MORRISON v. CREDIT ONE BANK

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 7/25/2017. 7/25/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES MORRISON
v.
CREDIT ONE BANK

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CIVIL ACTION
No. 16-3353

MEMORANDUM
Juan R. Sánchez, J.

July 25, 2017

Plaintiff Charles Morrison brings suit against Defendant Credit One Bank under the
Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), alleging that beginning in
January 2016, the Bank repeatedly called his cellphone without his consent using an automatic
dialing system, and requested to speak with “Terrell,” an unknown third party.

Morrison

informed the caller he was not “Terrell,” and requested that the Bank cease calling him. The
Bank, however, continued to call Morrison several times per week. Morrison eventually blocked
the Bank’s telephone calls with a blocking application. He commenced this action on June 24,
2016.
On August 5, 2016, the Bank moved to compel arbitration of Morrison’s claim pursuant
to Section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4, based on the cardholder
agreements associated with Morrison’s two credit card accounts with the Bank—a Visa account
opened on April, 17, 2010, and a MasterCard account open on February 3, 2015. Each of the
cardholder agreements contains an arbitration clause, which provides that either party may
require any controversy or dispute regarding any matters related to Morrison’s accounts to be
submitted to mandatory, binding arbitration. See Def.’s Mot. to Dismiss Ex. A-2, at 5 (Visa
arbitration agreement), Ex. A-5 at 6 (MasterCard arbitration agreement). The parties do not
dispute the existence of an enforceable agreement to arbitrate claims related to Morrison’s credit

card accounts with the Bank. Rather, they disagree as to whether the instant dispute falls within
the scope of the arbitration agreements, as Morrison argues the Bank’s calls did not pertain to his
credit card accounts, but to a third party. During a November 2, 2016, oral argument, the Bank
agreed to provide the Court with evidence concerning its collection activity, including an
affidavit and a record of telephone calls made to Morrison, and Morrison agreed to provide his
telephone records, documenting the Bank’s alleged unauthorized calls. The parties subsequently
provided that information.
On March 24, 2017, following a teleconference with both parties, the Court denied
without prejudice the Bank’s motion to compel arbitration in order to allow the parties to engage
in limited written discovery relating to the arbitration issue, after which the Bank could file a
motion for summary judgment or a further motion to compel arbitration. Limited discovery
closed on June 30, 2017, and that same day, the Bank filed the instant motion, renewing its
argument that this action should be decided by an arbitration panel.
Although the deadline for Morrison to respond to the Bank’s second motion to compel
arbitration has lapsed, see Local R. of Civ. P. 7.1(c) (providing opposition briefs must be served
within 14 days after service of a motion, unless the court directs otherwise, and a motion other
than a motion for summary judgment may be granted as uncontested “[i]n the absence of a
timely response”), Morrison has not submitted a response to date, and the motion to compel may
therefore be granted as uncontested.
Compelling arbitration is also appropriate on the merits. The FAA reflects “a strong
federal policy in favor of resolving disputes through arbitration,” Century Indem. Co. v. Certain
Underwriters at Lloyd’s, London, 584 F.3d 513, 522 (3d Cir. 2009), providing that a written
arbitration provision in a “contract evidencing a transaction involving commerce . . . shall be

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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 § 4 of the Act, “[a] party aggrieved by the
alleged failure, neglect, or refusal of another to arbitrate under a written agreement for
arbitration” may petition a district court that would otherwise have jurisdiction over the parties’
dispute “for an order directing that such arbitration proceed in the manner provided for in such
agreement.” Id. § 4. Because arbitration is a matter of contract, “a party cannot be compelled to
submit a dispute to arbitration unless it has agreed to do so.” Century Indem. Co., 584 F.3d at
524; see also CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir. 2014) (“‘[A]
court may order arbitration of a particular dispute only where the court is satisfied that the parties
agreed to arbitrate that dispute.’” (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S.
287, 297 (2010))). Thus, before granting a motion to compel arbitration, a court must determine
“(1) there is an agreement to arbitrate and (2) the dispute at issue falls within the scope of that
agreement.” Century Indem., 584 F.3d at 523.
The applicable standard for evaluating a motion to compel arbitration is as follows:
[W]hen it is apparent, based on the face of a complaint, and documents relied
upon in the complaint, that certain of a party’s claims are subject to an
enforceable arbitration clause, a motion to compel arbitration should be
considered under a Rule 12(b)(6) standard without discovery’s delay. But if the
complaint and its supporting documents are unclear regarding the agreement to
arbitrate, or if the plaintiff has responded to a motion to compel arbitration with
additional facts sufficient to place the agreement to arbitrate in issue, then the
parties should be entitled to discovery on the question of arbitrability before a
court entertains further briefing on [the] question. After limited discovery, the
court may entertain a renewed motion to compel arbitration, this time judging the
motion under a summary judgment standard. In the event that summary judgment
is not warranted because the party opposing arbitration can demonstrate, by
means of citations to the record,” that there is a genuine dispute as to the
enforceability of the arbitration clause, the court may then proceed summarily to a
trial regarding the making of the arbitration agreement or the failure, neglect, or
refusal to perform the same, as Section 4 of the FAA envisions.

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Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 776 (3d Cir. 2013) (internal
citations and quotation marks omitted). Because the Bank has renewed its motion to compel
arbitration following discovery regarding the arbitrability of Morrison’s claim, the Court applies
a summary judgment standard, and limits its inquiry to whether the dispute falls within the scope
of the agreement. See Century Indem., 584 F.3d at 523.
A motion for summary judgment shall be granted “if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Material facts are those “that might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual
dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. “Speculation, conclusory allegations, and mere denials are insufficient to
raise genuine issues of material fact.” Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 408
(E.D. Pa. 2000) (citations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is ‘no genuine issue for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Bank argues it called Morrison only with respect to his Credit One Visa account,
which was delinquent. In support, the Bank has provided an affidavit of Vicki Scott, its Vice
President of Collections, who asserts Morrison became in arrears on his Visa account, and on
June 17, 2015, the Bank began placing collection calls to Morrison, including to his telephone
number ending in “5591”—the telephone number at issue in this case. Def.’s Supp. Mem. in
Supp. of Mot. to Compel Ex. 1 ¶¶ 1, 8. Scott further asserts she conducted a search of the
Bank’s account system for calls placed to the number ending in 5591, which revealed that the
Bank “placed no calls to the number ending in ‘5591’ for purposes of collecting on any other

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accounts.” Id. ¶ 9. The Bank also provided a log of calls placed by a vendor on behalf of the
Bank for collection of Morrison’s Visa account, which shows the vendor made fourteen calls to
Morrison in June 2015 and 2016 with respect to his Visa account. Def.’s Sec. Supp. Mem. Ex. 2.
Gary Harwood, who monitors and oversees the Bank’s accounts as Vice President of Portfolio
Services, asserts in an affidavit that the Bank “maintains records of all calls placed to its
customers and a record of all communications[,] . . . includ[ing] when a phone call is placed, to
whom the phone call is directed, which telephone number Credit One calls, and for which
particular account the call relates to.” Id. Ex. 1 ¶¶ 2-3. Harwood further states that every call
placed to Morrison with respect to his Visa account is represented on the call log provided; no
calls were placed to Morrison with respect to his MasterCard account; and the Bank has no
record of any other calls being placed to Morrison. Id. ¶¶ 9-10.
Morrison maintains the calls were unrelated to his accounts. He has provided the Court
with the records he received from T-Mobile, his cellular telephone provider, pertaining to his
phone number ending in 5591, including a log of all incoming and outgoing calls between
January 1, 2016, and November 30, 2016, over 6,000 calls in total. He makes no effort,
however, to identify which calls were allegedly made by the Bank pertaining to an account
unrelated to his own. Thus, while the Bank has provided evidence that it made calls to Morrison
only with regard to his Visa account, Morrison has provided no evidence, by affidavit or
otherwise, to support his allegations that the calls were unrelated to his accounts. See Guidotti,
776 F.3d at 778 (noting supporting affidavits pertaining to arbitration agreements are, in most
cases, “sufficient to require a jury determination on whether there had in fact been a ‘meeting of
the minds’”). Morrison has therefore failed to produce evidence from which a reasonable trier of

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fact could find that the calls were unrelated to his credit card accounts with the Bank and were
therefore outside the scope of the arbitration agreement associated with those accounts.
Because Morrison has not opposed the Bank’s second motion to compel, and because
Morrison has failed to provide any evidence that his claim against the Bank falls outside of the
arbitration agreements, the motion to compel arbitration is granted.

BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

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