Wagner v. Discover Financial Services, LLC

Filing 71

OPINION AND ORDER: Neither party has represented that a class has been certified, that Mr. Wagner is a member of the class, that the proposed settlement will impact his TCPA claim, or that the California court has approved any settlement class. To the contrary, Mr. Wagner represents that to the extent he is a putative class member in that action, he will exercise his right to opt-out of the class and proceed with his case here. The Motion for Stay Pending Class Action Settlement 51 is therefore DENIED. by Chief Judge Marcia S. Krieger on 1/22/14.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-02786-MSK-BNB
WALTER F. WAGNER,
Plaintiff,
v.
DISCOVER BANK,
Defendant.

OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant Discover Bank’s Motion for
Summary Judgment (#50) on its breach of contract and unjust enrichment counterclaims,
Plaintiff Walter F. Wagner’s Response (#60), and Defendant’s Reply (#66). Also before the
Court is the Defendant’s Motion for Stay Pending Class Action Settlement Proceedings (#51)
and Mr. Wagner’s Response (#67).
The controversy in this case arises from Mr. Wagner’s credit card account with Discover.
Mr. Wagner brings a TCPA claim against Discover for robo-calls to his cell phone in order to
collect amounts he owed Discover. Discover brings counterclaims (breach of contract and unjust
enrichment) to collect amounts owed by Mr. Wagner. As noted in this Court’s Order of January
13, 2014 addressing Discover’s Motion to Compel arbitration, there is an arbitration provision in
the Account agreement between the parties that requires arbitration of the counterclaims, but not
the TCPA claim.

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A. Discover’s Motion for Summary Judgment
When issuing the January 13, 2014 Order (#70) on Discover’s Motion to Compel
Arbitration, the Court had not yet considered the instant motion for summary judgment. Having
now done so, it appears that the parties have taken inconsistent positions with regard to what
they seek from this Court.
Discover sought to compel arbitration on all claims, but then moved for summary
judgment on its counterclaims in this action. Mr. Wagner agreed to arbitration of Discover’s
counterclaims, but in response to Discover’s Motion for Summary Judgment argues that this
Court should not exercise supplemental jurisdiction over them, even to confirm an arbitration
award.
In deference to the policy favoring arbitration, the arbitration provision in the Account
agreement and the parties’ agreement to arbitrate the counterclaims, Discover’s Motion for
Summary Judgment on them is moot. The January 13, 2014 Order on the Motion to Compel is
amended to direct the parties to arbitrate such claims. The remaining claim by the Plaintiff
brought pursuant to the TCPA will be tried in this Court.
Accordingly, the Defendant’s Motion for Summary Judgment (#50) is DENIED. The
parties shall begin preparation of a Proposed Pretrial Order pursuant to the previously-issued
Trial Preparation Order (#20) and shall jointly contact chambers within 14 days to schedule a
Pretrial Conference.
B. Motion for Stay
Also pending is Discover’s Motion for Stay Pending Class Action Settlement
Proceedings (#51). Discover requests a stay of these proceedings due to a pending class action
settlement in which Mr. Wagner is a prospective class member. The class action was filed in the

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United States District Court for the Northern District of California. The plaintiffs in that case
filed a motion for preliminary approval of a class action settlement. Discover asserts that the
proposed agreement includes a release of claims that would include the claims asserted by Mr.
Wagner in this case.
However, neither party has represented that a class has been certified, that Mr. Wagner is
a member of the class, that the proposed settlement will impact his TCPA claim, or that the
California court has approved any settlement class. To the contrary, Mr. Wagner represents that
to the extent he is a putative class member in that action, he will exercise his right to opt-out of
the class and proceed with his case here. The Motion for Stay Pending Class Action Settlement
(#51) is therefore DENIED.
Dated this 22nd day of January, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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