Gagnon v. Experian Information Solutions, Inc. et al
Filing
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ORDER denying 11 Defendant Drivetime Car Sales Company LLC's Motion to Dismiss or in the Alternative Motion to Stay and Compel Arbitration. Signed by Judge James S. Moody, Jr on 10/20/2014. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARK GAGNON,
Plaintiff,
v.
Case No: 8:14-cv-1817-T-30TBM
EXPERIAN INFORMATION
SOLUTIONS, INC. and DRIVETIME
CAR SALES COMPANY, LLC,
Defendants.
ORDER
THIS CAUSE comes before the Court upon the Defendant Drivetime Car Sales
Company LLC's Motion to Dismiss or in the Alternative Motion to Stay and Compel
Arbitration (Dkt. #11) and Plaintiff's Response in Opposition to the Motion (Dkt. #15).
Upon review and consideration, it is the Court’s conclusion that the Motion should be
denied.
Plaintiff, Mark Gagnon, sues Defendant Drivetime Car Sales Company LLC
(“Drivetime”) for violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”).
He premises his complaint on Drivetime’s negligent reporting of erroneous information
related to his Drivetime account. Drivetime argues that the Court should dismiss Gagnon’s
complaint or in the alternative compel the parties to arbitration due to the alleged existence
of an Arbitration Agreement. Drivetime states that Gagnon executed this purported
agreement in conjunction with the other transactions related to the purchase of his vehicle
at Drivetime. It argues that although it cannot locate the specific documents related to
Gagnon’s vehicle purchase transaction, it has computer records related to Gagnon’s
transaction. At the time of Gagnon’s transaction, Drivetime utilized a standard Arbitration
Agreement, a copy of which it attached to its Motion. It was Drivetime’s policy to require
execution of this Arbitration Agreement as part of every transaction.
Drivetime argues that Drivetime’s policy, taken together with the fact that
Drivetime and Gagnon entered into a vehicle purchase transaction, establishes that Gagnon
“would have agreed” to the Arbitration Agreement. It also argues two further points in
support of its Motion: (1) arbitration agreements do not have to be signed to be enforceable
and (2) it has established, through parol evidence, that the Arbitration Agreement exists
and it has offered an explanation as to why the original contract was lost or destroyed. In
his affidavit, Gagnon denies that he ever signed the Arbitration Agreement, he states “with
absolute certainty” that the Arbitration Agreement is not an agreement that he entered into
with Drivetime, and a review of his personal records regarding the transaction reveals no
document resembling the Arbitration Agreement, or any other agreement to arbitrate.
Federal policy favors arbitration over litigation. Seaboard Coast Line R. Co. v.
Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir. 1982). “This federal policy requires that
[the court] construe arbitration clauses generously, resolving all doubts in favor of
arbitration.” Id. However, a court “will not compel parties to arbitrate a dispute where the
parties have not agreed to do so.” Scott v. EFN Investments, LLC, 312 Fed. App’x. 254,
256 (11th Cir. 2009). The Court engages in a two-step inquiry in analyzing a motion to
compel arbitration: first it must determine whether the parties agreed to arbitrate the
dispute; and then, it decides whether “legal constraints external to the parties' agreement
foreclosed arbitration.” Klay v. All Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004).
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Whether a contract's arbitration clause requires arbitration of a given dispute is a
matter of contract interpretation. Seaboard Coast Line R. Co., 690 F.2d at 1348. Therefore,
the validity of an arbitration agreement is a matter of state law. Caley v. Gulfstream
Aerospace Corp., 428 F.3d 1359, 1367-68 (11th Cir. 2005). To prove the existence of a
contract under Florida law, the party seeking to enforce the contract must prove “offer,
acceptance, consideration and sufficient specification of essential terms.” St. Joe Corp. v.
McIver, 875 So. 2d 375, 381 (Fla. 2004). The proponent of the contract must prove these
elements by a preponderance of the evidence. Id. (oral contract); see also Robbie v. City of
Miami, Fla., 469 So. 2d 1384, 1385 (Fla. 1985) (written contract). “[T]he one who should
lose on the issue of an agreement to arbitrate is the one who failed to carry its burden of
proving an acceptance of arbitration as a contractual remedy.” Steve Owren, Inc. v.
Connolly, 877 So. 2d 918, 920 (Fla. 4th DCA 2004).
Generally, under the Federal Arbitration Act, arbitration agreements do not have to
be signed to be enforceable. See Caley, 428 F.3d at 1368; Santos v. General Dynamics
Aviation Services Corp., 984 So. 2d 658, 661 (Fla. 4th DCA 2008) (where the arbitration
agreement stated that “the continuation of employment by an individual shall be deemed
to be acceptance of the [arbitration agreement]” and that no signature was required for it to
be applicable, the court found that the employee seeking to avoid arbitration had accepted
the agreement by continuing his employment). However, an arbitration agreement may
define the appropriate method of acceptance as the signature of the parties. See Schoendorf
v. Toyota of Orlando, 608-CV-767-ORL-19DAB, 2009 WL 1075991 (M.D. Fla. Apr. 21,
2009) (“The document then provided a space for signatures. In this way, the arbitration
agreement defined the appropriate method of acceptance as the signatures of the parties.”)
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In this case, the Arbitration Agreement Drivetime attached clearly provides a space
for the signatures of both parties. Therefore, the general rule does not apply here and
Drivetime must produce evidence that Gagnon signed the Arbitration Agreement or
otherwise assented. See Shearson, Lehman, Hutton, Inc. v. Lifshutz, 595 So. 2d 996 (Fla.
4th DCA 1992) (upholding trial court’s denial of defendant’s motion to compel arbitration
where defendant produced its standard brokerage contract with its standard arbitration
clause and plaintiffs denied that they signed or assented in any way to the agreement or the
arbitration clause). See also Steve Owren, Inc., 877 So. 2d at 921 (affirming trial court’s
denial of a motion to compel where plaintiff denied signing the agreement and “[n]o
witness testified that the agent actually signed the document in his/her presence. No one
remembered positively seeing the document with her signature on it. Rather the
[employer's] evidence was all about how it requires every agent to sign such agreements,
and that a signed agreement simply must have been in her file at some time even though
none was found and produced at the hearing.”).
Drivetime’s evidence is essentially merely pattern and practice evidence which is
insufficient to establish that Gagnon signed the Arbitration Agreement. Further, the Court
cannot infer that Gagnon necessarily signed the Arbitration Agreement from the fact that
he entered into a vehicle purchase transaction with Drivetime. See id.; Schoendorf, 2009
WL 1075991 (since “the arbitration agreement [was] independent of the employment
agreement between the parties, and the Court cannot infer acceptance of the arbitration
agreement from Plaintiff's acceptance of employment with Defendant.”)
Although, a party may re-establish a lost or destroyed contract under Florida law;
see § 90.954(1), Fla. Stat., Drivetime has not sufficiently proven the existence of the
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alleged signed Arbitration Agreement, provided a satisfactory explanation as to the loss or
destruction of it, or established that any agreement to arbitrate existed at all. Drivetime
relies on Envtl. Services, Inc. v. Carter, 9 So. 3d 1258, 1267 (Fla. 5th DCA 2009) which is
distinguishable from this case because it did not involve a dispute over whether a valid
contract existed; the employee agreed that he signed the contract but could not recall its
terms, and two other employees testified that they signed identical contracts which included
the same restrictive covenant at issue in the case.
The Court concludes that Drivetime has not sufficiently established that Gagnon
signed the Arbitration Agreement or otherwise agreed to arbitrate his dispute and must
therefore deny the Motion. However, the denial is without prejudice. In the event
Drivetime is able to locate the signed Arbitration Agreement or other more sufficient
evidence demonstrating Gagnon’s assent to arbitrate the dispute, it may re-file the Motion.
It is therefore ORDERED AND ADJUDGED that Defendant Drivetime Car Sales
Company LLC's Motion to Dismiss or in the Alternative Motion to Stay and Compel
Arbitration (Dkt. #11) is DENIED without prejudice.
DONE and ORDERED in Tampa, Florida, this 20th day of October, 2014.
Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-1817 mtd 11.docx
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