Holden v. AT&T Corporation et al

Filing 15

ORDER granting 6 Motion to Dismiss or Stay Proceedings and Compel Arbitration. The Plaintiff's response and memorandum in Opposition to Defendants' Motion to Dismiss or Stay Proceedings and Compel Arbitration 12 is herby STRICKEN. This action is hereby DISMISSED and the parties are hereby ORDERED to submit all the claims in this litigation to arbitration. Signed by District Judge Martin Reidinger on 02/05/2013. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12cv341

RALPH HOLDEN,
Plaintiff,
vs.
AT&T CORPORATION, BELLSOUTH
TELECOMMUNICATIONS, LLC., et. al.,
Defendants.
__________________________

)
)
)
)
)
)
)
)
)
)
_)

ORDER

THIS MATTER is before the Court on the Defendants’ Motion to
Dismiss or Stay Proceedings and Compel Arbitration [Doc. 6].
PROCEDURAL HISTORY
The Plaintiff initiated this action on October 29, 2012 alleging
violations of the Fair Credit Reporting Act, 15 U.S.C. §1681, et. seq. and
state law claims.

[Doc. 1].

The Defendants moved to dismiss the

Complaint or, alternatively, to stay this action and to compel arbitration.
[Doc. 6]. The suit derives from telephone service agreements entered into
by the parties both here and in Florida. [Doc. 1].
In response to the motion, the Plaintiff, through counsel, moved for an

extension of time within which to respond representing that he needed time
to investigate the possibility of settlement.

[Doc. 9].

That motion was

granted and the Plaintiff’s response was to be filed on or before January
23, 2013. [Doc. 10]. The day after the response was to have been filed,
Plaintiff’s counsel moved a second time for an extension. [Doc. 11]. On
January 29, 2013, while that motion was pending, the Plaintiff filed a
Response in opposition to the motion to compel arbitration. [Doc. 12]. On
that same day, the Magistrate Judge denied the motion for a second
extension of time, noting that counsel had failed to set forth excusable
neglect for missing the filing date. [Doc. 13].
The Magistrate Judge’s ruling renders void the Response filed by the
Plaintiff on January 29, 2013. As a result, it is stricken from the record.
The Defendants’ motion, therefore, has not been opposed.
STANDARD OF REVIEW
The Federal Arbitration Act (FAA) provides that any written provision
to settle by arbitration a controversy arising pursuant to a contract 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.”1 9

1

Although state law determines questions related to the validity and enforceability
of contracts generally, the FAA created a “body of federal substantive law of arbitrability,
2

U.S.C. §2. The parties’ telephone service agreements provide for services
through interstate commerce.2

Verizon Maryland, Inc. v. Global NAPS,

Inc., 377 F.3d 355, 371 (4th Cir. 2004); Cavalier Telephone, LLC v. Verizon
Virginia, Inc., 330 F.3d 176 (4th Cir.), cert. denied 540 U.S. 1148, 124 S.Ct.
1144, 157 L.Ed.2d 1041 (2004). “As a result of th[e] federal policy [stated
in the FAA] favoring arbitration, ‘any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration, whether the
problem at hand is the construction of the contract language itself or an
allegation of waiver, delay, or a like defense to arbitrability.’”

Patten

Grading & Paving, Inc. v. Skanska USA Building, Inc., 380 F.3d 200, 204
(4th Cir. 2004) (emphasis deleted) (quoting Moses H.Cone Memorial
Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24-25, 103 S.Ct.
927, 74 L.Ed.2d 765 (1983)). The language of the statute is clear; a judge
must compel arbitration if the parties have entered into a valid arbitration
agreement and the dispute falls within the scope thereof.

Id.

The

pertinent language of the FAA is:
If any suit or proceeding be brought in any of the courts of the
applicable to any arbitration agreement within coverage of the Act.” International Paper
Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 417 n.4 (4th Cir.
2000).
2

The Plaintiffs do not dispute the same.
3

United States upon any issue referable to arbitration under an
agreement in writing for such arbitration, the court in which
such suit is pending, upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration
under such an agreement, shall on application of one of the
parties stay the trial of the action until such arbitration has been
had in accordance with the terms of the agreement[.]
9 U.S.C. §3.
In determining whether the dispute at issue is one which should be
resolved through arbitration, this Court “‘engage[s] in a limited review to
ensure that the dispute is arbitrable - i.e., that a valid agreement to arbitrate
exists between the parties and that the specific dispute falls within the
substantive scope of that agreement.’” Murray v. United Food and
Commercial Workers International Union, 289 F.3d 297, 302 (4th Cir. 2002).
DISCUSSION
The Plaintiff’s telephone service agreements with the Defendants
contained binding arbitration agreements.

[Doc. 7].

Each of the

agreements contains the following language:
THIS
AGREEMENT
CONTAINS
AN
ARBITRATION
PROVISION THAT GOVERNS DISPUTES BETWEEN YOU
AND AT&T (SEE SECTION 9).
…

4

AT&T and you agree to arbitrate all disputes and claims
between us. This agreement to arbitrate is to be broadly
interpreted. It includes, but is not limited to:
 claims arising out of or relating to any aspect of the
relationship between us, whether based in contract, tort,
statute, fraud, misrepresentation or any other legal theory;
…
 claims that may arise after the termination of this
Agreement.
[Doc. 7 at 5-6].
“The essential thrust of the [FAA] ..., is to require the application of
contract law to determine whether a particular arbitration agreement is
enforceable; thereby placing arbitration agreements ‘upon the same footing
as other contracts.’” Raper v. Oliver House, LLC, 180 N.C.App. 414, 41920, 637 S.E.2d 551 (2006) (citation omitted); Granite Rock Co. v.
International Broth. of Teamsters, __U.S. __, 130 S.Ct. 2847, 177 L.Ed.2d
567 (2010); Murray, 289 F.3d at 302 (court first must determine if an
agreement to arbitrate was formed; then must assess whether the dispute
falls within the scope of that agreement). “When making this determination,
[courts] should apply ‘ordinary state-law principles that govern the
formation of contracts.’”

General Electric Capital Corp. v. Union Corp.

Financial Group, Inc., 142 Fed.App’x. 150, 152 (4th Cir. 2005).

“Under

North Carolina law, a valid contract ‘requires offer, acceptance,
5

consideration, and no defenses to formation.’” Hightower v. GMRI, Inc., 272
F.3d 239, 242 (4th Cir. 2001). The parties here do not dispute that the
telephone service agreements were valid contracts.
“‘It is a well-settled principle of legal construction that [i]t must be
presumed the parties intended what the language used clearly expresses,
and the contract must be construed to mean what on its face it purports to
mean.’” D.P. Solutions, Inc. v. Xplore-Tech Services Private Ltd.,
__N.C.App. __, 710 S.E.2d 2d 297, 300 (2011) (quoting Self-Help Ventures
Fund v. Custom Finish, LLC, 199 N.C.App. 743, 747, 682 S.E.2d 746, 749
(2009), appeal dismissed 363 N.C. 856, 694 S.E.2d 392 (2010)). “The
interpretation of the terms of an arbitration agreement are governed by
contract principles and parties may specify by contract the rules under
which arbitration will be [required].” Trafalgar House Construction v. MSL
Enterprises, Inc., 128 N.C.App. 252, 256, 494 S.E.2d 613 (1998). The
Court finds the language of the contract unambiguously shows the parties’
intention to submit to binding arbitration. Moreover, even if the language of
the contract, read as a whole, did not clearly show the parties’ intent, the
“FAA favors arbitration where the parties’ intent is unclear[.]” Perdue
Farms, Inc. v. Design Build Contracting Corp., 263 Fed.App’x. 380, 384 (4th
Cir. 2008).
6

The language of the arbitration clause, which states it is to be
interpreted “broadly,” clearly shows that all disputes among the parties
were to be submitted to arbitration.

[Doc. 7].

The Plaintiff has raised

claims based on the Fair Credit Reporting Act as well as tort and contract
claims. [Doc. 1]. The disputes at issue fall within the broad scope of the
clause. The Court therefore finds that the parties entered into a valid and
binding agreement to arbitrate and that all of the disputes at issue fall within
the scope of that agreement. Wince v. Easterbrooke Cellular Corp., 681
F.Supp.2d 679 (N.D.W.Va. 2010). Because all of the claims alleged in the
Complaint are subject to arbitration, it is appropriate to dismiss this action
rather than to stay it pending the completion thereof.

Adkins v. Labor

Ready, Inc., 303 F.3d 496 (4th Cir. 2002); Choice Hotels Intern., Inc. v. BSR
Tropicana Resort, Inc., 252 F.3d 707 (4th Cir. 2001); Minacca, Inc. v. Singh,
2010 WL 2650877 (W.D.N.C. 2010).
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Response and
Memorandum in Opposition to Defendants’ Motion to Dismiss or Stay
Proceedings and Compel Arbitration [Doc. 12] is hereby STRICKEN.
IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss
or Stay Proceedings and Compel Arbitration [Doc. 6] is hereby GRANTED.
7

IT IS FURTHER ORDERED that this action is hereby DISMISSED
and the parties are hereby ORDERED to submit all the claims in this
litigation to arbitration.
Signed: February 5, 2013

8