
INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN
A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A
DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF A
JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE
LIMITED THAN RULES APPLICABLE IN COURT. IN ARBITRATION, YOU
MAY CHOOSE TO HAVE A HEARING AND BE REPRESENTED BY
Agreement to Arbitrate: You and we agree
that either you or we may, without the other's consent,
require that any controversy or dispute between you and us
(all of which are called “Claims”), be submitted
to mandatory, binding arbitration. This arbitration provision
is made pursuant to a transaction involving interstate
commerce, and shall be governed by, and enforceable under,
the Federal Arbitration Act (the “FAA”), 9 U.S.C.
§ 1 et seq., and (to the extent State law is
applicable), the State law governing this Agreement.
(Doc. 23-4, p. 7) (emphasis in original).
Arbitration Agreement also sets forth a very broad scope,
covering, among others, claims involving “any
disclosures or other documents or communications relating to
your account; any transactions or attempted transactions
involving your account, whether authorized or not; billing,
billing errors, credit reporting, the posting of
transactions, payment or credits, or collections matters
relating to your account” or “based on any theory
of law, any contract, statute, regulation, ordinance, tort .
. . [and] any allegations of fact, including an alleged act,
inaction, omission, suppression, representation, statement,
obligation, duty, right, condition, status or
on the Arbitration Agreement, Defendant requests that the
Court compel arbitration on the grounds that: (1) it is
enforceable; and (2) Plaintiff's claims fall within its
scope. (Doc. 23, pp. 9-12.) As the matter is fully briefed
(see Doc. 24), it is ripe for the Court's
the Federal Arbitration Act
(“FAA”), arbitration agreements
are presumptively valid and enforceable. See 9
U.S.C. § 2. So “courts must rigorously enforce
arbitration agreements according to their terms.”
Am. Express Co. v. Italian Colors Rest., 133 S.Ct.
2304, 2309 (2013). With this, upon the motion of any party to
a valid arbitration agreement, courts must stay or dismiss
litigation of all claims that fall within the agreement's
scope and compel arbitration according to the agreement's
terms. See 9 U.S.C. §§ 3-4.
the strong policy in favor of arbitration, a party may, by
its conduct, waive its right to arbitration.”
Garcia v. Wachovia Corp., 699 F.3d 1273, 1277 (11th
Cir. 2012) (quoting S & H Contractors, Inc. v. A.J.
Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990));
see also Krinsk v. SunTrust Banks, Inc., 654 F.3d
1194, 1200 (11th Cir. 2011). Waiver of an arbitration right
occurs when both: (1) the party seeking arbitration
‘substantially participates in litigation to a point
inconsistent with an intent to arbitrate'; and (2)
‘this participation results in prejudice to the
opposing party.'” In re Checking Account
Overdraft Litig., 754 F.3d 1290, 1294 (11th Cir. 2014)
(quoting Morewitz v. W. of Eng. Ship Owners Mut. Prot.
& Indem. Ass'n (Lux.), 62 F.3d 1356, 1365 (11th
Cir. 1995)). “[A]ny party arguing waiver of arbitration
bears a heavy burden of proof.” Stone v. E.F.
Hutton & Co., Inc., 898 F.2d 1542, 1543 (11th Cir.