United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
the Court is a Motion to Compel Arbitration and to Dismiss
the Complaint by Defendant Wells Fargo Bank, N.A.
(“Wells Fargo”). (ECF No. 7.) For the reasons
stated herein, the Motion, (ECF No. 7), is GRANTED IN
PART and DENIED IN PART.
to the Complaint, Plaintiffs fell into arrears over an
alleged debt owed to Wells Fargo. (ECF No. 1-1 at 7 ¶
5.) Wells Fargo attempted to collect on the debt, allegedly
making telephone calls and sending letters to Plaintiffs.
(Id.) Plaintiffs retained legal counsel before
February 3, 2015. (Id. at 8 ¶ 7.) During one of
the phone calls, Plaintiffs allegedly alerted Wells Fargo to
their legal representation and provided Wells Fargo the
contact information for their attorney. (Id. at
¶ 8.) After this interaction, Wells Fargo purportedly
continued to call Plaintiffs “on a regular basis”
in attempt to collect on the debt. (Id. at ¶
on these facts, Plaintiffs filed a complaint in the Circuit
Court of Wayne County against Wells Fargo on March 9, 2019,
asserting violations of the West Virginia Consumer Credit and
Protection Act (“WVCCPA”), W.Va. Code §
46A-1-101, et seq., intentional infliction of
emotional distress, and invasion of privacy. For these
claims, Plaintiffs seek actual and statutory damages,
punitive damages, and attorney fees and costs. (Id.
at 11-12.) Wells Fargo timely removed the case to this Court
based on diversity jurisdiction under 28 U.S.C. § 1332.
(ECF No. 1.) On June 3, 2019, Wells Fargo filed the present
Motion to Compel Arbitration regarding Ms. Adkins and a
simultaneous Motion to Dismiss as to both Plaintiffs. (ECF
No. 7.) Plaintiffs filed a response on July 15, 2019, (ECF
No. 17), and Wells Fargo replied on August 5, 2019, (ECF No.
20). As such, the motion is fully briefed and ripe for
Motion to Compel Arbitration
Federal Arbitration Act (“FAA”) was in enacted in
1925 to “reverse the longstanding judicial hostility to
arbitration agreements . . . and to place [them on] the same
footing as other contracts.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991).
The Act provides that arbitration clauses in contracts
concerning interstate commerce are “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. Thus, “due regard must be given to the
federal policy favoring arbitration, and ambiguities as to
the scope of the arbitration clause itself resolved in favor
of arbitration.” Id. (citing Volt Info.
Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr.
Univ., 489 U.S. 468, 475-76 (1989)).
section 4 of the FAA, “a party ‘aggrieved' by
the failure of another party ‘to arbitrate under a
written agreement for arbitration' may petition a federal
court ‘for an order directing that such arbitration
proceed in the manner provided for in such agreement.'
The court ‘shall' order arbitration ‘upon
being satisfied that the making of the agreement for
arbitration or the failure to comply therewith is not in
issue.'” Rent-A-Center West, Inc., v.
Jackson, 561 U.S. 63, 68 (2010) (quoting 9 U.S.C. §
4). A party seeking to compel arbitration pursuant to this
section must establish the following:
(1) the existence of a dispute between the parties, (2) a
written agreement that includes an arbitration provision
which purports to cover the dispute, (3) the relationship of
the transaction, which is evidenced by the agreement, to
interstate or foreign commerce, and (4) the failure, neglect
or refusal of the [party] to arbitrate the dispute.
Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01
(4th Cir. 2002) (quoting Whiteside v. Teltech Corp.,
940 F.2d 99, 102 (4th Cir. 1991)) (internal quotation marks
Motion to Dismiss
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”
McCleary-Evans v. Md. Dep't of Transp., State Highway
Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that
this requirement exists “to give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests” (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007))). This pleading rule
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. (quoting Twombly,
550 U.S. at 555).
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which
relief can be granted . . . .” Fed.R.Civ.P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain
enough facts, accepted as true, “to state a claim to
relief that is plausible on its face.” Wikimedia
Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th
Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). In evaluating the sufficiency of a complaint, a
court separates the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer that “the defendant
is liable for the misconduct alleged.” Iqbal,
556 at 678. A motion to dismiss will be granted if,
“after accepting all well-pleaded allegations in the
plaintiff's complaint as true and drawing all reasonable