Cuevas v. Verizon Wireless Personal Communications, LLP et al
Filing
30
OPINION AND ORDER denying without prejudice 21 Defendant Verizon Wireless Personal Communications, LLP's Motion to Compel Arbitration and to Stay. Verizon's answer to the Complaint is due within FOURTEEN (14) DAYS of this Opinion and Order. Signed by Judge John E. Steele on 8/22/2018. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAURA CUEVAS,
Plaintiff,
v.
Case No:
2:18-cv-371-FtM-99CM
VERIZON WIRELESS PERSONAL
COMMUNICATIONS, LLP, EQUIFAX
INFORMATION SERVICES, LLC,
TRANS
UNION
LLC,
and
EXPERIAN
INFORMATION
SOLUTIONS, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendant Verizon
Wireless
Personal
Arbitration
and
to
Communications,
Stay
(Doc.
LLP’s
#21)
filed
Motion
on
July
to
5,
Compel
2018.
Plaintiff filed a Response in Opposition (Doc. #28) on July 30,
2018.
For the reasons set forth below, the Motion is denied
without prejudice.
I.
Plaintiff Laura Cuevas initiated this action on May 29, 2018,
by filing an eight-count Complaint (Doc. #1) against defendants
under the Fair Credit Reporting Action, 15 U.S.C. § 1681 et seq.
(FCRA), and the Florida Consumer Collection Practices Act, Fla.
Stat. § 559.55 et seq. (FCCPA) stemming from her cancellation of
a
cellular
phone
service
agreement
with
Verizon
Wireless.
Defendant Verizon Wireless Personal Communications, LLP (Verizon)
seeks to enforce an arbitration agreement, stay the case, and
compel arbitration.
Plaintiff does not dispute the substance of
the Agreement, but argues that under Florida law, the parties
formed no valid agreement to arbitration because it was only signed
by plaintiff and not by either Best Buy or Verizon.
What follows is a brief summary of the facts: On March 13,
2016, plaintiff visited a Best Buy store in Naples, Florida to
purchase new cellular phones.
Plaintiff purchased three cellular
phones and transferred her cellular service from AT&T to Verizon.
Before Verizon activated the phones, plaintiff signed three Retail
Installment Contracts to pay the purchase price of each phone over
24 months, agreeing to the Terms and Conditions of the Verizon
Wireless
Customer
Agreement. 1
(Doc.
#21-2.)
On
that
date,
Verizon had a 14-day money back return and cancellation policy for
wireless devices.
Unsatisfied with the services provided, plaintiff visited the
same Best Buy store and returned the cellular phones within the
fourteen-day return and cancellation period.
Despite the return,
Verizon sent plaintiff bills demanding payment of $2,326, the cost
1
True and correct copies of the Retail Sales Contracts (Doc.
#21-2) and the Verizon Wireless Customer Agreement (Doc. #21-3)
are attached to the Affidavit of Meryl Friedman, employed by
Verizon Corporation Resources Group LLC as a Senior Paralegal.
(Doc. #21-1.)
- 2 -
of the cellular phones.
Plaintiff disputes the debt because she
returned the phones and cancelled her services within the 14-day
window and communicated this to Verizon.
When plaintiff did not pay, Verizon contracted with debt
collectors to collect the debt and submitted plaintiff’s account
to Equifax, Experian, and Trans Union, reporting the amount as
past due.
Plaintiff alleges that the negative reporting has
impacted her ability to refinance her home or otherwise obtain
credit.
II.
The “Retail Sales Contract” details the process for resolving
disputes between Verizon and its wireless customers, and provides
as follows:
AGREEMENT. THIS RETAIL SALES AGREEMENT (AGREEMENT)
REQUIRES THAT YOU AGREE TO AND MAINTAIN SERVICE WITH
VERIZON WIRELESS UNDER YOUR CUSTOMER AGREEMENT ALTHOUGH
YOUR CUSTOMER AGREEMENT WITH VERIZON WIRELESS IS A
SEPARATE DOCUMENT, EXCEPT AS PROHIBITED BY APPLICABLE
LAW,
THE
WAIVERS AND
LIMITATIONS
OF
LIABILITY,
DISCLAIMER OF WARRANTIES, AND OTHER PROVISIONS OF YOUR
CUSTOMER AGREEMENT ARE INCORPORATED BY REFERENCE IN THIS
AGREEMENT, AND SHALL SURVIVE TERMINATION OF YOUR
CUSTOMER AGREEMENT.
ADDITIONALLY, ANY DISPUTES UNDER
THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY
DISPUTES AGAINST THE SELLER AND/OR VERIZON WIRELESS)
SHALL BE RESOLVED IN ACCORDANCE WITH THE DISPUTE
RESOLUTION PROVISIONS IN YOUR CUSTOMER AGREEMENT UNDER
THE HEADING: HOW DO I RESOLVE DISPUTES WITH VERIZON
WIRELESS?, WHICH TERMS ARE INCORPORATED BY REFERENCE.
SPECIFICALLY, YOU AND VERIZON WIRELESS (AND/OR THE
SELLER) AGREE TO RESOLVE ALL DISPUTES UNDER THIS
AGREEMENT ONLY BY ARBITRATION OR SMALL CLAIMS COURT AND
YOU WAIVE ANY RIGHT TO A JUDGE OR JURY IN ANY
ARBITRATION.
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(Docs. ##21-2, 21-3, at ¶ 1.)
The “Notice to Buyer” section at
the end of the Retail Sales Contract just above the buyer’s
signature line states in part: “Do not sign this agreement before
you read it or if it contains any blank spaces for information
that is available at the time you sign this Agreement.”; “I
acknowledge I have read this agreement and received (paper or
electronically) a signed copy from the Seller or Verizon Wireless.”
(Doc. #21-2, p. 4.)
Although there is no signature on the buyer’s
signature line, there is a page after the signature line where
plaintiff’s signature is placed below the following paragraph:
I acknowledge that Best Buy has on this date presented
me with a printed and completed Retail Installment Sales
Agreement/Notice to Buyer (the “Agreement”) and I was
given an opportunity to review the terms, including 24
monthly payments and my right to cancel within 14 days.
I understand that Best Buy is not authorized to make or
accept any changes to the Agreement and that if there
are any markings or strikeouts they are not binding on
Best Buy or its assignee VZW. By signing my name under
the Notice to Buyer, I acknowledge that I have read this
Agreement and that Best Buy gave me a copy of my signed
Agreement.
(Doc. #21-2, p. 16.)
The Verizon Wireless Customer Agreement provides in relevant
part:
In this Customer Agreement, you’ll find important
information about your Service, including our ability to
make changes to your Service or this agreement’s terms,
our liability if things don’t work as planned and how
disputes between us must be resolved in arbitration or
small claims court.
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HOW DO I ACCEPT THIS AGREEMENT?
You accept this agreement by:
•
•
•
Agreeing in writing, by email, over the phone, or
in person;
Opening a package that says you are accepting by
opening it; or
Activating your Service.
* * *
HOW DO I RESOLVE DISPUTES WITH VERIZON WIRELESS? 2
YOU AND VERIZON WIRELESS BOTH AGREE TO RESOLVE DISPUTES
ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT.
YOU
UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP THE
RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY.
WHILE THE PROCEDURES MAY BE DIFFERENCE, AND ARBITRATOR
CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR
THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF
THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN
ARBITRATOR CAN AWARD THEM TOO. WE ALSO AGREE THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS
AGREEMENT.
EXCEPT FOR SMALL CLAIMS COURT CASES THAT
QUALIFY, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES
OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS
AND SERVICES YOU RECEIVE FORM US (OR FROM ANY ADVERTISING
FOR ANY SUCH PRODUCTS OR SERVICES), INCLUDING ANY
DISPUTES YOU HAVE WITH OUR EMPLOYEES OR AGENTS, WILL BE
RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE
AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR BETTER
BUSINESS BUREAU (“BBB”), YOU CAN ALSO BRING ANY ISSUES
YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE OR LOCAL
GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN
SEEK RELIEF AGAINST US FOR YOU.
* * *
(4) IF EITHER OF US INTENDS TO SEEK ARBITRATION UNDER
THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST
NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST
30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION.
2
This section is also outlined by a box.
- 5 -
NOTICE TO VERIZON WIRELESS SHOULD BE SENT TO VERIZON
WIRELESS DISPUTE RESOLUTION MANAGER, ONE VERIZON
WIRELESS WAY, VC52N080, BASKING RIDGE, NJ 07920.
THE
NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE
RELIEF BEING SOUGHT. IF WE ARE UNABLE TO RESOLVE OUR
DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO
FILE A CLAIM FOR ARBITRATION. WE’LL PAY ANY FILING FEE
THAT THE AAA OR BBB CHARGES YOU FOR ARBITRATION OF THE
DISPUTE. IF YOU PROVIDE US WITH SIGNED WRITTEN NOTICE
THAT YOU CANNOT PAY THE FILING FEE, VERIZON WIRELESS
WILL PAY THE FEE DIRECTLY TO THE AAA OR THE BBB.
IF
THAT
ARBITRATION
PROCEEDS,
WE’LL
ALSO
PAY
ANY
ADMINISTRATIVE AND ARBITRATOR FEES CHARGED LATER, AS
WELL AS FOR ANY APPEAL TO A PANEL OF THREE NEW
ARBITRATORS (IF THE ARBITRATION AWARD IS APPEALABLE
UNDER THIS AGREEMENT).
(Doc. #21-3, pp. 1, 7-8.)
III.
The threshold issue is whether, as a matter of contract
formation, there exists an agreement between plaintiff and Verizon
to arbitrate disputes related to the Retail Installment Contracts.
Plaintiff
argues
that
no
valid
arbitration
agreement
exists
because Florida’s Retail Installment Sales Act (RISCA), Fla. Stat.
§ 520.30, et seq., requires that the contract be signed by both
buyer and seller, and here only plaintiff signed the agreements.
Plaintiff also argues that she clearly had no intent to be bound
by any agreement because she returned the phones after only five
days.
The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, applies
to arbitration agreements involving interstate commerce.
See 9
U.S.C. § 2; Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113
- 6 -
(2001)
(finding
employment
that
the
contracts).
FAA’s
coverage
According
to
the
provision
includes
FAA,
“written
any
[arbitration] provision in ... a contract evidencing a transaction
involving
commerce
...
shall
be
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.
“Accordingly,
the FAA requires a court to either stay or dismiss a lawsuit and
to compel arbitration upon a showing that (a) the plaintiff entered
into a written arbitration agreement that is enforceable under
ordinary state-law contract principles and (b) the claims before
the court fall within the scope of that agreement.”
Austin Ind., 544 F.3d 1192, 1195 (11th Cir. 2008).
Lambert v.
A court may
only order parties to arbitration when it is “satisfied that the
making of the agreement for arbitration ... is not in issue.”
9
U.S.C. § 4.
In Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325,
1329 (11th Cir. 2016), the court held that whether an enforceable
contract or agreement to arbitrate exists must be examined using
a summary-judgment like standard and “a district court may conclude
as a matter of law that parties did or did not enter into an
arbitration agreement only if ‘there is no genuine dispute as to
any material fact’ concerning the formation of such an agreement.”
827 F.3d at 1333 (quoting Fed. R. Civ. P. 56(a)).
“This court has
consistently held that conclusory allegations without specific
- 7 -
supporting facts have no probative value” for a party resisting
summary judgment.
Id. (citing Leigh v. Warner Bros., 212 F.3d
1210, 1217 (11th Cir. 2000) (quotation marks omitted)).
To determine whether an enforceable agreement to arbitrate
exists, the Court notes that the Agreement was executed, and
plaintiff’s claims arose in Florida.
“State law, therefore, is
applicable to determine which contracts are binding ... if that
law arose to govern issues concerning the validity, revocability,
and enforceability of contracts generally.”
Arthur Andersen LLP
v. Carlisle, 556 U.S. 624, 630-31 (2009).
Indeed, the Retail
Installment Contracts at issue here states “Subject to State
Regulation” at the top of the first page.
(Doc. 21-2.)
In Florida, retail installment sales contracts are governed
by RISCA, which states that “[a] retail installment sales contract
shall be in writing, shall be signed by both the buyer and the
seller, and shall be completed as to all essential provisions prior
to the signing of the contract by the buyer.”
520.34(1)(a).
Fla. Stat. §
The Act also provides that “[a]ny waiver by the
retail buyer of any provisions of this act or any remedies granted
to the buyer by this act shall be unenforceable and void.”
Fla.
Stat. § 520.40.
Here,
based
upon
the
documentary
evidence
produced
by
Verizon, only plaintiff signed the Retail Installment Contracts
(Doc. #21-2.)
Only plaintiff’s signature is at the end of the
- 8 -
agreements (Doc. #21-2) and Verizon has pointed the Court to no
other
provision(s)
of
the
agreements
that
Verizon’s (or Best Buy’s) electronic signature.
could
suffice
as
See Fla. Stat. §
668.50 (An electronic signature may be used to sign a writing and
has the same force and effect as a written signature.).
Thus, the
Court cannot find on this record that there is a valid agreement
to arbitrate.
It may well be that a signed copy exists or was
otherwise delivered or made available to plaintiff, but based upon
the documentary proof provided by Verizon the Court cannot make
such a determination at this time.
Therefore, the Court will deny
the Motion without prejudice.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant Verizon Wireless Personal Communications, LLP’s
Motion to Compel Arbitration and to Stay (Doc. #21) is DENIED
without prejudice.
Verizon’s answer to the Complaint is due
within FOURTEEN (14) DAYS of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this _22nd_ day of
August, 2018.
Copies:
Counsel of Record
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