DOYLE v. AD ASTRA RECOVERY SERVICES, INC.
OPINION. Signed by Judge Noel L. Hillman on 3/6/2018. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ON BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED,
AD ASTRA RECOVERY SERVICES,
BENJAMIN JARRET WOLF
JOSEPH K. JONES
JONES, WOLF & KAPASI, LLC
375 PASSAIC AVENUE
FAIRFIELD, NJ 07004
On behalf of Plaintiff
MICHAEL I. METZ-TOPODAS
GARY JOHN REPKE, JR.
COHEN SEGLIAS PALLAS GREENHALL & FURMAN PC
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103
On behalf of Defendants
HILLMAN, District Judge
This matter concerns claims by Plaintiff, on behalf of
herself and other similarly situated parties, against a
collection agency for its efforts to collect a debt.
before the Court is the motion of Defendant to compel
arbitration of Plaintiff’s claims.
For the reasons expressed
below, Defendant’s motion will be granted.
On November 10, 2015, Plaintiff, Meghan Doyle, and Rapid
Cash entered into an agreement for an unsecured high interest 1
installment loan for $1,500.00 that was assigned account number
Plaintiff’s obligation was sent into default, and
after Rapid Cash had exhausted its internal collection efforts,
Plaintiff’s obligation was referred to an outside collection
agency, Defendant, Ad Astra Recovery Services, Inc., to
undertake collection efforts.
On March 17, 2017, Plaintiff sent a letter to Ad Astra
disputing the debt.
Plaintiff’s letter referenced account
number ****899 and asked for a breakdown of the balance
allegedly owed by her.
Plaintiff maintains that because Ad
Astra has failed to report the debt as disputed, Ad Astra has
violated various provisions of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.
Plaintiff has filed a putative class action complaint
against Ad Astra seeking damages, as well as declaratory and
injunctive relief, arising from its alleged FDCPA violation,
which prohibits debt collectors from engaging in abusive,
deceptive and unfair practices.
More specifically, Plaintiff
The APR was 434.141%.
alleges that Ad Astra violated §§ 1692e(8) and 1692e(10) of the
FDCPA by communicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that a
debt is disputed, and using false, deceptive or misleading
representations or means in connection with its collection
Ad Astra has moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) and to compel arbitration pursuant to the “Rapid Cash
Unsecured High Interest Installment Loan Agreement and
Plaintiff has opposed Ad Astra’s motion,
arguing that the motion should be denied because the agreement
does not apply to Plaintiff’s FDCPA claims.
argument is premised on assigned “special meanings” and specific
definitions stated in the agreement, as well as language in the
arbitration and class action waivers that she contends is
Plaintiff also argues that the entire agreement is
invalid and unenforceable.
Subject matter jurisdiction
Plaintiff brings this action for damages and declaratory
relief arising from the Defendant’s violation of 15 U.S.C. §
1692 et seq., the Fair Debt Collection Practices Act.
Court has jurisdiction over this action pursuant to 28 U.S.C. §
Standard for Motion to Dismiss and to Compel
In those cases in which a motion to compel arbitration can
be decided without evidence, the Court will apply the familiar
Rule 12(b)(6) standard to the face of the pleadings.
Avis Budget Group, Inc., 2017 WL 2525009, at *3 (D.N.J. 2017)
(citing Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716
F.3d 764, 771 (3d Cir. 2013) (directing that where “the
affirmative defense of arbitrability of claims is apparent on
the face of a complaint (or . . . documents relied upon in the
complaint), . . . the FAA would favor resolving a motion to
compel arbitration under a motion to dismiss standard without
the inherent delay of discovery”)).
Here, even though Plaintiff’s complaint does not attach the
agreement that contains the arbitration provision at issue, the
Court may consider it because Plaintiff’s claims derive from the
agreement, which Plaintiff entered into with Rapid Cash and
which refers to Ad Astra as a “related party.” 2
does not argue that discovery is required to interpret the
On a motion to dismiss, a court may consider “an undisputedly
authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff’s claims are based on the
document.” Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Court therefore may consider whether the action
must be arbitrated by way of a motion to dismiss. 3
The Federal Arbitration Act (FAA) provides that a written
arbitration provision contained in a “contract evidencing a
transaction involving commerce . . . shall be valid, irrevocable
and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.”
9 U.S.C. § 2.
Under the FAA, a private arbitration agreement is enforceable if
(1) a valid arbitration agreement exists between the parties and
(2) the dispute before it falls within the scope of the
AT&T Mobility LLC v. Conception, 563 U.S. 333, 344–
45 (2011); Century Indem. Co. v. Certain Underwriters at
Lloyd's, London, 584 F.3d 513, 525 (3d Cir. 2009). 4
In contrast, where the complaint and supporting documents are
unclear as to an agreement to arbitrate, or where a plaintiff
responds to a motion to compel with additional facts sufficient
to place the issue of arbitrability “in issue,” then the parties
should be entitled to discovery, and thereafter a court may then
entertain a renewed motion to compel arbitration and should
review such a motion under the summary judgment standard.
Bacon, 2017 WL 2525009, at *4 (citing Guidotti, 716 F.3d at
“‘ When deciding whether the parties agreed to arbitrate a
certain matter (including arbitrability), courts generally . . .
should apply ordinary state-law principles that govern the
formation of contracts.’” Moon v. Breathless Inc., 868 F.3d
209, 213 (3d Cir. 2017) (quoting First Options of Chicago, Inc.
v. Kaplan, 514 U.S. 938, 944 (1995)). However, “[w]hile the
interpretation of an arbitration agreement is generally a matter
of state law, the FAA imposes certain rules of fundamental
Additionally, arbitration agreements that contain waivers
of class actions are valid, AT&T Mobility LLC, 563 U.S. at 348, 5
and arbitration clauses have been upheld in putative FDCPA class
action cases, see, e.g., Gates v. Northland Group, Inc., 2017 WL
680258, at *1 (D.N.J. 2017); Harris v. Midland Credit
Management, Inc., 2016 WL 475349, at *3 (D.N.J. 2016); Jeffreys
v. Midland Credit Management, Inc., 2016 WL 4443164, at *1
“[T]he party resisting arbitration bears the
burden of proving that the claims at issue are unsuitable for
Green Tree Financial Corp.-Alabama v. Randolph,
importance,” including whether a valid arbitration agreement
exists between the parties, and the dispute before it falls
within the scope of the agreement. Stolt-Nielsen S.A. v.
AnimalFeeds International Corp., 559 U.S. 662, 681 (2010)
(citing 9 U.S.C. §§ 2–3) (other citations omitted). The
agreement here provides that the arbitration “shall be governed
by the FAA, and not Federal or state rules of civil procedure or
evidence or any state laws that pertain specifically to
arbitration, provided that that law of Kansas, where we are
headquartered, shall be applicable to the extent that any state
law is relevant in determining the enforceability of this
Arbitration Provision under Section 2 of the FAA.” (Docket No.
6-3 at 10.)
See also Kobren v. A-1 Limousine Inc., 2016 WL 6594075, at *4
(D.N.J. 2016) (explaining that “neither individual claims nor
class arbitration waivers are unconscionable in the context of
consumer adhesion contracts, even when there is a clear
disparity of bargaining power and when only small monetary
amounts are at issue”) (citing Litman v. Cellco Partnership, 655
F.3d 225, 232 (3d Cir. 2011) (rejecting New Jersey law holding
that waivers of class arbitration are unconscionable));
Torgerson v. LCC International, Inc., 227 F. Supp. 3d 1224, 1229
n.1 (D. Kan. 2017) (“[Our court has addressed this issue,
concluding that [class action waiver] provisions do not render
an arbitration agreement unenforceable.”) (citations omitted).
531 U.S. 79, 91 (2000).
The Court’s analysis of whether Plaintiff’s claims must be
arbitrated starts with the terms of the agreement.
Cash Unsecured High Interest Installment Loan Agreement and
Disclosure Statement” (see Docket No. 6-3) provides in relevant
Terms and Conditions
Definitions: Certain words used in this Agreement have special
meanings . . . . The words "you" and "your" means the person(s)
signing this Agreement as Customer. The words "we", "us" and
"our" mean the Lender/Creditor identified above.
AGREEMENTS FOR RESOLVING DISPUTES; CERTAIN DEFINITIONS
The Pre-Dispute Resolution Procedure, Arbitration Provision and
Jury Trial Waiver set forth below govern “Claims” you assert
against us or any “related party” of ours and “Claims” we or any
related party assert against you.
For purposes of this Agreement, our “related parties” include
all parent companies, subsidiaries and affiliates of ours
(including Ad Astra Recovery Services, Inc.), and our and their
employees, directors, officers, shareholders, governors,
managers and members.
The term “Claim” means any claim, dispute or controversy between
you and us (or our related parties) that arises from or relates
in any way to this Agreement or any services you request or we
provide under this Agreement (“Services”); any of our marketing,
advertising, solicitations and conduct relating to your request
for Services; our collection of any amounts you owe; or our
disclosure of or failure to protect any information about you.
“Claim” is to be given the broadest possible meaning and
includes claims of every kind and nature, including but not
limited to, initial claims, counterclaims, cross-claims and
third-party claims, and claims based on any constitution,
statute, regulation, ordinance, common law rule (including rules
relating to contracts, negligence, fraud or other intentional
wrongs) and equity. It includes disputes that seek relief of any
type, including damages and/or injunctive, declaratory or other
IF YOU DON'T REJECT THIS ARBITRATION PROVISION IN ACCORDANCE
WITH SECTION I BELOW, UNLESS PROHIBITED BY APPLICABLE LAW, IT
WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY IN WHICH YOU OR WE
RESOLVE ANY CLAIM.
Unless prohibited by applicable law and unless you reject the
Arbitration Provision in accordance with Section 1 below, you
and we agree that either party may elect to require arbitration
of any Claim under the following terms and conditions:
. . .
NO CLASS ACTIONS OR SIMILAR PROCEEDINGS; SPECIAL FEATURES OF
ARBITRATION. IF YOU OR WE ELECT TO ARBITRATE A CLAIM, NEITHER
YOU NOR WE WILL HAVE THE RIGHT TO: (A) HAVE A COURT OR A JURY
DECIDE THE CLAIM; (B) OBTAIN INFORMATION PRIOR TO THE HEARING TO
THE SAME EXTENT THAT YOU OR WE COULD IN COURT; (C) PARTICIPATE
IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS
REPRESENTATIVE, CLASS MEMBER OR CLASS OPPONENT . . . .
JURY TRIAL WAIVER
YOU AND WE ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSITUTIONAL RIGHT, BUT THAT IT MAY BE WAIVED UNDER CERTAIN
CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, YOU AND WE AFTER
HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY
AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES,
WAIVE ANY RIGHT TO TRIAL BY JURY IN TH EVENT OF LITIGATION
ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL
WAIVER SHALL NOT AFFECT OR BE INTERPRETED AS MODIFYING ANY
FASHION ANY SEPARATE ARBITRATION PROVISION BETWEEN YOU AND US,
WHICH CONTAINS ITS OWN SEPARATE JURY TRIAL WAIVER
BY SIGNING THIS AGREEMENT OR APPLYING FOR A LOAN:
• YOU WILL NOT BE ENTITLED TO HAVE A TRIAL BY JURY
TO RESOLVE ANY CLAIM AGAINST US.
• YOU WILL NOT BE ENTITLED TO HAVE A COURT, OTHER
THAN A SMALL CLAIMS COURT OR ASSOCIATE CIRCUIT
COURT, RESOLVE ANY CLAIM AGAINST US.
• YOU WILL NOT BE ABLE TO BRING, JOIN OR PARTICIPATE
IN ANY CLASS ACTION LAWSUIT AGAINST US.
(Docket No. 6-3; emphasis in original.)
Ad Astra argues that the agreement clearly calls for the
arbitration of Plaintiff’s claims against it. 6
To support its
argument, Ad Astra points to Plaintiff’s signature as evidence
she unambiguously waived her right to have her class action
claims resolved by a jury in the event that Rapid Cash - or one
of its related parties - elects to arbitrate those claims, and
failed to reject the arbitration provision.
Ad Astra also
points to the “Arbitrations Provision,” which provides that “the
Pre-Dispute Resolution Procedure, Arbitration Provision and Jury
Trial Waiver set forth below govern ‘Claims’ you assert against
us or any ‘related party’ of ours,” and that Plaintiff’s claims
constitute a “dispute or controversy between you and us (or our
related parties) that arises from or relates in any way to this
Ad Astra further points out that it is
specifically named as a “related party” to Rapid Cash. 7
Ad Astra notes several out-of-circuit cases involving the same
arbitration provision and FCDPA claims against Ad Astra where
the court granted Ad Astra’s motion to compel arbitration.
Plaintiff challenges the applicability of those cases on several
bases, including that none of the plaintiffs in those cases made
the same arguments as she does. This Court does not afford
those cases any weight other than noting their existence and
their similar ultimate resolution.
Case law supports the notion that Ad Astra, as “a parent
company, subsidiary or affiliate of” Rapid Cash, can move to
enforce the arbitration provision even though it is not a
Plaintiff rejects Ad Astra’s construction of the agreement.
Plaintiff points to the “Terms and Conditions” section, which
defines certain words: “Definitions:
Certain words used in this
Agreement have special meanings . . . .
The words ‘you’ and
‘your’ means the person(s) signing this Agreement as Customer.
The words ‘we,’ ‘us’ and ‘our’ mean the Lender/Creditor
Plaintiff then points to the “Important
Notices” provision, which only refers to the various waivers as
to “us” - i.e., Rapid Cash - and not as to any “related party.”
signatory to the agreement between Rapid Cash and Plaintiff.
See Oral Cancer Prevention Intern., Inc. v. Johnson & Johnson,
2011 WL 6130599, at *6 (D.N.J. 2011) (citing PNY Technologies v.
Samsung Elec. Co., Ltd., 2011 WL 900154 (D.N.J. 2011)) (holding
that that a non-signatory, that was an affiliate of a signatory,
may compel arbitration where the arbitration clause in one
agreement extended to the dispute that arose under another
agreement between the parties); Precision Funding Group, LLC v.
National Fidelity Mortg., 2013 WL 2404151, at *8 (D.N.J. 2013)
(“A non-signatory's motion to compel arbitration may be granted
if the non-signatory is ‘closely aligned’ to a contracting
party.”) (citation omitted); see also In re Prudential Ins. Co.
of America Sales Practice Litigation All Agent Actions, 133 F.3d
225, 229–30 (3d Cir. 1998) (where Prudential was not a signatory
to the agreement containing the arbitration provision but sought
to compel arbitration, finding, “As stated in Form U–4, the
plaintiffs agreed to arbitrate any dispute not only with Pruco,
but also with ‘any other person’ where the claim itself would be
subject to arbitration under the NASD Code. Pursuant to section
8 of the NASD Code, plaintiffs agreed to arbitrate certain
disputes ‘between or among members and/or associated
persons....’ There is no question that Prudential is a member
of the NASD, and the plaintiffs are associated persons within
the meaning of the Code. Thus, we conclude, as did the district
court, there is a clear and unequivocal intent to arbitrate
claims with third parties such as Prudential, and not just
Pruco, to the extent they are eligible for arbitration under §
Plaintiff also points to the “Claims” provision, which in
reference to claims arising from collection efforts, the
provision only refers to “our” collection efforts, and not a
related party’s collection efforts.
Plaintiff argues that
because Ad Astra is not included in the definition of “us” or
“our,” the provisions cited fail to indicate that they apply Ad
Plaintiff further argues that the arbitration provision is
not applicable to Plaintiff’s FDCPA claims against Ad Astra
because Plaintiff makes no claims against Rapid Cash and takes
no issue with Rapid Cash’s collection efforts.
Plaintiff argues that it is Ad Astra’s independent failure to
communicate Plaintiff's obligation as disputed, which has
nothing to do with the agreement, or with Rapid Cash.
sums up its opposition to Ad Astra’s motion by arguing that the
entire agreement is unenforceable as to Plaintiff’s claims
against Ad Astra because it does not inform Plaintiff that she
is waiving her right to bring a claim for statutory damages
pursuant to the FDCPA against Ad Astra - it only provides such a
waiver as to Rapid Cash.
Plaintiff also argues that the term “us” is muddled by the fact
that it is first defined as Rapid Cash with a Las Vegas, NV
address, but then later in the arbitration rejection provision,
a party must notify “us” at Tiger Financial Management, LLC in
The Court finds that contrary to Plaintiff’s arguments, the
agreement covers Plaintiff’s FDCPA claims against Ad Astra.
agreement is clear that: (1) “the Pre-Dispute Resolution
Procedure, Arbitration Provision and Jury Trial Waiver set forth
below govern ‘Claims’ you assert against us or any ‘related
party’ of ours”; (2) Plaintiff’s claims constitute a “dispute or
controversy between you and us (or our related parties) that
arises from or relates in any way to this Agreement”; (3) the
term “claim” is to be given its broadest meaning and includes
claims of every kind and nature; and (4) Ad Astra is
specifically named as a “related party” to Rapid Cash.
language, the arbitration provision governs a dispute of any
kind between Plaintiff and related-party Ad Astra arising out of
Plaintiff’s defaulted loan, if arbitration is elected by either
party, and if Plaintiff does not follow the rejection of
Plaintiff’s position - that the absence of reference to the
“related party” in the “important terms” and “our collection
efforts” provisions precludes the application of the arbitration
provision - would require that in order for the arbitration
provision in the agreement to be valid for her claims against Ad
Astra, every time the words “we,” “us” and “our” are used in the
agreement, the term “or related party” must also be used.
argument would add unnecessary words to the agreement,
distorting its otherwise plain meaning, and is therefore
First, many of the provisions in the agreement do not
require reference to “related party” as they only apply to Rapid
Cash’s customer relations with Plaintiff.
Examples of those
provisions relate to method of payments, dishonored payments,
telephone call monitoring, privacy policies, and communication
It only makes sense to include “or related party” in
the arbitration of claims section.
The Court does not find the
reference to “us” - and not to “us and our related parties” - in
the “Important notices” section of the agreement to be
persuasive as to the unforceability of the arbitration
Second, the “our collection efforts” phrase in the
definition of “claim” is separate from the provision that
implicates the arbitration procedure for Plaintiff’s claims
against Ad Astra.
The term “Claim” means any claim, dispute or controversy
between you and us (or our related parties) that arises
from or relates in any way to this Agreement or any
services you request or we provide under this Agreement
(“Services”); any of our marketing, advertising,
solicitations and conduct relating to your request for
Services; our collection of any amounts you owe; or our
disclosure of or failure to protect any information about
(Docket No. 6-3 at 8.)
Broken down, this provision provides
four meanings for the term “Claim”:
any claim, dispute or controversy between you and us (or
our related parties) that arises from or relates in any
way to this Agreement or any services you request or we
provide under this Agreement (“Services”)
any of our marketing, advertising, solicitations and
conduct relating to your request for Services
our collection of any amounts you owe
or our disclosure of or failure to protect any
information about you.
Thus, it is not the third meaning of “claim” that governs
Plaintiff’s claims here, but rather the first meaning. 9
In short, the agreement clearly intends, and fully explains
to the borrower, that any claims that arise from the agreement
against Rapid Cash or its related party Ad Astra can be subject
The enforcement of the arbitration provision
does not eliminate Plaintiff’s FDCPA claim against Ad Astra - it
simply changes the forum for its resolution and prevents her
from pursuing a class action.
Plaintiff had options if she
wished to preserve a potential FDCPA class action that could
arise from the type of loan she took out with Rapid Cash.
could have found a lender whose agreement did not contain
similar language as Rapid Cash’s, or she could have followed the
A strong argument could be made that “our collection efforts”
encompasses Ad Astra’s actions because part of Rapid Cash’s
efforts to collect on the loan was to engage Ad Astra to assist
in those efforts. The Court also observes that the first
meaning of “claim,” when read in tandem with the provision that
defines “claim” to be “claims of every kind and nature,” can be
interpreted to subsume the other three meanings.
procedures to reject the arbitration provision.
Plaintiff chose neither of those options, she is bound by the
terms of the agreement, including the requirement to arbitrate
her claims against Ad Astra. 10
See Griswold v. Coventry First
LLC, 762 F.3d 264, 271 (3d Cir. 2014) (“Courts generally apply a
presumption in favor of enforcing arbitration clauses.”) (citing
Preston v. Ferrer, 552 U.S. 346, 349 (2008) (stating that the
FAA established “a national policy favoring arbitration when the
parties contract for that mode of dispute resolution”); E.I.
DuPont de Nemours & Co. v. Rhone Poulenc Fiber and Resin
Intermediates S.A.S., 269 F.3d 187, 194 (3d Cir. 2001) (“The FAA
establishes a strong federal policy in favor of compelling
arbitration over litigation.”)); see also Moses H. Cone Memorial
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (“The
Arbitration Act establishes that, as a matter of federal law,
any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration . . . .”).
Consequently, Plaintiff’s complaint must be dismissed in
Cf. Singh v. Uber Technologies Inc., 235 F. Supp. 3d 656, 675
(D.N.J. 2017) (discussing New Jersey law on unconscionability,
which “requires a two-fold determination: that the contractual
terms are unreasonably favorable to the drafter and that there
is no meaningful choice on the part of the other party regarding
acceptance of the provisions”); Womack v. U.S. Bankcorp, Inc.,
2010 WL 11566516, at *3 (D. Kan. 2010) (discussing Kansas law un
unconscionability, which is found when the terms of the contract
are of such an oppressive character as to be unconscionable).
favor of arbitration. 11
For the reasons expressed above, Defendant’s motion to
dismiss Plaintiff’s claims and to compel arbitration will be
An appropriate Order will be entered.
March 6, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
The Court dismisses Plaintiff’s claims, rather than stay them,
because Plaintiff does not request that the Court stay the
action pending the resolution of the arbitration process. See
Singh v. Uber Technologies Inc., 235 F. Supp. 3d 656, 676
(D.N.J. 2017) (quoting Lloyd v. Hovensa, LLC, 369 F.3d 263, 269
(3d Cir. 2004)) (“The Third Circuit has held that the plain
language of § 3 of the FAA ‘affords a district court no
discretion to dismiss a case where one of the parties applies
for a stay pending arbitration.’ Because neither party requests
a stay of the proceedings, the Court dismisses the case in favor
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