Dodson v. Barclays Bank Del.

• Decision Date: 09 September 2020
• Docket Number: CIVIL ACT. NO. 1:19-cv-1004-TFM-B
• Parties: TERRI P. DODSON, Plaintiff, v. BARCLAYS BANK DELAWARE, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

TERRI P. DODSON, Plaintiff, v. BARCLAYS BANK DELAWARE, et al., Defendants.

CIVIL ACT. NO. 1:19-cv-1004-TFM-B

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

September 9, 2020

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Barclays Bank Delaware's Renewed Motion to Compel Arbitration and Dismiss, or in the Alternative, Compel Arbitration and Stay Proceedings ("motion to compel arbitration"). Doc. 28, filed February 4, 2020. Barclays Bank Delaware requests the Court dismiss this matter because it claims Plaintiff Terri P. Dodson's claims are subject to binding arbitration, or in the alternative, compel her to arbitrate her claims against Barclays Bank Delaware and enter a stay of these proceedings. Id. Having considered the motion, the evidence in support of the motion, the evidence presented at the evidentiary hearing, and the relevant law, the Court finds the motion to compel arbitration is due to be GRANTED. Further, Barclays Bank Delaware's alternative request to stay this matter is GRANTED and the request to dismiss this matter is DENIED.

I. JURISDICTION

The Court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 (federal question) since Plaintiff Terri P. Dodson ("Plaintiff") brings claims for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681- through 1681x.

The Court has personal jurisdiction over Barclays Bank Delaware ("Barclays"), because Plaintiff alleges she is a resident of Alabama and Barclays solicited her to open a credit card account, the act which underpins the claims in this action, and Barclays was served with a summons and the complaint via certified mail. Docs. 1, 7; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-78, 105 S. Ct. 2174, 2181-85, 85 L. Ed. 2d 528 (1985) (explaining the requirements for specific jurisdiction over an out-of-state defendant); Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 925 n.15 (11th Cir. 2003) (quoting DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir. 1983)) ("Personal jurisdiction is a composite notion of two separate ideas: amenability to jurisdiction, or predicate, and notice to the defendant through valid service of process.").

Venue is proper in this Court because Plaintiff alleges a substantial part of the events or omissions that form the basis of her claims occurred in Mobile County, which is within this Court's jurisdiction, and venue is not contested. Doc. 1 ¶¶ 1-26; Doc. 27 ¶¶ 1-26; see also 28 U.S.C. § 1391(b)(2) ("A civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . .").

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

Plaintiff originally filed her complaint with this Court on November 19, 2019, in which she brings claims for violations of the FCRA against Barclays; Equifax Information Services, LLC ("Equifax"); Experian Information Solutions, Inc. ("Experian"); and TransUnion, LLC ("TransUnion") (collectively, "Defendants"). Doc. 1. On January 9, 2020, Barclays filed its Motion to Dismiss, or in the Alternative, to Compel Arbitration and Stay Proceedings and memorandum in support. Docs. 19, 19-1. On January 20, 2020, Plaintiff filed her Motion for Leave to File Amended Complaint, within the twenty-one (21) day time limit to amend as a matterof course, to add a wantonness claim against Barclays and additional facts, which the Court granted. Docs. 25, 26. Plaintiff filed her amended complaint on January 22, 2020, to which Experian and TransUnion each filed their answer. Docs. 29, 30. Plaintiff and Equifax filed a Joint Motion for Dismissal of Claims Against Defendant Equifax Information Services, which the Court granted and dismissed Plaintiff's claims against Equifax. Docs. 44, 45.

On February 4, 2020, Barclays filed its instant Renewed Motion to Compel Arbitration and Dismiss, or in the Alternative, Compel Arbitration and Stay Proceedings and memorandum in support ("motion to compel arbitration"). Docs. 28, 28-1. The Court entered a submission order for Barclays's motion to compel arbitration to which Plaintiff filed her response and Barclays its reply. Docs. 28, 37, 39. The Court set an evidentiary hearing for the motion to compel arbitration, which was conducted on August 3, 2020, to resolve factual disputes as to whether the arbitration agreement is enforceable. Doc. 52.

At the hearing, Barclays called as witnesses Scott Matthai, a Barclays Time Share Operations Lead, and Tim Moore, a member of Barclays's Project Management Team. Mr. Matthai testified about Barclays's cobrand partnership with Wyndham rewards, the Wyndham rewards Visa credit card that is presented at time-share presentations, and the sign-up process for the credit card at those presentations. Mr. Moore testified about Barclays's credit card information processing procedure generally and as it related to Plaintiff. Plaintiff also testified at the hearing about her experience at the time-share presentation, the documents she was presented, and her understanding of those documents.

Barclays's motion to compel arbitration is ripe for review.

B. Factual Background¹

In Plaintiff's Amended Complaint, she alleges in November 2017, she and her husband vacationed in the Smoky Mountains. Doc. 1 ¶ 8. While on vacation, Plaintiff and her husband attended a seminar at a Wyndham Resort at which a travel-club membership was promoted. Id. At the seminar, Plaintiff and her husband made it clear they were not interested in, and could not afford, a travel club membership because they were on a fixed income. Id.

Plaintiff and her husband were presented with multiple documents by the Wyndham sales representative. Plaintiff and her husband were presented with a proposal for a travel-club membership, and Plaintiff initialed on the proposal to indicate they declined the proposal. Doc. 58-6 at 2. Plaintiff and her husband were presented another document and the sales representative told them they would receive a free membership for a period of time. Doc. 58-6 at 3. Another document, a "Perks by CLUB WYNDHAM MEMBERSHIP AGREEMENT" ("membership agreement"), that was presented to Plaintiff and her husband indicates the initial annual membership fee was complimentary for a twenty-four (24) month period. Id. at 4. In the "DOWN PAYMENT METHOD" section of the membership agreement, a "Y" was placed next to whether a check was attached and an "N" was placed next to whether a credit card was used; however, Plaintiff stated she neither presented, nor intended to present, a check or intended to use a credit card to pay the membership fee. Id. at 5. Further, the membership agreement indicates the "Amount Financed" was zero dollars, which Plaintiff stated indicated her intent not to pay for a membership. Id. at 5. The sales representative also presented Plaintiff with a "Wyndham Rewards Visa Card Data Collection for Application document," "Acknowledgement and Consent Form,"and a "Barclaycard Response Acknowledgement," all of which Plaintiff completed with the understanding that the documents would not be submitted until she authorized those documents to be processed. Docs. 58-3 at 2, 58-4 at 2, 58-5 at 2.

In October 2018, Plaintiff received a collection letter from Barclays's debt-collection law firm, in which there was a demand for an outstanding Barclays credit-card balance of $3,786.84, the first instance when she became aware of the debt. Docs. 1 ¶ 9, 58-7 at 2. Plaintiff immediately contacted the debt collector to dispute the debt. Doc. 1 ¶ 9. Plaintiff was informed by the debt collector the account was opened during, or just after, the November 2017 travel-club-membership seminar and the charge was a travel-club membership fee. Id. Plaintiff informed the debt collector she never agreed to purchase a membership, and she was directed to contact Barclays's account-fraud office. Id.

Plaintiff contacted Barclays's account-fraud office to dispute the charge, and the representative with whom she spoke directed her to provide a written dispute and supporting documentation. Id. ¶ 10. Plaintiff sent a written dispute and supporting documentation to Barclays and the Barclays's debt collector, which were dated October 29, 2018. Id.; Docs. 58-8 at 2-3, 58-9 at 2. Plaintiff contacted Barclays's account-fraud office in November 2018, and she was informed her fraud claim was denied. Doc. 1 ¶ 11. Plaintiff did not receive written notice of the outcome of her account-fraud claim. Id.

In December 2018, Plaintiff received another collection letter from Barclays's debt collector. Id. ¶ 12; Doc. 58-10 at 2. Plaintiff called the debt collector to dispute the charge, could not reach a representative, and left messages with the debt collector's voice-messaging system. Doc. 1 ¶ 12.

On February 21, 2019, Plaintiff was served with a collection suit; Barclays had sued her inSmall Claims Court in Mobile County for the outstanding credit-card-account debt. Id.; Doc. 58-11 at 2-3. On February 27, 2019, Plaintiff filed an Answer in the collection suit in which she denied she owed the debt. Docs. 1 ¶ 14, 58-12 at 2. The collection action was tried, the court found in Ms. Dodson's favor, and a judgment was entered in her favor on July 3, 2019. Docs. 1 ¶ 14, 58-13 at 2.

III. STANDARD OF REVIEW

In 1925, Congress enacted the FAA "[t]o overcome judicial resistance to arbitration," Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S. Ct. 1204, 1207, 163 L. Ed. 2d 1038 (2006), and to declare a "'national policy favoring arbitration' of claims that parties contract to settle in that manner." Preston v. Ferrer, 552 U.S. 346, 353, 128 S. Ct. 978, 983, 169 L. Ed. 2d 917 (2008) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858, 79 L. Ed. 2d 1 (1984)). Three sections of the FAA play particularly important roles in achieving that purpose. 9 U.S.C. § 2 -

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