James K. Bredar, United States District Judge.
Sierra Roach ("Plaintiff") brought this pro se action against Navient Solutions, Inc. ("NSI"), formerly known as Sallie Mae, Inc. ("SMI") ("Defendant"), seeking damages under the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended, 47 U.S.C. § 227, and under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681n, 1681o. Now pending before the Court is Defendant's Motion to Compel Arbitration and to Stay Action. (ECF No. 7.)
Defendant, a student-loan servicer, avers that it has a contractual relationship with Plaintiff with respect to five private student loans, the funds of which were disbursed to Bowie State University on Plaintiff's behalf between September 2007 and September 2010. (ECF No. 8-1 at 2.) The original principal balances of these loans totaled $68,894. (ECF No. 8 at 2.) It appears that the loans became delinquent in or around December 2013. (ECF No. 16-2 at 43.)
Each loan is associated with a promissory note
On June 16, 2014, Plaintiff allegedly contacted Defendant to "dispute the payment claims associated with [her] alleged debt." (ECF No. 1-4 at 2.) Plaintiff stated that she had "not certified nor authenticated signature [sic] or been a willing participant to any endorsements"; that she was "not the party listed [on the] account[s]"; and that her "personal information has been unlawfully used." (Id.) Plaintiff revoked any prior consent to call her cell phone through an automated dialing system or prerecorded dialer, and she demanded that Defendant complete a lengthy "Notice of Interrogatives [sic]" concerning the status of her alleged debt. (Id. at 2-3; ECF No. 1-2.) Nevertheless, Plaintiff claims that Defendant continued to call her cellular phone via an automated system, ostensibly for debt-collection purposes. (ECF No. 1 at 3-4.)
Plaintiff filed the present action on July 6, 2015, seeking damages under the TCPA and the FCRA. (Id. at 8.) Defendant promptly responded with a Motion to Compel Arbitration and to Stay Action. (ECF No. 7.) Plaintiff opposed Defendant's Motion (ECF No. 13), and Defendant replied (ECF No. 16). The Motion is now ripe for decision.
The FAA stipulates that, in any contract involving interstate commerce, a provision through which the parties agree to arbitrate their disputes 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. The Act provides "two parallel devices for enforcing an arbitration agreement: a stay of litigation in any case raising a dispute referable to arbitration, 9 U.S.C. § 3, and an affirmative order to engage in arbitration, § 4." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), superseded on other grounds as stated in Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d 504, 506 (7th Cir.1997). The Act "reflects an `emphatic federal policy in favor of arbitral dispute resolution.'" KPMG LLP v. Cocchi, ___ U.S. ___, 132 S.Ct. 23, 25, 181 L.Ed.2d 323 (2011) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Accordingly, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration," Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927, and the Court must not deny a party's request to arbitrate "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute," Greenville Hosp. Sys. v. Emp. Welfare Benefit Plan, 628 Fed.Appx. 842, 845-46 (4th Cir.2015) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)).
Despite this presumption favoring alternative dispute resolution, arbitrability is at bottom a question of contract interpretation: a party cannot be required to arbitrate a dispute if it has not contractually agreed to do so. Thus, "a litigant can compel arbitration under the FAA if he
As discussed below, Plaintiff disputes NSI's authority to enforce the arbitration agreements in the promissory notes. She also asserts that she does not recall executing the loan applications or receiving the funds. "When a party moves to compel arbitration and the validity of the purported arbitration agreement between the parties is disputed, the motion is treated as one for summary judgment." Whitten v. Apria Healthcare Grp., Inc., Civ. No. PWG-14-cv-3193, 2015 WL 2227928, at *2 (D.Md. May 11, 2015); accord Kennedy v. ADF MidAtlantic, LLC, Civ. No. JKB-15-0346, 2015 WL 6596918, at *1 (D.Md. Oct. 27, 2015); Rose v. New Day Fin., LLC, 816 F.Supp.2d 245, 251 (D.Md.2011). When evaluating a motion for summary judgment, the Court will grant judgment to a movant who shows that (1) there is no genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing predecessor to current Rule 56(a)). No genuine issue of material fact exists if the opposing party fails to make a sufficient showing on an essential element of her case as to which she would have the burden of proof. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. The "mere existence
The Court preliminarily notes that three of the four Whiteside arbitrability requirements are plainly satisfied here: there is a dispute between the parties; the underlying transactions relate to interstate commerce;
Plaintiff does not question Defendant's assertion that the subject matter of her FCRA and TCPA claims would fall within the broad parameters of the arbitration agreements if such agreements are enforceable, and the Court has little difficulty concluding that these claims would be covered: the agreements are drafted to encompass any claim, dispute, or controversy arising from or relating to the notes, including statutory and regulatory claims. (ECF No. 8-1 at 10, 17, 26, 35, 46.) For that matter, other courts have recognized that claims arising under the FCRA and the TCPA may be properly subject to arbitration. Compare Johnson v. Springleaf Fin. Servs., No. 2:15-CV-1268-RDP, 2015 WL 4985472, at *2 (N.D.Ala. Aug. 20, 2015) ("This court...cannot say that Congress did not intend FCRA claims to be subject to arbitration and, therefore, holds that Plaintiff's FCRA claim is arbitrable under the FAA."), with Tuttle v. Sallie Mae, Inc., Civ. No. 1:13-CV-183 JD-RBC, 2014 WL 545379, at *6 (N.D.Ind. Feb. 11, 2014) ("[Plaintiff] has not succeeded in establishing that Congress intended to preclude parties from agreeing to arbitrate TCPA claims.").
Rather than challenging the scope of the arbitration agreements, Plaintiff contends that the agreements should have no application whatsoever: because NSI is a separate entity from Sallie Mae Bank (the lender identified on three of the five promissory notes),
Plaintiff also passingly asserts that she "does not recall receiving a loan or executing any of the documents attached to [Defendant's Motion to Compel]" and therefore "specifically denies executing any of the documentation submitted and specifically denies the authenticity of any signature allegedly executed by [her]." (ECF No. 13 at 1.) Unlike Plaintiff's theory regarding NSI's authority under the arbitration agreements, which is easily dispelled by the plain language of the agreements themselves, Plaintiff's alternate theory has at least superficial appeal. Had Plaintiff presented an affidavit, a declaration, or some other admissible evidence unequivocally showing that she disputes the existence or validity of her student-loan debt, the Court might have been inclined to defer Defendant's Motion to Compel and grant limited discovery on the threshold question of arbitrability. After all, if Plaintiff truly did not sign the loan applications that Defendant has proffered, then she necessarily did not agree to the terms of the promissory notes — and she could not be compelled to arbitrate her TCPA and FCRA claims if she did not agree to arbitration in the first place. See Gregory v. Interstate/Johnson Lane Corp., 188 F.3d 501 (4th Cir.1999) (per curiam) (where plaintiff stated under oath that she had no knowledge of agreements at issue and neither signed them nor authorized an agent to sign on her behalf, and where plaintiff further introduced the opinion of a handwriting expert who opined that her purported signature was a forgery, district court erred in compelling arbitration without making a threshold determination that plaintiff was bound by agreements); Hudson
But Plaintiff has proffered no such evidence. Aside from her unsworn ipse dixit in her opposition memorandum,
On November 6, 2015, nearly a month after Defendant filed its reply brief, Plaintiff submitted a Motion Requesting Leave to File Sur-Reply. (ECF No. 19.) Plaintiff contends that "it has been an extreme burden to conduct the proper research ... given [her] work schedule"; that she has "discovered substantial information ... which would have a significant impact on the ruling for this motion"; and that it would be "extremely prejudice [sic] to not allow this ... sur reply [sic] to be considered." (ECF No. 19 at 2.)
Surreplies are highly disfavored in this District. Pursuant to Local Rule 105.2(a) (D. Md. 2014), "[u]nless otherwise ordered by the Court, surreply memoranda are not permitted to be filed." The Court may allow such memoranda "when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.2003), aff'd, 85 Fed.Appx. 960 (4th Cir.2004) (per curiam). In this case, however, Plaintiff's proposed surreply is not responsive to any arguments raised in Defendant's reply brief; rather, Plaintiff presents an entirely new theory for opposing arbitration, arguing that the SMI/NSI loan applications did not adequately incorporate the arbitration agreements by reference. (ECF No. 19-1 at 1.) Had Plaintiff wished to present this novel argument, she should have done so in her opposition brief, thereby giving Defendant due notice and an opportunity to reply.
Moreover, even were the Court inclined to depart from the well-conceived briefing schedule prescribed by the Local Rules and grant Plaintiff's request, her proposed surreply would be of little use to her. While reviewing the document, the Court was struck by two oddities: (1) Plaintiff appears to have abandoned her principal theory that NSI is not authorized to enforce the arbitration agreements; and (2) Plaintiff cites extensively to the case law of West Virginia, a body of law neither binding on nor particularly relevant to proceedings in this Court. Some cursory research revealed that large portions of Plaintiff's proposed surreply are lifted verbatim from plaintiff-respondent's brief in an analogous but unrelated action, Navient Solutions, Inc. v. Robinette, No. 14-1215, 2015 WL 6756859 (W.Va. Nov. 4, 2015).
For the foregoing reasons, an Order shall enter DENYING Plaintiff's Motion Requesting Leave to File Sur-Reply (ECF No. 19); GRANTING Defendant's Request for Judicial Notice (ECF No. 16-3); and GRANTING Defendant's Motion to Compel Arbitration and to Stay Action (ECF No. 7).