United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
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.
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
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
Standard of Review
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
Federal Arbitration Act
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
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] ...