Hopkins v. Genesis FS Card Servs.

• Decision Date: 09 January 2020
• Docket Number: Case No. 3:19-cv-00157-AC
• Parties: TIFFANY HOPKINS, Plaintiff, v. GENESIS FS CARD SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Oregon

TIFFANY HOPKINS, Plaintiff, v. GENESIS FS CARD SERVICES, INC., Defendant.

Case No. 3:19-cv-00157-AC

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

January 9, 2020

FINDINGS AND RECOMMENDATION

ACOSTA, Magistrate Judge:

Introduction

Plaintiff Tiffany Hopkins ("Hopkins") filed this action against defendant Genesis FS Card Services ("Defendant"), asserting Defendant's conduct violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), the Oregon Fair Debt Collection Practices Act, OR. REV. STAT. § 646.639 ("OFDCPA"), and the common law doctrine of "Intrusion Upon Seclusion." (Compl., ECF No. 1, at 1-2.) Defendant moves to compel arbitration pursuant to the terms of an arbitration clause ("Provision") governing disputes arising out of the Cardholder Agreement ("Agreement") which Hopkins entered into with Celtic Bank ("Celtic"). (Def. Mem. of P. & A. in Supp. of Mot. to Compel Arbitration and Dismiss, ECF No. 15 ("Def. Mem."), at 3, 8.)

Though the court finds the Provision is valid, the court concludes Defendant cannot enforce the Provision because Utah state law does not provide Defendant with such relief. Accordingly, Defendant's motion to compel arbitration should be denied.¹

Factual Background

On January 2, 2018, Hopkins submitted an online application for an Indigo Platinum MasterCard issued by Celtic ending in the number 6045 ("Account"). (Decl. of Evan Bryman in Supp. of Def. Genesis FS Card Services, Inc. Mot. to Compel Arbitration and Dismiss, ECF No. 15 ("Bryman Decl."), 6). During the application process, Hopkins checked a box, also referred to as a "click-wrap agreement," which indicated Hopkins read and agreed to the Terms and Conditions and Important Disclosures of the Agreement ("Terms and Conditions"). (Id. ¶ 7; Bryman Decl. Ex. A-1, at 7.)² The Terms and Conditions included a paragraph, set off in all-capitalized, bold text, which read:

Arbitration of Disputes.

PROVISION PLEASE READ THIS ARBITRATION OF DISPUTES PROVISION CAREFULLY. UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS PROVISION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE. IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. THIS ARBITRATION OF DISPUTES PROVISION DOES NOT APPLY TO YOU IF, AS OF THE DATE

YOU ARE APPROVED FOR AN ACCOUNT, YOU ARE A MEMBER OF THE ARMED FORCES OR A DEPENDENT OF SUCH MEMBER ENTITLED TO PROTECTION UNDER THE FEDERAL MILITARY LENDING ACT. PLEASE SEE THE SECTION OF THIS DOCUMENT LABELED "MILITARY LENDING ACT."

(Bryman Decl., Ex. A-1, at 9.)

The Terms and Conditions also stated Celtic would send, if approved, the Agreement to Hopkins. (Id.) The Agreement also included instructions on how Hopkins could "opt out" of the Provision within sixty days of receiving the Agreement. (Id.) In order to reject the Provision, the Agreement provided that an applicant "must send [Celtic] a notice within [sixty] days after [applicant] opens [their] Account or [Celtic] first provide[s] [applicant] with a right to reject this provision." (Bryman Decl. Ex. A-2, at 2.) The Agreement further indicated transmission of the opt-out notice was the only method of rejection, listed the necessary information to include in the opt-out notice, and specified the address to which Hopkins was to transmit the opt-out notice. (Id.) Hopkins did not send Celtic an opt-out notice. (Bryman Decl. ¶ 9.)

The Agreement also indicated "[applicant] and [Celtic] acknowledge and agree that the transactions contemplated by this Agreement, and any controversy that may arise under or relate to this Agreement, [applicant's] Account, or the services or other agreements described above involve "commerce" as that term is defined and used in the FAA." (Bryman Decl. Ex. A-2, at 2.) The Agreement further stated and identified Utah as the governing state law and allows Celtic or its agents to contact Hopkins by text message, use automated telephone dialing systems to initiate such contacts, and/or leave recorded messages. (Id.) The Provision also included a class action waiver. (Def. Mot. at 6.) Notably, the Provision stated the cardholder would not be required to arbitrate: "(1) any individual [c]laims in small claims court . . . (2) any [c]laim by [Celtic] that only involves [Celtic's] effort to collect money you owe us. However, if you respond to a collectionlawsuit by claiming that we engaged in wrongdoing, we may require you to arbitrate." (Compl. at 7.)

Following receipt of the Agreement and the Indigo Platinum MasterCard, Hopkins made purchases using the newly acquired line of credit, which resulted in a balance of $581.22 by January 19, 2019. (Bryman Decl. ¶ 8; Bryman Decl. Ex. A-3 at 41.) The Account became overdue as of the June 20, 2018 statement. (Bryman Decl. Ex. A-3 at 26.) Celtic, however, assigned the rights of "all servicing, collection, and enforcement rights" related to the Account to Defendant. (Bryman Decl. ¶ 12.)

Hopkins alleges that in approximately July of 2018, Defendant began calling Hopkins on her personal cell phone from multiple numbers. (Compl. ¶¶ 13-14.) Toward the end that month, Hopkins spoke with one of Defendant's agents, whom Hopkins informed of the financial difficulty she was experiencing, and explained the same financial difficulty was the reason for the inability to make a payment on the Account. (Id. ¶¶ 16-17.) Over the course of the next few months, Hopkins repeatedly informed Defendant's agents she revoked her consent to be contacted on her cell phone. (Id. ¶¶ 18-20.) Hopkins further alleges that, despite the repeated revocations of consent to be contacted by phone, Defendant contacted her approximately sixty-five times between July 25, 2018, and October 4, 2018, which exacerbated Hopkins's stress of caring for her disabled child. (Id. ¶¶ 21, 26.) As a result of the repeated collection calls, Hopkins allegedly suffered emotional distress, mental anguish, sleepless nights, invasion of privacy, and actual damages. (Id. ¶ 27.) Hopkins then filed a complaint in this court on February 1, 2019 (the "Complaint"). (Compl. at 7.)

Preliminary Procedural Matters

When evaluating the validity or enforceability of an arbitration agreement, district courts should apply state law. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339-40 (2011)(applying California state law to determine validity and enforceability of arbitration agreement); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (state-law principles governing formation of contracts used to decide whether parties agree to arbitrate a matter). "In a federal question action where the federal court is exercising supplemental jurisdiction over state claims, the federal court applies the choice-of-law rules of the forum state . . . ." MRO Commc'ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999) (quotation and citation omitted).

Here, Hopkins brings a TCPA claim accompanied by additional state claims.³ Accordingly, the court will look to Oregon's choice-of-law rules to determine whether Oregon or Utah law applies. Under Oregon law, OR. REV. STAT. 15.350 governs contracts containing a choice-of-law provision. Johnson v. J.G. Wentworth Originations, LLC, 284 Or. App. 47, 53 (2017) (citing OR. REV. STAT. 15.350 as a basis to apply California law pursuant to the contract's choice-of-law provision); see also M+W Zander, U.S. Operations, Inc. v. Scott Co. of California, 190 Or. App. 268, 272 fn.1 (2003) (noting the Oregon Legislature codified Oregon's choice-of-law for contracts under former OR. REV. STAT. 81.100-81.135, now renumbered OR. REV. STAT. 15.300-15.380). Oregon's choice-of-law rules, however, have been applied in a less-than-consistent manner with various state opinions applying the Restatement (Second) of Conflict of Laws without citing the choice-of-law statutes. Compare Mid-Century Ins. Co. v. Perkins, 344 Or. 196, 205-06, opinion modified on reconsideration, 345 Or. 373 (2008) (affirming the Court of Appeals' choice-of-law analysis using a "most significant relationship" restatement approach andnot referencing the enacted Oregon choice-of-law statutes); with AS 2014-11 5W LLC v. Caplan Landlord, LLC, 273 Or. App. 751, 768 (2015) (relying on M+W Zander v. Scott Co. of California, 190 Or. App. 268, 272 (2003), which cited section 187(2) of the Restatement (Second) of Conflicts of Laws (1971), to determine whether to give effect to a choice-of-law provision); and Yoshida's Inc. v. Dunn Carney Allen Higgins & Tongue LLP, 272 Or. App. 436, 448 (2015) (stating because defendant failed to demonstrate "whether there [was] a material difference between Oregon substantive law and the law of the other forum[,]" the court refused to take up the choice-of-law question) (citing Angelini v. Delaney, 156 Or. App. 293, 300 (1998) (stating Oregon courts look first to whether there is a material difference between Oregon and law of the other forum to determine whether California or Oregon law applied); but cf. Capital One Bank v. Fort, 242 Or. App. 166, 170 (2011) (noting former OR. REV. STAT. 81.100 to 81.135, now renumbered as OR. REV. STAT. 15.300 to 15.380, is what Oregon courts analyze to determine choice-of-law questions in contracts)).

Though decisions in this district similarly have used a less-than-consistent approach to Oregon choice-of-law questions, more recent district court opinions tend to rely on the statutory approach in cases involving contracts. See Campos v. Bluestem Brands, Inc., No. 3:15-CV-00629-SI, 2016 WL 297429, at *6 (D. Or. Jan. 22, 2016) (determining whether to give effect to a choice-of-law provision under the Second Restatement framework); see also Doral Money, Inc. v. HNC Properties, LLC, No. 3:14-CV-00545-BR, 2014 WL 3512501, at *3 (D. Or. July 10,...