Brady v. Verizon Wireless (VAW) LLC

• Decision Date: 19 July 2022
• Docket Number: 22-cv-0187-bhl
• Parties: JOSHUA J BRADY, Plaintiff, v. VERIZON WIRELESS (VAW) LLC, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

JOSHUA J BRADY, Plaintiff,
v.
VERIZON WIRELESS (VAW) LLC, Defendant.

No. 22-cv-0187-bhl

United States District Court, E.D. Wisconsin

July 19, 2022

ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAY CASE

BRETT H. LUDWIG, United States District Judge

On January 19, 2022, Plaintiff Joshua Brady, representing himself, filed a putative classaction complaint in state court claiming that Defendant Verizon Wireless Services, LLC^[1] failed to open a fraud investigation or credit him for costs he incurred after he notified Verizon that an unauthorized device had been issued to his account. ECF No. 4 at 4-20. Verizon removed the case to federal court and filed an answer. ECF Nos. 1, 5, 9. It then moved to compel arbitration and for a stay of the case pending completion of the arbitration. ECF No. 17. Brady opposes the stay, insisting that Verizon waived its right to arbitrate and that the dispute falls outside the scope of the arbitration agreement. ECF No. 20. For the reasons given below, the Court will grant Verizon's motion, order the parties to arbitrate, and stay all dates and deadlines in the case.

BACKGROUND

Brady alleges that on or about January 31, 2019, at the same time his cell phone service was temporarily interrupted, his carrier, Verizon, issued an unknown party a cell phone under his account. ECF No. 4 at 5-6. He made a fraud claim with Verizon, which responded by restoring his service and telling him no charges would be added to his account. Id. According to Brady, this proved false as overcharges nevertheless appeared on a later invoice. Id. Verizon credited him only part of the overcharge and refused to credit a $31.09 remainder. Id. at 6-9. It also never opened a fraud investigation. Id.

1

Brady does not dispute that his relationship with Verizon is governed by written contractual documents. ECF No. 19. These documents show that Brady established his Verizon account on or about December 2, 2013, purchased a mobile device in July 2017, and executed retail installment contracts in connection with purchases of other mobile devices. See ECF No. 18 at 3. These contracts include language by which Brady assented to Verizon's Customer Agreement. See id. at 3-4. The agreement contains an Arbitration Agreement that states, “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 U.S. . . . INCLUDING ANY DISPUTES YOU HAVE WITH OUR EMPLOYEES OR AGENTS, WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS[.]” ECF No. 19-2 at 7 (capitalization in original). In February 2019, Brady converted his account to a business account, executing a Major Account Agreement that similarly states, “We both agree to arbitrate any dispute that arises under or relates to this Agreement.” ECF No. 19-6 at 6-7; see ECF No. 18 at 5.

PROCEDURAL HISTORY

Brady filed his complaint in state court on January 19, 2022. ECF No. 4 at 4-20. Verizon removed the action to federal court on February 14. ECF No. 1. After removal, Verizon repeatedly asserted its right to compel arbitration of the parties' dispute. In its February 22 answer and March 15 amended answer, Verizon pleaded as its first affirmative defense that it was “reserv[ing] the right to compel contractual arbitration.” ECF No. 5 at 14; ECF No. 9 at 14. Similarly, in the parties' April 8 jointly filed Rule 26(f) report, Verizon included language concerning its arbitration rights: “Defendant hereby asserts and expressly reserves its right to compel arbitration in this matter. Defendant further anticipates that it will file its Motion to Compel Arbitration & Stay Case on or before the Scheduling Conference . . . on April 15, 2022.” ECF No. 12 at 2. The report also stated, “Plaintiff opposes any Motion to Compel Arbitration as waived by the Plaintiff when removing this case from Milwaukee County Circuit Court to this court's jurisdiction.” Id. The report refers to Verizon's “impending” motion to compel throughout and includes Verizon's “assert[ions] that all discovery should be stayed pending the ruling on [the motion].” Id. at 2, 3, 5, 6, 7.

At an April 15, 2022 scheduling conference, Verizon's counsel confirmed the defendant still intended to file a motion to compel but had experienced delays in producing a declaration to

2

support the motion. ECF No. 14 at 6:00-7:50. The Court ordered Verizon to file the motion on or before May 2, 2022. ECF No. 15. Verizon finally filed its motion to compel arbitration on April 29. ECF No. 17. The motion has been fully briefed since June 3. See ECF No. 21.

LEGAL STANDARD

Verizon's motion to compel arbitration is brought pursuant to Sections 3 and 4 of the Federal Arbitration Act.^[2] 9 U.S.C. §§ 3, 4. Under the FAA, if “the parties have an arbitration agreement and the asserted claims are within its scope,” the court must compel arbitration and stay the case. Lathan v. Uber Techs., Inc., 266 F.Supp.3d 1170, 1173 (E.D. Wis. 2017) (citing Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720, 726 (7th Cir. 2004); see also Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985). While “[t]he FAA does not expressly identify the evidentiary standard a party seeking to avoid compelled arbitration must meet[,] . . . courts that have addressed the question have analogized the standard to that required of a party opposing summary judgment under Rule 56(e) of the Federal Rules of Civil Procedure: the opposing party must demonstrate that a genuine issue of material fact warranting a trial exists.” Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002) (citing cases); see also Mohammed v. Uber Techs., Inc., 237 F.Supp.3d 719, 725 (N.D. Ill. 2017); Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91 (2000). “The court must consider all of the non-moving party's evidence and construe all reasonable inferences in the light most favorable to the non-moving party.” Tickanen v. Harris & Harris, Ltd., 461 F.Supp.2d 863, 866 (E.D. Wis. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (citation omitted).

ANALYSIS

Brady does not dispute that the parties agreed to a valid arbitration agreement in Verizon's Customer Agreement and Major Account Agreement. Nor does he dispute the terms of the agreement. But he nevertheless opposes Verizon's motion, primarily on grounds that Verizon has waived or forfeited its right to arbitrate. ECF No. 20 at 4-7. He also argues his claims fall outside the scope of the agreement. Id. 7-8. Because both arguments fail, Verizon's motion will be granted.

I. Verizon Has Not Waived Its Right to Arbitrate.

Waiver “is the intentional relinquishment or abandonment of a known right.” Morgan v. Sundance, Inc., 142 S.Ct. 1708, 1713 (2022) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

3

“Like other contractual rights, . . . the right to arbitrate is waivable.” Brickstructures, Inc. v. Coaster Dynamix, Inc., 952 F.3d 887, 891 (7th Cir. 2020) (citing Kawasaki Heavy Indus., Ltd. v. Bombardier Recreational Prods., Inc., 660 F.3d 988, 994 (7th Cir. 2011)). Where a party does not expressly waive the right to arbitrate, a court may infer a waiver if, “based on all the...