Wells v. Regions Bank

Filing 11

Memorandum Opinion and Order granting 5 MOTION to Compel Arbitration. Rather than staying proceedings pending arbitration, this cause is hereby dismissed with prejudice. Signed by District Judge Tom S. Lee on 12/21/12 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
SHAMEKA N. WELLS
D/B/A S&D TAX SERVICE
VS.

PLAINTIFF
CIVIL ACTION NO. 3:12CV636TSL-MTP

REGIONS BANK

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
Regions Bank pursuant to Sections 3 and 4 of the Federal
Arbitration Act (FAA), 9 U.S.C. § 1 et seq., to compel arbitration
and stay all proceedings.

Plaintiff Shameka N. Wells d/b/a S&D

Tax Service, has responded to the motion and the court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that Regions’
motion is well taken and should be granted.
Plaintiff filed the present action against Regions in the
Circuit Court of Pike county, Mississippi, alleging that in
January 2012, she established a business account with Regions;
that she thereafter made deposits to the account totaling over
$50,000; that although all the deposits cleared and she had a
balance of $53,000, Regions refused without explanation to allow
her access to her funds in the account; that as a result of
Regions’ breach of its agreement to safely hold plaintiff’s money

and to allow her access to her money, plaintiff was forced to hire
an attorney to close the account and attempt to gain access to her
funds.

Regions timely removed the case to this court on the basis

of diversity jurisdiction, following which it filed its answer and
the present motion to compel arbitration.

In the motion, Regions

asserts that on January 24, 2012, plaintiff opened two checking
accounts with Regions, a personal account and a business account,
and signed a signature card for the accounts by which she
"agree[d] to be bound by the terms of the Bank's Deposit Agreement
and pricing schedule, as now in force and as amended from time to
time hereafter...."

By signing, plaintiff purported to

"acknowledge receipt of a copy of the applicable Deposit
Agreement...."

The Regions Deposit Agreement provides for binding

arbitration of “any controversy, claim, counterclaim, dispute or
disagreement between [the parties]... arising out of, in
connection with or relating to any agreement which relates
to the Agreement, any account, any credit, any transaction or
[customer’s] business, interaction or relationship with
[Regions].”1

Regions submits that plaintiff is bound to arbitrate

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The arbitration provision states in its entirety:
ARBITRATION AND WAIVER OF JURY TRIAL. Except as
expressly provided herein, you and we agree that either
party may elect to resolve by BINDING ARBITRATION any
controversy, claim, counterclaim, dispute or
disagreement between you and us, whether asserted or
brought in a direct, derivative, assignee, survivor,
successor, beneficiary or personal capacity and whether
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her claims against Regions as it is clear from the face of her
complaint that her claims address issues covered by the broad
language of the arbitration provision.
Section 4 of the FAA, 9 U.S.C. § 4, provides that where a
party has refused to arbitrate under a written arbitration
agreement, the other party may petition the court for an order
compelling arbitration, and the court shall order the parties to

arising before or after the effective date of this
Agreement (any “Claim”). Claim has the broadest
possible meaning and includes, but is not limited to,
any controversy, claim, counterclaim, dispute or
disagreement arising out of, in connection with or
relating to any one or more of the following: (1) the
interpretation, execution, administration, amendment or
modification of the Agreement or any agreement; (2) any
account; (3) any charge or cost incurred pursuant to the
Agreement or any agreement; (4) the collection of any
amounts due under the Agreement, any agreement or any
account; (5) any alleged contract or tort arising out of
or relating in any way to the Agreement, any account,
any agreement, any transaction, any advertisement or
solicitation, or your business, interaction or
relationship with us; (6) any breach of any provision of
the Agreement; (7) any statements or representations
made to you with respect to the Agreement, any
agreement, any account, any transaction, any
advertisement or solicitation, or your business,
interaction or relationship with us; (8) any property
loss, damage or personal injury; (9) any claim, demand
or request for compensation or damages from or against
us; (10) any damages incurred on or about our premises
or property; or (11) any of the foregoing arising out
of, in connection with or relating to any agreement
which relates to the Agreement, any account, any credit,
any transaction or your business, interaction or
relationship with us. If either party elects to
arbitrate, the Claim shall be settled by BINDING
ARBITRATION under the Federal Arbitration Act (“FAA”).
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arbitration if it is satisfied that the making of the agreement is
not in issue.

In considering whether to compel arbitration under

the FAA, a court must engage in a two-step analysis.
Enron Corp., 463 F.3d 410, 418 (5th Cir. 2006).

Tittle v.

“First, a court

must ‘determine whether the parties agreed to arbitrate the
dispute in question.’” Id. (quoting Webb v. Investacorp, Inc., 89
F.3d 252, 258 (5th Cir. 1996)).

This involves two considerations:

“‘(1) whether there is a valid agreement to arbitrate between the
parties; and (2) whether the dispute in question falls within the
scope of that arbitration agreement.’” Id. (quoting Webb, 89 F.3d
at 258).

“Second, a court must determine ‘whether legal

constraints external to the parties' agreement foreclose[ ] the
arbitration of those claims.’”

Id. (quoting Mitsubishi Motors

Corp. v. Soler Chrysler–Plymouth, 473 U.S. 614, 105 S. Ct. 3346,
3355, 87 L. Ed. 2d 444 (1985)).
In response to Regions’ motion, plaintiff denies there is a
valid agreement to arbitrate.

In this regard, she first submits

that the arbitration provision in the Deposit Agreement is not
binding since she never signed the Deposit Agreement.

Further,

while she acknowledges she signed the signature cards in order to
open the accounts, she contends she was not provided a copy of the
Deposit Agreement on which Regions’ motion is based and for this
reason, as well, cannot be bound by its terms.

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This court

considered and rejected the same arguments in Regions Bank v.
Herrington, stating:
The fact that the signature card did not explicitly
reference an arbitration obligation, and that there was
no discussion of any arbitration provision at the time
Herrington signed the signature card is immaterial. The
signature card incorporated the terms of the Customer
Agreement, which Herrington admits contained the
arbitration provision. And, while Herrington claims he
was not provided a copy of the Customer Agreement, this
assertion is contrary to and hence foreclosed by the
unambiguous language of the signature card, which
plainly recites, “the person(s) signing below:
acknowledges receipt of a copy of the applicable
customer agreement now in force.” In Jureczki v. Bank
One Texas, N.A., 75 Fed. Appx. 272 (5th Cir. 2003), Bank
One sought to compel its customers, the Jureczkis, to
arbitrate their claims against it. The Jureczkis had
signed a signature card when they opened their account
that incorporated the bank's account rules, which
account rules included an arbitration agreement. The
court held it was clear that by signing the signature
card, the Jureczkis entered into a binding contract, and
it rejected their argument that they did not agree to
the Account Rules referenced on the signature card
because they never received the Account Rules since the
signature card which they admitted they signed recited
that they had received the Account Rules. 75 Fed. Appx.
at 274-75. The court wrote: “This argument is in direct
contradiction to language on the signature card which
clearly states that the signators have received the
Account Rules and agree to be bound by the agreements
and terms therein.” Id.
630 F. Supp. 2d 722, 726-27 (S.D. Miss. 2009).

Plaintiff has

offered no other basis for denial of Regions’ motion.
It is therefore ordered that the motion to compel arbitration
is granted.

Further, while Regions has also moved for a stay

pending arbitration pursuant to 9 U.S.C. § 3, the court perceives
no reason to stay, rather than dismiss this action, as all of the
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claims herein are subject to arbitration.

See Alford v. Dean

Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992).
Accordingly, it is ordered that this cause be dismissed with
prejudice.
SO ORDERED this 21st day of December, 2012.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

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