Asa v. Verizon Communications, Inc. (TWP1)

Filing 23

MEMORANDUM OPINION. The Court finds that defendant's motion to compel arbitration [Doc. 12 ] should be GRANTED and plaintiff's claims should be dismissed. An appropriate order will be entered. Signed by District Judge Thomas W Phillips on 11/29/17. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
DAVID ASA,
Plaintiff,
v.
VERIZON COMMUNICATIONS, INC.,
Defendant.

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No.: 1:17-cv-256
Judge Phillips

MEMORANDUM OPINION

This civil action was removed from the Circuit Court for Hamilton County,
Tennessee, based on diversity jurisdiction [Doc. 1]. Plaintiff David Asa asserts claims of
negligence, negligent infliction of emotional distress, gross negligence, and violation of
the Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. § 47-18-104, et seq.
These claims arise from events in 2015 – 2017 in which plaintiff’s cellular services account
with Verizon Wireless was hacked by an unknown person.
Verizon Communications, Inc. is the named defendant.

However, Verizon

Communications Inc. has responded to the complaint by advising that Verizon
Communications, Inc. is an inactive corporation that provided no services to the plaintiff
[Doc. 12-1 at ¶ 2]. Verizon Communications Inc. is a holding company that indirectly
wholly owns Cellco Partnership d/b/a Verizon Wireless [Id. at ¶ 3]. Cellco Partnership
(hereinafter “Verizon Wireless”) is the business entity that provided wireless service to the
plaintiff [Id. at ¶ 4].

Verizon Wireless has moved the Court to compel plaintiff to arbitrate all of his
claims and to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6) [Doc. 12].
Verizon Wireless has filed supporting briefs and exhibits [Docs. 13, 22] and plaintiff has
responded in opposition [Docs. 19, 21]. For the reasons set forth herein, the defendant’s
motion [Doc. 12] will be GRANTED.

I.

Relevant Facts 1
In October 2013, plaintiff entered into contract with Verizon Wireless for cellular

services [Doc. 1-1 at ¶ 8]. On November 4, 2013, plaintiff assented to a receipt-form
Customer Agreement with Verizon Wireless, which included a mandatory arbitration
provision [Doc. 12-4]. 2

On September 23, 2014, plaintiff executed a receipt-form

Customer Agreement with Verizon Wireless, which also included a mandatory arbitration
provision [Doc. 12-5]. In pertinent part, this Customer Agreement provided:
I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER
AGREEMENT … WHICH I HAVE HAD THE OPPORTUNITY TO
REVIEW.
I UNDERSTAND THAT I AM AGREEING TO …
SETTLEMENT OF DISPUTES BY ARBITRATION AND OTHER
MEANS INSTEAD OF JURY TRIALS, AND OTHER IMPORTANT
TERMS IN THE CUSTOMER AGREEMENT.

For the purposes of a motion to dismiss, the Court takes the factual allegations in the complaint
[Doc. 1-1] as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that, “when ruling on
a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained
in the complaint”).
2
Verizon Wireless, through the affidavit of Alexander V. Shekhter [Doc. 12-1], has submitted
copies of the agreements between the parties. Because these documents are central to plaintiff’s
claims, the Court may consider them in reviewing a motion to dismiss without converting the
motion to one for summary judgment. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,
430 (6th Cir. 2008). The Court also notes that the plaintiff has not objected to the consideration
of these exhibits.
1

2

[Id. at pp. 2—3]. On March 15, 2017, plaintiff added a device and changed services to his
account, once again executing an agreement that included an arbitration provision [Doc.
12-6].
The full Verizon Wireless Customer Agreement, referenced in each of the receiptform agreements signed by plaintiff, includes the following arbitration provision:
YOU AND VERIZON BOTH AGREE TO RESOLVE DISPUTES ONLY
BY ARBITRATION OR IN SMALL CLAIMS COURT.
YOU
UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP
THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A
JURY. … THE FEDERAL ARBITRATION ACT APPLIES TO THIS
AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES, ANY
DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF
THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND
SERVICES YOU RECEIVE FROM US … WILL BE RESOLVED BY
ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN
ARBITRATION ASSOCIATION (“AAA”) OR BETTER BUSINESS
BUREAU (“BBB”).
[Doc. 12-3 at pp. 5—6].
In September 2015, an unidentified party attempted to gain unauthorized access to
plaintiff’s Verizon Wireless account [Doc. 1-1 at ¶ 9]. In March 2016, plaintiff received
notice of an online user account password change [Id. at ¶ 10]. Plaintiff subsequently
learned that an unidentified party attempted to activate an unauthorized cellular phone on
his Verizon Wireless account by calling the customer service call center [Id.]. Following
the March 2016 incident, Verizon Wireless assigned plaintiff a password and a passwordprotected verification process, by which plaintiff would be required to provide the assigned
password to receive customer support from Verizon Wireless, including activating a new
phone [Id. at ¶ 11].
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On April 15, 2017, an unidentified party accessed plaintiff’s Verizon Wireless
account several times to activate an unauthorized cellular phone [Id. at ¶¶ 12—21].
Plaintiff took steps to thwart this unauthorized activity to his account by using Verizon’s
online support system and by speaking with Verizon’s customer service representatives by
phone and in person [Id.]. Verizon Wireless representatives repeatedly advised that
plaintiff’s account had been flagged and that additional security measures were added to
protect his account [Id.]. Nevertheless, the next day, April 16, 2017, an unauthorized party
again activated an unauthorized cellular phone on plaintiff’s Verizon Wireless account [Id.
at ¶ 22].
During the times when the unauthorized phone was activated on plaintiff’s account,
the hacker was able to use the unauthorized phone to obtain password resets to plaintiff’s
online commercial, personal, and media accounts [Id. at ¶ 23]. These password resets
allowed the hacker access to plaintiff’s Bitcoin account, from which 7.3 bitcoins were
transferred at a present value of over $32,000 [Id.]. Plaintiff seeks compensatory, punitive,
and treble damages, and attorney’s fees and costs [Id. at p. 13].

II.

Meet and Confer
Plaintiff first complains that Verizon Wireless did not comply with this Court’s

Order Governing Motions to Dismiss, which requires parties to “meet and confer prior to
the filing of a motion to dismiss” [Doc. 5]. Plaintiff notes that defendant filed the motion
to dismiss and compel arbitration on October 12, 2017 [Doc. 12], but that defense counsel
did not contact plaintiff’s counsel until October 13, 2017 to discuss the motion [Doc. 15].
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Plaintiff argues that the Court should deny the motion based on defendant’s failure to meet
and confer before filing the instant motion [Doc. 21 at pp. 1—2].
Verizon Wireless responds that the “meet and confer” requirement does not apply
here because it seeks to compel arbitration and dismissal is an alternative remedy [Doc. 22
at p. 12]. Verizon Wireless also argues that it “substantially complied” with the Court’s
order by filing its certification on October 16, 2016 [Doc. 15], the date that its response to
the complaint was due.
The Court’s Order provides that motions to dismiss pursuant to Fed. R. Civ. P. 12(b)
are “discouraged if the defect is likely to be cured by filing an amended pleading” [Doc.
5]. Thus, “the parties must meet and confer prior to the filing of a motion to dismiss to
determine whether it can be avoided” [Id.]. Plaintiff is correct that Verizon Wireless has
not complied with the strict letter of the Court’s order by conferring with plaintiff prior to
filing the pending motion. Verizon Wireless’s argument that it is relieved of the obligation
to meet and confer with plaintiff because dismissal is an alternate remedy is specious.
Verizon Wireless’s motion is styled as a “motion to compel arbitration and to dismiss” and
seeks relief pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6). Nevertheless, the Court finds
that Verizon Wireless’s counsel did make a good faith attempt to confer with plaintiff’s
counsel regarding the motion. Further, if the Court were to adopt plaintiff’s course of
action and deny Verizon Wireless’s motion solely on this basis, the Court reasonably
anticipates that Verizon Wireless would merely re-file its motion. Such gymnastics would
not be a wise use of the parties’ or the Court’s resources. Accordingly, the Court declines

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plaintiff’s invitation to deny the motion for failure to strictly comply with the meet and
confer requirement.

III.

Analysis
The Federal Arbitration Act (“FAA”) represents a strong public policy in favor of

arbitration. Cooper v. MRM Inv. Co., 367 F.3d 493, 498 (6th Cir. 2004). Arbitration
agreements must satisfy two conditions for the FAA to apply: (1) it must be in writing; and
(2) it must be part of a “contract evidencing a transaction involving commerce.” 9 U.S.C.
§ 2. The parties do not dispute that the arbitration provision in the Verizon Wireless
Customer Agreement is in writing and it affects interstate commerce. See United States v.
Weathers, 169 F.3d 336, 341 (6th Cir.), cert. denied, 528 U.S. 838 (1999) (cellular
telephones are instrumentalities of interstate commerce).

Further, the Customer

Agreement plainly states that “THE FEDERAL ARBITRATION ACT APPLIES TO THIS
AGREEMENT” [Doc. 12-3 at p. 5].
The FAA provides that agreements to arbitrate “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. If a valid arbitration agreement governs a claim, courts must
compel arbitration. Id. §§ 3–4. “Before compelling an unwilling party to arbitrate, the
court must engage in a limited review to determine whether the dispute is arbitrable;
meaning that a valid agreement to arbitrate exists between the parties and that the specific
dispute falls within the substantive scope of that agreement.” NCR Corp. v. Korala Assocs.,
Ltd., 512 F.3d 807, 812 (6th Cir. 2008) (quoting Javitch v. First Union Sec., Inc., 315 F.3d
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619, 624 (6th Cir. 2003). The Customer Agreement arbitration provision broadly covers
“ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS
AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU
RECEIVE FROM US … INCLUDING ANY DISPUTES YOU HAVE WITH OUR
EMPLOYEES OR AGENTS” [Doc. 12-3 at p. 5]. Plaintiff does not argue that his claims
are excluded from the scope of the arbitration agreement. Based on the agreement’s
expansive language, the Court can easily conclude that plaintiff’s claims against Verizon
Wireless arise from the “equipment, products and services” he received. See NCR Corp.,
512 F.3d at 813 (“When faced with a broad arbitration clause, such as one covering any
dispute arising out of an agreement, a court should follow the presumption of arbitration”)
(quoting Solvay Pharms., Inc. v. Duramed Pharms., Inc., 442 F.3d 471, 482 n.10 (6th Cir.
2006)). Thus, the arbitration provision of the Customer Agreement covers plaintiff’s
claims.
Plaintiff raises several arguments as to the enforceability of the arbitration
agreement. If the validity of the agreement to arbitrate is “in issue,” then the Court must
first resolve that question. Great Earth Cos. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002).
The burden is on the party opposing arbitration to show that the agreement is not
enforceable. Green Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 91–92 (2000). In order
to meet this burden, the party opposing arbitration must show a genuine issue of material
fact as to the validity of the agreement to arbitrate, a showing that mirrors the summary
judgment standard. Great Earth, 288 F.3d at 889. In other words, the plaintiff must present
evidence “such that a reasonable finder of fact could conclude that no valid agreement to
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arbitrate exists.” Id. Further, the Court must consider claims concerning the validity of
the arbitration clause itself, as opposed to challenges to the validity of the contract as a
whole. Id. at 890.
A.

Whether the Contract is an Adhesion Contract or Unconscionable

In Tennessee, “[u]nconscionability may arise from a lack of a meaningful choice on
the part of one party (procedural unconscionability) or from contract terms that are
unreasonably harsh (substantive unconscionability).” Trinity Industries, Inc. v. McKinnon
Bridge Co., Inc., 77 S.W.3d 159, 170 (Tenn. Ct. App. 2001). Courts “have tended to lump
the two together and speak of unconscionability resulting ‘when the inequality of the
bargain is so manifest as to shock the judgment of a person of common sense, and where
the terms are so oppressive that no reasonable person would make them on one hand, and
no honest and fair person would accept them on the other.’” Id. at 171 (quoting Haun v.
King, 690 S.W.2d 869, 872 (Tenn. Ct. App. 1984)); see Skaan v. Fed. Exp. Corp., No.
W2011-01807-COA-R3-CV, 2012 WL 6212891, at *9 (Tenn. Ct. App. Dec. 13, 2012).
“In determining whether a contract is unconscionable, a court must consider all the facts
and circumstances of a particular case.” Haun, 690 S.W.2d at 872 (quoting Brenner v. Little
Red Schoolhouse, Ltd., 274 S.E. 2d 206, 210 (N.C. 1981)); Dortch v. Quality Rest.
Concepts, LLC, No. 1:12-CV-198, 2013 WL 1789603, at *3 (E.D. Tenn. Apr. 26, 2013)
(Collier, J.).
Plaintiff argues that the arbitration clause is unenforceable for lack of mutual assent,
or procedurally unconscionable [Doc. 21 at pp. 4—5]. Plaintiff claims he did not assent to
arbitration by merely “carrying forward service from childhood to adulthood and
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periodically signing terms of incorporation” [Id. at p. 4]. He further claims that he “is a
modern businessman who runs his enterprises primarily, and often time [sic] entirely
through his mobile phone” [Id. at p. 4]. Thus, plaintiff claims he “had no choice but to be
subject to an arbitration clause” and points to the service agreements of other cellular
service providers [Docs. 19-1 – 19-5], which also contain arbitration provisions, as
evidence that the arbitration clause at issue amounts to a contract of adhesion [Id. at pp.
4—5].
Under Tennessee law, an adhesion contract is “a standardized form offered on what
amounts to a ‘take it or leave it’ basis, without affording the weaker party a realistic
opportunity to bargain, and under conditions whereby the weaker party can only obtain the
desired product or service by submitting to the form of the contract.” Seawright v. Am.
Gen. Fin. Servs., Inc., 507 F.3d 967, 975–76 (6th Cir. 2007) (quoting Buraczynski v.
Eyring, 919 S.W.2d 314, 320 (Tenn. 1996)). However, a contract is not adhesive merely
because it is a standardized form offered on a take-it-or-leave-it basis. Plaintiff must also
present evidence of “the absence of a meaningful choice for the party occupying the weaker
bargaining position.” Cooper, 367 F.3d at 501—02 (6th Cir. 2004).
Verizon Wireless correctly notes that the agreements from other cellular providers
are unauthenticated and are therefore inadmissible [Doc. 22 at p. 4]. See Winston v. Cargill,
Inc., 699 F. Supp. 2d 1056, 1060 (W.D. Tenn. 2010). Further, plaintiff has presented no
evidence that he attempted to obtain cellular services from these other providers, or that he
could not obtain cellular services without also agreeing to an arbitration provision. See
Cooper, 367 F.3d at 500. Additionally, plaintiff has presented no evidence that he “must
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obtain cellular services” in order to run his business enterprises. In short, plaintiff has
presented no evidence to shore up his assertion that he “had no choice” but to consent to
Verizon Wireless’s arbitration agreement.
Even if the Customer Agreement was a contract of adhesion, it is enforceable unless
plaintiff can also show it is substantively unconscionable. Id. at 503. Plaintiff argues that
the Customer Agreement arbitration clause is unenforceable as an unconscionably onesided provision [Doc. 21 at pp. 2—4]. Plaintiff contends that the agreement limits him to
arbitration, but it allows Verizon Wireless certain unilateral remedies such as changing the
terms of the agreement, terminating service, or collecting service charges [Id.].
Plaintiff’s argument is misplaced. Plaintiff cites substantive provisions of the
Customer Agreement that Verizon Wireless may unilaterally change, but that does not
make the arbitration provision of the Agreement unilateral or one-sided. See Great Earth
Cos., 288 F.3d at 898 (“courts may consider only claims concerning the validity of the
arbitration clause itself, as opposed to challenges to the validity of the contract as a whole”).
The arbitration provision in the Customer Agreement applies to both parties and to all
claims, except for small claims. [Doc. 12-3 at p. 5 (“YOU AND VERIZON BOTH
AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL
CLAIMS COURT.”]. See Berent v. CMH Homes, Inc., 466 S.W. 3d 740, 756 (Tenn.
2015). Plaintiff has presented no evidence that the terms of the arbitration agreement are
one-sided, oppressive, or unfair.

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B.

Jury Waiver

Finally, plaintiff argues that the arbitration agreement is unenforceable because he
did not knowingly and voluntarily waive his right to a jury trial [Doc. 21 at p. 5].
Specifically, plaintiff claims that he “is not highly educated, there was no consideration for
his waiver, there is a significant lack of clarity within the arbitration clause (e.g. ¶ 6), and
the clause was administered through a click-wrap process” [Id.]. Plaintiff further argues
that he used Verizon Wireless services “for years as a minor,” but he was never consulted
about the judicial waiver as an adult [Id.].
Although the Sixth Circuit has held that “the loss of the right to a jury trial is a
necessary and fairly obvious consequence of an agreement to arbitrate,” Cooper, 367 F.3d
at 506 (quoting Burden v. Check Into Cash of Ky., LLC, 267 F.3d 483, 492 (6th Cir. 2001),
cert. denied, 535 U.S. 970 (2002)), the waiver of the right to a jury trial must be knowing
and voluntary. Hergenreder v. Bickford Senior Living Grp., LLC, 656 F.3d 411, 420 (6th
Cir. 2011) (citing K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 755 (6th Cir. 1985)). In
evaluating whether a plaintiff knowingly and voluntarily waived his right to pursue
employment claims in court, the Court considers: (1) plaintiff's experience, background
and education; (2) the amount of time the plaintiff had to consider whether to sign the
waiver, including whether the plaintiff had an opportunity to consult with a lawyer; (3) the
clarity of the waiver; (4) consideration for the waiver; and (5) the totality of the
circumstances. Id. at 420–21 (citing Morrison v. Circuit City Stores, Inc., 317 F.3d 646,
668 (6th Cir. 2003) (en banc)).

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With respect to the first factor, the complaint describes plaintiff as “an entrepreneur
and leading social media influencer” with a significant online audience following “his
communications, insights, and trend indications” [Doc. 1-1 at ¶ 6]. Plaintiff further avers
that he is “a high-profile businessman and influencer” [Id. at ¶ 7] and he feared the
unauthorized access to his online accounts “could irreparably damage [his] standing as a
broadly respected influencer” [Id. at ¶ 25]. The Court must accept these allegations as true
for purposes of considering a motion to dismiss, rather than the factually unsupported
assertion in plaintiff’s response brief that he “is not highly educated” [Doc. 21 at p. 5]. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a court must accept as true all of the factual
allegations contained in a complaint); Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir.
2006) (“[a]rguments in parties’ briefs are not evidence”). Even if the Court were to accept
the assertion that plaintiff is not highly educated, he has nevertheless presented himself as
an experienced businessman and entrepreneur.

Accordingly, his background and

experience outweigh any purported educational deficiencies and the Court finds that this
factor weighs in favor of a knowing and voluntary waiver.
As for the second factor, the record is silent on the amount of time the plaintiff had
to consider whether to sign the waiver, including whether he had an opportunity to consult
with a lawyer. Plaintiff asserts that he “used Verizon for years as a minor, and was never
properly consulted about the judicial waiver when renewing his plan as an adult” [Doc. 21
at p. 5]. However, the record is undisputed that plaintiff used Verizon Wireless cellular
services for several years and renewed his contractual agreement with Verizon at least
twice. Thus, he had multiple occasions to consider the Customer Agreement, including the
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waiver. Plaintiff has presented no contrary evidence on this point. The Court finds that
this factor weighs in favor of a knowing and voluntary waiver.
The third factor for consideration is the clarity of the waiver. Despite plaintiff’s
generic assertion that “there is a significant lack of clarity within the arbitration clause”
[Doc. 21 at p. 5], the Court notes that the Customer Agreement plainly states that plaintiff
is waiving his right to a jury trial. The September 2014 receipt-form agreement states: “I
UNDERSTAND THAT I AM AGREEING TO … SETTLEMENT OF DISPUTES BY
ARBITRATION AND OTHER MEANS INSTEAD OF JURY TRIALS” [Doc. 12-5 at p.
2]. Similarly, the March 2017 receipt-form agreement states: “I agree to the Verizon
Wireless Customer Agreement including … settlement of disputes by arbitration instead
of jury trial” [Doc. 12-6 at p. 3]. Further, the long form Customer Agreement provides:
“YOU UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP THE
RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. …YOU AND
VERIZON UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT IN ANY WAY.” [Doc. 12-3 at p. 6]. The Court finds that this
factor weighs in favor of a knowing and voluntary waiver.
Regarding the fourth factor, plaintiff’s responsive brief asserts, also without any
evidentiary support, “there was no consideration for his waiver” [Doc. 21 at p. 5].
However, the complaint alleges that plaintiff contracted with Verizon Wireless for cellular
services for several years, beginning in 2013 [Doc. 1-1 at ¶ 8], which the Court accepts as
true for purposes of this motion. Further, Mr. Alexander Shekhter, employed by Verizon
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Corporate Resources Group, LLC, states that plaintiff “paid Verizon Wireless for wireless
services received in relation to his account and Customer Agreement” [Doc. 12-1 at ¶ 10].
Plaintiff has presented no evidence to dispute Mr. Shekhter’s affidavit. Moreover, as
Verizon Wireless points out, a mutual promise is sufficient consideration to support an
agreement to arbitrate under Tennessee law. Sellers v. Macy’s Retail Holdings, Inc., No.
2:12-CV-02496-SHL, 2014 WL 2826119, at *8 (W.D. Tenn. June 23, 2014) (quoting
Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 974 (6th Cir. 2007). The arbitration
provision at issue is just such an agreement; plaintiff and Verizon Wireless “BOTH
AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL
CLAIMS COURT” [Doc. 12-3 at p. 5]. The Court finds that this factor weighs in favor of
a knowing and voluntary waiver.
Finally, the totality of the circumstances convinces the Court that plaintiff
knowingly and voluntarily waived his right to a jury trial. Plaintiff complains, “the clause
was administered through a click-wrap process in which the Plaintiff signed a digital
incorporation statement packaged in other clauses about return and restocking fees” [Doc.
21 at p. 5]. Thus, plaintiff seems to imply that the arbitration clause was hidden within
other contractual provisions and he did not or could not review all of the terms. This
argument fails. “[O]ne who signs a contract which he has had an opportunity to read and
understand, is bound by its provisions” and thus plaintiff “cannot be excused from
complying with the arbitration provision if [he] simply failed properly to read the contract.”
See Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1016 (6th Cir. 2003)
(internal citations and quotation marks omitted). Plaintiff has presented no evidence that
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he was prevented from reviewing the terms of any of the agreements with Verizon Wireless
or that he was incapable of understanding their terms.
After considering all of the forgoing factors, the Court finds that all of the factors
weigh in favor of a waiver. Thus, the Court concludes that plaintiff has knowingly and
voluntarily waived his right to a jury trial. The Court finds that the parties have entered
into a valid and enforceable agreement to arbitrate any disputes between them, including
the claims raised in this case.
C.

Remedy

In light of the Court’s conclusion that the parties have entered into an enforceable
arbitration agreement and the agreement covers the instant dispute, the Court next
considers the appropriate remedy. Verizon Wireless argues that because all claims must
be arbitrated, dismissal of this action is appropriate [Doc. 13 at pp. 10—11]. The Sixth
Circuit has stated that “‘[t]he weight of authority clearly supports dismissal of the case
when all of the issues raised in the district court must be submitted to arbitration.’” Green
v. Ameritech Corp., 200 F.3d 967, 973 (6th Cir. 2000) (quoting Alford v. Dean Witter
Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)); Hensel v. Cargill, Inc., No. 99–3199,
1999 WL 993775, at *4 (6th Cir. Oct. 19, 1999); see also Choice Hotels Int'l, Inc. v. BSR
Tropicana Resort, Inc., 252 F.3d 707, 709–10 (4th Cir. 2001) (concluding that “dismissal
is a proper remedy when all of the issues presented in a lawsuit are arbitrable”) (citation
omitted); Gassner v. Jay Wolfe Toyota, No. 4:06–CV–1335 CAS, 2007 WL 1452240, at
*4 (E.D. Mo. May 15, 2007) (“Where all issues in a case must be submitted to arbitration,

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it serves no purpose to retain jurisdiction and stay an action.”). Because all of plaintiff's
claims are arbitrable, the Court can find no reason to stay this matter pending arbitration.

IV.

Conclusion
For all of the foregoing reasons, the Court finds that defendant’s motion to compel

arbitration [Doc. 12] should be GRANTED and plaintiff’s claims should be dismissed. An
appropriate order will be entered.

s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE

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