Buterbaugh v. Trans Union, LLC ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ERIC BUTERBAUGH, CASE NO. 1:22-CV-1196 AWI EPG 9 Plaintiff ORDER ON STIPULATION FOR 10 v. BINDING ARBITRATION AND ORDER REGARDING ATTEMPTED 11 BARCLAYS BANK DELAWARE, STIPULATED DISMISSAL OF EQUIFAX INFORMATION SERVICES EXPERIAN INFORMATION SERVICES 12 LLC, EXPERIAN INFORMATION LLC SERVICES LLC, TRANS UNION LLC, 13 and DOES 1-10 inclusive, (Doc. Nos. 10, 15) 14 Defendants 15 16 This is a Fair Credit Reporting Act case that was removed from the Fresno County 17 Superior Court. Since the removal of this case, Defendants Equifax Information Services LLC, 18 Trans Union LLC, and Experian Information Services LLC have filed answers, see Doc. Nos. 5, 7, 19 and 11, and Defendants Trans Union LLC and Experian Information Services LLC appear to have 20 settled with Plaintiff, see Doc. Nos. 9, 14. Plaintiff has attempted to dismiss Experian Information 21 Services LLC from this case by stipulation. See Doc. No. 15. 22 On October 5, 2022, Plaintiff and Defendant Barclays Bank filed a stipulation for binding 23 arbitration. See Doc. No. 10. The stipulation for binding arbitration is between Plaintiff and 24 Barclays Bank only, explains that all of Plaintiff’s claims against Barclays Bank are the subject of 25 an arbitration agreement between Plaintiff and Barclays Bank, and requests that the Court compel 26 arbitration and stay this case only as to Plaintiff’s claims against Barclays Bank. No other 27 Defendant has responded to the stipulation in any way. 28 1 With respect to the stipulation for arbitration, “courts should order arbitration of a dispute 2 only where the court is satisfied that neither the formation of the parties’ arbitration agreement nor 3 (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability 4 or applicability to the dispute is in issue.” Granite Rock Co. v. International Bhd. Of Teamsters, 5 561 U.S. 287, 299 (2010). If a court orders the parties to arbitration, the Arbitration Act provides 6 for the court to stay the matter pending completion of the arbitration. See 9 U.S.C. § 3; Ziober v. 7 BLB Res., Inc., 839 F.3d 814, 817 (9th Cir. 2016). Here, the Court has no reason to question the 8 formation of the arbitration agreement, the agreement’s enforceability, or the agreement’s 9 applicability to the dispute between Plaintiff and Barclays Bank. Since no other Defendant has 10 objected or responded to the stipulated arbitration despite ample time to file an objection, the 11 Court detects no reason why it should not grant the stipulation. See Granite Rock, 561 U.S. at 12 299. Further, because there is at least one other Defendant (Equifax) who has not settled and 13 appears to be actively litigating, the Court will stay the proceedings as to Plaintiffs’ claims against 14 Barclays Bank only. See 9 U.S.C. § 3. 15 With respect to the stipulated dismissal of Experian, the stipulation was filed on November 16 18, 2022, purports to be under Rule 41(a)(1)(A)(ii), and is signed by Plaintiff and Experian only. 17 See Doc. No. 15. However, Rule 41(a)(1)(A)(ii) provides for an automatic dismissal if the 18 stipulation is signed by “all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Parties 19 who have filed an answer have “appeared” for purposes of Rule 41(a)(1)(A)(ii). See Carroll v. E 20 One Inc., 893 F.3d 139, 145-46 (3d Cir. 2018); Marquez v. Truist Bank, 2022 U.S. Dist. LEXIS 21 151632, *3 n.1 (E.D. Cal. Aug. 23, 2022). Because Trans Union and Equifax have filed answers 22 but did not sign the stipulated dismissal of Experian, the stipulated dismissal is ineffective under 23 Rule 41(a)(1)(A)(ii). See id. Nevertheless, because more than ten days have passed since Plaintiff 24 filed the ineffective dismissal, the Court will order Trans Union and Equifax to respond to the 25 attempted dismissal of Experian. If Trans Union and Equifax file either notices of non-opposition 26 or fail to respond, the Court will find that Trans Union and Equifax have consented to the 27 dismissal of Experian and give effect to the November 18 stipulation. 28 enn ne ee eee nnn nn nnn nn NE I II IIE 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 }1. The stipulation between Plaintiff and Defendant Barclays Bank for binding arbitration is 4 (Doc. No. 10) is GRANTED; 5 Plaintiff and Defendant Barclays Bank shall submit to binding arbitration with respect to 6 Plaintiff's claims against Barclays Bank as soon as possible; 7 This case is STAYED as to Plaintiff's claims against Defendant Barclays Bank only; 8 This case remains pending and proceeding against all other Defendants; 9 |5. Plaintiffs purported stipulated dismissal of Defendant Experian Information Services LLC 10 pursuant to Rule 41(a)(1)(A)@i) (Doc. No. 15) is DEFECTIVE and INEFFECTIVE; and 11 }5. As soon as possible, but in no event later than seven (7) days from service of this order, 12 Defendants Trans Union and Equifax shall file either an opposition or notice of non- 13 opposition to Plaintiff's stipulated dismissal of Defendant Experian.' 14 1s IT IS SO ORDERED. 16 | Dated: _ November 29, 2022 Z : Cb it "SENIOR DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 ' The Court will construe a failure to respond as a consent to the stipulated dismissal. Therefore, if Defendants file 2g | consents or fail to respond, the Court will view all Defendants as consenting to the dismissal of Experian and will give effect to Plaintiff’s purported Rule 41(a)(1)(A)(ii) dismissal of Experian.