FREDA L. WOLFSON, District Judge.
Plaintiff Sarah Raynor (hereinafter, "Plaintiff") filed this action against her cell phone carrier, Defendant Verizon Wireless (hereinafter, "Defendant" or "VZW"), asserting violations of the Telephone Consumer Protection Act (hereinafter, "TCPA"), 42 U.S.C. § 227 et seq. In lieu of an answer, Defendant moves to dismiss the complaint and compel arbitration. In its motion, Defendant argues that Plaintiff is bound by the arbitration clause in the Customer Agreement and the VZW Customer Agreement (hereinafter, the "VZW Agreement"), which is valid and enforceable to arbitrate her TCPA claim. For the reasons set forth below, the Court finds that a valid arbitration agreement between the parties exists, and that Plaintiff's TCPA claim falls within the ambit of the arbitration clause. Defendant's motion is
Plaintiff is a customer of VZW, a nationwide provider of wireless telephone services. On June 3, 2015, Plaintiff opened a single account with VZW, identified as Account No. XXXXXX0478 (hereinafter, the "Account") at a VZW retail store in New Jersey. Supplemental Deceleration of Avram Polinsky (dated Oct. 28, 2015) (hereinafter, "Supp. Polinsky Decl."), ¶¶ 4-5, Exs. F-G.
Both the signed and unsigned, 3-page Customer Agreements contain arbitration clauses written in bold and capital text located directly above the Customer Agreement's signature line; the clauses state: "
The first page of the VZW Agreement identifies various methods for the acceptance of its terms and conditions:
Declaration of Avram Polinsky (dated Sept. 16, 2015) (hereinafter, "Polinsky Dec."), ¶ 6, Ex. C. The VZW Agreement also contains an arbitration clause that is written in bold and capital letters, outlined in a black box, and separated from the rest of its text. Specifically, under the heading "
Polinsky Dec., ¶ 6, Ex. C. (emphasis in original).
Notwithstanding these aforementioned provisions, Plaintiff filed the instant one-count Complaint. Plaintiff alleges that Defendant violated the TCPA by continuously telephoning her, regarding delinquent cell phone payments, through the use of an automatic dialing system without obtaining her prior express consent. Compl. ¶ 13-17. In the present matter, Defendant moves to dismiss the complaint and compel arbitration, arguing that Plaintiff has agreed to arbitrate her TCPA claim. However, in an attempt to circumvent the Customer and VZW Agreements' arbitration clauses, Plaintiff argues, inter alia, that "Defendant has failed to meet its evidentiary burden to prove the existence of an enforceable arbitration agreement." And, Plaintiff further argues that, even if the arbitration Agreements are enforceable, her TCPA claim falls outside the scope of the arbitration clause.
The Federal Arbitration Act's ("FAA") purpose is "`to reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts.'" Puleo v. Chase Bank USA, N.A., 605 F.3d 172 (3d Cir. 2010) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)). To achieve this end, the FAA provides that contract provisions that contain arbitration clauses "shall be binding, allows for the stay of federal court proceedings in any matter referable to arbitration, and permits both federal and state courts to compel arbitration if one party has failed to comply with an agreement to arbitrate." 9 U.S.C. §§ 2, 3, 4. Collectively, those provisions of the FAA manifest "`liberal federal policy favoring arbitration agreements.'" Khazin v. TD Ameritrade Holding Corp., 773 F.3d 488, 493 (3d Cir. 2014) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Therefore, "`as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. . . .'" Maddy v. GE, 629 F. App'x 437 (3d Cir. 2015) (quoting Moses H. Cone Mem'l Hosp., 460 U.S. at 24-25).
When a district court is presented with a motion to compel arbitration, it must answer the following two questions: (1) whether the parties entered into a valid arbitration agreement; and (2) whether the dispute at issue falls within the scope of the arbitration agreement. Century Indem. Co. v. Certain Underwriters at Lloyd's, 584 F.3d 513, 525 (3d Cir. 2009). When performing this inquiry, the court applies "ordinary state-law principles that govern the formation of contracts." Kirleis v. Dickie, McCamey & Chilcote, 560 F.3d 156, 160 (3d Cir. 2009).
Plaintiff disputes the validity of the arbitration clause in question, arguing that "Defendant has failed to present sufficient evidence that Plaintiff knowingly agreed to arbitration" because "the [Customer Agreement] that is unsigned relates to the telephone number in question in this matter, XXX-XXX-3651." Plaintiff reasons that "Defendant provides no documentation showing Plaintiff's knowing written acceptance of the terms and conditions of the Customer Agreement as it pertains to the number ending in 3651." The Court, however, finds that this argument is without merit.
New Jersey case law provides that "[a] contract arises from an offer and acceptance, and must be sufficiently definite "that the performance to be rendered by each party can be ascertained with reasonable certainty." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). Therefore, "if parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract." Id. However, "where the parties do not agree to one or more essential terms . . . courts generally hold that the agreement is unenforceable." Id. Furthermore, courts in New Jersey have held that, in order to find a manifestation of consent, "[i]t is requisite that there be an unqualified acceptance. . . ." Id. An offeree's manifestation of consent may be expressed "through words, creating an express contract, or by conduct, creating a contract implied-in-fact." Id. at 436. (citing Restatement (Second) of Contracts § 19(1) (1981)).
In the instant matter, the Court finds that Plaintiff affirmatively accepted all of the terms of the Customer and VZW Agreements, including their mandatory arbitration provisions, by signing one of the Customer Agreements when she opened her VZW Account. To begin, the Customer Agreements that were given to Plaintiff on June 3, 2015 are identical, and they each contain the following arbitration clause, in bold and capital letters: "
However, even if Plaintiff's signature on one Customer Agreements does not bind her to the Agreement related to the Subject MTN, the Court finds that Plaintiff, nevertheless, agreed to the Customer and VZW Agreements by activating her cell phone service. In bold and capital text, immediately above the signature line, the Customer Agreements clearly and unambiguously identify, and incorporate by reference, the VZW Agreement.
Supp. Polinsky Decl., ¶¶ 2-3, Exs. D-E (italics added); Std. Bent Glass Corp. v. Glassrobots Oy, 333 F.3d 440, 447 (3d Cir. 2003) (concluding that it is permissible for an offeror to "include documents or provisions incorporated by reference into the main agreement); see also 11 Richard A. Lord, Williston on Contracts § 30.25 (4th ed. 1999) ("So long as the contract makes clear reference to the document and describes it in such terms that its identity may be ascertained beyond doubt, the parties to a contract may incorporate contractual terms by reference to a separate, noncontemporaneous document . . . including a separate document which is unsigned.").
Additionally, the VZW Agreement contains an arbitration clause, and it indicates various methods for accepting its terms and conditions. On the first page of the VZW Agreement, under the heading "
Polinsky Dec., ¶ 6, Ex. C (italics added). Therefore, Plaintiff need not sign the Customer Agreement to be bound by it, because the VZW Agreement provided alternative methods for the acceptance of its terms and conditions. Significantly, there is no dispute that Plaintiff activated service for the Subject MTN, which she continues to use. Supp. Polinsky Decl., ¶ 4, Ex. F. In doing so, Plaintiff bound herself to the arbitration clauses contained in the Customer and VZW Agreements, as she signified her acceptance to their terms and conditions through her conduct. See Curtis v. Cellco P'ship, 413 N.J.Super. 26, 32 (App. Div. 2010) (finding that the "[p]laintiff's acceptance of the[] terms [in the VZW Agreement] was confirmed by his . . . activation and use of the wireless phone service plan").
Plaintiff contends that even if a valid agreement between the parties exists, her TCPA claim does not fall within the scope of the arbitration agreement because the factual allegations that form the basis of the claims do not pertain to the contract.
In determining whether Plaintiff's TCPA claim falls within the ambit of VZW's arbitration clause, any "doubts about the scope of [the parties] arbitration agreement [must be resolved] in favor of arbitration." Medtronic AVE Inc. v. Advanced Cardiovascular Sys., 247 F.3d 44, 55 (3d Cir. 2001). Furthermore, broadly drafted arbitration agreements are entitled to a "presumption of arbitrability." Century Indem. Co., 584 F.3d at 556. And, "[c]ourts have generally read the terms `arising out of' or `relating to' a contract [, both of which are included in the VZW Agreement's arbitration clause,] as indicative of an `extremely broad' agreement to arbitrate any dispute relating in any way to the contract." (internal citations omitted) (emphasis added). Curtis, 413 N.J. Super. at 26. Therefore, the dispute between Plaintiff and VZW will not fall outside the scope of VZW's arbitration clause "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT&T Techs. v. Communs. Workers of Am., 475 U.S. 643, 650 (1986). Indeed, "[i]n such cases, [in] the absence of any express provision excluding a particular grievance from arbitration, . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Id. (internal citations and quotations omitted).
The VZW Agreement's arbitration clause is clearly entitled to the presumption of arbitrability, because it is broadly drafted:
Polinsky Dec., ¶ 6, Ex. C. (emphasis added). Here, Plaintiff's TCPA claim is premised on the allegation that Defendant violated the statute by telephoning her with regard to a delinquent VZW phone bill without her prior authorization. In that regard, Plaintiff attempts to rebut the presumption of arbitrability by contending that this suit concerns Defendant's "harassing telephone calls as defined by federal law," which, Plaintiff argues, is not covered by the arbitration agreement.
Upon an order compelling arbitration, Defendant asks the Court to dismiss the action, and Plaintiff has not requested a stay pending arbitration. The Third Circuit has held that the plain language of Section 3 of the FAA "affords a district court no discretion to dismiss a case where one of the parties applies for a stay pending arbitration." Lloyd v. Hovensa, LLC., 369 F.3d 263, 269 (3d Cir. 2004). Because neither party requests a stay of the proceedings, the Court dismisses the case in favor of arbitration.
