United States District Court, W.D. Pennsylvania
J. Schwab United States District Judge
the Court is Defendant's Motion to Compel Arbitration, or
Alternatively, Dismiss Plaintiff's Complaint under Rule
12(b) or Rule 56. ECF 7 and ECF 8.
Plaintiff filed a Response to the Motion (ECF 10)
and Defendant filed a Reply. ECF 14. This matter is
now ripe for adjudication.
Court assumes all facts set forth herein are true, solely for
the purpose of adjudicating this Motion.
brought this lawsuit against Defendant alleging that
Defendant violated the Electronic Funds Transfer Act
(“EFTA”), 15 U.S.C. 1601, et seq., and
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. 1692, et seq. According to the Complaint,
Plaintiff had a savings account and home Equity lines of
credit with Defendant (collectively “Plaintiff's
Accounts”). ECF 1. The home equity lines of
credit are secured by Plaintiff's primary residence.
alleges he was victim of fraud regarding these Accounts from
July 27, 2018 through August 9, 2018. Id. The fraud
involved unauthorized electronic transfers from
Plaintiff's Accounts, and was part of a larger fraud
scheme which was investigated by the FBI. Id. The
total value of the unauthorized electronic transfers from
Plaintiff's Accounts was $112, 400.00. Id.
alleges that he notified Defendant of the fraudulent
transfers via telephone on August 11, 2018, and in person on
August 18, 2018. Id. In addition, Defendant was
informed that local law enforcement and the FBI were
investigating the fraud which Plaintiff had reported to
Defendant twice in August. Id. Despite
Plaintiff's alleged timely reporting of the fraud to
Defendant, Plaintiff claims that Defendant failed to credit
Plaintiff's Accounts for the $112, 400.00 which in turn,
caused Plaintiff to incur late fees, penalties, and interest.
Id. Moreover, Defendant has purportedly attempted to
collect the late fees, penalties, and interest from
Plaintiff, as well as the $112, 400.00 amount. Id.
instant Motion argues that Plaintiff cannot bring this
lawsuit before this Court due to an arbitration clause
contained in Plaintiff's Personal Deposit Account
Agreement (ECF 10-3, p. 30).
Standard of Review
Motion to Compel Arbitration
United States Court of Appeals for the Third Circuit has
Because “[a]rbitration is a matter of contract between
the parties, ” a judicial mandate to arbitrate must be
predicated upon the parties' consent. Par-Knit Mills,
Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54
(3d Cir. 1980). The Federal Arbitration Act (the
“FAA”), 9 U.S.C. § 1, et seq.,
enables the enforcement of a contract to arbitrate, but
requires that a court shall be “satisfied that the
making of the agreement for arbitration ... is not in
issue” before it orders arbitration. Id.
§ 4. “In the event that the making of the
arbitration agreement is in issue, then ‘the court
shall proceed summarily to the trial' of that
issue.” Par-Knit Mills, 636 F.2d at 54
(quoting 9 U.S.C. § 4). “[T]he party who is
contesting the making of the agreement has the right to have
the issue presented to a jury.” Id.
. . . Some of our cases “support the
traditional practice of treating a motion to compel
arbitration as a motion to dismiss for failure to state a
claim upon which relief can be granted, ” under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Palcko
v. Airborne Express, Inc.,372 F.3d 588, 597 (3d Cir.
2004). We have also said, however, that “when
considering a motion to compel arbitration ... [a district
court] should” employ “the standard used ... in
resolving summary judgment motions pursuant to [Rule 56 of
the Federal Rules of Civil Procedure].” Par-Knit
Mills, 636 F.2d at 54 & n. 9; see alsoKaneff v. Del. Title Loans, Inc.,587 F.3d 616, 620