Martin v. Equifax Information Services, LLC et al

Filing 44

ORDER granting 40 Defendant Experian Information Solutions, Inc.'s Motion to Compel Arbitration. If no objections to this Order are filed within the time allotted under Fed. R. Civ. P. 72, the parties are directed to arbitrate this dispu te promptly in accordance with their agreement. The parties must notify the Court within seven days of the arbitration concluding. The parties are otherwise directed to file a joint report on the status of arbitration on June 2, 2025, and every ninety days after until arbitration concludes. Because this case remains open as to other Defendants, the Clerk must not add a stay flag to the docket. Signed by Magistrate Judge Kyle C. Dudek on 3/5/2025. (CGW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LOUIS MARTIN,
Plaintiff,
Case No. 2:24-CV-1071-SPC-KCD

v.
EQUIFAX INFORMATION
SERVICES, LLC, EXPERIAN
INFORMATION SOLUTIONS,
INC., TRANS UNION LLC,
CREDIT ONE BANK, N.A.,
Defendants,
/

ORDER
Before the Court is Experian Information Solutions, Inc.’s Motion to
Compel Arbitration. (Doc. 40.)1 Plaintiff Louis Martin responded in opposition
(Doc. 41), and Experian replied (Doc. 43). For the reasons below, the motion
is granted, and this dispute is ordered to arbitration.
I. Background
In this Fair Credit Reporting Act (“FCRA”) case, Martin alleges that
Defendants violated the FCRA by “reporting fraudulent charges [that] were
not made by [him] but were the result of . . . identity theft.” (Doc. 1 ¶ 20.)
Experian moves to compel arbitration under an agreement between Martin

1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

and its affiliate, ConsumerInfo.com, Inc. (“CIC”), which also does business as
Experian Consumer Services (“ECS”). (Doc. 40 at 3). Before initiating this
action, Martin enrolled in a credit monitoring service, IdentityWorks,
through the CIC/ECS website and agreed to its “Terms of Use,” which contain
an arbitration provision covering Experian. (Id. at 4-5.) Thus, Experian seeks
an order compelling arbitration and staying this case until such proceedings
conclude. (Id. at 17.) Martin responds that Experian has not proven that the
parties entered into an arbitration agreement, and alternatively, the
agreement lacks mutual assent.
II. Discussion
When presented with a motion to compel arbitration, a court must
assess three factors: (1) whether a valid arbitration agreement exists, (2)
whether an arbitrable issue exists, and (3) whether the right to arbitrate was
waived. See Abellard v. Wells Fargo Bank, N.A., No. 19-CV-60099, 2019 WL
2106389, at *2 (S.D. Fla. May 14, 2019). “[I]f the aforementioned criteria are
met, the Court is required to issue an order compelling arbitration.” Id.; Nat’l
Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F. Supp. 2d 1318, 1322 (S.D. Fla.
2010) (“The court must grant a motion to compel arbitration if it is satisfied
that the parties agreed to arbitrate the claims at issue.”). “When in doubt,
questions of arbitrability should be determined in favor of arbitration.”

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Farrell v. Aaron’s, Inc., No. 3:18-CV-01490-J20-JRK, 2019 WL 13262714, at
*3 (M.D. Fla. May 16, 2019).
Martin contests the first factor the Court must consider—whether a
valid arbitration agreement exists. He attacks the sufficiency of Experian’s
evidence, namely, declarations from CIC’s Director of Operations, Dan Smith.
(Docs. 40-1, 43-2.) Martin argues that Smith lacks personal knowledge to
establish the existence of an arbitration agreement between the parties.
The burden of proving that an arbitration agreement exists is
ultimately Experian’s. Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325,
1334 (11th Cir. 2016). Using a summary judgment-like standard, the 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.” Id. at 1333.
A party can object to any material cited to support a fact, including a
declaration, if that material “cannot be presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). To be admissible, a
declaration must (1) be “made on personal knowledge,” (2) “set out facts that
would be admissible in evidence,” and (3) “show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
“Personal knowledge may be proved by a witness’s or a declarant’s own
testimony, or reasonably inferred from his position or the nature of his
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participation in the matters to which he swears.” Johnson v. Sw. Recovery
Servs. Inc., No. 3:22-CV-242-X-BH, 2023 WL 1944127, at *3 (N.D. Tex. Jan.
24, 2023).
In his declarations, Smith testifies that he is the Director of Product
Operations for ConsumerInfo.com, Inc. and has been employed by CIC since
2010. (Doc. 40-1 at 1.) As part of his role, Smith must understand “how
consumers enroll, the forms they must complete to enroll, as well as the
Terms of Use governing such services.” (Id.) Furthermore, his role requires
that he maintain knowledge of: “Experian’s electronic databases that store
consumer enrollment information, including the webpages a consumer would
have encountered to complete their enrollment into IdentityWorks, the
personally identifiable information entered when enrolling, which links or
buttons the consumer clicked on, and date and time of the consumer’s
acceptance of the Terms of Use.” (Id.)
Smith attests to the process Martin underwent to enroll in
IdentityWorks, including the webform he filled out, the acceptance button
Martin clicked binding him to IdentityWorks’ Terms of Use, and the date the
transaction was completed. (Doc. 40-1 at 2-4.) Smith explained that before
clicking the acceptance button, Martin would have seen a message informing
him that it would bind him to the IdentityWorks’ Terms of Use. Moreover,
the “Terms of Use Agreement” was set-off in blue text, and if clicked, would
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display the full terms of the agreement, including the arbitration provision at
issue. According to Smith, Martin could not have enrolled in IdentityWorks
unless he agreed to the Terms of Service.
Based on Smith’s familiarity with IdentityWorks’ enrollment process
and Experian’s databases that store consumer account information, Smith
can retrieve a consumer’s IdentityWorks membership information when
needed. This membership information allows Smith to confirm the date and
time of enrollment, the period of the Terms of Use agreed to, and the exact
oath the consumer encountered when completing their enrollment in
IdentityWorks. Here, using this process, Smith determined that Martin
enrolled in IdentityWorks on August 31, 2019, and articulated the different
steps Martin would have undertaken to do so (as noted above). (Id. at 2-3,
Doc. 43-2 at 1-2.)
The Court is satisfied that Smith’s declarations are based on personal
knowledge and prove the arbitration agreement. Other courts have reached
the same conclusion. See, e.g., Myers v. Experian Info. Sols. Inc., No. CV-2301901-PHX-DJH, 2024 WL 2278398, at *3 (D. Ariz. May 20, 2024) (rejecting
argument that a declaration provided by Smith was inadmissible and finding
“that

Mr.

Smith’s

Declaration

meets

the

minimum

standards

for

consideration under Federal Rule of Civil Procedure 56(c).”); Pecoraro v.
Synovus Bank, No. 23-CV-80789, 2024 WL 167391, at *1 (S.D. Fla. Jan. 16,
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2024) (“The Williams Affidavit is competent evidence to show that Plaintiff
accepted the Terms of Service Agreements—and the relevant arbitration
clause—that were in effect when he enrolled in CreditWorks.”).
Martin offers his own affidavit, which claims he “does not recall”
signing the agreement. (Doc. 41-1.) But this does not create a factual issue to
prevent arbitration. See, e.g., Garcia v. Harmony Healthcare, LLC, No. 8:20CV-1065-WFJ-AAS, 2021 WL 1610093, at *4 (M.D. Fla. Apr. 26, 2021)
(“[G]eneral denials based on a lack of memory will not rebut a signed written
agreement.”); Mancilla v. ABM Indus., Inc., No. 20 CIV. 1330 (KPF), 2020
WL 4432122, at *7 (S.D.N.Y. July 29, 2020) (“And while she does contend
that ‘she does not recall seeing’ the Mutual Arbitration Agreement ..., this is
insufficient to create a genuine issue of material fact as to whether the
parties entered into an arbitration agreement.”). And more importantly, the
record undermines Martin’s claim. The personal information for the
IdentityWorks member assigned to Martin apparently matches his address,
phone number, email address, social security number, and date of birth,
evidencing that he was the one who opened the account. (Docs. 43 at 2-3, 432.) And after enrolling, Martin used the service. Experian regularly emailed
Martin with notifications, many of which he opened according to Experian’s
records. (Id.) Experian has provided all of this evidence, and it stands
unrebutted.
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At bottom, the Court finds that the statements within Smith’s
declarations constitute admissible evidence under Rule 56 and show that
Martin entered into a valid arbitration agreement. Martin offers no
competent evidence to show a genuine issue of material fact related to his
consent to arbitration. His “general denials based on a lack of memory” are
not enough. Garcia, 2021 WL 1610093, at *4. Further, the arbitration
agreement in the Terms of Use is straightforward: “ECS and you agree to
arbitrate all disputes and claims between us that arise out of or relate to this
Agreement,” including those arising under the FCRA.2 (Doc. 40-1 at 32-33.)
With no claim of waiver, “the Court is required to issue an order compelling
arbitration.” Abellard, 2019 WL 2106389, at *2.
Martin alternatively argues that the sign-up process described by
Experian is “facially insufficient for a showing of mutual assent, a
fundamental requirement for finding contract formation.” (Doc. 41 at 2, 1620.) This argument also fails. “In Florida and the federal circuits ... clickwrap
agreements are valid and enforceable contracts.” Salco Distributors, LLC v.
iCode, Inc., No. 8:05 CV 642 T 27TGW, 2006 WL 449156, at *2 (M.D. Fla.
Feb. 22, 2006); see also Bell v. Royal Seas Cruises, Inc., No. 19-CV-60752,
2020 WL 5742189, at *7 (S.D. Fla. May 13, 2020) (“[T]he statement regarding
the Terms and Conditions is located directly above the Continue button that
2 Martin does not argue that his claims fall outside the arbitration clause.

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the user must click to proceed with using the Website. Thus, it is highly
likely that the user would see the statement regarding the Terms and
Conditions.”). The Court declines to break-step with this well-settled line of
authority.
Finally, Experian seeks a stay while arbitration proceeds. “The
Eleventh Circuit has held that the proper course is to stay the proceedings
rather than dismiss the action” during arbitration. Norfolk S. Ry. Co. v. Fla.
E. Coast Ry., LLC, No. 3:13-CV-576-J-34JRK, 2014 WL 757942, at *11 (M.D.
Fla. Feb. 26, 2014). Accordingly, the Court will follow suit.
III. Conclusion
The Court finds Smith’s declaration admissible and concludes that
Experian carried its burden of showing Martin’s assent to the Terms of Use,
including the arbitration clause. Accordingly, it is ORDERED:3
1. Defendant Experian Information Solutions, Inc.’s Motion to Compel
Arbitration (Doc. 40) is GRANTED.
2. If no objections to this Order are filed within the time allotted under
Fed. R. Civ. P. 72, the parties are directed to arbitrate this dispute
promptly in accordance with their agreement.

3 Because a motion to compel arbitration does not address the merits of the dispute but

merely changes the forum, it is a non-dispositive matter that does not require a report and
recommendation. See Soriano v. Experian Info. Sols., Inc., No. 2:22-CV-197-SPC-KCD, 2022
WL 17551786, at *1 (M.D. Fla. Dec. 9, 2022); Moore v. Chuck Stevens Auto., Inc., No. CA
1:12-00663-KD-C, 2013 WL 627232, at *1 (S.D. Ala. Feb. 20, 2013).

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3. The parties must notify the Court within seven days of the arbitration
concluding. The parties are otherwise directed to file a joint report on
the status of arbitration on June 2, 2025, and every ninety days after
until arbitration concludes.
4. Because this case remains open as to other Defendants, the Clerk must
not add a stay flag to the docket.
ORDERED in Fort Myers, Florida on March 5, 2025.

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