United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
before me is a Motion to Compel Arbitration filed by
Defendant Citibank. (Doc. 9.) Because the Federal Arbitration
Act (“FAA”) applies to Wolkenstein's claims,
Citibank's Motion will be granted.
parties do not dispute the following relevant facts. On or
about November 8, 2013, Wolkenstein opened a credit card
account ending in -0350 (“Account”) with
Department Stores National Bank (“DSNB”), of
which Citibank, N.A. (“Citibank”) is the parent
corporation. (Doc. 9-2 at ¶¶ 1, 4.) After the
Account was opened, Wolkenstein was provided with a credit
card agreement (“Agreement”). (Id. at
¶ 7; Doc. 9-2, Ex. 1.) The Agreement provides that DSNB
“may change any term of this Agreement or add a new
term at any time.” (Doc. 9-2, Ex. 1.) On or about
June15, 2015, DSNB mailed Plaintiff a “Notice of Change
in Terms and Right to Opt Out” (“Notice”)
and accompanying letter, which updated the Agreement to
include an arbitration clause (“Arbitration
Clause”). (Doc. 9-2 at ¶ 10; Doc. 9-2, Ex. 2.)
The Notice stated that the updated terms would become
effective on August 5, 2015, and that Wolkenstein could
reject the new terms, including the Arbitration Clause, by
calling a phone number to opt out. (Doc. 9-2, Ex. 2.)
Wolkenstein did not do this. (Doc. 9-2 at ¶ 12.)
in or around October 2015, Wolkenstein alleges he received
“repeated telephone calls” to his cell phone from
Citibank via “an automatic telephone dialing system,
” in violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. (Doc. 1 at
¶¶ 1, 12-13.) On May 22, 2017, counsel for
Wolkenstein emailed certain individuals representing Citibank
to request “a copy of any arbitration agreement that
Citibank asserts applies to Mr. Wolkenstein's
claims” under the TCPA. (Doc. 10-2.) There is no
evidence in the record regarding whether Citibank responded
to the email, but the parties agree that Citibank did not
provide another copy of the Notice or the Arbitration Clause,
which remains the same as the copy that had been mailed to
Wolkenstein in June 2015.
21, 2017, Wolkenstein filed the instant Complaint. (Doc. 1.)
Citibank filed an answer on October 17, 2017, in which it
asserted that Wolkenstein's claims were subject to
arbitration. (Doc. 8.) Citibank then filed its Motion to
Compel Arbitration on March 20, 2018. (Doc. 9.) Wolkenstein
filed his Brief in Opposition (Doc. 10) on April 3, 2018, and
Citibank filed a Reply on April 17, 2018. (Doc. 11.) This
Motion is therefore now ripe for disposition.
I must decide under what standard the instant Motion to
Compel Arbitration should be evaluated. “[W]hen it is
apparent, based on the face of a complaint, and documents
relied upon in the complaint, that certain of a party's
claims are subject to an enforceable arbitration clause, a
motion to compel arbitration should be considered under a
Rule 12(b)(6) standard.” Guidotti v. Legal Helpers
Debt Resolution, L.L.C., 716 F.3d 764, 776 (3d Cir.
2013)(internal quotations omitted). However, “if the
complaint and its supporting documents are unclear regarding
the agreement to arbitrate, or if the plaintiff has responded
to a motion to compel arbitration with additional facts
sufficient to place the agreement to arbitrate in issue, then
the parties should be entitled to discovery on the question
of arbitrability before a court entertains further briefing
on [the] question.” Guidotti, 716 F.3d at 776.
In such a case, after limited discovery, “the court may
entertain a renewed motion to compel arbitration, this time
judging the motion under a summary judgment standard.”
the Complaint makes no mention of the Agreement, or even of
Wolkenstein's Account. (Doc. 1.) Arbitrability is not
apparent from the face of the Complaint because Wolkenstein
brings suit under the TCPA, not for a violation of the
Agreement, and the Agreement does not relate to
Citibank's ability to contact Wolkenstein via automated
calls to his cell phone. Id.; compare Sanford v.
Bracewell & Giuliani, LLP, 618 Fed.Appx. 114,
117-118 (3d Cir. 2015)(finding that, in suit for breach of an
agreement which contained an arbitration clause, the
affirmative defense of arbitrability was apparent from face
of complaint). It is therefore not apparent from the face of
the Complaint that Wolkenstein's claims implicate the
Agreement. Further, the original version of the Agreement
(Doc. 9-2, Ex. 1) did not contain the Arbitration Clause, and
the only evidence that the Arbitration Clause governs
Wolkenstein's relationship with Citibank is the Affidavit
of Susan Kwiatek (“Affidavit”) submitted by
Citibank, which asserts that Wolkenstein received the Notice
and accompanying letter updating the terms of the Agreement.
(Doc. 9-2.) The instant Motion therefore cannot properly be
evaluated under the Rule 12(b)(6) standard and must be
analyzed under the standard for summary
this would require additional discovery to determine whether
the Arbitration Clause applies to this case.
Guidotti, 716 F.3d at 776; see also Fed. R.
Civ. P. 56(f)(requiring that a party be given notice and an
opportunity to respond to a motion for summary judgment).
However, where a party has responded to a motion to dismiss
as though it were a motion for summary judgment, additional
notice and discovery are not necessary before evaluating the
motion under a summary judgment standard. See Jones v.
Hashagen, 512 Fed.Appx. 179, 181 n. 1 (3d Cir.
2013)(finding that granting motion to dismiss, converted to a
grant of summary judgment, was proper where party had
responded to motion to dismiss as if it were a motion for
summary judgment, including attaching exhibits in support of
his argument to counter an affidavit attached to the opposing
party's motion to dismiss). Here, Wolkenstein introduced
evidence beyond what is implicated on the face of the
pleadings when he responded to Citibank's Motion to
Compel Arbitration by attaching the May 22, 2017 email
requesting a copy of the Arbitration Clause. Therefore,
Wolkenstein has been given proper notice and an opportunity
to respond under Rule 56, and the Motion to Compel
Arbitration may be properly decided now.
law strongly favors the arbitration of disputes and requires
that courts rigorously enforce arbitration provisions.
See, e.g., AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2011). Under the FAA, a
court must, upon motion by a party, stay any proceeding that
involves an issue subject to arbitration under a written
arbitration provision. 9 U.S.C. § 3. The party
challenging an arbitration agreement bears the burden of
showing that the agreement should not be enforced. Green
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92
provides that a written arbitration agreement contained in a
“contract evidencing a transaction involving
commerce  shall be valid, irrevocable and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C.
§ 2. In other words, courts may only invalidate
arbitration agreements based upon generally applicable
contract defenses. Doctor's Assocs. v.
Casarotto, 517 U.S. 681, 687 (1996). Under the FAA, a
court must compel arbitration if it finds that: (1) a valid
arbitration agreement exists between the parties, and (2) the
dispute before it falls within the scope of the agreement.
See, e.g., Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 626-628 (1985).
Courts should order the parties to arbitrate upon concluding
that a valid arbitration provision exists, without reviewing
the merits of the case. See Gay v. CreditInform, 511
F.3d 369, 386 (3d Cir. 2007). “[A]ny doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration, whether the problem at hand is the construction
of the contract language itself or an allegation of waiver,
delay, or a like defense to arbitrability.” Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24-25 (1983). Accordingly, a presumption of