DAVID C. KEESLER, Magistrate Judge.
Plaintiff Zeenath Abplanalp ("Abplanalp" or "Plaintiff") filed a "Complaint" (Document No. 1-1, pp.3-11) against United Collection Bureau, Inc. ("UCB" or "Defendant") in the Superior Court of Mecklenburg County, North Carolina, on March 30, 2015. Defendant filed a "Notice Of Removal Of Civil Action" (Document No. 1) with this Court on May 5, 2015. Defendant notes in its "Notice Of Removal ..." that "Plaintiff asserts three causes of action purporting to arise under (1) N.C. Gen. Stat. § 58-70-90, et seq., (2) the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and (3) the Telephone Consumer Protection Act ("TCPA") 47 U.S.C. § 227 et seq." (Document No. 1, p.1).
The Court issued a "Pretrial Order And Case Management Plan" (Document No. 5) on June 24, 2015. The "...Case Management Plan" includes the following deadlines: discovery completion — November 6, 2015; mediation — November 30, 2015; dispositive motions — December 7, 2015; and trial — March 7, 2016. (Document No. 5).
Defendant filed the pending "...Motion To Dismiss And To Compel Arbitration, Or, In The Alternative, To Stay The Proceedings" (Document No. 13) and "...Memorandum In Support..." (Document No. 14) on October 30, 2015. The "Response To Defendant United Collection Bureau Inc.'s Motion To Dismiss And To Compel Arbitration. . ." (Document No. 19) was filed on November 20, 2015. Defendant's "...Reply In Support..." was then filed on December 4, 2015.
This instant motion is ripe for review and disposition, and as such, a Memorandum And Recommendation to the Honorable Robert J. Conrad, Jr. is now appropriate.
By its motion, Defendant requests that the Court issue an Order dismissing Plaintiff's Complaint without prejudice and compelling Plaintiff to submit her claims to arbitration. (Document No. 13, p.1). Or, in the alternative, Defendant requests that the Court stay these proceedings pending: (1) resolution of challenges currently before the Federal Communications Commission ("FCC"); and (2) class action settlement in
Defendant first asserts that Plaintiff "is required to arbitrate her claims brought in this lawsuit against UCB under the Federal Arbitration Act ("FAA")." (Document No. 14, p.1). Defendant notes that Plaintiff's claims are asserted against Defendant UCB for its alleged actions in attempting to collect a debt on behalf of Citibank, N.A. ("Citibank").
In support of its position that there is an applicable Arbitration Agreement, Defendant cites to the "Declaration Of Colene McNinch" (Document No. 10-2) and its attached "Card Agreement" (Document No. 10-2, pp.4-9) that were filed as exhibits to Defendant's "...Reply In Support Of Motion For Leave To File First Amended Answer" (Document No. 10) on October 26, 2015.
In response, Plaintiff asserts that she was "never noticed of an arbitration agreement." (Document No. 19, p.1). Plaintiff also notes that the Card Agreement produced by Defendant is not signed by Plaintiff, that the only date on the document is a copyright for 2011, and that there is no proof of notice attached.
Defendant's reply contends that "unrebutted evidence establishes Plaintiff is a party to the Arbitration Agreement" and that the gateway question of arbitrability should be decided by an arbitrator. (Document No. 22, p.1). Specifically, Defendant argues that "Plaintiff agreed to the Arbitration Agreement because she used her credit card account." (Document No. 22, p.2) (citations omitted).
The undersigned finds that this issue presents a close call. After careful consideration of the arguments and authority presented to the Court, the undersigned is persuaded that Plaintiff has raised compelling questions regarding the validity of the parties' alleged Arbitration Agreement. In particular, the undersigned is concerned that neither the McNinch Declaration, nor the alleged Card Agreement containing the alleged Arbitration Agreement, include any information that connects Plaintiff to those Agreements.
Under the circumstances, the undersigned will recommend that the motion to dismiss this case and compel arbitration be denied without prejudice. Even if the undersigned determined there is an applicable arbitration agreement between these parties, it is more likely that this case would be stayed than dismissed, pending the outcome of arbitration. Regardless, based on the arguments and authority presented by the parties, the undersigned is not persuaded that arbitration should be compelled.
Next, Defendant makes the alternative argument that this case should be stayed "pending resolution of challenges currently before the Federal Communications Commission ("FCC") concerning what telephony systems qualify as an automatic telephone dialing system ("ATDS"), which should be dispositive of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA") claims asserted by Plaintiff." (Document No. 14, pp. 2, 16-21). Defendant contends that "Plaintiff's claims for alleged violations of the TCPA are subject to a pending challenge to the FCC's July 2015 Declaratory Ruling and Order interpreting the TCPA." (Document No. 14, p.2) (citing In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, 30 FCC Rcd. 7961 (2015) (the "FCC Order").
Defendant contends that "Plaintiff alleges that calls placed manually to her alleged cellular phone number are violations of the TCPA because, although the calls were manually dialed, Plaintiff claims the telephony system used to place calls had the capacity to place an autodialed call and thus she claims it qualifies as an ATDS within the TCPA, in particular as an ATDS is defined by the FCC Order." (Document No. 14, pp.2-3).
Defendant notes that there are several appeals of the FCC Order "proceeding in the Court of Appeals for the District of Columbia Circuit, the resolution of any of which could be dispositive to the TCPA claims in this case." (Document No. 14, p.3) (citing
More specifically, Defendant asserts that to prove her TCPA claims, Plaintiff must prove that Defendant UCB used an ATDS to call Plaintiff's cell phone. (Document No. 14, p.20). Defendant argues that the telephone system used to place the calls at issue in this case is not an ATDS, but acknowledges that the FCC Order has caused significant confusion on this point.
Plaintiff's "Response..." (Document No. 19) declines to rebut, or even mention, Defendant's argument for a stay based on the pending appeal(s) of the FCC Order.
In reply, Defendant notes that "Plaintiff entirely failed to address the other reason for staying this proceeding," and argues that "the Court should find this argument to be uncontested." (Document No. 22, p.11). Defendant re-asserts that resolution of the definition of ATDS under the TCPA is critical to resolving the issues in this case, and therefore, in the interests of judicial economy this matter should be stayed.
Based on Defendant's arguments and citations, and the lack of any rebuttal from Plaintiff, the undersigned finds good cause to recommend that this matter be stayed until the related Challenge Lawsuit regarding the FCC Order, currently before the United States Court of Appeals for the District of Columbia Circuit, is resolved.
Finally, Defendant argues that Plaintiff is a member of the settlement class in
Because the undersigned is persuaded that there is already sufficient support for staying this matter pending appellate review of the FCC Order, the undersigned will decline to make a full analysis of Defendant's alternative argument based on the
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of the Federal Rules of Civil Procedure, written objections to the proposed findings of fact, conclusions of law, and recommendation contained herein may be filed within