United States District Court, M.D. North Carolina
PAMELA F. BEILER, Plaintiff,
FIFTH THIRD BANK, Defendant and Third Party Plaintiff,
SCOTT A. FOSTER AND PAM F. BEILER, Third Party Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action involving alleged unlawful telephone calls in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 et seq. Plaintiff Pamela F. Beiler claims that Defendant Fifth Third Bank ("Fifth Third") violated the TCPA by making unauthorized calls to her cell phone. Fifth Third alleges that it already settled such claims with Beiler's husband, Scott A. Foster, after he claimed the cell phone numbers were his, so the bank has filed claims against both of them. Before the court are the following: Beiler's motions to dismiss Fifth Third's counterclaim of civil conspiracy against her (Docs. 10, 25); Foster's motion to dismiss the civil conspiracy claim against him and to compel arbitration of Fifth Third's fraud and negligent misrepresentation claims (Docs. 12, 20); and Foster's motion to participate in electronic filing pursuant to Local Rule 5.3(c)(2) (Doc. 19). For the reasons stated, the motion to compel arbitration will be granted, the remaining claims will be stayed pending arbitration, and the court will not reach the motions to dismiss Fifth Third's civil conspiracy claims. Foster's motion to participate in electronic filing will be granted.
A. Beiler's TCPA Claim
Beiler's complaint, taken as true at this stage of the proceedings, alleges the following:
In 2008, Foster - Beiler's husband - applied for a credit card through Fifth Third. (Doc. 1 ¶¶ 14, 21.) Beiler was unaware that Foster had opened the account, and she has never been a party to any agreement regarding, or an authorized user of, any Fifth Third credit cards. (Id. ¶¶ 22-23.) The account went into default, and beginning on October 1, 2009, Fifth Third began placing calls to cell phone numbers ending in 1563 (the "1563 number") and 4711 (the "4711 number, " and collectively "the phone numbers") in an attempt to collect amounts allegedly owed by Foster. (Id. ¶¶ 24-25.) Fifth Third called the phone numbers approximately 300 times between October 1, 2009, and March 17, 2010. (Id. ¶ 25.) Beiler alleges that both phone numbers were issued to her by Verizon Wireless and that Foster has never been a subscriber to either one. (Id. ¶ 26.) The calls were made by an automatic telephone dialing system without Beiler's consent. (Id. ¶¶ 27-28, 30-31, 34-39.)
B. Fifth Third's Counterclaims
In its amended answer and counterclaims (Doc. 14), Fifth Third admits that Foster applied for a credit card account on December 24, 2008 (id. ¶ 16), and that it made calls - some of which used an automatic telephone dialing system - to the phone numbers to discuss the delinquent status of the account with Foster (id. ¶¶ 19, 21, 23, 27). Fifth Third further alleges that Foster listed the 1563 number as his own when he applied for a credit card. (Id. ¶¶ 41-45.) After the account became delinquent, Fifth Third began contacting Foster at the 1563 number. (Id. ¶ 46.)
According to Fifth Third, in response to the calls, Foster sent demand letters and filed an arbitration claim alleging that Fifth Third had violated the TCPA and North Carolina law by contacting him. (Id. ¶ 47.) At that time, Foster provided an affidavit stating he had received over 200 calls on the 1563 number, describing it as "my cellular telephone." (Id. ¶¶ 48-49.) The phone calls allegedly are many of the same calls now described in Beiler's complaint. (Id. ¶ 52.) Earlier, in reliance on Foster's representations, Fifth Third entered into a Confidential Settlement Agreement (the "Settlement Agreement") with Foster. (Id. ¶¶ 53-54.)
Fifth Third now alleges that Beiler and Foster conspired to extort settlement funds by providing false or misleading information regarding ownership of the 1563 number. (Id. ¶¶ 58-62.) Thus, Fifth Third brings claims of fraud and negligent misrepresentation against Foster (id. ¶¶ 64-85) and a civil conspiracy claim against both Beiler and Foster (id. ¶¶ 57-63).
C. Procedural History
Beiler filed her complaint on September 30, 2013. (Doc. 1.) Fifth Third timely answered and asserted counterclaims of civil conspiracy, fraud, and negligent misrepresentation, as described above. (Doc. 4.) Beiler and Foster filed motions to dismiss, which prompted Fifth Third to file an amended answer and counterclaims on December 13, 2013, pursuant to Rule 15(a)(1)(B), asserting the same three counterclaims. (Doc. 14.) On January 2, 2014, Foster moved to dismiss the civil conspiracy claim and to compel arbitration on the fraud and negligent misrepresentation claims asserted in Fifth Third's amended answer and counterclaims. (Doc. 20.) On January 10, Beiler moved to dismiss the conspiracy claim against her. (Doc. 25.) Fifth Third has responded to both motions (Docs. 32, 34) and Beiler and Foster have replied (Docs. 35, 36).
Foster moves to compel arbitration on Fifth Third's fraud and negligent misrepresentation claims against him on the ground that it is required by the agreement he accepted when he signed up for Fifth Third's credit card (the "Credit Card Agreement"). The Credit Card Agreement includes a clause stating that "any Claim will be ...