Keller v. T-Mobile

Filing 23

MEMORANDUM AND ORDER- IT IS THEREFORE ORDERED that plaintiff's Motion to Remove Case from Arbitration and Proceed with a Case Management Order or in the Alternative, Motion to Compel a New Arbitration Proceeding 16 is denied. As a result, plain tiff's motions (1) Motion to schedule case management conference 19 ;(2) Motion to introduce newfound evidence 20 ; and (3)Motion to submit witness statement 22 are denied as moot. Signed by District Judge Carlos Murguia on 1/25/2018. Mailed to pro se party Eric David Keller by regular mail (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ERIC DAVID KELLER,
Plaintiff,
v.

Case No. 16-2143

T-MOBILE,
Defendant.

MEMORANDUM & ORDER
This matter comes before the court upon plaintiff’s Motion to Remove Case from Arbitration
and Proceed with a Case Management Order or in the Alternative, Motion to Compel a New
Arbitration Proceeding. (Doc. 16). Plaintiff Eric David Keller filed this case claiming defendant TMobile failed to timely investigate and resolve a fraud claim on plaintiff’s account. The case proceeded
to arbitration, with an award for defendant. Plaintiff seeks to remove the case from arbitration or,
alternatively to compel a new arbitration, due to bias of the arbitrator and unfairness in the hearing.
The court denies plaintiff’s motion for the reasons discussed below.
I.

Background

On January 12, 2016, plaintiff filed a petition against defendant in Douglas County District
Court. Plaintiff is a Kansas citizen and defendant is a corporation of Delaware and Washington.
Plaintiff claims that defendant allowed someone other than plaintiff to open an account in plaintiff’s
name and then failed to resolve the fraud report or investigate in a timely matter. Defendant removed
the case to federal court and moved to enforce the contract’s arbitration clause. Plaintiff subsequently
agreed to arbitration. At plaintiff’s request, the American Arbitration Association (“AAA”) assigned
an arbitrator and the case proceeded to arbitration.

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The AAA appointed Bradley Haddock to serve as arbitrator for the case. Arbitrator Haddock
received the filings of the claims in the case. Arbitrator Haddock then proceeded to a scheduling
conference, which both parties attended telephonically. At the conference, the parties set a deadline of
July 12, 2017, for exchange of exhibits and other evidence. On July 12, 2017, defendant provided
exhibits and all other evidence being used at the arbitration. Plaintiff did not provide any exhibits or
other evidence by the deadline.
During the arbitration proceedings, plaintiff challenged Arbitrator Haddock’s impartiality
twice. Both times, the accusations were deemed baseless. Plaintiff first requested a new arbitrator
from AAA because he believed Arbitrator Haddock was biased. On May 3, 2017, AAA denied
plaintiff’s request. Then, on June 13, 2017, Arbitrator Haddock denied plaintiff’s direct request to
excuse himself as arbitrator. Plaintiff claimed Arbitrator Haddock’s history of representing large,
capitalist businesses would bias Arbitrator Haddock against a small plaintiff like him. He did not
provide evidence of this bias besides Arbitrator Haddock’s clientele history. Additionally, plaintiff
claims in the present motion—but not in the previous two challenges—that one of plaintiff’s family
members struck Arbitrator Haddock’s car in a drunk driving incident and, therefore, Arbitrator
Haddock cannot remain unbiased. But plaintiff provides no evidence for this claim in this motion.
Plaintiff and defendant proceeded to arbitration before Arbitrator Haddock. The arbitrator held
an evidentiary hearing on August 2, 2017.

Plaintiff could not attend due to “unforeseen

circumstances” at the prison where plaintiff is housed. The circumstances involved another inmate.
The following day, plaintiff informed Arbitrator Haddock and defendant that he could not attend the
hearing and requested a new hearing. Despite this, Arbitrator Haddock entered an award in favor of
defendant. Plaintiff now asks this court for relief on grounds of arbitrator bias and unfairness in the
hearing.

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II.

Pro Se Standard

Where a plaintiff proceeds pro se, the court construes his filings liberally and holds them to less
stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 F. App’x 600,
601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the federal and local rules of
practice and the court does not assume the role of advocating for plaintiff. United States v. Porath,
553 F. App’x 802, 803 (10th Cir. 2014).
III.

Discussion
A.

Defendant’s motion to remove the case from arbitration is denied.

Plaintiff, in both the disputed contract and by stipulation to the court, agreed to arbitration.
Plaintiff now argues that arbitration should have never occurred. However, plaintiff stipulated to
arbitration in a document filed with the court, and no reason exists to set aside this stipulation. Once
parties enter into agreement to arbitrate, the entire contract is submitted to arbitration to render a
decision. Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1146 (10th Cir. 1982). Therefore, this court
will not displace the agreement to arbitrate.
B.

Defendant’s motion to compel a new arbitration proceeding is denied as no
grounds under the Federal Arbitration Act exist for vacating the
arbitration order.

The Federal Arbitration Act (“FAA”) applies to this arbitration, even if the contract is
fraudulent. The FAA applies for two reasons. First, the disputed contract terms specify the contract
affects interstate commerce and, therefore, the FAA applies. However, even if this term was not
present, the FAA would still apply. The FAA applies if arbitration agreements involve interstate
commerce. 9 U.S.C.A § 2; Volt Info. Servs., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489
U.S. 468, 475 (1989). Plaintiff is a Kansas citizen and defendant is a corporation of Delaware and
Washington. By nature, the cell phone agreement involves interstate commerce. Assuming that

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plaintiff is correct and the contract is fraudulent, that does not invalidate the agreement to arbitrate. If
plaintiff claims the entire contract was fraudulent, rather than just the arbitration agreement, then
plaintiff’s fraud argument is left for the arbitrators to decide rather than the courts. Prima Paint Corp.
v. Flood & Conklin Mfg. Co., 388 U.S. 395, 406 (1967); Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 444–45 (2006). In this case, plaintiff claimed fraud in the entire contract, not just the
arbitration agreement. Therefore, plaintiff’s fraud claim is left to the arbitrator.
Arbitration decisions receive great weight in federal court.

Courts “must give extreme

deference to the determination of the arbitration panel” as the standard of review for “arbitral awards is
among the narrowest known to law.” Sheldon v. Vermonty, 269 F.3d 1202, 1206 (10th Cir. 2001)
(quoting Brown v. Coleman Co., 220 F.3d 1180, 1182 (10th Cir. 2000)). Specifically, under the FAA,
a court can only vacate arbitral awards in very unusual circumstances. Oxford Health Plans LLC v.
Sutter, 569 U.S. 564, 568 (2013). Statutorily, a district court may only vacate an arbitral award when
(1) The award was procured by corruption, fraud or undue means;
(2) Where there was evident partiality or corruption in the arbitors, or
either of them;
(3) Where the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced; or
(4) Where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final and definite award upon the
subject matter submitted was not made.
9 U.S.C. § 10(a)(1–4) (West 2002). Outside of statutory reasons, courts may additionally vacate
arbitrator awards for a few judicially-created reasons. Burlington N. & Santa Fe Ry. Co. v. Pub. Serv.
Co. of Okla., 636 F.3d 562, 568 (10th Cir. 2012). Courts have created three reasons to vacate an
arbitration award: public policy violations, disregard for the law, or the denial of a fundamentally fair
hearing. Id. Plaintiff does not claim, and evidence does not support, claims of misconduct, corruption,

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exceeding power, public policy violations or disregard for the law. Therefore, the court only needs to
analyze partiality and denial of a fundamentally fair hearing.
Arbitrator Bias Against Plaintiff
No evidence exists to overcome the presumption that the arbitrator was an unbiased decider. A
presumption exists the arbitrator was unbiased that can only be set aside with “direct and definitive”
evidence. Ormsbee, 668 F.2d at 1150. Plaintiff claims that Arbitrator Haddock was biased against
him and, therefore, could not serve as a fair arbitrator. Specifically, plaintiff states that Arbitrator
Haddock’s history of representing large firms and business prevents him from finding for small
plaintiffs, like the plaintiff. If plaintiff’s claims have merit, then the court could order a new
arbitration. 9 U.S.C. § 10(a)(2).
Plaintiff properly lodged a complaint with both the AAA and with the arbitrator. Both the
AAA and Arbitrator Haddock, after analyzing the complaint, found the complaint was without merit.
This court agrees. Upon reviewing the evidence provided to both AAA and Arbitrator Haddock, none
supports the proposition that the arbitrator was biased. Therefore, the court will defer to the judgment
of AAA and the arbitrator.
In this motion, plaintiff also raised a new claim to prove the arbitrator was biased. Neither the
AAA nor the arbitrator analyzed this claim when deciding whether Arbitrator Haddock was impartial.
Plaintiff claims the arbitrator is biased because one of plaintiff’s family members hit the arbitrator in a
drunk driving incident. But plaintiff provides no evidence to support this claim. This claim lacks
foundation, and the court denies it.
Fundamentally Fair Hearing
Plaintiff received a fundamentally fair hearing despite not having access to a phone to attend
the arbitration hearing. Courts can vacate arbitral awards for denial of a fundamentally fair hearing.

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Burlington N., 636 F.3d at 586. A fundamentally fair hearing has three elements: (1) notice, (2)
opportunity to be heard, and (3) the opportunity to present relevant and material evidence and argue
before unbiased decision makers. Bad Ass Coffee Co. of Haw. v. Bad Ass Coffee Ltd. P’Ship, 25
Fed.Appx. 738, 743 (10th Cir. 2001) (quoting Bowles Fin. Grp., Inc. v. Stifel, Nicolaus & Co., 22 F.3d
1010, 1013 (10th Cir. 1994)). Plaintiff had notice; therefore, the only issues are whether plaintiff had
the opportunity present relevant and material evidence and the opportunity to be heard.
Plaintiff had an opportunity to present relevant and material evidence and argue before an
unbiased decision maker. In accordance with the agreement in the preliminary telephone conference,
the parties had until July 12, 2017 to provide copies to the opposing party of “all exhibits to be offered
and all schedules, summaries, diagrams and charts to be used at the hearing.” (Doc. 17, at 3.) While
defendant provided its exhibits to plaintiff, plaintiff did not provide anything to defendants. Therefore,
the arbitrator had all the relevant evidence he needed, since plaintiff would not be able to provide any
nondisclosed evidence at the time of the hearing. Additionally, since the original complaint filed in
court was used as the complaint for the arbitration, plaintiff had the opportunity to argue his case in the
complaint. Therefore, plaintiff had both an opportunity to present evidence and argue before decision
makers.
Similarly, plaintiff had the opportunity to be heard by filing his complaint and presenting
evidence. If claims are facially deficient or lack relevant evidence, arbitration panels have “full
authority to dismiss . . . claims without permitting discovery or holding an evidentiary hearing.”
Sheldon, 269 F.3d at 1207. An arbitration hearing is not even required. Here, plaintiff had an
opportunity to be heard and missed it—although it may not have been his fault. The arbitrator was
within his power to make a decision without having a hearing with both parties. Plaintiff therefore had
a fundamentally fair hearing.

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IT IS THEREFORE ORDERED that plaintiff’s Motion to Remove Case from Arbitration
and Procced with a Case Management Order or in the Alternative, Motion to Compel a New
Arbitration Proceeding (Doc. 16) is denied. As a result, plaintiff’s motions (1) motion to schedule case
management conference (Doc. 19); (2) motion to introduce newfound evidence (Doc. 20); and (3)
motion to submit witness statement (Doc. 22) are denied as moot.
Dated January 25, 2018, at Kansas City, Kansas.

s/ Carlos Murguia__________
CARLOS MURGUIA
United States District Judge

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