Senter v. Equifax Info. Servs. LLC

Decision Date04 August 2017
Docket NumberCASE NO. 5:16CV875
CourtU.S. District Court — Northern District of Ohio



Before the Court is the petition of plaintiffs Jeffrey A. Senter and Kelly L. Senter (collectively "plaintiffs" or "the Senters") to compel defendant Equifax Information Services LLC ("defendant" or "EIS") to participate in arbitration. (Doc. No. 1 ["Pet."].) Defendant opposes the petition (Doc. No. 5 ["Opp'n"]), plaintiffs have filed a reply (Doc. No. 6 ["Reply"]), and defendant has filed a sur-reply. (Doc. No. 7 ["Sur-reply"].) Because plaintiffs cannot establish, as a matter of law, that plaintiffs and defendant are parties to an arbitration agreement, or that any claim plaintiffs may have against EIS is within the scope of any purported arbitration agreement, plaintiffs' petition is denied and the case is dismissed.


On April 13, 2016, plaintiffs filed the present suit seeking, as the sole remedy, an order "directing that arbitration between the Senters and [EIS] proceed in the manner provided for in the arbitration agreement[.]" (Pet. at 31.) The petition provides that plaintiffs each filed a claimwith the American Arbitration Association ("AAA") against EIS to "resolve disputes" between the parties but that, as of April 12, 2016, EIS had refused to participate in arbitration. (Id. ¶ 1, at 1.) In particular, plaintiffs allege that they "have disputed several tradelines contained on their [EIS] credit reports of which [EIS] has failed to maintain reasonable measures to [ensure] maximum possible accuracy of the information it reports concerning the Senters." (Id. ¶ 6, at 1.)

While they do not attach a copy of any agreement to their petition, they quote from what they represent is the "most recent . . . arbitration provision dated October 13, 2014" that provides for binding arbitration of any claim or dispute or controversy "regarding any aspect of [the contractual] relationship . . . including but not limited to any Claim arising from these Terms of Use or arising from Your use of the Products or this Site or any information You receive from Us . . . ." (Id. ¶ 7, at 2, emphasis omitted.)

Defendant filed an opposition to the petition, insisting that plaintiffs "do not, nor have they ever, had an arbitration provision with [EIS] to arbitrate disputes concerning the contents of their credit files[.]" (Opp'n at 31.) Defendant suggests that, "[i]nstead, [p]laintiffs apparently purchased or used a credit monitoring product [from another company] and the terms of use for that product may have contained an arbitration provision." (Id.) Defendant explains that it is a "consumer reporting agency ("CRA") as defined by the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x. As a CRA, [EIS] maintains credit files for millions of consumers, including [p]laintiffs." (Doc. No. 5-1 (Declaration of Pamela Smith ["Smith Decl."]) ¶ 6.) According to defendant, "it is not party to [any] contract with the Senters[,]" and specifically, it "is not a party to any agreement that contains an arbitration provision with the Senters to arbitrate the contents of their credit files." (Id. ¶¶ 7-8.) EIS underscores the fact that plaintiffshave not produced a copy of any agreement between the parties to their petition.

In their reply, plaintiffs represent that, on August 30, 2015, Jeffrey Senter visited the website "to obtain copies of our credit reports as allowed by the Fair Credit Reporting Act." (Reply ¶ 2, at 40.) They maintain that, when Jeffrey Senter clicked on the button labeled "Terms of Use," the "Product Terms of Use agreement" appeared. (Id. ¶ 3, at 40.) They attach to the reply what they purport to be the parties' agreement. (Doc. No. 6-1 (Terms of Use ["TOU"]) at 40-64.) Included in this document is a section titled "AGREEMENT TO RESOLVE ALL DISPUTES BY BINDING INDIVIDUAL ARBITRATION." (Id. at 58-60, capitalization in original.)

In its sur-reply, EIS reiterates that plaintiffs have failed to produce any arbitration agreement between the parties before the Court, and the agreement referenced in the reply actually excludes from consideration any claims that a CRA, such as EIS, has issued a free credit report with inaccurate information. EIS maintains that, if anything, plaintiffs' reply merely confirms that the parties did not agree to arbitrate and the petition should be denied.


"In evaluating motions or petitions to compel arbitration, courts treat the facts as they would in ruling on a summary judgment motion, construing all facts and reasonable inferences that can be drawn therefrom in a light most favorable to the non-moving party." Stepp v. NCR Corp., 494 F. Supp. 2d 826, 829 (S.D. Ohio 2007) (citing Raasch v. NCR Corp., 254 F. Supp. 2d 847 (S.D. Ohio 2003)); see Yaroma v. Cashcall, Inc., 130 F. Supp. 3d 1055, 1062 (E.D. Ky. 2015) (quotation marks and citation omitted). It is, therefore, appropriate to review the summary judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure.

Under Fed. Rule Civ. P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56(c)(4) further requires that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."

As previously noted, in reviewing summary judgment motions, the Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co, 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); White v. Turfway Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] isentitled to a verdict[.]" Id. at 252.

Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine issue of material Fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992) (citation omitted). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id. (citation omitted).


The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., manifests "a liberal federal policy favoring arbitration agreements[.]" 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) (citing 9 U.S.C. § 2). In light of this view, the "FAA 'is at bottom a policy guaranteeing the enforcement of private contractual arrangements.'" Javitch v. First Union Sec., Inc., 315 F.3d 619, 624 (6th Cir. 2003) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985)).

Notwithstanding this preference for arbitration, it is fundamental that arbitration cannotbe forced on parties who do not consent to it. See Rickard v. Teynor's Homes, Inc., 279 F. Supp. 2d 910, 913 (N.D. Ohio 2003) (citing, among authority, Volt Info. Sciences, Inc. v. Bd. of Trs., 489 U.S. 468, 478, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989) (stating that "the FAA does not require parties to arbitrate when they have not agreed to do so")); Stepp, 494 F. Supp. 2d at 831 ("Courts will not enforce an arbitration agreement when the parties did not agree to the clause.") (citations omitted). Accordingly, the duty to arbitrate must derive from the parties' agreement. Bratt Enters., Inc. v. Noble Int'l Ltd., 338 F.3d 609, 612 (6th Cir. 2003) (citing, among authority, Roney & Co. v. Kassab, 981 F.2d 894, 897 (6th Cir. 1992)).

"Before compelling an unwilling party to arbitrate, the court must engage in a limited review to determine whether the dispute is arbitrable; [sic] meaning that a valid agreement to arbitrate exists between the parties and that the specific dispute falls...

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