United States District Court, E.D. Pennsylvania
Soldon Winton (“Winton”) commenced this action
for violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. §§ 1681 et seq.,
against defendants Trans Union, LLC, Department Stores
National Bank, First Premier Bank (“First
Premier”), OneMain Financial Group, LLC, PAAC Transit
Division Federal Credit Union, Pittsburgh Central Federal
Credit Union, Synchrony Bank, and Citibank, N.A. We
previously granted the motion of First Premier to compel
arbitration and to stay proceedings. Before the court is the
motion of Winton to require First Premier Bank to initiate
arbitration and to bear all costs of arbitration.
is appropriate “[s]o long as the prospective litigant
effectively may vindicate [his or her] statutory cause of
action in the arbitral forum.” Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991)
(quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985)). A
party may seek to “invalidate an arbitration agreement
on the ground that arbitration would be prohibitively
expensive.” Green Tree Fin. Corp. v. Randolph,
531 U.S. 79, 92 (2000). To do so, a plaintiff must come
forward with evidence to show: (1) the projected fees that
would apply to the arbitration; and (2) an inability to pay
those costs. Id.; see also Parilla v. IAP
Worldwide Servs. VI, Inc., 368 F.3d 269, 283-85 (3d Cir.
2004); Alexander v. Anthony Int'l, L.P., 341
F.3d 256, 268-69 (3d Cir. 2003). The party seeking to
invalidate the arbitration agreement bears the burden of
showing that arbitration would be prohibitively expensive.
Green Tree Fin. Corp., 531 U.S. at 92.
April 12, 2019, First Premier moved to compel arbitration. In
his response in opposition to the motion to compel, Winton
asserted that he could not afford to pay the costs of
arbitration and that First Premier should be ordered to pay
those costs. However, Winton failed to provide any evidence
regarding his financial situation and the projected
arbitration fees that would apply in his case. On May 1,
2019, this court granted the motion of First Premier to
compel arbitration. We declined to consider Winton's
request in his opposition brief to require First Premier to
initiate arbitration and to bear all costs of arbitration
given that Winton had failed to submit any evidence to
support his position and had failed to file a motion seeking
such relief. Shortly thereafter, Winton filed the instant
motion to require First Premier to initiate arbitration and
to bear all costs of arbitration. In light of this motion,
this court permitted the parties to engage in discovery and
to submit supplemental briefing, pursuant to the Supreme
Court's decision in Green Tree, regarding the
potential costs of arbitration and Winton's ability to
pay those costs. Essentially, Winton seeks reconsideration of
our memorandum and order to the extent we granted the motion
to compel arbitration without considering the projected costs
of arbitration and his ability to pay.
support of his motion, Winton has submitted an affidavit
stating that his fixed monthly expenditures exceed his
monthly income and thus he has no discretionary income to pay
for the expenses of arbitration. He reports that he has a
current total monthly income of $3, 900, which consists of
social security benefits and a pension. While he has not
provided any specifics, he states that he has “fixed
monthly expenditures” of $5, 998. Although the
affidavit is somewhat conclusory, First Premier has not
challenged this evidence.
does not seek to invalidate the arbitration agreement with
First Premier on the basis of cost but rather seeks to compel
First Premier to initiate arbitration with the Judicial
Arbitration and Mediation Services, Inc. (“JAMS”)
and to require First Premier to bear all costs of the
arbitration, including any fees and expenses payable to the
arbitrator or the arbitration association as well as his
attorneys' fees and costs.
parties' arbitration agreement provides in pertinent
: Regardless of who demands arbitration, we will pay all
expenses of arbitration, including the filing,
administrative, hearing and arbitrator's fees
(“Arbitration Fees”), to the extent that the
Arbitration Fees exceed the amounts you would be required to
pay for filing a lawsuit in a court. Throughout the
arbitration, each party shall bear his or her own attorney
fees and expenses, such as witness and expert witness fees.
If you prevail in the arbitration of any Claim against us, we
will reimburse you for any fees you paid to the arbitration
organization in connection with the arbitration.
Arbitration Location and Procedure
: Any arbitration hearing at which you wish to appear will
take place at a location within the federal judicial district
that includes your billing address at the time the Claim is
filed. The party bringing the Claim may file its Claim at the
American Arbitration Association (“AAA”), or an
arbitration organization mutually agreed upon by the parties.
. . . If you do not agree to file your claim with AAA, and
the parties cannot agree on an alternative arbitration
organization, an arbitrator will be appointed by a court
pursuant to the Federal Arbitration Act.
The Arbitrator's Award
: The arbitrator has the ability to award to the prevailing
party all remedies available at common law, by statute or in
equity, including injunctive relief, declaratory relief,
arbitration costs and attorney fees.
begin with Winton's request to require First Premier to
arbitrate before JAMS. As noted above, the arbitration
agreement requires that the parties arbitrate any claim with
AAA unless they mutually agree to another organization. First
Premier has not agreed to Winton's request to arbitrate
before JAMS. Winton has not offered good cause for his
objection to AAA but asserts only that he “prefers JAMS
because the selection of arbitrators to be chosen are of a
very high caliber, including former Federal Judges.” We
decline to contradict ...