KAPLAN, District Judge:
In 2005, plaintiff Christina L. Bazemore applied on the Internet for a credit card issued by First Bank of Delaware ("FBD"). She charged several items on the card but failed to pay in full. In 2008, Jefferson Capital System, LLC ("JSC") acquired all right, title and interest to Ms. Bazemore's account. Eventually, Ms. Bazemore sued JSC for an alleged violation of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq. JSC moved to compel arbitration in reliance on an arbitration clause said to have been contained in a cardholder agreement between Ms. Bazemore and its predecessor-in-interest. The district court concluded that Ms. Bazemore's claim was outside the scope of the arbitration clause and therefore denied JSC's motion. We affirm, albeit on a different ground. We hold that JSC failed to establish the existence of any agreement between Ms. Bazemore and FBD beyond the agreement to pay whatever charges Ms. Bazemore incurred by using the credit card.
On November 18, 2005, Ms. Bazemore applied for an Imagine MasterCard issued by FBD. It is undisputed that she did so over the Internet. But whether she agreed to any terms and conditions in the course of doing so is unknown. The only evidence is a declaration of Gregory Ryan, an individual employed at the time Ms. Bazemore applied for her credit card by Atlanticus Services Corporation ("Atlanticus"), which maintained records for such credit cards on behalf of FBD. And while he stated in conclusory terms that Ms. Bazemore "accepted the terms governing her account and opened the account" on or about November 18, 2005, he did not assert that he has any personal knowledge on that score or produce any documents to support that assertion. And those failures are quite important.
Today, virtually every Internet user is familiar with what have become known as clickwrap agreements — "agreements [formed by] requiring a computer user to `consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with [a] ... transaction.'"
Mr. Ryan went on to say that a "Welcome Kit" that included a Bank Credit Card Agreement (the "Cardholder Agreement") "would have been sent" to Ms. Bazemore about ten days after she applied for the credit card and that it "would have" contained "[a] form of the Cardholder Agreement" attached to Mr. Ryan's declaration. The Cardholder Agreement attached to Mr. Ryan's declaration (a) contains the arbitration clause upon which JSC relies, and (b) states that the Cardholder Agreement would become effective upon the earlier of the date the card application was approved and the first date upon which credit was extended on the account. But Mr. Ryan did not assert that the form of Cardholder Agreement that "would have been sent" to Ms. Bazemore was the same as that attached to his declaration. Indeed, he did not assert even that the form of Cardholder Agreement that "would have been sent" to Ms. Bazemore contained an arbitration clause of any kind, much less the clause found on the form attached to his declaration. And although Mr. Ryan stated that he was "familiar with Atlanticus record keeping systems" and that he reviewed certain "Atlanticus business records" in preparing his declaration, he never stated that a Welcome Kit containing a Cardholder Agreement actually was sent to Ms. Bazemore, merely that one "would have been sent" as part of the company's "regular and ordinary practice."
After receiving the credit card, Ms. Bazemore charged several items to the card over approximately two-and-a-half months in 2005 and 2006. Although she made several payments, she never paid her balance in full.
In 2013, Ms. Bazemore filed for Chapter 13 bankruptcy protection in the United States Bankruptcy Court for the Southern District of Georgia.
On September 2, 2014, Ms. Bazemore brought this putative class action against JSC in the Superior Court of Laurens County, Georgia. Her complaint asserts that JSC violated the FDCPA by filing the proof of claim in Ms. Bazemore's bankruptcy proceeding because JSC's claim on her alleged debt was time barred. JSC removed the case to federal court on October 13, 2014, and then moved to compel arbitration and stay proceedings pursuant to the arbitration clause in the purported Cardholder Agreement on January 22, 2015. The district court, after briefing and oral argument, denied JSC's motion on the ground that Ms. Bazemore's FDCPA claim fell outside the scope of the arbitration clause that JSC asserted bound Ms. Bazemore.
We review de novo a district court's denial of a motion to compel arbitration.
If there is an arbitration agreement governing this dispute, it is governed by the Federal Arbitration Act (the "FAA"), 9 U.S.C. §§ 1 et seq., which "embodies a liberal federal policy favoring arbitration agreements."
Here, plaintiff argues that JSC failed to establish that she ever entered into an arbitration agreement with JSC's predecessor-in-interest. This requires that we address the law governing the onus of proof with respect to the existence of an agreement to arbitrate.
Prior to
The Supreme Court decided
Since then, this Circuit repeatedly has emphasized that "state law generally governs whether an enforceable contract or agreement to arbitrate exists."
As the foregoing demonstrates, we consistently have held that state law governs the issue of the existence of an agreement to arbitrate under the FAA since
In Georgia, "[t]o constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate." Ga. Code Ann. § 13-3-1. The element of assent requires "`(a) a meeting of the minds (b) on the essential terms of the contract.'"
JSC attempted to satisfy this burden by the declaration of Gregory Ryan, an "executive correspondence manager" at Atlanticus. But Mr. Ryan's declaration is woefully inadequate.
First, he states that he "was able to ascertain that Plaintiff had applied for the [credit card] over the internet" and that plaintiff "accepted the terms governing her account." But Mr. Ryan does not explain how he knows this, nor does he substantiate the claim with documentary proof.
Second, Mr. Ryan says that a Welcome Kit including a Cardholder Agreement with an arbitration clause "would have been sent to Plaintiff" within ten days of her online application in the ordinary course of Atlanticus's business. (Emphasis added.) JSC further argues that it is entitled to a presumption under the "mailbox rule"
Third, even assuming that the evidence established that a Welcome Kit was sent to Ms. Bazemore, it does not show that the Welcome Kit included the arbitration clause upon which JSC relies or any relevant variant. Mr. Ryan purports to attach to his declaration "[a] form of the Cardholder Agreement that would have been sent to Plaintiff" as evidence of the language contained in the arbitration clause JSC seeks to enforce. (Emphasis added.) He does not, however, attach a copy of the particular agreement that allegedly "would have been" mailed to plaintiff. And that is not an accident — JSC conceded during oral argument that it did not "have an exact copy of what was sent" to plaintiff. Nor does Mr. Ryan say that the language of the form of agreement attached to his declaration is identical to anything that "would have been sent" to Ms. Bazemore. This distinction is critical. As plaintiff pointed out during oral argument, the forms of such agreements change frequently, often in response to changes in the substantive law. There is no way of knowing whether the arbitration language contained in the form of the agreement attached to Mr. Ryan's declaration, or any relevant variant of it, appeared in the form allegedly mailed to Ms. Bazemore. Accordingly, JSC did not meet its burden of proving that plaintiff assented to the "essential terms of the contract" for the simple reason that the terms of exactly what, if anything, Ms. Bazemore agreed to when she applied for the credit card are unknown.
It is true, as JSC argues, that courts routinely enforce unsigned service contracts — including credit card contracts — where the contract is sent to a recipient who thereafter demonstrates his or her assent to its terms by using the service provided. And there is no dispute here that plaintiff received and used a credit card provided by JSC's predecessor-in-interest. But the cases on which JSC relies all are distinguishable on the grounds that the parties seeking to enforce contractual provisions in those cases provided the court with (1) competent evidence that the contract was sent to the plaintiff and (2) a copy of the actual contract they were seeking to enforce.
JSC contended during oral argument that we should remand for trial if we conclude that it failed to prove the existence of the alleged arbitration agreement. It relies on Section 4 of the FAA, which states that "[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof." 9 U.S.C. § 4. Thus, it would have us hold, essentially, that a party cannot lose a motion to compel arbitration for failure to prove that an arbitration agreement exists without being afforded a second bite at the apple — an opportunity to prove the agreement's existence at trial. This we decline to do.
Although we have not addressed in a published opinion the standard for determining whether a trial is necessary to determine the existence of an arbitration agreement, several of our sister circuits have likened the standard to one for summary judgment. The Third Circuit, for example, has explained that "`[o]nly when there is no genuine issue of fact concerning the formation of the [arbitration] agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.'" SBRMCOA, LLC v. Bayside Resort, Inc., 707 F.3d 267, 271 (3d Cir.2013) (quoting
We agree with our sister circuits that a summary judgment-like standard is appropriate and hold that a district court may conclude as a matter of law that parties did or did not enter into an arbitration agreement only if "there is no genuine dispute as to any material fact" concerning the formation of such an agreement. Fed. R. Civ. P. 56(a). A dispute is not "`genuine' if it is unsupported by the evidence or is created by evidence that is `merely colorable' or `not significantly probative.'"
Here, the competent evidence offered by JSC is insufficient to raise a genuine issue of fact as to the existence of an arbitration agreement between its predecessor-in-interest and Ms. Bazemore. As explained above, JSC provides no competent evidence that an arbitration agreement ever was sent to plaintiff. Nor does JSC provide evidence that the terms it seeks to enforce were contained in the form of any agreement that "would have been sent" to Ms. Bazemore. At best, JSC's statement that "a form" of the arbitration agreement attached to its motion — a form of unknown terms of which it concededly has no copy — "would have been sent" to plaintiff is no more than a "mere scintilla of evidence" in support of its position, insufficient to create
The Court acknowledges that plaintiff, too, has provided almost no evidentiary support for her contention that she never entered into an arbitration agreement with FBD. Plaintiff has not, for example, submitted an affidavit swearing under oath that she never received the Welcome Kit referenced in Mr. Ryan's declaration. But it is defendant's burden under Georgia law to prove the existence and terms of the contract it wishes to enforce. Moreover, entry of summary judgment is appropriate "against a party who 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."
As defendant offered no competent evidence to demonstrate the existence of a genuine issue of material fact concerning the existence of an arbitration agreement, its motion to compel arbitration must be denied as a matter of law without the need for a trial.
We