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Little v. Cellco Partnership

United States District Court, S.D. West Virginia, Bluefield

January 19, 2018

JUDY LITTLE, Plaintiff,
v.
CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS Defendant.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge.

         This matter is about whether Verizon's Customer Agreement, which contains an arbitration clause, binds the defendant, Judy Little, and requires the court to submit this action to arbitration. For the reasons that follow, the defendant's Motion to Compel Arbitration and Stay Proceeding pursuant to the Federal Arbitration Act (ECF No. 5) is hereby GRANTED and plaintiff's action is DISMISSED without prejudice.

         I. BACKGROUND

         Judy Little purchased a mobile hotspot device on October 21, 2015, at a Verizon Wireless retail location in Princeton, West Virginia. See ECF No. 5-1, ¶ 4. Before activation, Verizon required Little to sign a standardized electronic sales receipt agreeing to the terms and conditions of Verizon Wireless' Customer Agreement. See ECF No. 5-1, Ex. A (“Verizon Sales Receipt”). The electronically signed sales receipt stated in pertinent part:

I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER AGREEMENT . . . INCLUDING THE TERMS AND CONDITIONS OF MY PLAN . . . I UNDERSTAND THAT I AM AGREEING TO . . . SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF JURY TRIALS . . . I AM AWARE THAT I CAN VIEW THE CUSTOMER AGREEMENT ANYTIME AT VERIZONWIRELESS.COM OR IN MY VERIZON ACCOUNT.

See id. at 3 (emphasis added). The sales receipt states “JUDY LITTLE” as the “Account Owner Name” and includes a signature. See id. While Little's signature does not appear to be a full signature, see id., plaintiff does not claim that she did not sign the sales receipt. The Customer Agreement referenced in the sales receipt is a 10-page document that includes an arbitration provision within a section titled “HOW DO I RESOLVE DISPUTES WITH VERIZON WIRELESS?” See ECF No. 5-1, Ex. B, at 7-9 (“Verizon Customer Agreement”). This section expounds upon the arbitration clause announced in the sales receipt. Id.

         Little used the wireless hotspot for “less than two weeks, ” but the device “failed to work properly.” See ECF No. 7-1, Ex. A, ¶¶ 9. As a result, she returned the device but Verizon continued to charge her. See id. at Ex. A, ¶¶ 9-11. Later, Verizon allegedly contacted Little in an attempt to collect the outstanding balance owing. See Amended Complaint at ¶¶ 3, 7-33. These telephone calls form the basis of Little's allegation that Verizon engaged in violations of federal and state debt collection laws. Id. at ¶ 3.

         II. APPLICABLE LAW

         A. Standard of Review

         Motions to compel arbitration “‘exist in the netherworld between a motion to dismiss and a motion for summary judgment.'” U.S. ex rel. TBI Investments, Inc. v. BrooAlexa, LLC, 119 F.Supp.3d 512, 523 (S.D. W.Va. 2015) (quoting Shaffer v. ACS Government Servs., Inc., 321 F.Supp.2d 682, 683 (D. Md. 2004)). The defendant, as the party seeking to enforce the arbitration agreement, bears the initial burden of “persuading this court that the parties entered into an enforceable arbitration agreement.” Drake v. Mallard Creek Polymers, Inc., 2014 WL 7405762, at *1 (W.D. N.C. Dec. 30, 2014). If the defendant succeeds, then “the burden shifts to the plaintiff to show that even though there was some written contract, [she] did not actually agree to it--because the signature was forged, the terms of the contract were misrepresented, or some other reason evincing lack of true agreement.” Czopek v. TBC Retail Grp., Inc., 2014 WL 5782794, at *4 (M.D. Fla. Nov. 6, 2014); see also BrooAlexa, LLC, 119 F.Supp.3d 512, 524 (applying summary judgment standard to a motion to compel arbitration and stating that “[o]nce the moving party has met its burden, the burden shifts to the nonmoving party to demonstrate that a genuine issue of material fact exists for trial.”).

         B. Federal Arbitration Act

         The Federal Arbitration Act (“FAA”) embodies “a liberal federal policy favoring arbitration, ” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citations and quotations omitted) and provides in pertinent part:

A written provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract . . . or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract . . . 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. If the parties execute a valid agreement to arbitrate disputes, federal courts are required to compel arbitration. Sydnor v. Conseco Financial Servicing Corp., 252 F.3d 302, 305 (4th Cir. 2001); see also Moses H. Cone Mem'lHosp. v. Mercury Const. Corp., 460 U.S. 1, 23-24 (1983) (“[Q]uestions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration . . . [and] ...


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