Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Loney v. Hsbc Card Services

United States District Court, E.D. North Carolina, Southern Division

June 11, 2015

JOYCE LONEY, Plaintiff,


JAMES C. FOX, District Judge.

This matter is before the court on the Motion for Judgment on the Pleadings [DE-40] filed by Defendant Financial Recovery Systems ("FRS") and the Motion to Compel Private/Contractual Arbitration and in the alternative, to Stay [DE-47] filed by the pro se Plaintiff Janice Loney. For the reasons more fully stated below, the Motion for Judgment on the Pleadings is ALLOWED, and the Motion to Compel is DENIED as moot.


Loney initiated this action by filing a complaint [DE-1-1] in the District Court for Brunswick County, North Carolina, against FRS and five other defendants, alleging violations of (1) the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.; (2) the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq.; (3) N.C. Gen. Stat. § 58-70-1, et seq.; and (4) the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The action was removed to this court on March 14, 2014 [DE-1]. Since the removal to this court, the claims against the other five defendants have been dismissed. FRS now moves for judgment on the pleadings as to all the claims asserted against it.

Loney has failed to respond to the motion for judgment on the pleadings. Rather, well after the response deadline had passed, she filed a "Motion to Compel Private/Contractual Arbitration and in the Alternative, to Stay Proceedings Pending Arbitration" [DE-47].


The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, governs the rights and responsibilities of the parties with respect to an arbitration agreement. Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380 F.3d 200, 204 (4th Cir. 2004). The FAA provides, in pertinent part, that:

[a] written provision in... 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. § 2. As a result of this federal policy favoring arbitration, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). Thus, a court "has no choice but to grant a motion to compel arbitration where a valid arbitration agreement exists and the issues in a case fall within its purview." Adkins v. Labor Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002).

Although there is federal policy favoring arbitration, it is generally well-settled that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). Thus, generally a party cannot be bound to the terms of a contract that the party did not sign; however, "a party can agree to submit to arbitration by means other than personally signing a contract containing an arbitration clause." Int'l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 416 (4th Cir. 2000). There are five recognized exceptions to the general rule, all of which arise "out of common law principles of contract and agency law'.... 1) incorporation by references; 2) assumption; 3) agency; 4) veil piercing/alter ego; and 5) estoppel.'" Id. at 417 (quoting Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773, 776 (2d Cir. 1995)).

In this case, Loney proffers only the existence of an arbitration agreement between her and another now-dismissed Defendant, Capital One. See Mot. to Compel, Ex. C (DE-47-3]. FRS plainly is not a signatory to the agreement. Nor has Loney proffered evidence showing that any of the five recognized exceptions to the general rule that a party must be signatory to an arbitration agreement is applicable here. Accordingly, there is no basis to compel FRS to arbitrate Loney's claims, and her motion [DE-47] is DENIED.


FRS moves to dismiss the complaint under Federal Rule of Civil Procedure 12(c). Rule 12(c) states, "after the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). With the exception that the court may consider the defendant's answer as well as the complaint, Rule 12(c) motions are typically analyzed under the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002); Mendenhall v. Hanesbrands, Inc., 856 F.Supp.2d 717, 723 (M.D. N.C. 2012). Thus, a court must determine the legal sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In so doing, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the "[f]actual allegations must be enough to raise a right to relief above the speculative level' and have enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (citing Twombly, 550 U.S. at 555 (2007)). Moreover, although the court draws all reasonable factual inferences in a plaintiff's favor, the court is not obligated to accept a complaint's legal conclusions drawn from the facts. Iqbal, 129 S.Ct. at 1949-50. Nor must the court accept as true "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 301-02 (4th Cir. 2008)(quotations omitted). Moreover, the court must keep in mind that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 93 (internal citation omitted). Notwithstanding the court's obligation to liberally construe a pro se plaintiff's allegations, however, the court cannot ignore a clear failure to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

At the outset, the court observes that Loney filed a very similar complaint in another action removed to this court, Loney v. State Collection Service, No.7: 13-CV-00247-BR. In that action, the Honorable W. Earl Britt dismissed Loney's claims against the only named defendant, observing that Loney "made virtually no factual allegations against" the named defendant, save for her allegations that the defendant "regularly collects debts in the State of North Carolina, " that it "placed approximately (5) five telephone calls" to her cellular phone, and that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.