Greene v. The Terminix Int'l Co. P'ship

• Decision Date: 15 June 2022
• Docket Number: 22-cv-20199-BLOOM/McAliley
• Parties: CHARLES M. GREENE, individually, and on behalf of all those similarly situated, Plaintiff, v. THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP, Defendant.
• Court: U.S. District Court — Southern District of Florida

CHARLES M. GREENE, individually, and on behalf of all those similarly situated, Plaintiff, v. THE TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP, Defendant.

No. 22-cv-20199-BLOOM/McAliley

United States District Court, S.D. Florida

June 15, 2022

ORDER ON MOTION TO COMPEL ARBITRATION

BETH BLOOM, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court upon Defendant The Terminix International Company Limited Partnership's (“Defendant” or “Terminix”) Motion to Compel Arbitration and to Dismiss, ECF No. [18] (“Motion”). Plaintiff Charles M. Greene (“Plaintiff” or “Greene”) filed a Response, ECF No. [22], to which Defendant filed a Reply, ECF No. [23]. The Court has carefully considered the Motion, all opposing and supporting submissions, the record in this case the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is granted in part.

I. BACKGROUND

Greene commenced this case by filing a complaint against Terminix in state court, alleging claims on behalf of himself and a putative class, for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), the Florida Consumer Collection Practices Act (“FCCPA”), breach of contract, and unjust enrichment. See generally, ECF No. [1-1] at 2-26 (“Complaint”). The claims arise from Terminix's allegedly wrongful retention of refunds due for time remaining on year-long residential pest control service contracts, when those contracts are canceled. Id. ¶¶ 23. Greene alleges that he purchased an annual service plan with Terminix for the period between June 22, 2020 to June 22, 2021 for $345.00 (“Service Contract”). Id. ¶ 13. On July 17, 2020, Greene sold his home and thereafter informed Terminix of his decision to cancel the Service Contract and demanded a prorated refund. Id. ¶¶ 15-16. According to Greene, Terminix refused to process a refund until Green filed an administrative complaint with the Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services. Id. ¶¶ 1920. Greene followed with the filing of his Complaint in state court. On January 14, 2022, Terminix removed this case to federal court pursuant to the Class Action Fairness Act of 2005 (“CAFA”). ECF No. [1].^[1] In the Motion, Terminix seeks to compel arbitration of the claims asserted in the Complaint based upon an arbitration clause contained in the agreement signed by Greene (the “Termite Protection Plan” or “Plan”).

II. LEGAL STANDARD

The presence of a valid arbitration provision raises a strong presumption in favor of enforcement. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 63031 (1985) (stressing that the enforcement of a mutually agreed upon arbitration or forum-selection clause serves as an “indispensable precondition to the achievement of the orderliness and predictability essential to any international business transaction”). Indeed, the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., “embodies a ‘liberal federal policy favoring arbitration agreements.'” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1366 (11th Cir. 2008) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Accordingly, the FAA requires courts to “rigorously enforce agreements to arbitrate.” Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1357-58 (11th Cir. 2002) (quoting Mitsubishi Motors Corp., 473 U.S. at 625-26), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Emps., 134 S.Ct. 773 (2014); see also Hemispherx Biopharma, Inc., 553 F.3d at 1366 (citing Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)). Under the FAA, a written agreement to arbitrate is “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.

Despite courts' proclivity for enforcement, a party will not be required to arbitrate where it has not agreed to do so. See Nat'l Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F.Supp.2d 1318, 1322 (S.D. Fla. 2010), aff'd, 433 Fed.Appx. 842 (11th Cir. 2011) (citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). “Under federal law, arbitration is a matter of consent, not coercion.” World Rentals & Sales, LLC v. Volvo Constr. Equip. Rents, Inc., 517 F.3d 1240, 1244 (11th Cir. 2008), abrogated on other grounds by Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351, 1355 n.1 (11th Cir. 2017). It is axiomatic that the determination of whether parties have agreed to submit a dispute to arbitration is an issue of law subject to judicial resolution. See Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010). Generally, this determination requires the district court to apply standard principles of state contract law. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 939 (1995); see also P&S Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003).

Under Florida law, when presented with a motion to compel arbitration, a court must consider three factors: (1) whether a valid agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived. Nat'l Auto Lenders, Inc., 686 F.Supp.2d at 1322; see also Sims v. Clarendon Nat'l Ins. Co., 336 F.Supp.2d 1311, 1326 (S.D. Fla. 2004) (citing Marine Envt'l. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003); and Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999)) (“Under both federal and Florida law, there are three factors for the court to consider in determining a party's right to arbitrate: (1) a written agreement exists between the parties containing an arbitration clause; (2) an arbitrable issue exists; and (3) the right to arbitration has not been waived.”).

In addition, the Court of Appeals for the Eleventh Circuit has explained that courts should “treat motions to compel arbitration similarly to motions for summary judgment.” Hearn v. Comcast Cable Commc'ns, LLC, 992 F.3d 1209, 1215 n.3 (11th Cir. 2021) (citing Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) (concluding “that a summary judgment-like standard is appropriate and hold[ing] that a district court may conclude as a matter of law that parties did or did not enter into an arbitration agreement only if ‘there is no genuine dispute as to any material fact' concerning the formation of such an agreement”)). Once the movant satisfies its initial burden of showing there is no genuine issue of material fact, then “the burden shifts to the nonmovant to show evidence raising a genuine issue of material fact.” Deal v. Tugalo Gas Co., 991 F.3d 1313, 1325 (11th Cir. 2021). “A plaintiff challenging the enforcement of an arbitration agreement bears the burden to establish, by substantial evidence, any defense to the enforcement of the agreement.” Inetianbor v. CashCall, Inc., 923 F.Supp.2d 1358, 1362 (S.D. Fla. 2013) (citing Bess v. Check Express, 294 F.3d 1298, 1306-07 (11th Cir. 2002)). In determining whether to compel arbitration, district courts must view the facts in the light most favorable to the nonmovant. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

“By its terms, the [FAA] leaves no room for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc., 470 U.S. at 213. Thus, if the criteria above are satisfied, a court is required to issue an order compelling arbitration. See John B. Goodman Ltd. P'ship v. THF Constr., Inc., 321 F.3d 1094, 1095 (11th Cir. 2003) (“Under the FAA, . . . a district court must grant a motion to compel arbitration if it is satisfied that the parties actually agreed to arbitrate the dispute.”).

III. DISCUSSION

Terminix argues that it has established each factor that courts consider in determining a party's right to arbitrate: (1) there is a valid agreement to arbitrate; (2) an arbitrable issue exists; and (3) Terminix did not waive its arbitration rights. Greene does not dispute that the second and third factors are satisfied, and the Court finds that they are. Rather, Greene disputes that there was an agreement to arbitrate. The Court therefore focuses its analysis on whether there exists an agreement to arbitrate.

A. Terms of the Plan

Terminix asserts that Greene executed the Plan, which contains a warning regarding arbitration above the signature block.^[2] The Plan contains the following statement:

ANY ADDITIONAL PROVISIONS ATTACHED HERETO, INCLUDING THE MANDATORY ARBITRATION AGREEMENT AND THE OTHER TERMS AND CONDITIONS ON THE REVERSE SIDE AND THE INSPECTION GRAPH DATED 5/31/06 ARE PART OF THIS PLAN.

ECF No. [18-1] at 8. The “Terms and Conditions” contain a mandatory arbitration provision that provides as follows:

12. MANDATORY ARBITRATION. Purchaser and Terminix agree that any claim, dispute or controversy (“Claim”) between them or against the other or the employees, agents or assigns, of the other, and any Claim arising from or relating to this agreement or the relationships which result from this agreement, including but not limited to any tort or statutory Claim, shall be resolved by neutral binding arbitration by the National Arbitration Forum (“NAF”), under the Code of Procedure (“Code”) of the NAF in effect at the time the Claim is filed. [. . .] [A]ny arbitration proceeding under this agreement will not be consolidated or joined with any arbitration proceeding under any other agreement, or involving any other

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