United States District Court, D. Connecticut
RULING RE: DEFENDANT'S MOTION TO DISMISS/COMPEL ARBITRATION (DOC. NO. 17) & MOTION TO STAY (DOC. NO. 18), AND PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR-REPLY (DOC. NO. 24) & MOTION TO AMEND (DOC. NO. 31)
JANET C. HALL, District Judge.
Plaintiff Jonathan Ferrie ("Ferrie") brings this putative class action against defendant DirecTV, LLC ("DIRECTV"), alleging that DIRECTV violated the Connecticut Unfair Trade Practices Act ("CUTPA"), C.G.S.A. § 42-110a, et seq., by deceiving customers about the price of its service. See Complaint (Doc. No. 1) ("Compl."). Ferrie has also filed a Motion to Amend the Complaint (Doc. No. 31) ("Mot. to Amend"), in which he seeks to allege that DIRECTV violated section 52-570d of the Connecticut General Statutes by illegally recording a phone call between Ferrie and DIRECTV. See Proposed Amended Complaint (Doc. No. 31-1) ("Prop. Am. Compl.").
In response to the Complaint, DIRECTV filed a Motion to Dismiss/Motion to Compel Arbitration (Doc. No. 17) ("Mot. to Compel Arb."), arguing that Ferrie's claim is subject to mandatory arbitration. DIRECTV also opposed the Motion to Amend on the ground that the new claim is also subject to mandatory arbitration, thereby rendering amendment futile. Additionally, DIRECTV has filed for a Motion to Stay Discovery Pending Resolution of DirecTV's Motion to Compel Arbitration (Doc. No. 18) ("Mot. to Stay"). Lastly, Ferrie has filed a Motion for Leave to File a Sur-Reply (Doc. No. 24) ("Mot. to File Sur-Reply"), in which he seeks to reply to DIRECTV's reply to Ferrie's opposition to the Motion to Compel Arbitration.
On Tuesday, June 25, 2013, Ferrie initiated a telephone call with DIRECTV, in which he inquired about, and ultimately ordered over the telephone, DIRECTV service. See Memorandum of Law in Opposition to DIRECTV's Motion to Dismiss and/or Stay Proceedings Pending Arbitration and to Compel Arbitration at 2 (Doc. No. 19) ("Pl.'s Mot. to Compel Opp'n"). Prior to calling DIRECTV, Ferrie had looked at internet advertisements for DIRECTV's products. Pl.'s Mot. to Compel Opp'n Ex. A at ¶¶ 2, 3 (Doc. No. 19-1) ("Jonathan Ferrie Decl."). During the telephone call, Ferrie informed the DIRECTV representative that he was "moving into a new house this weekend." See Declaration of Shaun Paisley Ex. A at 2:12-13 (Doc. No. 21-1) ("Tr. of DIRECTV Call"). Ferrie provided DIRECTV with the address for his new home, which was in Prospect, Connecticut. See id. at 3:24-4:13. He also informed DIRECTV that he was not moving into his new home until Saturday, June 29, 2013. See id. at 34:6-13.
After discussing various programming and pricing options with DIRECTV, Ferrie agreed, during the same phone call, to "purchase programming from [DIRECTV] for twenty-four consecutive months or to pay the early cancellation fee of twenty dollars for each month of your agreement not completed." Id. at 31:8-15. Ferrie agreed that his monthly bill would be comprised of a base rate "plus applicable state tax and local fees and local taxes." Id. at 29:7-10. Ferrie agreed to a base monthly rate of $59.99 for the first 12 months, approximately $81.00 for months 13-16, and approximately $91.00 for months 17-24. See id. at 29:7-16. On the same call, Ferrie provided DIRECTV with a credit card number and enrolled in "Auto Bill Pay" and "paperless billing, " thereby "authoriz[ing] DIRECTV to charge your card automatically to pay each of your monthly statements as well as final bill amounts and to receive your monthly billing statements at the e-mail address you provided." Id. at 29:21-30:3.
Earlier in the phone call, Ferrie was asked to provide an e-mail address and was told that, "by providing an e-mail address, you'll receive communication on how to enjoy your DIRECTV to its fullest. You'll also get an order confirmation e-mail, programming, and promotional information." Id. at 15:17-22. At that time, Ferrie provided DIRECTV with the e-mail address "email@example.com." See id. at 15:23-17:5. Later in the call, DIRECTV informed Ferrie that his monthly billing statements would be e-mailed to the address he had provided earlier in the call. Id. at 29:21-30:3.
Towards the end of the call, Ferrie inquired whether DIRECTV partnered with any internet service providers. See id. at 32:20-21. At the end of the call, after Ferrie had completed his order for television service, he was transferred to one of DIRECTV's telecommunications partners, who worked with Ferrie to bundle his DIRECTV television service with an internet service package. See id. at 38:2-4.
DIRECTV claims that, upon completion of the phone call, it sent Ferrie multiple e-mails that contained either hyperlinks to DIRECTV's Customer Agreement or a full version of the Customer Agreement in the body of an e-mail. See Memorandum in Support of DIRECTV's Motion to Dismiss and/or Stay Proceedings Pending Arbitration and to Compel Arbitration at 2-7 (Doc. No. 17-1) ("Def.'s Mot. to Compel Mem. in Supp."). Ferrie has declared, under oath, that he "do[es] not recall receiving" these e-mails. Jonathan Ferrie Decl. at ¶ 14.
DIRECTV also claims that it mailed Ferrie, in a single envelope, hard-copy versions of the Order Confirmation letter and the Customer Agreement. Def.'s Mot. to Compel Mem. in Supp. at 4. The mailing was sent from Utah to Ferrie's Prospect, Connecticut address on June 26, 2013, via United States Postal Service ("USPS") First Class Mail. See Def.'s Mot. to Compel Mem. in Supp. Ex. C Ex. 3 (Doc. No. 17-4) ("Postage Statement") (date, place, and type of mailing); Def.'s Mot. to Compel Mem. in Supp. Ex. C Ex. 1 (Doc. No. 17-4) ("June 26 Order Confirmation Letter") (recipient address). Ferrie, however, has submitted a sworn declaration in which he attests that he "never received this letter from DirecTV." Jonathan Ferrie Decl. at ¶ 16.
The Customer Agreement contains language that states that, in the event that DIRECTV and a customer cannot resolve a dispute informally, "any legal or equitable claim relating to this Agreement, any addendum, or your Service... will be resolved only in binding arbitration." See Def.'s Mot. to Compel Mem. in Supp. Ex. A Ex. 2 at ¶ 9(b) (Doc. No. 17-2) ("June 25 Customer Agmt. E-mail"). The Customer Agreement also notifies customers, in the first paragraph of the Agreement, that:
IF YOU DO NOT ACCEPT THESE TERMS, PLEASE NOTIFY U.S. IMMEDIATELY AND WE WILL CANCEL YOUR ORDER OR SERVICE SUBJECT TO APPLICABLE CANCELLATION TERMS AND/OR FEES (SECTION 5). IF YOU INSTEAD DECIDE TO RECEIVE OUR SERVICE, IT WILL MEAN THAT YOU ACCEPT THESE TERMS AND THEY WILL BE LEGALLY BINDING.
Id. at 1. Ferrie did not call to cancel his order prior to installation. Rather, the installation of Ferrie's DIRECTV equipment and service occurred, as planned, on July 1, 2013. See Tr. of DIRECTV Call at 34:14-19; Def.'s Mot. to Compel Mem. in Supp. Ex. D Ex. 1 at 1 (Doc. No. 17-5) ("Work Order").
III. MOTION TO COMPEL ARBITRATION
A. Legal Standard
In determining whether to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), three issues may be relevant: (1) whether a valid agreement to arbitrate disputes exists; (2) to the extent that a valid agreement exists, whether the asserted claims are covered by the agreement and their coverage is not rendered void by law; and, (3) if the court concludes that some, but not all, of the claims in the case are arbitrable, whether staying the remaining claims pending arbitration is appropriate. See JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004). On a motion to compel arbitration, the court reviews the submissions before it using a standard equivalent to the one applicable on a motion for summary judgment. See Bensadoun, 316 F.3d at 175. "If there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary." Id.
1. Whether an agreement to arbitrate exists
"The party seeking an order compelling arbitration must substantiate its entitlement to arbitration by a showing of evidentiary facts that support its claim that the other party agreed to arbitration." D'Antuono v. Serv. Road Corp., 789 F.Supp.2d 308, 319 (D. Conn. 2011) (internal quotation marks and alterations omitted). "If the party seeking arbitration has substantiated the entitlement by a showing of evidentiary facts, the party opposing may not rest on a denial but must submit evidentiary facts showing that there is a dispute of fact to be tried." Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995). "[T]he ultimate question of whether the parties agreed to arbitrate is determined by state [contract] law." Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002). While it is clear that the Customer Agreement contains a mandatory arbitration provision, Ferrie argues that he never agreed to be bound by the Customer Agreement, or by its arbitration provision.
a. The Customer Agreement
DIRECTV argues that it sent Ferrie the Customer Agreement in various e-mails and as a hard-copy through the regular mail, see Def.'s Mot. to Compel Mem. in Supp. at 2-7, and that Ferrie "accepted the DIRECTV Customer Agreement, including its arbitration provision, by choosing to receive DIRECTV service, instead of rejecting the Customer Agreement by canceling his order, " id. at 9. Ferrie claims he "do[es] not recall" receiving the Customer Agreement via e-mail, and claims he "never received" the Customer Agreement via postal mail. Jonathan Ferrie Decl. at ¶¶ 14, 16. He also argues that, even if he ...