United States District Court, S.D. Ohio, Western Division
THOMAS P. JOHNSTON, Plaintiff,
FIRST PREMIER BANK, Defendant.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE.
civil action is now before the Court on Defendant First
PREMIER Bank's (“Defendant”) second motion to
compel arbitration and dismiss Plaintiff Thomas P.
Johnston's (“Plaintiff”) pro se
Complaint. (Doc. 14). For the reasons discussed below, it is
recommended that Defendant's second motion (Doc. 14) be
Background and Facts
considering a motion to compel arbitration, “courts
treat the facts as they would in ruling on a summary judgment
motion, construing all facts and reasonable inferences that
can be drawn therefrom in a light most favorable to the
nonmoving party.” Raasch v. NCR Corp., 254
F.Supp.2d 847, 851 (S.D. Ohio 2003); see also Ackison
Surveying, LLC v. Focus Fiber Solutions, LLC, Case No.
2:15-cv-2044, 2016 WL 4208145 (S.D. Ohio Aug. 10, 2016)
(following Raasch). Therefore, the undersigned will
look to the documents provided by the parties to lay the
factual foundation and will construe those facts and any
reasonable inferences that can be drawn therefrom in the
light most favorable to Plaintiff in the analysis that
matter arises out of the credit reporting of a First PREMIER
credit card account held in Plaintiff's name.
Plaintiff's First PREMIER credit card was applied for
electronically via Defendant's website in 2011. (Doc.
14-1, PageId. 77). The First PREMIER Credit Card
Application that was completed included certain initial
disclosures. (Id.). Included in those initial
disclosures was an Arbitration Notice stating, inter
alia, that if issued a Credit Card, the Credit Card
Contract would contain a binding arbitration provision and
that any dispute “relating to your Credit Card
Contract” would be resolved by binding arbitration.
opened a credit card account for Plaintiff that had the last
four digits of 5971. (Id.). Defendant sent Plaintiff
a new credit card and a copy of the Credit Card Contract and
Account Opening Disclosures (the “Credit Card
Contract”). (Id., PageId. 77-78). The
Credit Card Contract established the terms and conditions of
Plaintiff's account with Defendant and included an
agreement to arbitrate “any claim, dispute or
controversy . . . arising out of or relating in any way to
this Contract, this Provision . . ., your Credit Account, any
transaction on your Credit Account and our relationship[,
]” including claims based in “statutory law
(federal and state)[, ]” with the American Arbitration
Association or a mutually agreed arbitration organization
pursuant to the Federal Arbitration Act, 9 U.S.C.
§§ 1-16. (Id., PageId. 78, 86).
Although the arbitration provision specifies a right to opt
out within 30 days, Defendant did not receive an opt-out
notice for the account. (Id., PageId. 79).
The Credit Card Contract also indicates that it becomes
effective upon the earlier of the first purchase made on the
credit card or after 30 days from the date the credit card is
issued absent a written notice to cancel. (Id.,
PageId. 78, 86). Purchases were made using
Plaintiff's credit card. (Id., PageId.
78). Billing statements related to the use of the credit card
were sent to Plaintiff at 4137 Club View Drive, Cincinnati,
Ohio 45209-1414. (Id.).
February 21, 2017, Plaintiff initiated this action in the
Hamilton County, Ohio Municipal Court based on his
allegations that Defendant violated the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. 1681, et seq.
and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. 1692, et seq. (Doc.
5, PageId. 14). Plaintiff's claims focus on the
credit reporting of his account. (Id.). Defendant
subsequently removed Plaintiff's case to this Court.
8, 2017, Defendant filed a motion to compel arbitration with
the Court based on the arbitration agreement and contract
terms for the account at issue. (Doc. 10). On May 19, 2017,
the Court and the parties participated in a telephonic
scheduling conference. During the conference, Plaintiff
stated that he possesses documents demonstrating that the
First PREMIER credit card at issue was opened fraudulently.
Based on Plaintiff's representation, this Court denied
Defendant's motion to compel arbitration on June 12,
2017. (Doc. 12). However, the Order indicated that “if
Plaintiff fails to produce such documentation and/or should
those representations prove to be inaccurate[, ] Defendant
may refile the motion [to compel arbitration].”
(Id., PageId. 49 fn. 1). Thereafter,
Plaintiff filed a response to which he attached documents
that he claims support his contention the credit card at
issue was opened fraudulently. (Doc. 13). Those documents
include an IRS Identify Theft Affidavit revised on April 2016
with a signature date of November 2011, an undated Identity
Theft Victim's Complaint and Affidavit form, an
Offense/Incident Report that includes a web address of
Templat... along with an access date of February 6, 2017,
several pages from a March 10, 2014 Equifax credit report
that include a tagline for a First PREMIER account opened on
February 17, 2011 and closed at the consumer's request
that had a balance of $420.00 past due as of July 2011, and
letters from 2009 relating to a Capital One fraud
investigation for Stacey Baker. (Doc. 13, PageId.
before the Court is Defendant's second motion to compel
arbitration wherein Defendant contends that documents
provided by Plaintiff do not support his claim that the
credit card at issue was opened fraudulently and that an
order compelling arbitration is appropriate. (Doc. 14,
PageId. 64-74). Plaintiff has filed a response in
opposition, arguing that Defendant cannot show he signed or
otherwise agreed to arbitration because he is the victim of
identity theft. (Doc. 15, PageId. 88-90). Plaintiff
again attaches the documents he claims reflect the credit
card at issue was opened fraudulently, providing additional
explanations for the same. (Doc. 15-1, PageId.
104-14). He also raises additional arguments pertaining to
Ohio Usury Law, the FDCPA, the FCRA, and the use of courts
for resolution of consumers' legal rights, which he
supports by reference to a case against First PREMIER,
articles about First PREMIER, and an article about consumer
arbitration. (Id., PageId. 94-103). In its
reply, Defendant reiterates its position that Plaintiff has
failed to demonstrate he was the victim of identity theft and
contends that the additional arguments raised by Plaintiff
are immaterial to the Court's consideration of whether to
compel arbitration. (Doc. 16, PageId. 116-19).
Without leave of Court, Plaintiff filed a sur-reply in which
he reiterates arguments made in his opposition brief. (Doc.
17, PageId. 123-24).
moves to compel arbitration under the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 1, et seq.
(Doc. 14, PageId. 68). The FAA reflects a strong
federal policy favoring arbitration. Decker v. Merrill
Lynch, Pierce, Fenner & Smith, 205 F.3d 906, 911
(6th Cir. 2000). It “was designed to override judicial
reluctance to enforce arbitration agreements, to relieve
court congestion, and to provide parties with a speedier and
less costly alternative to litigation.” Stout v.
J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000).
Pursuant to the FAA, a written agreement to arbitrate
disputes “shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for
revocation of any contract.” 9 U.S.C. § 2.
“[A]ny doubts regarding arbitrability should be
resolved in favor of arbitration.” Glazer v. Lehman
Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005) (citing
Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983)).
compelling arbitration pursuant to a contractual arbitration
provision, however, the Court must make four threshold
first, it must determine whether the parties agreed to
arbitrate; second, it must determine the scope of that
agreement; third, if federal statutory claims are asserted,
it must consider whether Congress intended those claims to be
nonarbitrable; and fourth, if the court concludes that some,
but not all, of the claims in the action are subject to
arbitration, it must determine whether to stay the remainder
of the proceedings pending arbitration.
Glazer, 394 F.3d at 451 (quoting Stout, 228
F.3d at 714) (internal quotations omitted). Upon a finding of
arbitrability, the Court must order the parties to proceed to
arbitration in accordance with the terms of the agreement. 9
U.S.C. § 4. “[T]he party resisting arbitration
bears the burden of proving that the claims at issue are
unsuitable for ...