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Rumpf v. Prog Leasing LLC

United States District Court, D. Arizona

May 31, 2017

Jay Rumpf, Plaintiff,
v.
Prog Leasing LLC, et al., Defendants.

          ORDER

          Honorable G. Murray Snow Judge

         Pending before the Court is the Motion to Compel Arbitration, (Doc. 13), of Defendant Prog Leasing LLC (“Prog Leasing”). Also pending before the Court is Plaintiff Jay Rumpf's (“Rumpf”) Motion for Leave to File a Sur-Reply, (Doc. 28). For the following reasons, the Court grants Defendant's motion and denies Plaintiff's motion.

         BACKGROUND

         Rumpf filed suit in this Court on January 13, 2017, alleging that Prog Leasing violated his rights under the Telephone Consumer Protection Act (“TCPA”). (Doc. 1 at 2.) TCPA prohibits, among other things, the making of telephone calls using “any automatic telephone dialing system or an artificial or prerecorded voice” to “any telephone number assigned to a . . . cellular telephone service” and the initiation of “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” 47 U.S.C. § 227(b)(1).

         The Complaint alleges that “[i]n the last four years, Defendant placed calls to Plaintiff's cellular telephone number.” (Doc. 1 at 3.) Some of these calls involved prerecorded messages, and others involved a live representative. (Doc. 1 at 3.) The Complaint further alleges that “Plaintiff does not have business with Defendant and never provided Defendant his cellular telephone number or prior express consent to call or autodial it.” (Doc. 1 at 3.)

         Prog Leasing responded with the instant Motion. In support of the Motion, Prog Leasing presents a declaration from Trevor Thatcher, the Vice-President of Operations for Prog Leasing, and a lease (the “Lease”). (Doc. 14.) From these come the following relevant facts: Rumpf's wife, Treva Vasquez, entered into a Lease for a queen bed set with Prog Leasing in January 2016. (Doc. 14 at 5, 8.) This Lease contained an arbitration provision, which stated in relevant part that “you and we agree that either party may elect to arbitrate or require arbitration of any Claim under this Arbitration Provision.” (Doc. 14 at 5, 9-10.) And finally, Rumpf had called Prog Leasing to discuss the Lease in June 2016. (Doc. 14 at 6.) Prog Leasing asserts that Rumpf is bound by the arbitration provision as a direct beneficiary of the Lease, and that the arbitration provision covers the dispute under the TCPA.

         Further briefing on the Motion by each party elicited more evidence. Rumpf presents an affidavit in which he admits that he is married to Vasquez and was married to her when she entered into the Lease, although he asserts that he had no knowledge of the Lease at the time. (Doc. 24-1 at 2.) He also concedes that he used the leased bed “[b]eginning in late January 2016 through approximately April of 2016.” (Doc. 24-1 at 2.) He admits calling Prog Leasing in June 2016, but states that at that point he was not aware that his wife had entered into the Lease and only became aware of this during the call. (Doc. 24-1 at 2.) He states that he only called Prog Leasing to inquire about purchasing a bed for his child and that he never “sought any benefit under the Lease, agreed to be a party to the Lease, sought to enforce any of its terms or otherwise [had] any involvement with the Lease.” (Doc. 24-1 at 2.)

         In turn, Prog Leasing attached to their reply, (Doc. 27), a second declaration by Trevor Thatcher in which Thatcher testifies to his knowledge of the contents of the June 2016 phone conversation. (Doc. 27-1 at 1-4.) Attached to this declaration as an exhibit is a transcript of the June 2016 phone conversation. (Doc. 27-1 at 17-19.) This transcript indicates that Rumpf told Prog Leasing, among other things, that “[w]e already have a Queen size that we have been paying on” and that the payments had been made from a joint bank account. (Doc. 27-1 at 18-19.)

         DISCUSSION

         I. Legal Standard

         a. Arbitration Generally

         Under the Federal Arbitration Act (“FAA”), “[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, . . . shall be valid, irrevocable, and enforceable . . . .” 9 U.S.C. § 2; see, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 113-19 (2001) (holding that FAA applies to employment contracts except those of transportation workers) (citing 9 U.S.C. §§ 1-2); Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000); Tracer Research Corp. v. Nat'l Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994), cert. dismissed, 515 U.S. 1187 (1995). “Although [a] contract provides that [state] law will govern the contract's construction, the scope of the arbitration clause is governed by federal law.” Tracer Research Corp, 42 F.3d at 1294 (citing Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1463 (9th Cir. 1983)); see Circuit City Stores, Inc. v. Adams, 279 F.3d 889, 892 (9th Cir. 2002) (holding that FAA “not only placed arbitration agreements on equal footing with other contracts, but established . . . a federal common law of arbitrability which preempts state law”); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 719 (9th Cir. 1999) (“Federal substantive law governs the question of arbitrability.”); Chiron Corp., 207 F.3d at 1130-31 (holding that “district court correctly found that the federal law of arbitrability under the FAA governs the allocation of authority between courts and arbitrators” despite arbitration agreement's choice-of-law provision).[1]

         “Notwithstanding the federal policy favoring it, ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'” Tracer Research Corp., 42 F.3d at 1294 (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)); see French v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 784 F.2d 902, 908 (9th Cir. 1986). Where the arbitrability of a dispute is in question, a court must look to the terms of the contract. See Chiron Corp., 207 F.3d at 1130. “‘Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.'” Simula, 175 F.3d at 719 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983)); see French, 784 F.2d at 908.

         However, a court “cannot expand the parties' agreement to arbitrate in order to achieve greater efficiency [and] the [FAA] ‘requires piecemeal resolution when necessary to give effect to an arbitration agreement.'” Tracer Research Corp., 42 F.3d at 1294 (quoting Moses H. Cone Mem'l Hosp., 460 U.S. at 24-25) (emphasis in original). “[T]he judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate[.]” United Steelworkers, 363 U.S. at 582. “The court's role under the [FAA] is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp., 207 F.3d at 1130 (citing Simula, 175 F.3d at 719-20; Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469, 477-78 (9th Cir. 1991)); see Simula, 175 F.3d at 720 (stating that “the district court can determine only whether a written arbitration agreement exists, and if it does, enforce it in accordance with its terms”) (citing Howard Elec. & Mech. v. Briscoe Co., 754 F.2d 847, 849 (9th Cir. 1985)).

         b. Motions to ...


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