MICHAEL A. SHIPP, District Judge.
This matter comes before the Court on Defendant Cellco Partnership's, doing business as Verizon Wireless
The crux of this dispute is whether Ms. Aiton entered into a binding arbitration agreement with Verizon regarding a cellular phone account (the "Account") that was opened by her father John Aiton ("Mr. Aiton"), and thus must submit her dispute regarding Defendant's alleged violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), to arbitration. (See generally Pl.'s Opp'n Br., ECF No. 11.) In support of its motion to dismiss, Defendant asserts that the Account is governed by the Customer Agreement, which contains a binding arbitration clause ("Arbitration Clause"). In opposition to Defendant's motion to dismiss, Plaintiff does not address the scope or validity of the Arbitration Clause in the Customer Agreement. Rather, noting that Defendant alleged that only John Aiton, a non-party to this action, signed the Customer Agreement, Plaintiff declares that she "never signed an Arbitration [Clause] with Defendant, and Defendant does not claim that she has." (Pl.'s Opp'n Br. 3.) Accordingly, Plaintiff argues that she is not bound by the Arbitration Clause in the Customer Agreement. (Id.)
In its reply brief, however, Defendant, for the first time, asserts that "Plaintiff personally signed her initials to the subject Agreements on at least three separate occasions, expressly agreeing to resolve all disputes with [Verizon] through mandatory arbitration." (Def.'s Reply Br. 2, ECF No. 15.) In support of this contention, Defendant submitted copies of three receipts ("Receipts") that were signed with Plaintiff's initials on May 23, 2014, October 22, 2014, and February 19, 2015, respectively. (Suppl. Decl. of Scott Johnson ("Johnson Suppl. Decl."), Exs. D, E, ECF Nos. 15-3, 15-4; Decl. of Avram Polinksy, Ex. A, ECF No. 9-6.) Defendant also argues that Ms. Aiton had accepted the terms of the Customer Agreement, including the Arbitration Clause, by activating service on the Account. (Def.'s Reply Br. 5.) In light of the new arguments raised in Defendant's reply brief, the Court granted Plaintiff permission to file a sur-reply. (ECF No. 19.) In her sur-reply, Plaintiff does not dispute that she signed the Receipts. (See Pl.'s Surreply, ECF No. 20.) Plaintiff argues, however, that: (1) notwithstanding words of incorporation in the Receipts, the Arbitration Clause in the Customer Agreement is binding on only the signatories to the
With respect to Plaintiff's argument that the Arbitration Clause in the Customer Agreement was not incorporated by reference into the Receipts, this argument is inapplicable because it ignores the arbitration provision in the Receipts. Thus, the cases on which Plaintiff relies are inapposite. Those cases concern the scope of an arbitration clause that is incorporated by reference into another agreement that does not contain an arbitration provision. See, e.g., Imp. Exp. Steel Corp. v. Miss. Valley Barge Line Co., 351 F.2d 503, 505 (2d Cir. 1965) ("[T]he language of the arbitration clause incorporated in the bills of lading is restrictive in scope in that it is limited to disputes `between the Disponent Owners and the Charters.'"); Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venez., 991 F.2d 42, 47 (2d Cir. 1993) (holding that the arbitration clause "is worded broadly enough to allow its effective incorporation by reference into other contracts").
Here, the Receipts
For the reasons discussed above, Defendant's Motion to Dismiss is granted. The Court will issue an order consistent with this Memorandum Opinion.