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Ferrini v. Cambece

United States District Court, Ninth Circuit

June 3, 2013

JAMES ANTHONY CAMBECE JR., et al., Defendants.


DALE A. DROZD, Magistrate Judge.

This matter came before the court on January 4, 2013, for hearing of defendants' motion to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Attorney David Dufek appeared on behalf of the defendants.[1] No appearance was made by, or on behalf of, plaintiff Michael Ferrini, who is proceeding pro se in this action.[2] Oral argument was heard, and defendants' motion was taken under submission.

Upon consideration of the briefing on file, the argument at the hearing, and the entire file, the court will recommend that defendants' motion to compel arbitration be granted.


Plaintiff commenced this action on July 25, 2012, by paying the required filing fee and filing his original complaint. (Doc. No. 1.) On November 19, 2012, plaintiff filed an amended complaint asserting causes of action pursuant to the Fair Debt Collection Practices Act, ("FDCPA"), 15 U.S.C. § 1692, et seq., and California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), CAL. CIV. CODE § 1788, et seq. (Doc. No. 13.) Plaintiff alleges in his amended complaint the following. On January 10, 2011, defendants James Anthony Cambece, Jr., ("Cambece"), and Cach, LLC, mailed him a collection letter informing plaintiff of an outstanding debt. (Am. Compl. (Doc. No. 14) at 3.[3]) On February 8, 2011, plaintiff mailed a letter to Cambece and Cach, LLC disputing the debt, requesting that the debt be validated and requesting that Cambece and Cach, LLC cease and desist from communicating with plaintiff until the debt was validated. (Id.) Defendants Cambece, David Dufek and Cach, LLC ignored plaintiff's letter and continued to attempt to collect the alleged debt. (Id.)

Defendants filed the motion to compel arbitration now pending before the court on November 28, 2012. (MTC (Doc. No. 14.)) According to defendants' motion, on September 8, 2005, plaintiff obtained a credit card from Wells Fargo Bank. (Id. at 1.) Plaintiff used that credit card but did not pay the balances due. (Id.) On April 30, 2010, Wells Fargo Bank sold plaintiff's delinquent account to defendants, who made attempts to collect on the debt. (Id.)

Plaintiff filed his opposition to defendants' motion on December 12, 2012, (Pl.'s Opp.'n (Doc. No. 15)), and defendants filed a reply on December 18, 2012. (Reply (Doc. No. 16.))


A written provision in any contract evidencing a transaction involving commerce to settle a dispute by arbitration is subject to the Federal Arbitration Act ("FAA"). 9 U.S.C. § 2. The FAA confers on the parties involved the right to obtain an order directing that arbitration proceed in the manner provided for in a contract between them. 9 U.S.C. § 4. In deciding a motion to compel arbitration, the "court's role under the Act... is limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." Chiron Corp. v. Ortho Diagnostic Sys., Inc. , 207 F.3d 1126, 1130 (9th Cir. 2000).

There is an "emphatic federal policy in favor of arbitral dispute resolution." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth , 473 U.S. 614, 631 (1985). As such, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" Id. at 626 (quoting Moses H. Cone Memorial Hosp. v. Mercury Const. Corp. , 460 U.S. 1 at 24-25 (1983)). "Because waiver of the right to arbitration is disfavored, any party arguing waiver of arbitration bears a heavy burden of proof.'" Fisher v. A.G. Becker Paribas Inc. , 791 F.2d 691, 694 (9th Cir. 1986) (quoting Belke v. Merrill Lynch, Pierce, Fenner & Smith , 693 F.2d 1023, 1025 (11th Cir. 1982)). Therefore, an arbitration agreement may only "be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability, ' but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." AT&T Mobility LLC v. Concepcion, ___ U.S. ___, ___ , 131 S.Ct. 1740, 1748 (2011) (quoting Doctor's Associates, Inc. v. Casarotto , 517 U.S. 681, 687 (1996)). Courts may not apply traditional contractual defenses, like duress and unconscionability, in a broader or more stringent manner to invalidate arbitration agreements and thereby undermine FAA's purpose to "ensur[e] that private arbitration agreements are enforced according to their terms." Id. at 1748 (quoting Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ. , 489 U.S. 468, 478 (1989).


Here, there does not appear to be any dispute that a valid agreement to arbitrate exists and that the agreement encompasses the dispute at issue. In this regard, plaintiff has submitted along with his opposition to defendants' motion a copy of the "Wells Fargo card member agreement... and the arbitration clause contained therein." (Pl.'s Opp.'n (Doc. No. 15) at 1-2.) That agreement provides that the parties will submit to binding arbitration "any unresolved disagreement" including "any claim or controversy, " as well as "any disagreement about... whether a disagreement is... subject to binding arbitration..." (Id. at 7.)

Moreover, plaintiff's amended complaint alleges that as part of defendants' efforts to collect on the alleged outstanding debt, defendants filed a compliant against plaintiff in the Sutter County Superior Court. (Am. Compl. (Doc. No. 13) at 4.) "Plaintiff motioned in response, pursuant to and in reliance of said contract copy, to compel arbitration with the American Arbitration Association (AAA)." (Id.) Plaintiff also asserts in his opposition that the defendants "purchased a contract upon which it based a cause of action and proceeding against the Plaintiff in SUTTER COUNTY.... This contract incorporated an arbitration clause. Plaintiff relied on this arbitration clause... to compel defendant... into arbitration...." (Pl.'s Opp.'n (Doc. No. 15) at 2.) Thus, plaintiff does not dispute the validity or scope of the arbitration agreement and no such assertions are found in plaintiff's opposition to defendants' motion.

Instead, plaintiff's sole opposition to defendants' motion to compel is premised on his assertion that despite the fact that the terms of the applicable arbitration agreement provides that the American Arbitration Association ("AAA") would perform the parties' arbitration, defendants failed to inform plaintiff that AAA refused to arbitrate the parties' dispute and wrongly initiated arbitration through the Judicial Arbitration & Medication Services ("JAMS").[4] (Pl.'s Opp.'n (Doc. No. 15) at 3.). In this regard, plaintiff assert that "JAMS refused to hear the jurisdictional" ...

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