Harrington et al v. Regions Bank

Filing 18

ORDER granting 16 defendant's Motion to Compel Arbitration and Stay Proceedings. The Clerk is hereby directed to stay the case pending notification by the parties of determination of arbitrability. Signed by Judge John E. Steele on 1/29/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY HARRINGTON
HARRINGTON,

and

LORI

Plaintiffs,
v.

Case No: 2:15-cv-522-FtM-29MRM

REGIONS BANK,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion to
Compel

Arbitration

and

Stay

Proceedings

and

Incorporated

Memorandum of Law (Doc. #16) filed on October 21, 2015.

Plaintiffs

filed a Response (Doc. #17) on November 4, 2015.
Plaintiffs

dispute

the

Defendant’s

assertion

that

the

Plaintiffs’ claim under the Telephone Consumer Protection Act, 47
U.S.C. § 277 (“TCPA”) is subject to the parties’ arbitration
provisions found within various loan documentation executed in
connection with the subject debt and other account relationships
with

Regions.

arbitration

1

1

Plaintiffs

provisions

acknowledge,

contained

within

however,
the

that

parties’

the

signed

In 2002, Plaintiffs opened a Demand Deposit Account with AmSouth Bank.
(Doc. #16, p. 4.) In 2006, Mr. Harrington executed a Guaranty in connection
with an Auto Loan from AmSouth Bank. (Id. at 2.) In November 2006, Regions
merged with AmSouth. (Id.)
In 2008, Plaintiffs executed a Mortgage in
connection with a revolving line of credit with Regions Bank and Mr. Harrington
individually executed a Credit Agreement and Disclosure. (Id. at 3.)

documents include a delegation clause vesting the determination of
the arbitrability of a claim or dispute with the arbitrator, not
the Court. (Doc. #17; See Doc. #16, pp. 2-4.) Plaintiffs do not
dispute the arbitrator’s authority in making such a determination.
While arbitrability is generally a question reserved for the
trial

court,

the

arbitrator

may

interpret

the

scope

of

the

arbitration agreement if the parties agree and provide for such
delegation

“clearly

and

unmistakably”

within

the

agreement.

Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327,
1332 (11th Cir. 2005); Norfolk S. Ry. Co. v. Fla. E. Coast Ry.,
LLC, No. 3:13-cv-576-J-34JRK, 2014 WL 757942, at *10 (M.D. Fla.
Feb. 26, 2014).

“[T]he question ‘who has the primary power to

decide arbitrability’ turns upon what the parties agreed about
that matter.” First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 943 (1995).

See also Shea v. BBVA Compass Bancshares, Inc.,

No. 1:12-cv-23324-KMM, 2013 WL 869526, at *4 (S.D. Fla. Mar. 7,
2013) (citing Terminix Int’l Co., 432 F.3d at 1332) (“[W]hen
parties explicitly incorporate rules that empower an arbitrator to
decide issues of arbitrability, the incorporation serves as clear
and unmistakable evidence of the parties’ intent to delegate such
issues to the arbitrator”).
clearly

and

unmistakably

Here, the delegation provisions
delegate

the

determination

arbitrability to the arbitrator. (Doc. #16, pp. 2-4.)

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of

Therefore,

pursuant

to

the

delegation

clauses

contained

within the arbitration provisions, the Court hereby submits the
determination of whether or not the TCPA claim is subject to the
arbitration agreement to the arbitrator.

Plaintiffs agree to

Defendant’s request to stay the action pending the determination
by the arbitrator and reserve their right to continue to proceed
in this Court if the arbitrator rules that their TCPA cause of
action is not subject to the arbitration agreement.
Accordingly, it is hereby
ORDERED:
1.

Defendant's

Motion

to

Compel

Arbitration

and

Stay

Proceedings and Incorporated Memorandum of Law (Doc. #16) is
GRANTED.
2.

The Clerk is hereby directed to STAY the case pending

notification by the parties of determination of arbitrability by
the arbitrator.
DONE and ORDERED at Fort Myers, Florida, this __29th__ day of
January, 2016.

Copies:
Counsel of Record

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