McGreal v. AT & T Corp.

• Citation: 892 F.Supp.2d 996
• Decision Date: 24 September 2012
• Docket Number: No. 11 C 08317.,11 C 08317.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Sheila B. McGREAL, Plaintiff, v. AT & T CORP. and Illinois Bell Telephone d/b/a AT & T Illinois, The Village of Orland Park, Timothy J. McCarthy, Thomas Melody, and Dennis V. Stoia, Defendants.

892 F.Supp.2d 996

Sheila B. McGREAL, Plaintiff,

v.AT & T CORP. and Illinois Bell Telephone d/b/a AT & T Illinois, The Village of Orland Park, Timothy J. McCarthy, Thomas Melody, and Dennis V. Stoia, Defendants.

No. 11 C 08317.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 24, 2012.

Joel H. Feldman, Loevy & Loevy, Chicago, IL, for Plaintiff.

Mark W. Lewis, Legal Department, At & T Services, Inc., Jason A. Guisinger, Klein, Thorpe and Jenkins, Ltd., Alan S. Madans, Michael James Wall, Robin Korman Powers, Rothschild, Barry & Myers LLP, Kevin Michael O'Hagan, Julie Sinclair Pearce, Kristine S. Phillips, O'Hagan Spencer, LLC, Chicago, IL, William Lloyd Hotopp, Law Office of William L. Hotopp, Sandwich, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Sheila B. McGreal brings this action against AT & T Corp. and Illinois Bell Telephone Company, d/b/a AT & T Illinois, (collectively, AT & T); Dennis V. Stoia, an arbitrator employed by Orland Park, Illinois; the Village of Orland Park, Illinois (“Orland Park”); Timothy J. McCarthy, Chief of Police of the Village of Orland Park; and Thomas Melody, Orland Park's attorney. ¹ McGreal alleges violations of 42 U.S.C. § 1983 and 18 U.S.C. § 2702(a)(3), as well as state law tort claims of intrusion upon seclusion, respondeat superior, defamation per se, and indemnification. (R. 1, Compl.) Presently before the Court are Orland Park, McCarthy, and Melody's (collectively “Village Defendants”) motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (R. 23, Village Defs.' Mot.), and AT & T's motion to compel arbitration. (R. 26, AT & T's Mot.) For the reasons discussed below, AT & T's motion to compel arbitration is granted, and the Village Defendants' motion to dismiss is granted in part and denied in part.

RELEVANT FACTS

Stoia was an arbitrator employed by Orland Park to arbitrate grievances, a labor complaint, and “charges of misconduct involving the possible discipline of a [p]olice [o]fficer.” (R. 1, Compl. ¶ 14.) On September 28, 2010, McGreal became aware that Orland Park had requested that Stoia issue a subpoena duces tecum for records related to McGreal's AT & T cell phone account. ( Id. ¶ 15.) On October 12, 2010, McGreal filed a motion to quash the subpoena duces tecum with Stoia and sent the motion to AT & T. ( Id. ¶ 16.) On October 25, AT & T notified McGreal that they would not release any records to Stoia until he ruled on McGreal's motion to quash. ( Id. ¶ 22.)

On November 25, 2010, AT & T mistakenly released McGreal's cell phone voice and text message records to Orland Park. ( Id. ¶ 23.) On December 3, 2010, McGreal wrote to Orland Park, Melody, and Stoia to request that they immediately return the AT & T records. ( Id. ¶ 26.) Instead, Orland Park “made [McGreal's voice and text records] public.” ( Id. ¶ 27.) In addition, McGreal avers that Defendants publicly alleged that she “concealed lies,” “made false statements,” and “engaged in a conspiracy,” and made other similar accusations. ( Id. ¶ 30.)

PROCEDURAL HISTORY

McGreal filed her pro se complaint on November 21, 2011. (R. 1, Compl.) In Count I, McGreal alleges an unreasonable search and seizure in violation of the Fourth Amendment and asserts claims under 42 U.S.C. § 1983 against “one or more of the Defendants.” ( Id. ¶¶ 31–34.) In Count II, McGreal alleges conspiracy pursuant to 42 U.S.C. § 1985 against all Defendants. ( Id. ¶¶ 35–39.) In Count III, she alleges a prohibited disclosure of private telephone records in violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2702(a)(3), against AT & T. ( Id. ¶¶ 40–42.) In Counts IV–VII, McGreal alleges supplemental state law claims. She alleges an intrusion upon seclusion claim against “one or more Defendant” (Count IV), ( id. ¶¶ 43–46); a respondeat superior claim against Orland Park (Count V), ( id. ¶¶ 47–49); a defamation per se claim against “[o]ne or more of the Village Defendants” (Count VII), ( id. ¶¶ 50–52); and an indemnification claim against Orland Park (Count VII), ( id. ¶¶ 53–61).

Stoia filed a response to McGreal's complaint on January 30, 2012. On January 31, the Village Defendants filed a motion to dismiss Counts I, II, and IV pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing, and to dismiss Counts I, II, IV, VI, and VII pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (R. 23, Village Defs.' Mot.) That same day, AT & T filed a motion to compel arbitration of all claims against them pursuant to an arbitration agreement between AT & T and McGreal, and to stay the proceedings between those parties pending the arbitration. (R. 26, AT & T Defs.' Mot.)

In her response to the Village Defendants' motion, McGreal concedes that her Section 1985 claim (Count II) should be dismissed and that Orland Park is entitled to absolute immunity from her defamation per se claim (Count VI). (R. 48, Pl.'s Resp. at 4.) In light of McGreal's concessions,the Court dismisses Count II and the portion of Count VI alleged against Orland Park.

DISCUSSION

I. AT & T's motion to compel arbitration

AT & T contends that McGreal's claims against them involve her AT & T cellular telecommunications service, which was provided by another AT & T affiliate, AT & T Mobility. (R. 26, AT & T's Mot. at 1.) AT & T further argues that McGreal agreed to resolve her disputes with AT & T in arbitration as part of her service contract. ( Id. at 2.)

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., reflects “both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.” AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) (internal citations and quotations omitted). The FAA broadly provides that an arbitration clause in a contract involving a commercial transaction “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract.” 9 U.S.C. § 2. The FAA provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, and for orders compelling arbitration when one party has failed or refused to comply with an arbitration agreement. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Unless arbitration agreements are invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability,” courts must enforce them according to their terms. AT & T Mobility, 131 S.Ct. at 1745–46 (internal citations and quotations omitted). If the Court is satisfied that the parties agreed to arbitrate, it must promptly compel arbitration. 9 U.S.C. § 4. A court may not deny a party's request to arbitrate an issue “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Gore v. Alltel Commc'ns, LLC, 666 F.3d 1027, 1032–33 (7th Cir.2012) (internal citations and quotations omitted).

AT & T seeks an order compelling McGreal to arbitrate her claims against AT & T before pursuing a lawsuit. (R. 26, AT & T's Mot.) To compel arbitration, a court must determine that the parties entered into an agreement to arbitrate, and that the dispute between the parties falls within the scope of the arbitration agreement. See Granite Rock Co. v. Int'l Bhd. of Teamsters, ––– U.S. ––––, 130 S.Ct. 2847, 2856, 177 L.Ed.2d 567 (2010); see also Janiga v. Questar Capital Corp., 615 F.3d 735, 738 (7th Cir.2010). AT & T contends that McGreal agreed to the AT & T Terms of Service, including the arbitration provisions, when she added the telephone number in question to her account. (R. 27, AT & T's Mem. at 1–2.) Attached to AT & T's motion is McGreal's wireless service agreement, signed by McGreal, agreeing to all Terms of Service. (R. 27–1, AT & T's Mem., Ex. A–2.) The Arbitration Agreement contained in the Terms of Service expressly states that it is “intended to be broadly interpreted” and covers “all disputes and claims” between the customer and AT & T. (R. 27–1, AT & T's Mem., Ex. A–1 at 8.) Broadly worded arbitration clauses are interpreted to have a wide reach and create a presumption of arbitrability. Gore, 666 F.3d at 1033–34. McGreal has not responded to AT & T's motion to compel arbitration, nor does she challenge the existence of the service contract or the Arbitration Agreement therein. Because McGreal does not dispute the existence or validity of the Arbitration Agreement that covers her claims against AT & T, and the disagreement at issue is clearly covered by the Arbitration Agreement, the Court grants AT & T's motion to compel arbitration and stay the proceedings as to all claims against AT & T pending arbitration.

II. Village Defendants' motions to dismissA. Legal standards

A motion to dismiss pursuant to Rule 12(b)(1) asks the court to dismiss an action over which it allegedly lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The burden of establishing standing is on the plaintiff. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 913 (7th Cir.2009). All reasonable inferences are drawn in favor of the plaintiff, and all well-pleaded allegations are accepted as true. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999); see also Apex Digital v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir.2009) (labeling a motion to dismiss for lack of subject matter jurisdiction in which the court need only look to the complaint a “facial challenge”).

If the defendant denies or controverts the truth of the plaintiff's jurisdictional allegations, however, “the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction...