ORDER ADOPTING FINDINGS AND RECOMMENDATION,
ORDER COMPELLING ARBITRATION, and ORDER
On February 21, 2013, the Court referred Defendant's motion to compel arbitration, or alternatively to dismiss, to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). See Doc. No. 25. On March 15, 2013, the Magistrate Judge issued a Findings and Recommendation ("F&R") that recommended granting the motion to compel arbitration. See Doc. No. 34. On March 29, 2013, the Plaintiff filed objections to the F&R. See Doc. No. 36.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review. Plaintiff states that he does not object to the entirety of the F&R, rather he objects to the conclusion that his Cable Act (47 U.S.C. § 551) claims are not subject to the Federal Arbitration Act (9 U.S.C. § 1 et seq.) ("FAA"). See id. Plaintiff contends that under Kel Homes, LLC v. Burris, 933 So.2d 699 (Fla. Dist. Ct. App. 2006), the language of the contract at issue shows that the parties intended to except the Cable Act claim from the arbitration clause.*fn1
Kel Homes involved a construction contract. See Kel Homes, 933 So.2d at 701. The construction contract included a broad arbitration clause that applied to "any and all . . . disputes." See id. at 702. The contract also contained a clause relating specifically to defaults, which provided that, if the seller/builder defaulted, "the buyer's sole and exclusive remedy shall be limited to either a suit for specific performance . . . or the return of the deposit." Id. The Florida court noted that the term "suit" generally referred to a lawsuit and not arbitration, and the default clause did not include the term "arbitration." See id. at 702-03. The Florida court also noted that the default clause was a specific clause, and that specific clauses are generally interpreted to trump general clauses. See id. at 703-04. The Florida court then concluded that the default clause provided a specific remedy that was outside the reach of the arbitration clause. See id. at 704. The Florida court affirmed the lower court's refusal to compel arbitration. See id.
Plaintiff's argument, that Kel Homes's rationale requires exclusion of
the Cable Act claims from arbitration, does have appeal. The privacy
policy mentions a specific type of right/dispute, whereas the
contract's arbitration agreement is general. Further, the privacy
policy does not use the term "arbitration." Nevertheless, the Court
clause regarding a lawsuit is not mandatory or exclusive. The clause
informs Plaintiff that he "may" bring a lawsuit, it does not provide
that a lawsuit is his only remedy or that he is otherwise required to
file a lawsuit. In fact, the clause expressly states
that "other remedies" under other laws may be available.*fn2
See id. In contrast, the default clause in Kel Homes was
narrow and exclusive -- the "sole and exclusive" remedies for a
default were either a lawsuit for specific performance or the return
of the deposit. See Kel Homes, 933 So.2d at 702. That is, the Kel
Homes default clause took a particular type of dispute and expressly
limited and defined what the only remedies available were, and
arbitration was not included. The default clause in Kel Homes
indicated a clear intent to exclude defaults from the arbitration
process. Cf. AT&T Techs. v. Communications Workers of Am., 475 U.S.
643, 657 (1986) ("In the absence of any express provision excluding a
particular grievance from arbitration . . . only the most forceful
evidence of a purpose to exclude [a] claim from arbitration can
prevail."); Standard Concrete Prods. v. General Truck Drivers Office,
Food, & Warehouse Un. Local 952, 353 F.3d 668, 674-75 (9th Cir. 2003)
(holding that arbitration provision pertaining to "any employee having
a grievance" was limited to arbitrating specific "employee grievances"
and did not encompass entire union related disputes). The privacy
policy's language does none of these things. Second, the Court finds
it significant that the Cable Act requires a cable provider to include
notice about a subscriber's rights under 47 U.S.C. § 551(f) to bring a
lawsuit. See 47 U.S.C. § 551(a)(1)(E). That is, Defendant was required
to tell Plaintiff about his ability to bring a lawsuit under the Cable
Act. In contrast, the default clause in Kel Homes appears to be unique
and not required by any statute. Third, as indicated above, the
contract's arbitration clause itself is quite broad. By including "any
dispute" based on a "statute," the arbitration clause would include
Cable Act claims. Plaintiff has not cited authority that exempts 47
U.S.C. § 551 from the reach of the FAA. Cf. Lozano v. AT&T Wireless
Servs., Inc., 504 F.3d 718, 727 (finding that 47 U.S.C. § 207 claim
was subject to the FAA even though § 207 provided that an aggrieved
person "may bring suit . . . in any district court of the United
States") with 47 U.S.C. § 551(f) (an aggrieved person "may bring a
civil action in a United States district court . . . .").
Having carefully reviewed the entire file and Plaintiff's objections, the Court finds that the F&R is supported by the record and proper analysis. Plaintiff's objections are overruled. See Comedy Club, 553 F.3d at 1284-86.
However, the F&R recommended that the Court stay this case and retain jurisdiction in order to confirm the arbitration award and enter judgment for the purpose of enforcement. Once a court determines that an arbitration clause is enforceable, it has the discretion to either stay the case pending arbitration or to dismiss the case if all of the alleged claims are subject to arbitration. Lewis v. UBS Financial Servs., Inc., 818 F.Supp.2d 1161, 1165 (N.D. Cal. 2011); Luna v. Kemira Specialty, Inc., 575 F.Supp.2d 1166, 1178 (C.D. Cal. 2008); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). In this case, all of Plaintiffs' claims appear to be covered by the broad arbitration agreement. Because all of the claims are subject to arbitration, the Court declines to stay this matter or retain jurisdiction to enter an arbitration award. Instead, the Court will close this case. See Lewis, 575 F.Supp.2d at 11165, 1169.
Accordingly, IT IS HEREBY ORDERED that:
1. The March 15, 2013, Findings and Recommendation is ADOPTED ...