Inetianbor v. CashCall, Inc.

• Decision Date: 15 February 2013
• Docket Number: Case No. 13–60066–CIV.
• Citation: 923 F.Supp.2d 1358
• Parties: Abraham INETIANBOR, Plaintiff, v. CASHCALL, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

923 F.Supp.2d 1358

Abraham INETIANBOR, Plaintiff,

v.CASHCALL, INC., Defendant.

Case No. 13–60066–CIV.

United States District Court,

S.D. Florida.

Feb. 15, 2013.

Abraham Inetianbor, Plantation, FL, pro se.

Andrew Mikel Shapiro, Christopher Stephen Carver, Akerman Senterfitt, Miami, FL, for Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR REMAND AND GRANTING DEFENDANT'S MOTION TO COMPEL ARBITRATION

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Plaintiff's Motion to Remand Defendant's Notice of Removal to Federal Court [DE 4], and Defendant's Motion to Compel Arbitration and Dismiss or Stay Case [DE 16] (“Motion to Compel Arbitration”). The Court has considered the motions, the parties' responses and replies, the record in this case, and is otherwise fully advised in the premises.

I. BACKGROUND

On January 5, 2011, Plaintiff Abraham Inetianbor entered into a consumer loan agreement with Western Sky Financial, LLC (“Western Sky”), for $2,525.00, with an annual interest rate of 135%. Western Sky Consumer Loan Agreement [DE 16–2] (“Loan Agreement”) at 3–4. Defendant CashCall, Inc. (“CashCall”), is the servicer, handler, and collector on the loan. Mot. to Compel Arbitration at 2. Plaintiff claims that he has paid off the loan in full, but that CashCall has continued to report to credit bureaus that he has upcoming or late payments. Amended Complaint [DE 1–3] at 2.

The Loan Agreement has several provisions that relate to dispute resolution. First, the opening section of the Agreement provides as follows:

This Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne Sioux Tribe [the tribe], Cheyenne River Indian Reservation. By executing this Loan Agreement, you, the borrower, hereby acknowledge and consent to be bound to the terms of this Loan Agreement, consent to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court, and further agree that no other state or federal law or regulation shall apply to this Loan Agreement, its enforcement or interpretation.

Loan Agreement at 3. Furthermore, under the section titled “Waiver of Jury Trial and Arbitration,” it states that:

You agree that any Dispute, except as provided below, will be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement....

A “Dispute” is any controversy or claim between you and Western Sky or the holder of the Note.... For purposes of this Arbitration agreement, the term “the holder” shall include Western Sky or the then-current note holder's employees, officers, directors, attorneys, affiliated companies, predecessors, and assigns, as well as any marketing, servicing, and collection representatives and agents....

Id. at 5–6. However, the Agreement does allow the borrower to appear at arbitration by telephone or video conference, rather than travel to the reservation. Id. at 6.

On July 12, 2012, Plaintiff brought suit in the Seventeenth Judicial Circuit Court, Broward County, Florida, alleging that CashCall had defamed Plaintiff's character by misrepresenting his creditworthiness to credit reporting agencies. See Complaint [DE 1–2] at 3–4. On September 28, 2012, Plaintiff served the Complaint on CashCall, and on October 18, 2012, CashCall filed a Motion to Dismiss or, in the Alternative, Motion for a More Definite Statement. See State Court Docket [DE 1–4] at 12–21. The state court denied the motion to dismiss, but granted the motion for a more definite statement. Id. at 46. On December 17, 2012, Plaintiff filed his Amended Complaint in which he brought claims for defamation, usury, and violations of the Fair Credit Report Act, 15 U.S.C. § 1681 et seq. (“FCRA”). On January 11, 2013, CashCall removed the action to this Court. Notice of Removal [DE 1] at 2–3.

In the instant motions before the Court, Plaintiff moves to remand the case back to state court, while CashCall asks the Court to compel arbitration and dismiss or stay the case. The Court will deal with each of these motions in turn.

II. MOTION TO REMAND

“[A] defendant's right to remove an action against it from state to federal court ‘is purely statutory and therefore its scope and the terms of its availability are entirely dependent on the will of Congress.’ ” Global Satellite Commc'n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir.2004) (quoting 14B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, § 3721, at 285–86 (3d ed.1998)). Removal statutes are strictly construed. When a plaintiff and defendant disagree about jurisdiction, all doubts must be resolved in favor of remand. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328–29 (11th Cir.2006) (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994)). Further, “[a] removing defendant bears the burden of proving proper federal jurisdiction.” Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir.2002).

Here, CashCall removed the case pursuant to 28 U.S.C. § 1441(a). Notice of Removal at 1–2. CashCall contends that its removal was proper because the Court has jurisdiction over Plaintiff's FCRA claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's other claims. Id. The Court agrees. Section 1441(a) provides that:

any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). In this case, the Court has original jurisdiction over the action. First, the Court has jurisdiction over the FCRA claim under § 1331, because such claim arises under federal law. Further, the Court has supplementary jurisdiction over the defamation and usury claims because they arise out of the same nucleus of operative facts as the FCRA claim. See Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743 (11th Cir.2006); 28 U.S.C. § 1367. Therefore, CashCall's removal was permissible under § 1441(a).

Plaintiff attempts to defeat removal by asserting that “[a]n action may not be removed based on the federal defense of preemption.” Mot. to Remand at 2. This argument misconstrues CashCall's basis for removal. Plaintiff sued under the FCRA, which is a federal statute. Plaintiff's claim therefore arises under federal law, and may be removed to federal court. Accordingly, CashCall's removal was proper, and Plaintiff's Motion to Remand will be denied.

III. MOTION TO COMPEL ARBITRATION

A. Legal Standards

In considering CashCall's Motion to Compel Arbitration, the Court looks first to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”), which governs the interpretation and enforceability of arbitration provisions. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (noting that the FAA “[creates] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.”). Section 2 of the FAA provides that

“[a] written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be 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. Further, § 3 requires federal courts to stay proceedings when an issue in the proceeding is referable to arbitration; and § 4 directs courts to compel arbitration when one party has failed to comply with an agreement to arbitrate. EEOC v. Waffle House, Inc., 534 U.S. 279, 289, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (citing 9 U.S.C. §§ 3–4). Together, these provisions “manifest a liberal federal policy favoring arbitration agreements.” EEOC, 534 U.S. at 289, 122 S.Ct. 754 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). Because of that policy, all doubts concerning the scope of an arbitration provision are resolved in favor of arbitration. Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. Medpartners, Inc., 312 F.3d 1349, 1358 (11th Cir.2002) (citing Moses H. Cone, 460 U.S. at 24–25, 103 S.Ct. 927).

The Court's role in deciding a dispute is quite limited when there is an agreement to arbitrate. “[T]he threshold questions a district court must answer when determining whether a case may be properly referred to arbitration are: (1) whether the parties entered into a valid arbitration agreement; and (2) whether the specific dispute falls within the scope of the agreement.” Viamonte v. Biohealth Techs., Case No. 09–21522–CIV–GOLD/McALILEY, 2009 WL 4250578, *2, 2009 U.S. Dist. LEXIS 119200, *6 (S.D.Fla. Nov. 24, 2009). 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. See Bess v. Check Express, 294 F.3d 1298, 1306–07 (11th Cir.2002).

B. Analysis

Here, Defendant argues that the arbitration agreement, by its plain language, covers Plaintiff's claims. The Court agrees. The terms of the agreement are clear: all disputes between the borrower and the holder of the Note or the holder's servicer must be settled through arbitration. See Loan Agreement at 5–6. In this suit, Plaintiff seeks damages from CashCall, the servicer of the note, for actions related to CashCall's servicing and collecting on the note. See Amended Complaint at 2. Therefore, Plaintiff's claims fall within the scope of the arbitration provision.

Plaintiff attempts to avoid arbitration on five grounds, each of which is unavailing. First, he contends that the agreement is not legally enforceable because it charges...