Morgan v. Global Payments Check Services, Inc.

Filing 21

ORDER signed by District Judge John A. Mendez on 2/14/2018 GRANTING 13 Motion to Compel arbitration and DISMISSING Case without prejudice. CASE CLOSED. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DIANE MORGAN, individually
and on behalf of all others
similarly situated,

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Plaintiff,

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No.

2:17-cv-01771-JAM-CMK

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS AND COMPEL
ARBITRATION

v.
GLOBAL PAYMENTS CHECK
SERVICES, INC.,

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Defendant.
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Plaintiff Diane Morgan (“Plaintiff”) brings this putative

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class action against Defendant Global Payments Check Services,

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Inc. (“Global Payments” or “Defendant”) alleging invasion of

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privacy for recording her and other class members’ cellphone

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conversations with Defendant.

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Defendant moves to compel Plaintiff to submit her class claim to

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arbitration and to stay or dismiss the case.

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13.

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below, the Court grants Defendant’s motion. 1

Plaintiff opposes.

See Compl. ¶¶ 1, 40-41, ECF No. 1.

See Mem., ECF No.

See Opp’n, ECF No. 16.

For the reasons

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for January 30, 2018.
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I.

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FACTUAL BACKGROUND

On September 17, 2016, Plaintiff visited a casino that

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participates in Defendant’s VIP Preferred Program (“VIP

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Program”).

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¶¶ 1, 7, ECF No. 13-1.

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electronically debit funds through certain merchants with funds

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guaranteed by Global Payments entities[.]”

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using the VIP program at the participating casino, Plaintiff

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signed Defendant’s VIP Preferred Check Cashing & EFT Enrollment

Decl. of Dawn Ray-Schroyer (“Ray-Schroyer Decl.”)
The VIP Program allows “customers to

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Form (the “Enrollment Form”).

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Id., ¶ 1.

Before

states:

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Id., Ex. A.

The Enrollment Form

I acknowledge and agree that I have received the
written Terms of Service (TOS) for the Global
Payments’ VIP Preferred Program. As a condition to my
enrollment and continuing participation in the VIP
Preferred Program, I agree to all terms and conditions
contained within the TOS, which may be updated from
time to time. I further acknowledge that I have
received a copy of the VIP Preferred Program Privacy
Policy, which along with the current TOS, can be found
at www.vippreferred.com.

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Id.

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referenced Terms of Service (“TOS”) or visiting the

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www.vippreferred.com website prior to filing this action.

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of Diane Morgan In Support of Pl.’s Opp’n (“Morgan Decl.”), ¶¶ 4-

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5, ECF No. 16-1.

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the Enrollment Form.

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Plaintiff denies reviewing or receiving a copy of the

Decl.

But Plaintiff does not contest that she signed
See id.

The link to www.vippreferred.com always has the most current

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version of the TOS and was printed on the Enrollment Form, which

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allowed members to review Defendant’s TOS on a mobile device

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before signing the Enrollment Form or at any time thereafter.

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Ray-Schroyer Decl. ¶ 6.

The TOS in place when Plaintiff signed
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the Enrollment Form contained an arbitration provision (the

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“Arbitration Clause”).

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remained substantially unchanged as of November 2017.

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B, C.

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Id., Ex. B.

The Arbitration Clause
Id., Exs.

The Arbitration Clause states, in relevant part, that “[a]ny

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dispute arising out of or relating to the TOS or the Services,

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regarding Global Payments or its Service Providers or any

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affiliate thereof, shall be finally resolved by arbitration

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administered by the American Arbitration Association under its

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Commercial Arbitration Rules [.]”

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C.

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shall decide the dispute in accordance with the substantive law

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of the state of Florida.”

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See Ray-Schroyer Decl. Exs. B,

The Arbitration Clause also states that “[t]he arbitrator

Id.

In December 2016 and January 2017, Plaintiff received five

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separate calls on her cellphone from Defendant for allegedly

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defaulting on her obligations to re-pay a portion of the funds

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advanced to her using the VIP Program.

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Schroyer Decl. ¶¶ 9-10.

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recorded without Plaintiff’s knowledge or consent in violation of

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California Penal Code § 632.7.

Compl. ¶¶ 8-13; Ray-

Plaintiff alleges that those calls were

Compl. ¶ 13.

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II.

OPINION

Defendant moves to dismiss (or alternatively, stay) and

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compel arbitration, arguing Plaintiff’s signing the Enrollment

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Form constitutes an agreement to arbitrate any dispute relating

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to the TOS or the VIP Program.

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contends that the parties “expressly agreed to delegate the

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threshold issues of arbitrability (including validity and scope)

See Mem. at 1.

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Defendant further

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to the arbitrator.”

Mem. at 1.

The Court agrees.

The Federal Arbitration Act (“FAA”) specifies that

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arbitration provisions are valid and enforceable, representing “a

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liberal federal policy favoring arbitration, and the fundamental

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principle that arbitration is a matter of contract.”

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Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1742 (2011)

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(internal quotation marks and citations omitted).

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the FAA allows a party to an arbitration agreement to petition a

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district court for an order directing arbitration.

AT&T

Section 4 of

9 U.S.C. § 4.

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It is a basic principle of federal law that a party can only be

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compelled to arbitrate a dispute if he or she agreed to submit

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that dispute to arbitration.

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Workers of Am., 475 U.S. 643, 648–49 (1986).

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AT & T Techs., Inc. v. Commc'ns

A court is normally tasked with two gateway issues when

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deciding whether to compel arbitration under the FAA:

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“(1) whether a valid agreement to arbitrate exists, and if it

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does, (2) whether the agreement encompasses the dispute at

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issue.”

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1126, 1130 (9th Cir. 2000).

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expressly delegate these gateway issues to an arbitrator, in

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which case an arbitrator, rather than a court, must decide the

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issues.

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2015) (internal quotation marks and citation omitted); see also

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First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943

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(1995); Gillette v. First Premier Bank, No. 3:13-cv-432-LAB-RBB,

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2013 WL 3205827, at *1-2 (S.D. Cal. June 24, 2013).

Chiron Corp. v. Ortho Diagnostics Sys., Inc., 207 F.3d
But the parties can agree to

Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir.

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If the parties delegate the threshold issues to an

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arbitrator, the FAA leaves no place for the exercise of
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discretion by a district court, but instead mandates that the

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district court direct the parties to proceed to arbitration on

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those issues.

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Gillette, 2013 WL 3205827, at *2 (explaining that “[g]iven the

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parties’ agreement to arbitrate gateway issues of arbitrability,

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there is actually very little here for the Court to decide” and

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compelling arbitration as to all gateway issues); Roszak v. U.S.

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Foodservice, Inc., 628 F. App’x 513, 514 (9th Cir. 2016)

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(affirming order compelling arbitration because “the parties

See Brennan, 796 F.3d at 1130; see also, e.g.,

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incorporated the [AAA} rules into their agreement and therefore

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agreed to arbitrate the question of arbitrability.”); Bank of

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America, N.A. v. Michiletti Family P’ship, No. 08-02903 JSW, 2008

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WL 4571245, at *6 (N.D. Cal., Oct. 14, 2008) (where parties

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agreed to arbitrate the issue of arbitrability, the court was

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divested of its authority and compelled arbitration).

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The Court must analyze the underlying contract to decide

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whether the parties have “clearly and unmistakably” committed the

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question of arbitrability to the arbitrator.

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at 1130 (internal quotation marks and citations omitted);

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Michiletti Family P’ship, 2008 WL 4571245, at *6; see also Rent-

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A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70 (2010).

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Parties’ incorporation of the American Arbitration Association

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Commercial Arbitration Rules (“AAA Rules”) into an agreement

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constitutes clear and unmistakable evidence that the parties

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agreed to arbitrate arbitrability. 2

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Brennan, 796 F.3d

Brennan, 796 F.3d at 1130;

The Court denies Defendant’s request for judicial notice of the
AAA Rules as moot since considering that document is unnecessary
for the disposition of Defendant’s motion.

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see also Madrigal v. New Cingular Wireless Servs., Inc., No. 09-

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CV-00033-OWW-SMS, 2009 WL 2513478, at *5 (E.D. Cal. Aug. 17,

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2009); Fadal Machining Centers, LLC v. Compumachine, Inc., 461 F.

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App’x 630, 632 (9th Cir. 2011).

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Finally, signing an acknowledgment form that refers to

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another document containing an arbitration provision is

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sufficient to form an agreement to arbitrate.

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GMRI, Inc., No. 2:12-cv-10152, 2013 WL 10156088, at *4, 7 (C.D.

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Cal. May 17, 2013) (compelling arbitration where “[b]y signing

See Garcia v.

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the [Acknowledgment] Form, Plaintiff signified that she received,

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read, and agreed to the terms of the DRP Booklet[,]” which

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contained the relevant arbitrability provision); see also Lucas

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v. Hertz Corp., 875 F.Supp.2d 991, 998-99 (N.D. Cal. 2012)

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(compelling arbitration where plaintiff signed a half-page car

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rental agreement acknowledging and agreeing to the terms of a

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separate “folder jacket” document, which included the arbitration

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provision). 3

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of an agreement is insufficient to dispute that the plaintiff

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agreed to those terms, and a party’s failure to read a contract

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is not a defense to its enforcement.

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Cty., 406 F.3d 1110 n.3 (9th Cir. 2005); Stewart v. Preston

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Pipeline Inc., 134 Cal. App. 4th 1565, 1589 (2005).

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A plaintiff’s failure to remember seeing the terms

Blanford v. Sacramento

Here, Plaintiff signed the Enrollment Form, acknowledging
that she received the TOS for the “Global Payments’ VIP Preferred

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The Court does not rule on Defendant’s contention that Florida
law applies to this action. Defendant cited sufficient
California authority to support its arguments, despite its
disagreement with Plaintiff over whether Florida law or
California law should apply. Reply at n.1, ECF No. 19.
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Program” and “agree[d] to all terms and conditions contained

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within the TOS, which may be updated from time to time.”

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signing the Enrollment Form, Plaintiff agreed to the terms of the

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TOS.

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F. Supp. 2d at 998-99; Cordas v. Uber Techs., 228 F.Supp.3d 985,

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988-91 (N.D. Cal. 2017) (holding plaintiff’s agreement to Uber’s

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terms and conditions [which included arbitration clause] were

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dispositive, and all other issues—including validity and scope—

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were for the arbitrator to decide). By agreeing to the TOS,

By

See Garcia, 2013 WL 10156088, at *4, 7; see also Lucas, 875

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Plaintiff agreed to arbitrate under the AAA Rules and thereby

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clearly and unmistakably agreed to arbitrate the issue of

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arbitrability.

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2009 WL 2513478, at *5; Fadal Machining Centers, LLC, 461 F.

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App’x 630 at 632.

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Brennan, 796 F.3d at 1130; see also Madrigal,

Plaintiff counters that the Court cannot compel arbitration

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because she did not agree to the TOS.

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denies reviewing or receiving a copy of the TOS and denies

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visiting Defendant’s website, www.vippreferred.com, before filing

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this action.

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her alleged lack of awareness of the TOS justifies finding no

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agreement between the parties, Plaintiff cites Windsor Mills,

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Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987, 990-91

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(1972); Stagner v. Luxottica Retail North America, Inc., No. C

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11-02889, 2011 WL 3667502, at * 3 (N.D. Cal. Aug. 22, 2011); and

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Marin Storage & Trucking, Inc. v. Benco Contracting and

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Engineering, Inc., 89 Cal. App. 4th 1042, 1049-50 (2001).

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Plaintiff’s reliance on these cases is misplaced.

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Stagner, unlike here, the plaintiffs did not sign forms that

Morgan Decl. ¶¶ 4-5.

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Opp’n at 4.

Plaintiff

To support the argument that

In Windsor and

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referenced or incorporated arbitration provisions.

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25 Cal. App. 3d at 990-91; see also Stagner, 2011 WL 3667502 at

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*2.

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the plaintiff’s argument that the contracts at issue were

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invoices instead of binding contracts.

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4th at 1049-50.

See Windsor,

In Marin, the California Court of Appeal actually rejected

See Marin, 89 Cal. App.

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In contrast, here, Plaintiff does not contest that she

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signed the Enrollment Form, which states that Plaintiff received

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and agreed to the TOS’s terms and conditions.

See Morgan Decl.;

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See Ray-Schroyer Decl. Ex. A.

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and denial of, receiving the TOS before she signed the Enrollment

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Form does not negate her agreement to the TOS’s terms and

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conditions.

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Cal. App. 4th at 1589.

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And Plaintiff’s failure to recall,

See Blanford, 406 F.3d at n.3; See also Stewart, 134

Plaintiff may now wish that she did not sign the Enrollment

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Form.

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Court finds that Plaintiff’s signature on the Enrollment Form

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means she agreed to arbitrate arbitrability, despite what she may

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not currently recall.

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But if wishes were horses, then beggars would ride.

The

Because the parties delegated arbitrability to an

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arbitrator, the Court’s inquiry ends and it must, as it does

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here, direct the parties to proceed to arbitration so an

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arbitrator can determine arbitrability.

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1130; see also, e.g., Gillette, 2013 WL 3205827, at *2; Roszak,

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628 F. App’x at 514; Michiletti Family P’ship, 2008 WL 4571245,

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at *6.

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///

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///
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See Brennan, 796 F.3d at

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III.

SANCTIONS

The Court issued its Order re Filing Requirements (“Order”)

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on August 24, 2017.

ECF No. 4-2.

The Order limits memoranda in

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support of and in opposition to motions to dismiss to fifteen

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pages and reply memoranda in support of motions to dismiss to

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five pages.

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the page limits must pay monetary sanctions of $50.00 per page

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and that the Court will not consider any arguments made past the

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page limit.

The Order also states that an attorney who exceeds

Plaintiff’s opposition memorandum exceeds the page

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limit by three pages.

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made after page fifteen of the opposition brief.

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ORDERS Plaintiff’s counsel to pay $150.00 in sanctions.

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Sanctions shall be paid to the Clerk of the Court within five

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days of the date of this Order.

The Court has not considered any arguments
The Court

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IV.

ORDER

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For the reasons set forth above, the Court GRANTS

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Defendant’s motion to compel arbitration and dismisses this

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action without prejudice.

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IT IS SO ORDERED.
Dated: February 14, 2018

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