Hartman, II v. Charter Communications, Inc. et al
Filing
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MEMORANDUM OF DECISION AND ORDER granting Plaintiff's 18 Motion to Compel. IT IS FURTHER ORDERED that this case is referred to arbitration, and the Clerk of Court is directed to administratively close this case. Signed by District Judge Martin Reidinger on 4/17/2015. (Pro se litigant served by US Mail.)(nv)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00243-MR-DLH
RICHARD H. HARTMAN, II
)
)
Plaintiff,
)
)
vs.
)
)
CHARTER COMMUNICATIONS, )
INC.; CHARTER
)
COMMUNICATIONS, LLC;
)
CHARTER COMMUNICATIONS )
(NC), LLC; CHARTER
)
COMMUNICATIONS VI, LLC;
)
CHARTER COMMUNICATIONS )
VII, LLC; CHARTER
)
COMMUNICATIONS HOLDING )
COMPANY, LLC; CHARTER
)
CABLE OPERATING COMPANY,)
LLC; STRAIGHT FORWARD
)
OF WISCONSIN, INC.
)
)
Defendants.
)
___________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion to Compel
Arbitration with Respect to Charter Communications, Inc. [Doc. 18] and the
Defendants’ Response Opposing in Part and Agreeing in Part to Plaintiff’s
Motion to Compel Arbitration [Doc. 20].
I.
PROCEDURAL BACKGROUND
The Plaintiff initiated this action on September 15, 2014, seeking
damages from the Charter Defendants for alleged violations of the
Telephone Consumer Protection Act (“TCPA”). [Doc. 1]. On February 9,
2015, the Plaintiff filed an Amended Complaint adding Straight Forward of
Wisconsin, Inc. (“Straight Forward”) as a Defendant. [Doc. 16].
The Plaintiff specifically alleged the following:
This action arises out of facts and circumstances surrounding a series
of unlawful “auto-dialed” telemarketing telephone calls the Defendants
made to the Plaintiff’s cellular telephone. [Doc. 16, Intro.].
Charter Communications, Inc. (“Charter”) is vicariously liable for the
unlawful conduct of Straight Forward as alleged herein, as Charter had
control and provided direction to Straight Forward, and the unlawful
calls were placed on behalf of Charter Communications, Inc. [Doc. 16,
¶ 17].
Straight Forward, on behalf of Charter, began calling the Plaintiff’s
cellular telephone…for the purpose of soliciting the Plaintiff to
purchase cable television and other services. [Doc. 16, ¶ 18].
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Charter and/or Straight Forward used an auto-dialer to place
telemarketing calls to Plaintiff’s cellular telephone on numerous
occasions… [Doc. 16, ¶ 25].
The agreement between the Plaintiff and Charter Communications,
Inc. (the “Agreement”) contained an arbitration provision:
. . . This Agreement requires the use of arbitration to
resolve disputes and otherwise limits the remedies
available to Subscriber in the event of a dispute. . .
Charter and Subscriber agrees to arbitrate disputes
and claims arising out of or relating to this
Agreement, the Services or marketing of the
Services Subscriber has received from Charter. . .
THIS
AGREEMENT
MEMORIALIZES
A
TRANSACTION IN INTERSTATE COMMERCE.
THE FEDERAL ARBITRATION ACT GOVERNS
THE INTERPRETATION AND ENFORCEMENT OF
THESE ARBITRATION PROVISIONS.
[Doc. 18-1, Section 24].
The Plaintiff filed his Motion to Compel Arbitration with Respect to
Defendant Charter Communications, Inc. on February 18, 2015 [Doc. 18],
and the Charter Defendants responded opposing in part and agreeing in part
to the Plaintiff’s motion [Docs. 20-21]. On March 30, 2015, this Court ordered
Charter Communications, Inc.; Charter Communications, LLC; Charter
Communications (NC), LLC; Charter Communications VI, LLC; Charter
Communications VII, LLC; Charter Communications Holding Company, LLC;
and Charter Cable Operating Company (“the Charter Defendants”) to file
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their required Rule 7.1 corporate disclosures informing this Court of their
relationships to one another [Doc. 25]. Further, this Court also ordered
Straight Forward of Wisconsin, Inc. (“Straight Forward”) to respond with its
position regarding the Plaintiff’s Motion to Compel Arbitration with Respect
to Charter Communications, Inc. [Doc. 18] and the Defendants’ Response
Opposing in Part and Agreeing in Part to Plaintiff’s Motion to Compel
Arbitration [Doc. 20]. The Charter Defendants have now filed their Rule 7.1
disclosures [Docs. 26-32], and Defendant Straight Forward has also
responded with an indication of its position regarding arbitration [Doc. 33].
This matter is now ripe for disposition.
II.
DISCUSSION
According to the Federal Arbitration Act (“FAA”), § 2:
A written provision in any maritime transaction or a
contract evidencing a transaction involving
commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction,
or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to
arbitration an existing controversy arising out of such
a contract, transaction, or refusal, 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.A. § 2. The Fourth Circuit has held that “a litigant can compel
arbitration under the FAA if he can demonstrate “(1) the existence of a
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dispute between the parties, (2) a written agreement that includes an
arbitration provision which purports to cover the dispute, (3) the relationship
of the transaction, which is evidenced by the agreement, to interstate or
foreign commerce, and (4) the failure, neglect or refusal of the defendant to
arbitrate the dispute.” Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir.
1991).
Where there is a valid arbitration agreement and a claim has been
made raising issues within its scope, “[a] district court . . . has no choice but
to grant a motion to compel arbitration.” Adkins v. Labor Ready, Inc., 303
F.3d 496, 500 (4th Cir. 2002). There is a strong public policy in favor of
arbitration in North Carolina and on the federal level. See Johnston County
v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992); see also
Vaden v. Discover Bank, 556 U.S. 49, 129 S.Ct. 1262, 1265 (2009).
In some cases, state law “traditional principles” “allow a contract to be
enforced by or against nonparties to the contract through ‘assumption,
piercing the corporate veil, alter ego, incorporation by reference, third-party
beneficiary theories, waiver and estoppel.’” Arthur Andersen LLP v. Carlisle,
556 U.S. 624, 631 (2009) (citing 21 R. Lord, Williston on Contracts § 57:19,
p. 183 (4th ed. 2001)). Thus, nonsignatories may demand arbitration under
the FAA when the signatory’s claims against the nonsignatory presume the
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existence of the agreement and the signatory’s claims directly relate to the
agreement. Id.; see also American Bankers Insurance Group v. Long, 453
F.3d 623, 626-30 (4th Cir. 2006) (holding that both a signatory and a
nonsignatory were bound by an arbitration clause through equitable
estoppel); see also Brantley v. Republic Mortgage Ins. Co., 424 F.3d 392,
395-96 (4th Cir. 2005); see also J.J. Ryan & Sons v. Rhone Poulenc Textile,
S.A., 863 F.2d 315, 320-21 (4th Cir. 1988) (holding that a parent company
was bound by an arbitration agreement signed by its subsidiary where the
charges against both companies were “based on the same facts” and
“inherently inseparable”).
Further, according to the FAA, § 3:
If any suit or proceeding be brought in any of the
courts of the 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, providing the applicant for the stay is not
in default in proceeding with such arbitration.
9 U.S.C.A. § 3.
Here, the arbitration provision in the Agreement between the Plaintiff
and Charter Communications, Inc. is unambiguous, and the Defendants
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have not questioned its validity.
[Doc. 18-1, Section 24].
Thus, the
arbitration provision is enforceable by this Court. The Charter Defendants
agree with the Plaintiff that “arbitration is appropriate in this case according
to the Service Agreement[,] but also contend that all Charter Defendants
should be included in the arbitration as the claims against Charter
Communications, Inc. are inseparably intertwined with the claims against the
other Charter Defendants . . . [and] the arbitration provision is broad in
scope.” [Doc. 21 at 2].
Here, the contract between the Plaintiff and Charter Communications,
Inc. with its valid arbitration provision, can be enforced against all of the
Charter Defendants.
The Charter Defendants have disclosed their
relationships to one another through their Rule 7.1 corporate disclosure
statements [Docs. 26-32].
These statements reveal that the Charter
Defendants have a closely intertwined business relationship. [Id.].1 Many of
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Charter Communications Operating, LLC is the 100% sole member of Charter
Communications, LLC. [Doc. 27]. Charter Communications Operating Holdings, LLC is
the 100% sole member of Charter Communications Operating, LLC. [Id.]. Charter
Communications Holdings II, LLC is the 100% sole member of Charter Communications
Operating Holdings, LLC. [Id.]. Charter Communications VI Operating Company, LLC is
the 100% sole member of Charter Communications VI, LLC. [Doc. 28]. Charter
Communications Operating NR Holdings, LLC is the 100% sole member of Charter
Communications VI, LLC. [Id.]. Charter Communications Operating, LLC is the 100%
sole member of Charter Communications Operating NR Holdings, LLC. [Id.]. Charter
Communications Operating NR Holdings, LLC is the 100% sole member of Charter
Communications VII, LLC. [Id.]. Charter Communications Operating, LLC is the 100%
sole member of Charter Communications Operating NR Holdings, LLC. [Id.]. Charter
Communications Operating Holdings, LLC is the 100% sole member of Charter
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the Charter entities are the 100% sole members of other Charter entities. All
of the charges relate to an alleged “series of unlawful ‘auto-dialed’
telemarketing telephone calls the Defendants made to the Plaintiff’s cellular
telephone.” [Doc. 16, Intro.]. Thus, the arbitration provision here relates to
numerous companies which are “inherently inseparable,” where the charges
against all of them are “based on the same facts.” J.J. Ryan & Sons, 863
F.2d at 320-21.
Further, the arbitration provision in the Agreement is also enforceable
as to Defendant Straight Forward. Straight Forward “desires to join the
Charter Defendants and Plaintiff in binding arbitration, as permitted by their
Service Agreement.”
[Doc. 33].
The Plaintiff’s allegations indicate an
intertwined relationship between Charter Communications, Inc. and Straight
Forward, as follows:
Charter Communications, Inc. (“Charter”) is vicariously liable for the
unlawful conduct of Straight Forward as alleged herein, as Charter had
control and provided direction to Straight Forward, and the unlawful
Communications Operating, LLC. [Doc. 29]. Charter Communications, Inc., Charter
Communications I Exchange I, LLC, and Charter Investment, LLC are the members of
Charter Communications Holding Company. [Doc. 30]. Charter Communications
Operating, LLC is the 100% sole member of Charter Cable Operating Company, LLC.
[Doc. 31]. Charter Communications (NC), LLC is the name by which Charter
Communications, LLC is known in North Carolina as a forced assumed name. [Doc. 32].
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calls were placed on behalf of Charter Communications, Inc. [Doc. 16,
¶ 17].
Straight Forward, on behalf of Charter, began calling the Plaintiff’s
cellular telephone…for the purpose of soliciting the Plaintiff to
purchase cable television and other services. [Doc. 16, ¶ 18].
Charter and/or Straight Forward used an auto-dialer to place
telemarketing calls to Plaintiff’s cellular telephone on numerous
occasions… [Doc. 16, ¶ 25].
Here, all of the parties will be best served by proceeding with arbitration
in this case. The issues are very closely related, and the claims against
Straight Forward presume the existence of the Agreement between the
Plaintiff and the signatory Charter Communications, Inc. Thus, this Court will
order that all of the parties participate in arbitration according to the
Agreement.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Compel
Arbitration with Respect to Charter Communications, Inc. [Doc. 18] is
GRANTED, and all the parties in this case are hereby ordered to arbitrate.
IT IS FURTHER ORDERED that this case be referred to arbitration,
and the Clerk of Court is directed to administratively close this case.
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IT IS SO ORDERED.
Signed: April 17, 2015
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