United States District Court, S.D. Ohio, Western Division
RANDY JENKINS, individually and on behalf of all others similarly situated, Plaintiff,
FIFTH THIRD BANK, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
TO COMPEL ARBITRATION (Doc. 10)
TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE.
proposed class action, Plaintiff Randy Jenkins
(“Plaintiff”) alleges that Defendant Fifth Third
Bank (“Defendant”) willfully and negligently
violated 15 U.S.C. § 1681-1692x, The Fair Credit
Reporting Act (“the FCRA”) by submitting credit
report inquiries after Plaintiff's debt to Defendant had
been discharged through Chapter 7 bankruptcy proceedings.
This case is now before the Court on Defendant's motion
to dismiss and to compel arbitration, or, in the alternative,
to stay this action pending arbitration (Doc. 10) and the
parties' responsive memoranda (Docs. 13, 14). For the
reasons set forth below, the Court will enforce the
parties' written agreement to arbitrate and therefore
dismiss this case.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
is a bank that offers consumer lending, among other banking
services. (Doc. 1 at ¶ 11). In December, 2008, Plaintiff
opened a credit card account with Defendant (the
“Account”) and subsequently incurred debt owed to
Defendant. (Doc. 10 at 2-3). Pursuant to Defendant's
automated credit processing system, upon opening the Account,
Plaintiff was mailed his credit card (“Credit
Card”) with a copy of the terms governing the Account
(“the Cardmember Agreement”). (Doc. 10-2 at
¶ 6). The Cardmember Agreement provided that Defendant:
may reevaluate [Plaintiff's] financial condition and
investigate any information you provided on your Account
application at any time, and in the course of doing so, we
may obtain a current credit report and ask you for any
additional information about your financial condition by
completing a Personal Financial Statement or such other form
that we request from time to time. You authorize us and give
us permission to obtain any information about you that we
believe would be beneficial to facilitate our determination
of your eligibility for the Account and the Card, including
credit reports from consumer reporting agencies.
(Doc. 10-4 at ¶ 23).
Cardmember Agreement also contains an arbitration agreement
You and we each agree that any Claim (as defined below) will
be arbitrated instead of litigated in court under the
circumstances and procedures set forth below. The term Claim
(a) means any claim, dispute or controversy between you and
us arising from or relating to this Agreement, any prior
agreement that you may have had with us or the relationships
resulting from the Agreement or any prior agreement,
including the validity, enforceability or scope of this
provision, the Agreement or any prior agreement and (b)
includes claims of every kind and nature, including but not
limited to initial claims, counterclaims, cross-claims and
third-party claims and claims based upon contract, tort,
fraud and other intentional torts, statute, common law and
equity. The term Claim is to be given the broadest possible
meaning and includes, by way of example and without
limitation, any claim, dispute or controversy that arises
from or relates to (i) the Account created by the Agreement
or any prior agreement or any balances on the Account, (ii)
advertisements, promotions or oral or written statements
related to the Account or the terms of financing and (iii)
your use of the Account. Any Claim will be resolved upon the
election of you or us by arbitration pursuant to this
provision and the Code of Procedure (Code) of the National
Arbitration Forum (NAF) in effect at the time the Claim is
filed. (If for any reason the NAF is unable or unwilling or
ceases to serve as arbitration administrator, another
nationally recognized arbitration organization utilizing
similar rules and procedures will be substituted by us.) With
respect to Claims covered by this provision, a party who has
asserted a Claim in a lawsuit in court may elect arbitration
with respect to any Claim subsequently asserted in that
lawsuit by any other party or parties. IF ARBITRATION IS
CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR
WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR
HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN
PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE NAF
CODE. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS
A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS
PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET
FORTH BELOW, THE ARBITRATOR'S DECISION WILL BE FINAL AND
BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU
WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
(Doc. 10-4 at ¶ 25). While the Cardmember Agreement was
revised several times over the next few years, the
Arbitration Agreement remained substantively the same from
October 13, 2008 to May 1, 2012. (Doc. 10-1 at 6; Doc. 10-2
at ¶¶ 6-8).
more than two years, Plaintiff used the Credit Card to make
charges to the Account and received monthly statements
reflecting his activity. (Doc. 10-1 at 5; Doc. 10-3). On or
about August 12, 2011, Plaintiff made his last purchase on
the Account. (Doc. 10-1 at 6). On September 16, 2011,
Plaintiff became delinquent on the Account. (Doc. 10-1 at 7).
On March 30, 2012, Defendant “charged off”
Plaintiff's delinquent balance after Plaintiff
continually failed to make payments. (Doc. 10-1 at 7).
November 29, 2012, Plaintiff filed for Chapter 7 bankruptcy
in the United States Bankruptcy Court for the District of
Nevada (“Bankruptcy Court”). (Doc. 1 at ¶
16). On March 6, 2013, the Bankruptcy Court granted Plaintiff
a discharge, which included the debt owed to Defendant. (Doc.
1 at ¶¶ 16-21; Doc. 13-3; Doc. 13-5). Plaintiff did
not make any charges to the Account after the discharge.
(Doc. 1 at ¶ 23).
about September 30, 2013, and March 3, 2014, Defendant
submitted credit report inquiries to TransUnion, a credit
reporting agency. (Id. at ¶ 24). Plaintiff
alleges these inquiries were unlawful because the bankruptcy
discharge “extinguished any relationship between
Plaintiff and Defendant.” (Id. at ¶¶
22-28). Plaintiff further claims Defendant's credit
inquiries fall outside the scope of permissible uses provided
for under 15 U.S.C. §1681b. (Id. at ¶ 26).
On October 21, 2016, Plaintiff filed, on behalf of himself
and all others similarly situated, a single-count complaint
asserting Defendant's post-discharge credit report
inquiries violated the Fair Credit Reporting Act.
has moved to dismiss (or in the alternative, stay) this
action on the grounds that the Arbitration Agreement requires
Plaintiff to arbitrate his claim. (Doc. 10). Plaintiff
opposes Defendant's motion. (Doc. 13).
STANDARD OF REVIEW
asked by a party to compel arbitration under a contract, a
federal court must determine whether the parties agreed to
arbitrate the dispute at issue. Stout v. J.D.
Byrider, 228 F.3d 709, 714 (6th Cir. 2000). Any
ambiguities in the contract or doubts as to the parties'
intentions should be resolved in favor of arbitration.
Id. Courts are to examine the language of the
contract in light of the strong federal policy in favor of
arbitration. Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983) (the FAA “is
a congressional declaration of a liberal federal policy
favoring arbitration agreements, notwithstanding any state
substantive or procedural polices to the contrary”).
The “primary purpose” of the ...