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Richardson v. Cellco Partnership

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

May 8, 2017



          LOUISE W. FLANAGAN, United States District Judge

         This matter is before the court on defendant's motion, made pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 2-4, to compel arbitration and dismiss the case or, alternatively, stay proceedings pending arbitration of issues so arbitrable. (DE 18). The motion has been fully briefed and the issues raised and are ripe for ruling. For the reasons that follow, defendant's motion is granted on the terms set forth herein.


         Plaintiff initiated this action June 8, 2016, alleging that defendant, a cellular telephone service provider, engaged in unlawful debt collection practices in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(a)(2), and the North Carolina Debt Collection Act, N.C. Gen. Stat. § 75-51.

         Defendant filed the instant motion October 4, 2016, arguing that the contract that serves as the basis for the parties' relationship mandates arbitration. Accordingly defendant seeks an order directing the parties to arbitrate per the agreement and dismissal or stay of pending litigation. In support of the motion, defendant relies upon the pleadings and the declaration of Nicole Reyes, a senior analyst employed by defendant, to which declaration is appended copies of agreement executed by the parties and copy of defendant's customer agreement.

         Plaintiff opposes the motion on grounds that defendant's actions giving rise to complaint are outside the subject matter of the arbitration clause and, in addition, where contractual relationship between the parties previously was cancelled, the arbitration agreement is no longer in effect. In opposition to the motion, plaintiff relies also upon the pleadings, and, in addition, a series of e-mails defendant sent to plaintiff pertaining to plaintiff's account.


         The facts viewed in the light most favorable to plaintiff may be summarized as follows:

         Plaintiff is a citizen of Columbus County, North Carolina. (DE 1 ¶ 4). Defendant, a Delaware corporation, is engaged in the businesses of cellular telephone service and debt collection in North Carolina. (DE 8 ¶ 7). In April or May 2015, plaintiff and defendant entered into a contract whereby plaintiff added two cellular telephones to her preexisting account with defendant. (DE 8 ¶ 13). As part of this contract, plaintiff agreed to the terms of defendant's customer agreement, and both parties agreed to arbitrate disputes. (DE 20-1 at 5 & 7). Regarding arbitration, the customer agreement provides, in relevant part:

[Plaintiff] and [defendant] both agree to resolve disputes only by arbitration or in small claims court. [Plaintiff] understand[s] that by this agreement [plaintiff is] giving up the right to bring a claim in court or in front of a jury. . . . [Plaintiff and defendant] also both agree that:
(1) The Federal Arbitration Act Applies to this agreement . . . . Any dispute that in any way relates to or arises out of this agreement or from any equipment, products and services [plaintiff] receive[s] from us . . . will be resolved by one or more neutral arbitrators . . .

(DE 20-1 at 13) (capitalization omitted) (emphasis added).

         Plaintiff alleges that, around the time she initially purchased the phones, defendant's employee gave assurance that cellular network coverage existed in the area plaintiff wanted to use the phones. (DE 1 ¶ 14). However, when plaintiff attempted to use the phones, she learned that service was not available in the relevant area. (DE 1 ¶ 15). Following this discovery, plaintiff alleges she immediately called defendant in an attempt to return the phones or, alternatively, to seek other resolution of the problem. (Id. ¶¶ 16-18). Plaintiff alleges that after defendant sent a service representative to the area where plaintiff intended to use the phones, defendant determined that service was unavailable, and, in May 2015, the parties agreed to cancel the contract. (Id. ¶¶ 19-20). As part of said cancellation, defendant advised plaintiff by e-mail June 29, 2017, that she would be permitted to keep her phones. (DE 1-3).

         On August 26, 2015, plaintiff received a bill from defendant in the amount of $1, 405.96 pertaining to an alleged outstanding balance. (DE 1-4). Plaintiff alleges she did not owe any money to defendant and that she called defendant several times to dispute the charge. (Id. ¶¶ 25 & 31). Nonetheless, plaintiff alleges defendant or its agent began to call plaintiff up to three times per day to collect alleged debt. (Id.¶ 31). Plaintiff further alleges that, as part of its collection efforts, defendant used automated telephonic dialing systems to contact plaintiff, but defendant lacked plaintiff's permission to use such automated services. (Id. ...

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