The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER: (1) GRANTING DEFENDANTS' MOTION TO COMPEL ARBITRATION AND [DOC. 41] (2) DISMISSING WITHOUT PREJUDICE THIS ACTION
Pending before the Court is Defendants Royal Bank of Scotland Group,
PLC ("RBS"), Citizens Financial Group, Inc., doing business as RBS
Citizens N.A. ("Citizens"), and The Kroger Company ("Kroger")'s motion
to compel Plaintiff Patrick McNamara's claims for alleged violations
of the Telephone Consumer Protection Act ("TCPA") to arbitration and
to stay the case pending the outcome of that arbitration.*fn1
The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 45.) For the following reasons, the Court GRANTS Defendants' motion to compel arbitration and DISMISSES WITHOUT PREJUDICE this action in its entirety.
Plaintiff is a resident of San Diego, California. (Compl. ¶ 2.) RBS is in the business of issuing consumer credit cards to residents of the United States. (Id. ¶ 3.) Citizens is a wholly owned subsidiary of RBS. (Id. ¶ 4.) Kroger is the largest retail supermarket chain the United States. (Id. ¶ 5.) Kroger and RBS conducted a joint business venture to issue credit cards to consumers under the name "Kroger Personal Finance." (Id. ¶ 6.)
On or about July 21, 2007, Plaintiff applied for a credit-card account via telephone with Citizens under the Kroger Personal Finance program. (Klos Decl. ¶¶ 3--4; McNamara Decl. ¶ 3.) After his account was opened, Citizens mailed Plaintiff his credit card along with a Credit Card Agreement ("Agreement"). (Klos Decl. ¶ 5.) Section 2 of the Agreement provides:
You agree to the terms of this Agreement, as it may be amended from time to time, when you obtain credit . . . . By using your Account, or by signing any charge slip drawn on your Account . . . you will be confirming that you agree to the terms of this Agreement, as amended from time to time. (Klos Decl. Ex. A.) Sometime thereafter, under Section 2 of the Agreement, Citizens amended the Agreement ("Amended Agreement") with the following arbitration provisions:
UNDER THESE ARBITRATION PROVISIONS, YOU WAIVE RIGHTS TO LITIGATE CLAIMS IN COURT BEFORE A JUDGE OR JURY AND WAIVE YOUR RIGHTS TO BRING OR PARTICIPATE IN CLASS ACTION LAWSUITS. OTHER RIGHTS YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
Under these Arbitration Provisions, either you or the Bank may elect that any claim, dispute or controversy of any nature (a "Claim") under or related to any Account you have with the Bank (including claims related to advertisements, other solicitations, any benefits or services related to your Account, any credit application to the Bank or any servicing and collection activity and the 1-2-3 REWARDS® Program including any claims regarding applicability of these Arbitration Provisions) brought by either you or the Bank against the other or against Kroger Personal Finance® or any affiliate thereof, their successors or assigns (each a "party"), be resolved by binding arbitration under the National Arbitration Forum ("NAF"), under the Code of Procedure then in effect. If NAF is unable to serve as arbitrator, the American Arbitration Association will be used in place of NAF. Any party may elect arbitration at any time, unless a final judgment on the Claim has been entered by a Court.
An Arbitrator can only consider your Claim as an individual and not as a representative of others, and you may not bring an action as a private attorney general or join the claims of other people who may have similar claims (and you may not bring or participate in a class action claim or serve as a private attorney general. Only a court of competent jurisdiction may determine the validity and effect of the preceding sentence.) Any arbitration hearing will take place in the Federal judicial district where you live, unless you and the Bank agree otherwise. The award of the arbitrator will be in writing and may be enforced in any court with jurisdiction over the parties. . . .
THE RESULT OF THESE ARBITRATION PROVISIONS IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CANNOT BE LITIGATED IN COURT INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A JURY AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS. (Klos Decl. ¶ 7 (citing Klos Decl. Ex. A) (capitalization in original).) Section 20 of the Amended Agreement also includes a choice-of-law provision that indicates that federal and Connecticut laws govern the Agreement. (Klos Decl. Ex. A.)
Once his account was opened, Plaintiff asked for a balance transfer in the amount of $10,000.00. (McNamara Decl. ¶ 3.) To the best of his recollection, Plaintiff never used the account to make purchases and did not use any of the cash-advance checks. (Id. ¶ 6.) Aside the initial balance transfer, Plaintiff did not use the credit extended to him. (Id.)
In early September 2009, he received a notice that his credit limit was being reduced due to a drop in his credit score, even though he had never missed a payment until then. (McNamara ¶ 11.) However, Plaintiff eventually missed his first payment that was due in early October 2009. (Id. ¶ 12.) Even though Plaintiff never gave permission to call his cellular phone, Citizens began calling his cellular phone regarding his credit card. (Id. ¶¶ 12--13.) Plaintiff alleges that many of these phone calls used an artificial or pre-recorded voice to leave messages or give instructions. (Compl. ¶ 8.) In total, Plaintiff received 22 calls to his cellular phone relating to the credit card. (McNamara Decl. ¶ 16.)
On September 15, 2011, Plaintiff commenced this action in this Court, alleging that Defendants violated the TCPA, 47 U.S.C. § 227, by negligently, knowingly, and willfully contacting Plaintiff on his cellular telephone without his express prior consent. Specifically, Plaintiff asserts two claims under the TCPA: (1) Negligent Violations of the TCPA, and (2) Knowing or Willful Violations of the TCPA. Defendants now move to compel arbitration of the claims asserted in the complaint and stay of this case pending the outcome of that arbitration. Plaintiff opposes.
The Federal Arbitration Act ("FAA") governs disputes involving contracts that touch upon interstate commerce or maritime law. 9 U.S.C. §§ 1, et seq. The FAA preempts state law where the validity of an arbitration clause is disputed. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). It also "embodies a clear federal policy in favor arbitration." Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999)
"The standard for demonstrating arbitrability is not high." Simula, 175 F.3d at 719. The district court can only determine whether an agreement to arbitrate exists, and if so, to enforce it in accordance with its terms. Id. at 720 (citing Howard Elec. & Mech. v. Briscoe Co., 754 F.2d 847, 849 (9th Cir. 1985)). In other words, the FAA "leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to ...