Griffin v. Vivint Solar, Inc.

• Decision Date: 28 May 2021
• Docket Number: No. 1:21-cv-00138-KWR-LF,1:21-cv-00138-KWR-LF
• Parties: LYNN GRIFFIN, individually and as successor in interest to her deceased husband, JOHN GRIFFIN, Plaintiff, v. VIVINT SOLAR, INC., VIVINT SOLAR DEVELOPER, LLC, VIVINT SOLAR HOLDINGS, INC., SUNRUN, INC., and BRIAN BROOKER, Defendants.
• Court: U.S. District Court — District of New Mexico

LYNN GRIFFIN, individually and as successor in interest to her deceased husband, JOHN GRIFFIN, Plaintiff, v. VIVINT SOLAR, INC., VIVINT SOLAR DEVELOPER, LLC,VIVINT SOLAR HOLDINGS, INC., SUNRUN, INC., and BRIAN BROOKER, Defendants.

No. 1:21-cv-00138-KWR-LF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 28, 2021

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

THIS MATTER comes before the Court upon Defendants' Motion to Compel Arbitration and Stay Action, filed February 23, 2021. Doc. 6. Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well-taken and, therefore, is GRANTED and the matter is STAYED.

BACKGROUND

This case stems from a Residential Solar Power Purchase Agreement ("Agreement") entered into by Defendants and Plaintiff Lynn Griffin's deceased husband, John Griffin, involving the installation of solar panels and other equipment on the Griffin's property. Plaintiff filed the action in state court on January 12, 2021 alleging negligent misrepresentation (Count I), fraudulent misrepresentation (Count II), breach of contract (Count III), equitable recovery under principles of restitution and unjust enrichment (Count IV), and violations of the New Mexico Unfair Practices Act (Count V). See generally Complaint, Doc. 1-1, Ex. A. Defendants removed the action on February 18, 2021 on the basis of diversity jurisdiction.

I. Factual Background

The Complaint alleges that Plaintiff reached out to Defendant Vivint¹ in early 2016 when the Griffins became interested in obtaining solar energy systems for their home. Compl., ¶ 29. On or about February 6, 2016, Defendant Brooker, a sales representative of Defendant Vivint Solar Developer, met with the Griffins in their home. Id., ¶ 30. He brought a 12-inch tablet to the meeting, which he allegedly used to verbally describe the Agreement. Id., ¶ 31.² Mr. Brooker allegedly engaged in "high pressure sales tactics," including making false and misleading statements in an effort to induce the Griffins to enter into the Agreement. Id., ¶ 33. These false and misleading statements purportedly included, among other things, that: (1) the solar energy produced would reduce the Griffin's total cost of energy to "only nominal charges"; (2) if the solar system overproduced electricity, the Griffins would receive a credit; (3) the Griffin's payment under the Agreement would be less than what they were previously paying the Public Service Company of New Mexico ("PNM") before adding the solar array; (4) the solar system would save the Griffin's 30% on their electric bill; and, (5) the total monthly outlay for Vivint's energy would be lower than PNM's. Id., ¶¶ 34-35, 38-40. Mr. Brooker also allegedly never disclosed that Vivint would put a lien on the Griffin's home, "which Vivint apparently did do." Id., ¶ 42.

The Complaint further alleges that Brooker had the Agreement open on his tablet screen while describing the Agreement verbally to the Griffins but claims he neither mentioned anything to them about their rights regarding arbitration during the discourse nor afforded them with an opportunity to review the Agreement prior to signing it. Id., ¶¶ 46-47. The Complaint also alleges that Brooker did not provide the Griffins with a paper copy of the Agreement, incorrectly claimed that the contract could be cancelled at any time, and "as best as Ms. Griffin can recall," only presented the tablet to them with a portion of the Agreement visible on the screen, which Mr. Griffin signed with his finger. Id., ¶¶ 48-50.

In April 2016, Defendants completed installation of 51 solar panels on the Griffin's home. Id., ¶ 51. The Complaint alleges that Defendants overbuilt the solar system relative to the Griffin's history of electricity consumption and failed to optimize the size of the system so that the Griffins would save money, instead designing it to optimize Defendants' profits, resulting in higher prices than PNM. Id., ¶¶ 52-56.

II. The Arbitration Agreement

The Arbitration Agreement contains a plain language, underlined title which reads "Arbitration of Disputes." In the relevant parts, the Arbitration Agreement states the following³:

PLEASE READ THIS PROVISION CAREFULLY. BY SIGNING BELOW, YOU ACKNOWLEDGE AND AGREE THAT, WITH LIMITED EXCEPTIONS, ANY DISPUTE BETWEEN US SHALL BE RESOLVED BY BINDING ARBITRATION. Arbitration is more informal than a lawsuit in court. In arbitration, disputes are resolved by an appointed arbitrator instead of a judge or jury. Therefore, by signing below, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. By signing below, You also agree to bring claims against Us only in Your individual capacity and YOU ARE WAIVING THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. Procedures before Initiating Arbitration or Suit: Most customer concerns can be resolved quickly and amicably by calling Our customer service department . . . If You and We are unable to resolve the Dispute within thirty (30)days thereafter, then either Party may commence arbitration or an action in small claims court as set forth below.

Scope of this Arbitration Provision: Either You or We may, without the other's consent, elect mandatory, binding arbitration for any claim, dispute, or controversy arising out of or relating to (i) any aspect of the relationship between You and Us, whether based in contract, tort, statute, or any other legal theory; (ii) this Agreement or any other agreement concerning the subject matter hereof; (iii) any breach, default, or termination of this Agreement; and (iv) the interpretation, validity, or enforceability of this Agreement, including the determination of the scope or applicability of this Section 6(e) (each, a "Dispute"). Any questions about whether any Dispute is subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced....

Doc. 6-2, Ex. A at pp. 10-11. The Arbitration Agreement further provides:

NOTICE: BY CHECKING THE BOX BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY BINDING NEUTRAL ARBITRATION AS PROVIDED BY THE FAA AND OTHER APPLICABLE LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY CHECKING THE BOX BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE FAA AND OTHER APPLICABLE LAW. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. YOU HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.

Id. at p. 12. In addition, the Agreement provides the following instruction on the signature page:

D. DO NOT SIGN THIS AGREEMENT BEFORE YOU HAVE READ ALL OF ITS PAGES. You acknowledge that You have read and received a legible copy of this Agreement, that We have signed it, and that You have read and received a legible copy of every document that We have signed during the negotiation.

Id. at p. 17. With respect to the customer's right to cancel the contract, Section G of the Agreement states:

G. CUSTOMER'S RIGHT TO CANCEL. YOU MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE THE LATER OF:

(I) MIDNIGHT OF THE THIRD (3RD) BUSINESS DAY AFTER THE TRANSACTION DATE, OR (II) THE START OF INSTALLATION OF THE SYSTEM OR ANY OTHER INSTALLATION WORK WE PERFORM ON YOUR PROPERTY.

Id. The Agreement contains a final notice to customers on the signature page:

NOTICE TO CUSTOMERS

...

BY CHECKING THIS BOX, YOU AGREE TO ARBITRATION AND WAIVE THE RIGHT TO A JURY TRIAL AS DESCRIBED IN SECTION 6(e), AND AGREE THIS CHECKBOX CONSTITUTES YOUR ELECTRONIC SIGNATURE.

Id. at p. 17.

The checkbox to the left of the preceding notice is selected and the document is electronically signed by Brooker and Mr. Griffin. Id.

Defendants note, and Plaintiff does not dispute or acknowledge in its response brief, that on February 28, 2017, Vivint Solar Developer, LLC, and Mr. Griffin entered into a confidential settlement agreement that included a similar, mandatory arbitration clause, which Mr. Griffin signed.⁴ Doc. 17-1, Ex. A at pp. 3-4.

LEGAL STANDARD

Under Section 4 of the Federal Arbitration Act ("FAA"), "[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court [. . .] for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. The FAA, which governsarbitration provisions contained within a written agreement "evidencing a transaction involving commerce," 9 U.S.C. § 2, governs the Court's interpretation and application of the Arbitration Provision. Under the FAA, such arbitration provisions "are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Id.

The FAA articulates a strong national policy in favor of arbitration and "establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983). Section 2 of the FAA places arbitration agreements on an equal footing with other contracts and requires courts to enforce them according to their terms. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63 (2010). "Like other contracts, however, [arbitration agreements] may be invalidated by 'generally applicable contract defenses, such as fraud, duress, or unconscionability.'" Id. at 68 (quoting Doctor's Associates, Inc. v. Casarotto, 517...