United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Defendant Tuition
Options, LLC39;s (“Tuition Options”) Motion to
Compel Arbitration and Dismiss or Stay Case (the
“Motion”) [ECF No. 11]. The Court has reviewed
the parties39; written briefs and the applicable law, and
is otherwise fully advised. For the reasons that follow, the
Motion shall be granted.
Options is a lender and servicer of private consumer student
loans. Tuition Options manages and administers student loans
on behalf of post-secondary educational institutions.
Plaintiff Bianca Serrano used Tuition Options39; services
to obtain a student loan. In order to obtain the loan,
Plaintiff executed a Retail Installment Contract. [ECF No.
11-3]. The Retail Installment Contract contained an
Arbitration Agreement which states in relevant part that:
Any disputes, claims, or controversies between me and School
arising out of or relating to: (i) this Agreement; (ii) any
relationship resulting from this Agreement, or any activities
in connection with the Agreement (including, without
limitation, the Application, the disclosures provided or
required to be provided in connection with this Agreement,
including, without limitation, the Truth-in-Lending
Disclosure Statement[s], or the underwriting, servicing or
collection of the amounts financed under this Agreement);
(iii) any services related to this Agreement; (iv) any claim,
no matter how described, pleaded or styled, relating, in any
manner, to any act or omission regarding in any way the
obligations of the parties to this Agreement; or (v) any
objection to arbitrability or the existence, scope, validity,
construction, or enforceability of this Arbitration
Agreement, shall be resolved pursuant to this Section (the
See Retail Installment Contract, [ECF No. 11-3,
brought this action against Tuition Options alleging
violations of the Telephone Consumer Protection Act, 47
U.S.C. § 227 et seq. (“TCPA”) (Count I), the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”) (Count II), the Florida Consumer
Collection Practices Act, Fla. Stat. § 559.55 et seq.
(“FCCPA”) (Count III), and common law invasion of
privacy (Count IV). See [ECF No. 1]. Plaintiff
alleges Defendant placed more than 100
“robo-calls” to her cellphone in an attempt to
collect money she purportedly owed under her student loan.
Plaintiff alleges that Defendant continued to call her
despite her advising Defendant that she had already paid off
her loan and did not want to be contacted further.
argues that all of the claims brought by Plaintiff are
covered by the Arbitration Agreement. And, to the extent that
the scope or validity of the Arbitration Agreement is in
question, Defendants asserts that such questions are
committed to the jurisdiction of the arbitrator to be decided
in the first instance. Plaintiff does not dispute that a
valid Arbitration Agreement exists. Instead, Plaintiff argues
that the instant claims do not fall within the scope of the
Federal Arbitration Act (“FAA”), 9 U.S.C.
§§ 1-16, provides the substantive law controlling
the validity and enforcement of covered arbitration
agreements.” Schoendorf v. Toyota of Orlando,
No. 6:08-cv-767-Orl-19DAB, 2009 WL 1075991, at *3 (M.D. Fla.
Apr. 21, 2009). However, “[a]rbitration under the [FAA]
is a matter of consent, not coercion . . . .”
Id. (quoting Volt Info. Scis., Inc. v.
Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468,
479 (1989)). “[A] party cannot be required to submit to
arbitration any dispute which he has not agreed so to
submit.” Id. (quoting United Steelworkers
of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582 (1960)). In considering a motion to compel
arbitration, a court considers whether “(1) a written
agreement exists between the parties containing an
arbitration clause; (2) an arbitrable issue exists; and (3)
the right to arbitration has not been waived.”
Curbelo v. Autonation Ben. Co., Inc., 14-CIV-62736,
2015 WL 667655, at *2 (S.D. Fla. Feb. 17, 2015) (citations
omitted). When a party moves to compel arbitration, the court
must grant the request upon a showing that (a) the plaintiff
entered into a written arbitration agreement that is
enforceable under ordinary state law contract principles; and
(b) the claims before the court fall within the scope of that
agreement. Lambert v. Austin Ind., 3d 1192');">544 F.3d 1192,
1195 (11th Cir. 2008) (citations omitted).
determining the validity of an agreement to arbitrate, the
Supreme Court has noted that, in most circumstances, “a
court should decide ‘certain gateway matters, such as
whether the parties have a valid arbitration agreement at all
. . . .39;” Id. (citing Green Tree Fin.
Corp. v. Bazzle, 39 U.S. 444');">539 U.S. 444, 452 (2003)). This
“[question of arbitrability], is ‘an issue for
judicial determination [u]nless the parties clearly and
unmistakably provide otherwise.39;” Id.
(citing Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 83 (2002)). However, parties can agree to allow the
arbitrator to determine the existence, scope or validity of
the arbitration agreement. Jones v. Waffle House,
Inc., 3d 1257');">866 F.3d 1257, 1264 (11th Cir. 2017) (holding that
“parties may agree to arbitrate gateway questions of
arbitrability including the enforceability, scope,
applicability, and interpretation of the arbitration
agreement.”) (citing Rent-A-Center, W., Inc. v.
Jackson, 3');">561 U.S. 63, 68-69 (2010)); Terminix
Int39;l Co. v. Palmer Ranch Ltd. Partnership, 432 F.3d
1327, 1332 (11th Cir. 2005) (holding that the parties39;
incorporation of the AAA rules into its arbitration provision
was sufficient to overcome the presumption that the Court
decides questions of arbitrability).
does not dispute that a valid Arbitration Agreement exists
between the parties. Plaintiff also does not dispute that
Defendant has not waived its right to compel arbitration.
Based on this record, the Court finds that Plaintiff entered
into a valid and enforceable arbitration agreement.
appears that Plaintiff's claims fall squarely within the
broad scope of the Arbitration Agreement. However, the Court
cannot resolve that issue because the Arbitration Agreement
specifically delegates threshold arbitrability matters to the
arbitrator. See Jones v. Waffle House, Inc., 866
F.3d 1257, 1264 (11th Cir. 2017) (recognizing that a valid
“delegation provision” may confer jurisdiction to
the arbitrator to determine threshold issues of
arbitrability); Terminix Int'l Co. v. Palmer Ranch
Ltd. Partnership,32 F.3d 1327');">432 F.3d 1327, 1332 (11th Cir. 2005)
(holding that because the arbitration agreement incorporated
the jurisdictional provisions provided by the AAA, it was for
the arbitrator rather than the court to determine the
agreement's validity); see also Jones v. Pro Source
Servs., Inc., No. 8-13-cv-1311-T-30EAJ, 2013 WL 37766889 ...