Clark v. Cellco Partnership

Filing 18

ORDER granting 6 Motion to Compel Arbitration and Stay Litigation. Plaintiff must submit her claim for arbitration within 30 days of this order and notify the Court when she has done so. this action is stayed pending arbitration. Signed by Senior Judge Graham Mullen on 4/6/17. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-00720-GCM
JUDITH CLARK,
Plaintiff,
v.
CELLCO PARTNERSHIP,
Defendant.

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ORDER

THIS MATTER is before the Court on Defendant’s Motion to Compel Arbitration and
Stay Litigation (Doc. No. 6), Plaintiff’s Memorandum in Opposition to the Motion to Compel
Arbitration and Stay Litigation (Doc. No. 12), and Defendant’s Reply to the Response to the
Motion to Compel Arbitration and Stay Litigation (Doc. No. 13).
Plaintiff previously filed a complaint over the same facts in July 2015. (Doc. No. 12 at 2).
In August of that year the Court entered an order staying the proceedings so that the parties could
address their dispute through arbitration. (Doc. No. 12 at 2).
On September 1, 2016 this Court entered an order in the case filed July 2015 that lifted
the stay and required the parties to file a proposed discovery plan. (Doc. No. 12 at 2). Thereafter,
the parties stipulated to dismissal of that action without prejudice so that the matter could
proceed in arbitration. (Doc. No. 7 at 2).
On October 17, 2016, Plaintiff filed the current action. (Doc. No. 1). On December 19,
2016 Defendant filed a motion to compel arbitration. (Doc. No. 6).

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Plaintiff contends that the above timeline is sufficient to demonstrate that Defendant
waived its right to demand arbitration.
However, it is clear from the case law that the Defense did not waive their right to
compel arbitration from the above facts. The Customer Agreement between Verizon and Plaintiff
requires arbitration in all disputes, its validity is not challenged by the Plaintiff, and arbitration
agreements are regularly enforced. (See Doc. No. 6). The Fourth Circuit has said that since there
is a strong federal policy favoring arbitration; statutory default of that right is not lightly inferred.
MicroStrategy, Inc. v. Lauriscia, 268 F.3d 244, 249 (4th Cir. 2001).
For a party to default on the right to insist on the arbitration, the party must substantially
utilize the litigation machinery and the party objecting to arbitration must have suffered actual
prejudice. Id. The Defense has not substantially utilized litigation machinery here. In the first
case, the Defendant notified the Plaintiff soon after the complaint was filed of its obligation to
arbitrate the matter and the case was stayed less than a month after the complaint was filed.
(Doc. No. 13 at 2). In the present case, the first motion made by the Defense was a motion to
compel arbitration. (Doc. No. 6). It is hard to see how the Defense used litigation machinery at
all here, much less substantially so.
IT IS THEREFORE ORDERED that the Defendant’s Motion to Compel Arbitration
and Stay Litigation is hereby GRANTED. Plaintiff must submit her claim for arbitration within
30 days of this order and notify the Court when she has done so. This action is stayed pending
arbitration.

Signed: April 6, 2017

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