United States District Court, S.D. California
ORDER DENYING DEFENDANT'S MOTION TO COMPEL
ARBITRATION AND TO STAY [DOC. NO. 10]
MICHAEL M. ANELLO United States District Judge
Rodger Dean Anderson (“Plaintiff”) brings this
action against Defendant Credit One Bank, National
Association (“Defendant” or “Credit One
Bank”) alleging three causes of action for: (1)
violations of California's Rosenthal Fair Debt Collection
Practices Act, California Civil Code § 1788 et
seq.; (2) violations of the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq.; and
(3) intrusion. See Complaint. Defendant moves to
compel arbitration and stay this case pursuant to the Federal
Arbitration Act. See Doc. No. 10. Plaintiff filed an
opposition, to which Defendant replied. See Doc.
Nos. 11, 12. The Court found the matter suitable for
determination on the papers and without oral argument
pursuant to Civil Local Rule 7.1.d.1. See Doc. No.
13. For the reasons set forth below, the Court DENIES
Defendant's motion to compel arbitration and to stay.
a resident of California, applied for a credit card online
with Credit One Bank. Upon approval, Credit One Bank mailed
Plaintiff a credit card. The parties dispute whether
Defendant included its Cardholder Agreement, Disclosure
Statement and Arbitration Agreement in the same envelope as
Plaintiff's credit card.
activated his credit card in February 2015. See Doc.
No. 10 at 6. Plaintiff began using his credit card for
personal and household purposes. Plaintiff closed his credit
card account in June 2015 “after paying off the
remaining balance.” Complaint ¶ 15. Approximately
four (4) months later, Credit One Bank began telephoning
Plaintiff and demanding payment. Complaint ¶ 16.
However, Plaintiff notified Credit One Bank that there was a
$0.00 balance on his account. Complaint ¶ 16. Credit One
Bank informed Plaintiff that Plaintiff had not paid the
annual card fee. See Complaint ¶ 17. Plaintiff
then paid the annual fee, but continued to receive phone
calls from Credit One Bank demanding payment for the annual
credit card fee. Complaint ¶ 19. Plaintiff contends
Credit One Bank “continued making calls, frequently
multiple times per day, in an attempt to collect this debt
from Plaintiff.” Doc. No. 11 at 6; see
Complaint ¶ 20.
filed the instant action alleging Credit One Bank made these
phone calls in violation of California's Rosenthal Debt
Collection Practices Act and the Telephone Consumer
Protection Act, and that the collection calls were an
intrusion into Plaintiff's privacy. Credit One Bank seeks
to compel arbitration asserting Plaintiff “expressly
agreed” to Credit One Bank's arbitration policy.
Doc. No. 10 at 7-8. Plaintiff opposes, contending that he
never entered into an arbitration agreement with Credit One
Federal Arbitration Act (“FAA”) permits
“[a] party aggrieved by the alleged failure, neglect,
or refusal of another to arbitrate under a written agreement
for arbitration [to] petition any United States District
Court . . . for an order directing that . . . arbitration
proceed in the manner provided for in [the arbitration]
agreement.” 9 U.S.C. § 4. Upon a showing that a
party has failed to comply with a valid arbitration
agreement, the district court must issue an order compelling
Supreme Court has stated that the FAA espouses a general
policy favoring arbitration agreements. AT & T
Mobility v. Concepcion, 563 U.S. 333, 339 (2011).
Federal courts are required to rigorously enforce an
agreement to arbitrate. See Id. Courts are also
directed to resolve any “ambiguities as to the scope of
the arbitration clause itself . . . in favor of
arbitration.” Volt Info. Scis., Inc. v. Bd. of Trs.
of Leland Stanford Jr. Univ., 489 U.S. 468, 476-77
determining whether to compel a party to arbitration, the
Court may not review the merits of the dispute; rather, the
Court's role under the FAA 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.” Cox v. Ocean View Hotel
Corp., 533 F.3d 1114, 1119 (9th Cir. 2008) (internal
quotation marks and citation omitted). If the Court finds
that the answers to those questions are “yes, ”
the Court must compel arbitration. See Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). If
there is a genuine dispute of material fact as to any of
these queries, a district court should apply a
“standard similar to the summary judgment standard of
[Federal Rule of Civil Procedure 56].” Concat LP v.
Unilever, PLC, 350 F.Supp.2d 796, 804 (N.D. Cal. 2004).
to arbitrate 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. Courts must
apply ordinary state law principles in determining whether to
invalidate an agreement to arbitrate. Ferguson v.
Countrywide Credit Indus., 298 F.3d 778, 782 (9th Cir.
2002). As such, arbitration agreements may be invalidated by
generally applicable contract defenses, such as fraud,
duress, or unconscionability. Concepcion, 563 U.S.
The Court May Consider Plaintiff's Challenge to the
initial matter, Defendant contends that to the extent
“Plaintiff asserts any challenge to the existence of
the arbitration agreement, that issue has been contractually
delegated to the arbitrator to decide.” Doc. No. 10 at
9 n.1. Defendant relies on Fischer v. Rent-A-Ctr.,