Bryant v. Bank of America et al

Filing 9

ORDER DENYING 3 Motion to Compel; DENYING 5 Motion to Proceed to Trial; GRANTING 6 Motion to Compel Arbitration. This action is STAYED until arbitration has been completed. Defendant's request for attorney's fees is DENIED. Ordered by Judge Marc Thomas Treadwell on 8/10/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EARL A. BRYANT,
Plaintiff,
v.
MERRILL LYNCH, PIERCE, FENNER &
SMITH, INC., successor-in-interest to
BANC OF AMERICA INVESTMENT
SERVICES, INC.,
Defendant.

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CIVIL ACTION NO. 5:12-CV-52 (MTT)

ORDER
This matter is before the Court on the Plaintiff’s Motion to Compel and Motion to
Proceed to Trial as well as Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc.
successor-in-interest to Banc of America Investment Services, Inc.’s Motion to Compel
Arbitration.1 (Docs. 3, 5, & 6). The Parties have not begun discovery, which means the
Plaintiff’s Motion to Compel is DENIED.
The Plaintiff’s Motion to Proceed to Trial is a Motion for Entry of Default or a
Motion for Default Judgment. On June 19, 2012, the Court entered a show cause order
because there was no evidence in the record that the Defendant had been served. Six
days later, the Plaintiff filed the Motion to Proceed to Trial, and attached evidence that
he had mailed a request to waive service to the Defendant. The Defendant did not
return the request to waive service, but the Defendant expressly waived its insufficient

1

The Plaintiff sued “Bank of America” and “Merrill Lynch Wealth Management.” Banc of
America Investment Services, Inc. was an investment banking subsidiary of Bank of America
before it merged with Merrill Lynch. Thus, Merrill Lynch is the proper defendant.

service of process defense because the Plaintiff’s claims are “ultimately subject to a
binding pre-dispute arbitration agreement.” (Doc. 6, at 2 n.2). Accordingly, because
there is no evidence the Defendant has been served, the Motion to Proceed to Trial is
DENIED.
The Plaintiff’s Money Manager Customer Agreement and Individual Retirement
Account Application both contain mandatory arbitration provisions, and the Plaintiff
signed acknowledgements that he agreed to be bound by those terms. (Doc. 6-1, at 7,
38). “The preeminent concern of Congress in passing the [Federal Arbitration] Act was
to enforce private agreements into which parties had entered, and that concern requires
that [courts] rigorously enforce agreements to arbitrate….” Dean Witter Reynolds, Inc.
v. Byrd, 470 U.S. 213, 221 (1985). The Plaintiff has not put forth any reason why the
arbitration agreement is not binding.
Accordingly, the Motion to Compel Arbitration is GRANTED. All claims asserted
by the Plaintiff shall be submitted to arbitration. This action is STAYED until arbitration
has been completed.
The Defendant also seeks attorney’s fees without any citation to any statute or
case. The Defendant’s request for attorney’s fees is DENIED.
SO ORDERED, this 10th day of August, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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