Cuevas v. Verizon Wireless Personal Communications, LLP et al

Filing 48

OPINION AND ORDER granting 34 Defendant Verizon Wireless Personal Communications, LLP's Motion for Reconsideration. After reconsidering the matter and the newly submitted evidence, Verizon's request to compel arbitration is denied; d enying 45 Plaintiff's Motion to Exclude Meryl Friedman's Affidavit on Reply and the Customer Agreements Attached to Verizon's Motion for Reconsideration. The Clerk is directed to transmit a copy of this Opinion and Order to the United States Court of Appeals for the Eleventh Circuit. Signed by Judge John E. Steele on 11/16/2018. (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 Communications, LLP’s Motion to Reconsider its
Previously-Denied Motion to Compel Arbitration (Doc. #34) filed on
September 18, 2018.

Plaintiff filed a Response in Opposition

(Doc. #38) on October 2, 2018, and Verizon replied (Doc. #43).
Plaintiff moved to exclude the documentation offered by Verizon in
support of its Motion to Reconsider.

(Doc. #45.)

For the reasons

set forth below, the Motion for Reconsideration is granted and the
Court considers Verizon’s newly submitted evidence, but Verizon’s
request to compel arbitration is denied.

I.
This fair credit case 1 stems from defendants’ attempt to
collect a $2,326 debt from plaintiff Laura Cuevas, which is the
amount she agreed to pay under three Retail Installment Sales
contracts for three cellular telephones she purchased at a Best
Buy store in 2016.

(Doc. #21-2.)

The Court previously denied

Verizon’s Motion to Compel Arbitration without prejudice because
Verizon had not presented the Court with a copy of the Retail
Installment Sales Contracts signed by both plaintiff and Verizon
(or Best Buy) as required by Florida’s Retail Installment Sales
Contract Act, Fla. Stat. § 520.34(1)(a) (RISCA).

(Doc. #30.)

Verizon moves for reconsideration, but does not present the
Court with signed copies of the installment contracts.

Instead,

Verizon submits three “Verizon Wireless Customer Agreements” that
are signed by plaintiff only (Doc. #43-1) which were obtained from
Best

Buy

after

Arbitration.

the

Court’s

ruling

on

the

Motion

to

Compel

These customer agreements outline the features of

the calling plan plaintiff signed up for when she purchased the
phones.

Verizon

argues

that

the

three

customer

agreements

demonstrate that arbitration is appropriate. 2

1

Plaintiff brings claim under the Fair Credit Reporting Act
and the Florida Consumer Collection Practices Act.
2

After filing its Motion for Reconsideration, Verizon
appealed the Court’s decision denying arbitration to the Eleventh
Circuit Court of Appeals pursuant to 9 U.S.C. § 6. (Doc. #36.)
A notice of appeal filed after a motion for reconsideration would

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II.
A non-final order may be revised at any time before the entry
of a final judgment.

Fed. R. Civ. P. 54(b).

The decision to

grant a motion for reconsideration is within the sound discretion
of the trial court.

Region 8 Forest Serv. Timber Purchasers

Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).

“The courts

have delineated three major grounds justifying reconsideration of
such a decision: (1) an intervening change in controlling law; (2)
the availability of new evidence; (3) the need to correct clear
error or prevent manifest injustice.”

Sussman v. Salem, Saxon &

Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).
Verizon asserts that reconsideration is warranted because it
has submitted new evidence that further supports its argument for
arbitration, which it obtained after the Court’s ruling on the
Motion to Compel Arbitration.

Plaintiff responds that the Verizon

Customer Services Agreements are not “new evidence” because it
appears that Verizon had the documents in its possession during
the briefing of the Motion to Compel Arbitration, or at least
before the Court ruled on the Motion to Compel.
criticizes

the

effort

Verizon

employed

to

Plaintiff also

obtain

the

signed

Customer Agreements before the Court ruled on the Motion to Compel.

not “oust the district court of jurisdiction”.
Wilson, 307 F. App’x 314, 315 (11th Cir. 2009).

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United States v.

Plaintiff also substantively responds, arguing that the newly
submitted evidence changes nothing. 3
Verizon’s

Reply

also

includes

the

Affidavit

of

Meryl

Friedman, Senior Paralegal with Verizon, who asserts that although
it had made a request to Best Buy, it did not receive the signed
Customer Agreements from Best Buy until August 31, 2018, nine days
after the Court denied the Motion to Compel Arbitration.

(Doc.

#43-1, ¶ 4.)

3

The Court denies plaintiff’s Motion to Exclude the Verizon
Wireless Customer Agreements as inadmissible under Federal Rule of
Evidence 803(6). (Doc. #45.) Plaintiff argues that the Customer
Agreements are Best Buy’s unauthenticated business records and
Meryl Friedman, a Verizon employee, cannot authenticate them. Yet
the Customer Agreements clearly state that they are “Verizon
Wireless Customer Agreements”, and just because Verizon had to
request them from Best Buy does not convert the agreements into
Best Buy’s business records.
Ms. Friedman asserts in her
Affidavit that the Customer Agreements are records made in the
regular course of business at or near the time of the events
described in the documents.
(Doc. #43-1, ¶ 2.)
The Customer
Agreements also show no indicia of unreliability and plaintiff has
otherwise offered no evidence that the signed Customer Agreements
are not authentic.
Notably, plaintiff did not object to the
admissibility of the Customer Agreements when it opposed the Motion
for Reconsideration.
The Court also rejects plaintiff’s argument that Ms.
Friedman’s Affidavit should be excluded because the Affidavit was
improperly offered by Verizon in Reply when it should have been
offered with its initial Motion for Reconsideration.
Although
affidavits are generally filed and served with a motion, see Fed.
R. Civ. P. 6(c), here, Ms. Freidman’s Affidavit responded to
plaintiff’s argument in Response (Doc. #38) that Verizon possessed
or at least was not diligent in obtaining the Customer Agreements
when the initial Motion to Compel Arbitration was briefed. Ms.
Friedman’s Affidavit explains the timeline of when Verizon
received the signed Customer Agreements. (Doc. #43-1, ¶¶ 3-4.)

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The Court finds no failure on Verizon’s part to exercise
diligence in obtaining the Customer Agreements.

The Court notes

it would have only benefited Verizon to obtain the signed Customer
Agreements to support its original Motion to Compel Arbitration.
Verizon has shown a reasonable basis for reconsideration, and the
Court

will

consider

the

newly

submitted

Customer

Agreements.

(Doc. #34-1.)
III.
A. Facts as Alleged in the Complaint
On March 13, 2016, plaintiff visited a Best Buy store in
Naples,

Florida

purchased
service

three

from

to

purchase

cellular

AT&T

to

new

phones

Verizon.

cellular
and

phones.

transferred

Before

Verizon

her

Plaintiff
cellular

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. 4
(Doc. #21-2.)

On that date, Verizon had a 14-day money back return

and cancellation policy for wireless devices.
signed three Verizon Wireless Customer Agreements.

4

Plaintiff also
(Doc. #34-1).

True and correct copies of the Retail Sales Contracts (Doc.
#21-2) and the “My Verizon Wireless Customer Agreement” (Doc. #213) are attached to the Affidavit of Meryl Friedman, employed by
Verizon Corporation Resources Group LLC as a Senior Paralegal.
(Doc. #21-1.)

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None of the documents presented to the Court were signed by Verizon
or Best Buy.
Unsatisfied with the services provided, plaintiff visited the
same Best Buy store five days later and returned the cellular
phones and cancelled her cellular service, which was within the
fourteen-day return and cancellation period.

Despite the return,

Verizon sent plaintiff bills demanding payment of $2,326 - the
cost of the cellular phones.

Plaintiff disputes the debt because

she returned the phones and cancelled her calling plan 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.
B. The Arbitration Dispute
Verizon

has

submitted

three

documents

that

include

arbitration provisions purportedly presented to plaintiff at the
time of sale – the Retail Installment Sales Contract (Doc. #212); the My Verizon Customer Agreement (Doc. #21-3); and the Verizon
Wireless Customer Agreement (Doc. #34-1).

Nevertheless, plaintiff

challenges whether there is a valid agreement to arbitrate disputes
stemming from the cancellation of the retail installment sales

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agreements.
exists

Plaintiff argues that no valid arbitration agreement

because

Florida’s

RISCA

requires

that

the

installment

contract be signed by both buyer and seller, and the Verizon
Customer

Agreements

which

are

referenced

in

the

installment

contracts are cumulative to the installment contracts and require
mutual signatures.

Cuevas also argues that she cancelled the

retail installment sales contract, precluding Verizon from relying
on its provisions.
a

device

Notably,

payment
the

Verizon argues that a customer cannot obtain
plan

parties

without

do

not

a

signed

challenge

customer

the

agreement.

substance

of

the

arbitration clauses standing alone.
1. Basic Principles Governing this Case
Under

the

Federal

Arbitration

Act

(FAA)

5

,

arbitration

agreements are “‘valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of
the [sic] contract.’”
F.3d

1359,

1367

Consequently,
negotiated

the

Caley v. Gulfstream Aerospace Corp., 428

(11th
FAA

agreements

Cir.

2005)

“requires
to

courts

arbitrate,

accordance with their terms.”

(quoting

like

to

9

U.S.C.

enforce

other

§

2).

privately

contracts,

in

Volt Info. Sciences, Inc. v. Bd.

of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 478
(1989).

5

Neither party challenges the applicability of the FAA to
settle disputes as outlined in the contract.

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Under the FAA, a district court must grant a motion to compel
arbitration if it is satisfied that the parties agreed to arbitrate
the dispute.
consent.”

9 U.S.C. § 3.

“Arbitration is strictly a matter of

Granite Rock Co. v. Int’l Brotherhood of Teamsters, 561

U.S. 287, 299 (2010) (citation omitted).
arbitration cannot be compelled.

If no agreement exists,

9 U.S.C. § 4.

Despite the

“liberal federal policy favoring arbitration agreements,” Moses H.
Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983),
the FAA does not authorize a court to compel arbitration if there
is no agreement to arbitrate.

EEOC v. Waffle House, Inc., 534

U.S. 279, 289 (2002); AT&T Techs. v. Commc’ns Workers of Am., 475
U.S. 643, 648 (1986).
The Eleventh Circuit has developed a two-step inquiry when
considering

a

motion

to

compel

arbitration.

Klay

Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004).

v.

All

First, the

Court must determine whether the parties have actually agreed to
arbitrate the dispute.
background

of

agreements.”

a
Id.

This determination is made against the

“liberal

federal

policy

favoring

arbitration

“[A]rbitration is a matter of contract.”

Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011).

AT&T

And “[a]

court cannot compel parties to arbitrate their dispute in the
absence of [a] clear agreement to do so.”
871 F.3d 1295, 1302 (11th Cir. 2017).
agreement

to

arbitrate

exists,

the

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Larsen v. Citibank FSB,

In determining whether an
Court

“appl[ies]

ordinary

state-law principles that govern the formation of contracts.”
at 1303.

Id.

Here, the parties do not dispute that the contracts are

governed by Florida law.

The second step “involves deciding

whether constraints external to the parties’ agreement foreclosed
arbitration.”
2.

Klay, 389 F.3d at 1200.
Enforceability of the Arbitration Provisions

In construing contracts under Florida law, the Court must
determine whether the contract language is unambiguous.

Whether

an ambiguity exists in the language of a contract is a question of
law to be decided by the court.

Wheeler v. Wheeler, Erwin &

Fountain, P.A., 964 So. 2d 745, 749 (Fla. 1st DCA 2007) (citation
omitted).

Ambiguity exists only when contractual language “is

susceptible to more than one reasonable interpretation.”
v. Transp. Ins. Co., 29 So. 3d 1000, 1005 (Fla. 2010).
or

more

provisions

of

a

contract

conflict,

construed as to be reconciled, if possible.”

“they

Penzer

Where one
should

be

Bengal Motor Co.,

Ltd. v. Cuello, 121 So. 3d 57, 61 (Fla. 3d DCA 2013) (quoting Dodge
City, Inc. v. Byrne, 693 So. 2d 1033, 1035 (Fla. 2d DCA 1997)).
“In so doing, the court should strive to give effect to the intent
of the parties in accord with reason and probability as gleaned
from the whole agreement and its purpose.”

Arthur Rutenberg Corp.

v. Pasin, 506 So. 2d 33, 34 (Fla. 4th DCA 1987).
is

not

possible,

“we

must

give

the

agreement

interpretation,” which is a question of law.

- 9 -

If reconciliation
a

reasonable

Kaplan v. Bayer, 782

So. 2d 417, 419 (Fla. 2d DCA 2001).
mutually

repugnant

ambiguity exist.”

clauses

“Only when a contract contains

that

actually

conflict

does

an

Harris v. School Bd. of Duval Cnty., 921 So.

2d 725, 733 (Fla 1st DCA 2006).

Further, contract provisions

should be read “harmoniously in order to give effect to all
portions thereof.”

City of Homestead v. Johnson, 760 So. 2d 80,

84 (Fla. 2000).
3. Language of the Agreements
Verizon

seems

to

no

longer

be

relying

on

the

Retail

Installment Contract as a source of its right to arbitration (the
Court notes that Verizon has still not presented the Court with a
mutually-signed

contract).

Rather,

Verizon

argues

that

arbitration should be compelled based on the customer agreement
for

the

calling

plan

(Doc.

#34-1)

and

the

plan’s

terms

and

conditions (Doc. #21-3). 6
The Verizon Wireless Customer Agreements state in relevant
part:
I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER
AGREEMENT (CA), INCLUDING THE CALLING PLAN (WITH
6

Plaintiff argues that the customer agreements are
“cumulative” of the installment contracts.
Although not
elaborated, the Court believes that plaintiff is arguing that the
customer agreements should be found void just like the installment
contracts.
However, plaintiff entered into two agreements that
day at Best Buy which included arbitration provisions. One was
for payment of the phones in installments and the other for the
calling plan.
Thus, the fact that the retail installment
contracts might not be enforceable under Florida’s RISCA does not
necessarily invalidate the customer agreements.

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EXTENDED
LIMITED
WARRANTY/SERVICE
CONTRACT,
IF
APPLICABLE), AND OTHER TERMS AND CONDITIONS FOR SERVICES
AND SELECTED FEATURES I HAVE AGREED TO PURCHASE AS
REFLECTED ON THE RECEIPT, AND WHICH HAVE BEEN PRESENTED
.TO ME BY THE SALES REP. AND WHICH I HAD THE OPPORTUNITY
TO REVIEW.
I UNDERSTAND THAT I AM AGREEING TO . . .
SETTLMENT OF DISPUTES BY ARBITRATION AND OTHER MEANS
INSTEAD OF JURY TRIALS AND OTHER IMPORTANT TERMS IN THE
CA. 7
(Doc. #34-1 (emphasis in original).)

This paragraph was just

above plaintiff’s signature.
The “My Verizon Wireless Customer Agreement” (Doc. #21-3)
states in relevant part:
HOW DO I RESOLVE DISPUTES WITH VERIZON WIRELESS? 8
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 DIFFERENT, AN 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 FROM 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
7

The Court assumes “CA” means Customer Agreement, a copy of
which is at Doc. #21-3. In Florida, “where a writing expressly
refers to and sufficiently describes another document, that other
document, or so much of it as is referred to, is to be interpreted
as part of the writing.” Gustavsson v. Wash. Mut. Bank, F.A., 850
So. 2d 570, 573 (Fla. 4th DCA 2003) (internal citation omitted).
8

This section is also outlined by a box.

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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.
(Doc. #21-3, pp. 1, 7-8 (emphasis in original).)
The language in the lengthier “My Verizon Wireless Customer
Agreement”

(Doc.

encompassing.

#21-3)

is

mandatory,

unequivocal,

and

all-

By using such exclusive language, the parties

agreed to arbitration or small claims court for any and all claims.
However, the language in the “Verizon Wireless Customer Agreement”
states that arbitration is permissive and inconsistently states
that

that

Cuevas

is

agreeing

to

“settlement

of

arbitration or other means instead of jury trials.”
(emphasis added)).

disputes

by

(Doc. #34-1

In other words, arbitration is not mandatory,

and the “other means” are permitted as long as a jury trial is not
involved.
4. Application of Principles to This Case
The Court is unable to reconcile the conflicting mandatory
and permissive arbitration clauses in the customer agreements
(Docs. ##23-1, 34-1.)

Reading the agreements to give effect to

all portions, the most consistent and reasonable interpretation is
that the parties agreed to resolve disputes arising out of the
agreements by arbitration, small claims court, or any other means
not including jury trials.

The “other means” plaintiff has chosen

is to file her claims in this Court prior to Verizon invoking any

- 12 -

right to arbitration.

And although plaintiff’s Complaint includes

a jury demand (Doc. #1), this is subject to being stricken. 9
The Court is mindful that when it interprets provisions in
agreements covered by the FAA, it must give regard to the federal
policy favoring arbitration, and ambiguities as to the scope of
arbitration clause itself must be resolved in favor of arbitration.
See Moses H. Cone, 460 U.S. at 24-25; Morales v. Perez, 952 So. 2d
605, 607 (Fla. 3d DCA 2007) (noting that Florida public policy
favors arbitration and any doubts should be resolved in favor of
arbitration).
language

However, the Court must also construe ambiguous

against

the

drafter

and

no

party

may

be

forced

to

arbitrate a dispute that the party did not agree to arbitrate.
See BKD Twenty-One Mgmt. Co., Inc. v. Delsordo, 127 So. 3d 527,
530 (Fla. 4th DCA 2012).

“The reason for this rule is to protect

the party who did not choose the language from an unintended or
unfair result.”

9

Mastrobuono v. Shearson Lehman Hutton, Inc., 514

Indeed, the My Verizon Wireless Customer Agreement states:

(9) IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER
THAN THROUGH ARBITRATION, YOU AND VERIZON WIRELESS AGREE
THAT THERE WILL NOT BE A JURY TRIAL. YOU AND VERIZON
WIRELESS UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY. IN THE
EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(Doc. #21-3, ¶ 9 (emphasis in original).)

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U.S. 52, 63 (1995).

For these reasons, the Court denies Verizon’s

request to compel arbitration.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant

Verizon

Wireless

Personal

Communications,

LLP’s Motion to Reconsider its Previously-Denied Motion to Compel
Arbitration (Doc. #34) is GRANTED.

After reconsidering the matter

and the newly submitted evidence, Verizon’s request to compel
arbitration is denied.
2.

Plaintiff’s Motion to Exclude Meryl Friedman’s Affidavit

on Reply and the Customer Agreements Attached to Verizon’s Motion
for Reconsideration (Doc. #45) is DENIED.
3.

The Clerk is directed to transmit a copy of this Opinion

and Order to the United States Court of Appeals for the Eleventh
Circuit.
DONE and ORDERED at Fort Myers, Florida, this __16th__ day of
November, 2018.

Copies:
Eleventh Circuit Court of Appeals
Counsel of Record

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