Toyer Grear et al v. Comcast Corporation
Filing
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ORDER GRANTING 22 Motion to Compel Individual Arbitration and Stay Proceedings. Signed by Judge Jeffrey S. White on March 3, 2015. (jswlc3, COURT STAFF) (Filed on 3/3/2015)
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NOT FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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TOYER GREAR and JOCELYN HARRIS,
individually and on behalf of all others
similarly situated,
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No. C 14-05333 JSW
Plaintiffs,
ORDER GRANTING COMCAST
CORPORATION’S MOTION TO
COMPEL ARBITRATION AND
STAYING ACTION
v.
COMCAST CORPORATION, a Pennsylvania
Corporation,
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Defendant.
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Now before the Court for consideration is the motion to compel arbitration filed by
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Defendant Comcast Corporation (“Comcast”). The Court has considered the parties’ papers,
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relevant legal authority, and the record in this case, and it finds the motion suitable for
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disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court VACATES the
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hearing scheduled for March 13, 2015, GRANTS Comcast’s motion, and STAYS this action
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pending completion of arbitration.
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BACKGROUND
On December 14, 2014, Plaintiffs, Toyer Grear (“Grear”) and Jocelyn Harris (“Harris”)
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(collectively “Plaintiffs”), filed this putative class action against Comcast. Plaintiffs assert
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claims for: (1) violations of the Computer Fraud and Abuse Act, 18 U.S.C. section 1030; (2)
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violations of the Comprehensive Computer Data Access and Fraud Act, California Penal Code
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section 502; and (3) violations of California’s Unfair Competition Law, California Business and
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Professions Code sections 17200, et seq.
Plaintiffs are Comcast customers who “access the Internet in their household via the
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wireless router leased from Comcast as part of its Xfinity Wi-Fi Service.” (Compl. ¶ 10; see
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also id. ¶¶ 42-46.) Harris signed the contract with Comcast. Although Grear did not sign the
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contract, she pays the household utility bills, including the Comcast bill. (Id.) According to
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Plaintiffs, Comcast has begun to lease wireless routers to its customers, including Plaintiffs, that
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are equipped to provide its customers with a Wi-Fi signal for their homes. These new routers
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also include an additional signal that can be accessed by the public. (See, e.g., Compl., ¶¶ 2,
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15.) Each of Plaintiffs’ claims for relief are premised on the theory that Comcast did not obtain
their authorization to use their wireless router to broadcast these additional “hotspots” to the
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For the Northern District of California
United States District Court
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public. (Id. ¶¶ 16, 28-41, 43.)
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It is undisputed that the contract with Comcast includes a residential services agreement
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(the “RSA”), which contains an arbitration provision (the “Arbitration Provision”). (Compl. ¶
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31, Ex. A (RSA § 13).) Although Comcast permits its customers to opt-out of the Arbitration
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Provision, it is undisputed that Plaintiffs have not opted out. (See, e.g., Declaration of Mary
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Kane, ¶ 7.)
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The terms of the RSA provide that the customer or Comcast “may elect to arbitrate [a]
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Dispute in accordance with the terms of this Arbitration Provision rather than litigate the
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Dispute in court.” (Id. § 13.a.) The term “dispute” means
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any dispute, claim or controversy between you and Comcast regarding any
aspect of your relationship with Comcast, whether based in contract,
statute, regulation, ordinance, tort . . . or any other legal or equitable
theory, and includes the validity, enforceability or scope of this Arbitration
Provision. “Dispute” is to be given the broadest possible meaning that will
be enforced.
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(Id. § 13.b.)
The Arbitration Provision also contains a section entitled “Exclusions from Arbitration.”
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(RSA, § 13.j (hereinafter “Section 13.j”). Section 13.j provides that “YOU AND COMCAST
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AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION . . . (3)
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ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH
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UNAUTHORIZED USE OR RECEIPT OF SERVICE.” (Id. (emphasis in original).)
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The Court shall address additional facts as necessary in the remainder of this Order.
ANALYSIS
Pursuant to the Federal Arbitration Act (“FAA”), arbitration agreements “shall be valid,
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irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the
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revocation of any contract.” 9 U.S.C. § 2. The FAA represents the “liberal federal policy
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favoring arbitration agreements” and “any doubts concerning the scope of arbitrable issues
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should be resolved in favor of arbitration.” Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983). Under the FAA, “once [the Court] is satisfied that an
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For the Northern District of California
United States District Court
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agreement for arbitration has been made and has not been honored,” and the dispute falls within
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the scope of that agreement, the Court must order arbitration. Prima Paint Corp. v. Flood &
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Conklin Mfg. Co., 388 U.S. 395, 400 (1967).
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Plaintiffs do not dispute that the Arbitration Provision is valid or that they would be
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bound by its terms. They oppose Comcast’s motion on the basis that none of their claims fall
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within the scope of the Arbitration Provision. Rather, Plaintiffs argue that the plain language of
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Section 13.j demonstrates that each of their claims are excluded from arbitration, because the
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claims relate to unauthorized “use.” Comcast argues that each of Plaintiffs’ claims relate to
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disputes over unauthorized use of their equipment, not service, and it contends the RSA clearly
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distinguishes the term equipment from the term service. Thus, according to Comcast, Plaintiffs’
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claims fall within the scope of the Arbitration Provision and are not excluded by Section 13.j.
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It is well established that courts generally decide “gateway” issues of arbitrability.
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However, because arbitration is a matter of contract, the “parties can agree to arbitrate
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‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or
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whether their agreement covers a particular controversy.” Rent-A-Center West., Inc. v. Jackson,
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561 U.S. 63, 69 (2010). In such instances, the parties must “clearly and unmistakably” delegate
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such issues to the arbitrator. Id., 561 U.S. at 69 n.1. In this case, as set forth above, the
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Arbitration Provision provides that the term “Dispute” includes a dispute about “the scope of
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this Arbitration Provision.” The parties put forth competing interpretations of the Arbitration
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Provision, specifically Section 13.j, and, thus they dispute whether Plaintiffs’ claims fall within
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its scope. Because the parties clearly and unmistakably delegated that issue to the arbitrator, the
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Court does not resolve that issue.
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Accordingly, the Court GRANTS Comcast’s motion to compel arbitration, and it
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HEREBY STAYS this action pending completion of arbitration. The parties shall file joint
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status reports every 120 days in which they advise the Court of the status of the arbitration
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proceedings and when they expect that the stay may be lifted or the case may be dismissed. The
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parties first joint status report shall be due 120 days from the date of this Order.
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For the Northern District of California
United States District Court
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IT IS SO ORDERED.
Dated: March 3, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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