Ursula Ungaro, UNITED STATES DISTRICT JUDGE.
THIS CAUSE comes before the Court upon Defendants Morgan Stanley Smith
THE COURT has considered the Motion, the pertinent portions of the record and is otherwise fully advised in the premises.
On October 6, 2015, Plaintiff filed his Complaint against Defendants in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. D.E. 1-1. In the Complaint, Plaintiff asserted state law claims for negligence, fraud by inducement, fraud by omission, constructive fraud, and breach of fiduciary duty. Id. Plaintiff's claims stem from his allegation that "[u]nauthorized disbursements from Plaintiff, Dr. Herrera's, account [with Defendants] were made by forged checks in the amount of US, $80,301.60." Id. ¶ 15. On November 13, 2015, Defendants timely removed this case to the United States District Court for the Southern District of Florida pursuant to this Court's original jurisdiction under 28 U.S.C. § 1332(a). D.E. 1. On November 19, 2015, Defendants filed their Motion to Compel Arbitration, arguing that Plaintiff should be compelled to submit his claims against Defendants to arbitration under the terms of a written agreement entered into between Plaintiff and Defendants on May 9, 2008. D.E. 5-1. In addition, Defendants contend that because the entire action should be referred to arbitration, a stay of the action is mandatory under Section 3 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 3. Id.
It is undisputed that on May 9, 2008, Plaintiff signed the second page of the International Account Application ("Application") and Client Agreement ("Client Agreement"). D.E. 5-1; D.E. 8. Between the Application and Client Agreement, there were five total pages. D.E. 5-1. Immediately above the signature line where Plaintiff affixed his signature, the Acceptance of Terms and Conditions of Agreements read as follows:
International Account Application and Client Agreement. D.E. 5-1 (emphasis added). Furthermore, the Client Agreement contained the following pre-dispute arbitration clauses:
International Account Application and Client Agreement, 4 ¶ 6-7 (D.E.5-1).
In moving to compel arbitration, Defendants argue that arbitration is appropriate because Plaintiff expressly and unambiguously agreed to the terms of the Client Agreement, which contained a pre-dispute arbitration clause. D.E. 5. Defendants argue that the Agreement is valid, irrevocable, and enforceable under the requirements of the FAA. Id. Defendants filed the Declaration of Dalia F. Botero ("Botero"), who is a Senior Complex Risk Officer employed by Defendant, Morgan Stanley Smith Barney LLC. D.E. 5-1. In her Declaration, Botero attests to the authenticity
In opposing Defendants' Motion, Plaintiff argues that at the time he signed the Application, he did not receive the Client Agreement containing the pre-dispute arbitration clause. D.E. 8. In addition, Plaintiff asserts: (1) there was no mutual assent to the essential and material terms of the arbitration provision; (2) the Court should consider parol evidence to determine the intent of the parties at the time of entering into the Client Agreement; (3) the fees associated with arbitration are unconscionable and render the enforcement of the arbitration provision unenforceable; and (4) the Financial Industry Regulatory Authority ("FINRA") is not the appropriate forum for arbitration.
Federal policy favors arbitration over litigation. Seaboard Coast Line R.R. Co. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982). Claims are subject to arbitration where they fall within the scope of a valid and enforceable arbitration agreement. See, e.g., Benoay v. Prudential-Bache Sec., Inc., 805 F.2d 1437, 1440 (11th Cir.1986). Pursuant to the Federal Arbitration Act, a written arbitration provision in a "contract evidencing a transaction involving commerce" is "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. If a party is "aggrieved by the alleged failure, neglect or refusal of another to arbitrate under a written agreement," it may petition a federal district court "for an order directing that such arbitration proceed in the manner provided for in [the] agreement." 9 U.S.C. § 4. When addressing a § 4 motion, the district court is required to determine whether there is a binding agreement to arbitrate and, if so, whether the nonmovant has breached its obligation to arbitrate under that agreement. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 n. 27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (citing 9 U.S.C. §§ 4, 6)).
"The party opposing a motion to compel arbitration or to stay litigation pending arbitration has the affirmative
The FAA evinces a "liberal federal policy favoring arbitration agreements." Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir.2005) (quoting Moses, 460 U.S. at 24, 103 S.Ct. 927)); see also Picard v. Credit Solutions, Inc., 564 F.3d 1249, 1253 (11th Cir.2009) ("The FAA creates a strong federal policy in favor of arbitration."). "[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses, 460 U.S. at 24-25, 103 S.Ct. 927. Accordingly, courts should "rigorously enforce" arbitration agreements. Klay v. All Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004). Furthermore, the FAA provides that "upon any issue referable to arbitration under an agreement in writing for such arbitration," and "upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such agreement," the court "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement." 9 U.S.C. § 3.
In this case, it is undisputed that: (1) Plaintiff signed the Application; (2) the Application incorporated the terms of the Client Agreement; and (3) the Client Agreement contained a pre-dispute arbitration provision. D.E. 5-1, 2-4; D.E. 8. Using the guidelines established by the Supreme Court and the Eleventh Circuit, the Court will address the following issues: (1) whether the Client Agreement is a written agreement invoking interstate commerce in order to be enforceable under the FAA pursuant to 9 U.S.C. § 2; (2) whether the Agreement is unenforceable due to a lack of mutual assent; and (3) whether Plaintiff's claims fall within the scope of the arbitration provision. The Court will address each in turn.
To enforce an arbitration agreement under the FAA, the Court must conduct a two-pronged inquiry: first, the Court must determine whether there was an arbitration agreement in writing; and second, if so, the Court must ascertain whether the agreement is a part of a transaction involving interstate commerce.
Under the FAA, "parties cannot be forced to submit to arbitration if they have not agreed to do so." Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854 (11th Cir.1992). Thus, "the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute." Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). "Under normal circumstances, an arbitration provision within a contract admittedly signed by the contractual parties is sufficient to require the district court to send any controversies to arbitration." Id. "Under such circumstances, the parties have at least presumptively agreed to arbitrate any disputes, including those disputes about the validity of the contract in general." Id.
In this case, Plaintiff has not contested the authenticity of his signature on the document. See e.g., Scone Invs., L.P. v. Am. Third Mkt. Corp., 992 F.Supp. 378, 381 (S.D.N.Y.1998) (finding that the movants had "satisfied their initial burden of demonstrating a written agreement obligating both plaintiffs to arbitrate by producing a copy of the customer agreement which includes an arbitration clause and which was purportedly signed by [the other party]"). Because it is undisputed that Plaintiff signed the Application and Client Agreement, the burden then shifts to Plaintiff to show that no valid contract existed and to meet that burden []he must "unequivocally deny that an agreement to arbitrate was reached and must offer some evidence to substantiate the denial." Magnolia Capital Advisors v. Bear Stearns & Co., 272 Fed Appx. 782, 785 (11th Cir.2008) (citing Chastain, 957 F.2d at 854)).
In opposing arbitration, Plaintiff simply contends he did not receive the Client Agreement containing the pre-dispute arbitration clause. Plaintiff did not file any declaration and/or offer any evidence in support of his position. Similar to Sultanem v. Bright House Networks, LLC, No. 8:12-cv-1739-T-24 TBM, 2012 WL 4711963 (M.D.Fla. Oct. 3, 2012), the Court finds that Plaintiff's mere denial that he did not receive the Agreement "is not sufficient evidence, on its own" given that Defendants offered undisputed evidence Plaintiff signed and acknowledged that he "received, read, understood, and agreed" to the terms of the Client Agreement. Under Florida law, "a person is deemed to have read a contract that they have signed." Id. (citing Dorward v. Macy's, Inc., No. 2:10-cv-669-FtM-29DNF, 2011 WL 2893118, at *6 (M.D.Fla. July 20, 2011)). As such, Plaintiff's argument that he did not receive the Agreement, on its own, is not relevant to this Court's consideration in determining whether the Agreement is enforceable under the FAA. See Honig v. Comcast of Ga., I, LLC, 537 F.Supp.2d 1277, 1283 (N.D.Ga. 2008) (considering the plaintiff's signature on a work order acknowledging receipt of the subscriber agreement containing the arbitration provision as evidence that she
Courts generally should apply state law principles governing formation of contracts. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Although the FAA governs the applicability of arbitration agreements, state law governs issues "concerning the validity, revocability, and enforceability of contracts generally." Bhim v. Rent-A-Center, Inc., 655 F.Supp.2d 1307, 1311 (S.D.Fla.2009) (citing Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). Therefore, defenses such as fraud, unconscionability, and duress are governed by state law. See Dale v. Comcast, 498 F.3d 1216, 1219 (11th Cir.2007).
Plaintiff argues that the arbitration provision is unenforceable because it lacks mutual assent. Specifically, Plaintiff asserts the Application does not sufficiently describe the terms and procedures of the pre-dispute arbitration agreement in the Client Agreement and relies upon Spicer v. Tenet Fla. Physician Servs., LLC, 149 So.3d 163 (Fla. 4th DCA 2014) to support his position. In Spicer, the court found the arbitration agreement was invalid because the employment agreement did not incorporate the arbitration provision, which was contained in a separate document. Id. at 167. Unlike that case, however, in this case, the Application expressly incorporates the pre-dispute arbitration clause contained within the Client Agreement. Moreover, the language of the Application sufficiently describes the pre-dispute arbitration clause by identifying the paragraph and page number where the clause was located in the Client Agreement. Plaintiff has submitted no evidence whatsoever that he did not receive the Client Agreement; therefore, the evidence remains undisputed that Plaintiff signed the Agreement and was aware of the Client Agreement at the time he affixed his signature.
The Court also rejects Plaintiff s contention that the terms "may be brought in Court," "generally," "typically," "pre-dispute arbitration," and "arbitration" are ambiguous and invalidate the Client Agreement. Plaintiff provides no support for this argument other than blanket allegations that these terms are ambiguous. "[I]t is a fundamental tenet of contract law that a phrase in a contract is `ambiguous' only when it is of uncertain meaning, and may be fairly understood in more ways than one." Solymar Invest., Ltd. v. Banco Santander S.A., 672 F.3d 981, 991 (11th Cir.2012) (citing Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002 (Fla. 2d DCA 1995)). "[I]n the absence of such ambiguity, parol evidence is inappropriate." Id. (citing Fla. Bar v. Frederick, 756 So.2d 79 (Fla.2000)). "Thus, where a contract is facially complete and contains no ambiguous terms, Florida law requires those contracts be enforced in accordance with their terms." Id. The Court agrees with Defendants that the terms of the Application and Client Agreement where Plaintiff acknowledges that he received, read, understood, and agreed to the terms of the Client Agreement are clear, and therefore, preclude Plaintiff's argument that the terms contained within the document are vague and ambiguous. Accordingly, the Court does not find there to be a viable basis upon which the Client Agreement should be invalidated.
As a matter of contract law, the scope of an arbitration agreement depends on the intent of the parties. Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1352 (11th Cir.1982). "[W]here, as here, parties concede that they have agreed to arbitrate some matters pursuant to an arbitration clause, the law's permissive policies in respect to arbitration counsel that any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration." Perera v. H & R Block E. Enters., Inc., 914 F.Supp.2d 1284, 1288 (S.D.Fla.2012) (citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 2857, 177 L.Ed.2d 567 (2010)). The presumption of arbitrability is particularly applicable where the arbitration clause is broad. AT & T Techs., Inc. v. Commc'ns Workers of America, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). "[O]nly the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Perera, 914 F.Supp.2d at 1288. The Eleventh Circuit has held that such evidence will be found only if the parties "clearly express their intent to exclude categories of claims from their arbitration agreement." Paladino v. Avnet Comp. Techs., Inc., 134 F.3d 1057, 1057 (11th Cir.1998).
In this case, the plain language of the arbitration clause is unambiguously broad. Plaintiff agreed to arbitrate "all claims or controversies" between Plaintiff and Defendant "concerning or arising" from Plaintiff's accounts maintained by Defendants. In Plaintiff's Complaint, Plaintiff alleges that Defendants permitted "unauthorized disbursements" and the payment of "nine forged checks" in the amount of $80,301.60 from Plaintiff's account with Defendants. D.E. 1-1 ¶ 15. There is no question that Plaintiff's claims are covered by the pre-dispute arbitration clause, and therefore, the Court finds that it must compel arbitration on all of Plaintiff's claims. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants Morgan Stanley Smith Barney LLC's and Citigroup Global Markets Inc.'s Motion to Compel Arbitration and for Stay is GRANTED. It is further
ORDERED AND ADJUDGED that this case is CLOSED for administrative purposes.
DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of January, 2016.