Marquez v. Department Stores National Bank ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AILEEN MARQUEZ, an individual, ) Case No.: 3:21-cv-00451-BEN-KSC 12 Plaintiff, ) ) ORDER GRANTING IN PART 13 v. ) JOINT MOTION TO STAY AND 14 DEPARTMENT STORES NATIONAL ) ARBITRATE CLAIMS ) 15 BANK, ) [ECF No. 6] Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Aileen Marquez, an individual (“Plaintiff”), brings this action against 19 Defendant Department Stores National Bank (“Defendant”) for violations of the 20 Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-1778.32 (the 21 “RFDCPA”), and Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). 22 ECF No. 1. 23 Before the Court is the Joint Motion to Stay the Case and Arbitrate Claims (the 24 “Joint Motion”). ECF No. 6. After considering the papers submitted, supporting 25 documentation, and applicable law, the Court GRANTS IN PART the Joint Motion. 26 II. BACKGROUND 27 A. Statement of Facts 28 In September of 2019, Plaintiff was issued a Macy’s Credit Card account, which 1 was serviced by Defendant. ECF No. 1 at 5,1 ¶ 23. In December 2020, Plaintiff fell on 2 financial hardship, her Macy’s credit card account went into default, and Defendant began 3 attempts to collect upon the account. Id. at ¶¶ 23-24. Once Plaintiff’s account went into 4 default, Defendant’s agents began calling Plaintiff’s cell phone, requesting payment 5 through the use of an automated telephone dialing system (“ATDS”) and/or recorded 6 voice, sometimes calling 1-2 times per day, almost every single day. ECF No. 1 at 5, ¶¶ 7 25-26. 8 In late December of 2020, Plaintiff retained an attorney to represent her with 9 regards to the debts allegedly owed to Defendant, who sent Defendant a Cease-and-Desist 10 letter. ECF No. 1 at 5, ¶¶ 27-28. Despite the letter and a request from her attorney that 11 all communications go through her counsel of record, Defendant continued calling 12 Plaintiff’s cell phone. Id. at 6, ¶¶ 30-31. Defendant has contacted Plaintiff over 100 times 13 since December 22, 2020. Id. at 6, ¶ 36. 14 B. Procedural History 15 On March 14, 2021, Plaintiff filed her complaint against Defendant alleging three 16 claims for relief arising out of (1) violations of the RFDCPA; (2) negligent violations of 17 the TCPA; and (3) willful violations of the TCPA. ECF No. 1. 18 On March 18, 2021, Plaintiff served Defendant’s agent with the summons and 19 complaint, ECF No. 3, meaning Defendant’s responsive pleading was due twenty-one days 20 later, or by April 8, 2021, see ECF No. 4 at 2:4-5. See also FED. R. CIV. P. 12(a)(1)(A)(i). 21 However, on April 9, 2021, the Court granted the parties joint motion to extend 22 Defendant’s deadline to respond to the complaint to May 7, 2021. See ECF Nos. 4, 5. 23 On April 14, 2021, the parties filed the instant Joint Motion. ECF No. 6. 24 III. LEGAL STANDARD 25 A court’s decision to grant a stay is discretionary, “dependent upon the 26 27 1 Unless otherwise indicated, all page number references are to the ECF generated 28 page number contained in the header of each ECF-filed document. 1 circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 432 (2009). The 2 movant bears the burden of showing the circumstances justifying a stay. Id. at 433-34; see 3 Clinton v. Jones, 520 U.S. 681, 708 (1997). A court may stay proceedings incidental to its 4 power “to control the disposition of the causes on its docket with economy of time and 5 effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 6 (1936). In determining whether a stay is appropriate, a federal court considers the (1) 7 “possibility damage may result from the granting of a stay,” (2) “hardship or inequity which 8 a party may suffer in being required to go forward,” and (3) “orderly course of justice 9 measured in terms of the simplifying or complicating of issues, proof, and questions of law 10 which could be expected to result from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 11 (9th Cir. 1962) (citing Landis v. North American Co., 299 U.S. 248, 254-55 (1936)). 12 IV. DISCUSSION 13 The Parties seek a Court Order approving the Parties’ Joint Motion to Stay 14 Proceedings and submit Plaintiff’s claims to binding individual arbitration. ECF No. 6 at 15 2:1-3. The Parties indicate that the terms and conditions of the credit card agreement at 16 issue contain an arbitration provision requiring the parties to arbitrate their claims through 17 the American Arbitration Association (“AAA”) if either party makes a demand to 18 arbitrate. Id. at 2:3-7. Defendant has demanded that Plaintiff arbitrate her claims, and 19 the parties have agreed to stipulate to stay this action in its entirety pending the completion 20 of arbitration pursuant to the terms of the arbitration provision contained in the credit card 21 agreement(s) and the rules of the AAA. Id. at 2:7-10. 22 On the one hand, (1) little to no damage will result from the stay, (2) no parties will 23 suffer inequity as a result of the stay, and (3) the orderly course of justice measured in 24 terms of simplifying issues warrants granting the stay. On the other hand, 25 “notwithstanding the language of § 3, a district court may either stay the action or dismiss 26 it outright when . . . the court determines that all of the claims raised in the action are 27 subject to arbitration.” Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1073- 28 74 (9th Cir. 2014); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638, 641 (9th Cir. 1988) (affirming the district court’s dismissal of one the plaintiff's claims because the parties agreed to submit those claims to arbitration, and no nonarbitrable 3 claims remained in the case); Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 1053, 1060 (9th Cir. 2004) (holding that the district properly dismissed the claims based “{a|lthough the Federal Arbitration Act ‘provides for a stay pending compliance with a 6 contractual arbitration clause . . . a request for a stay is not mandatory’”); Gadomski v. 7 Wells Fargo Bank N.A., 281 F. Supp. 3d 1015, 1020-21 (E.D. Cal. 2018) (holding that 8 “because both claims are to be arbitrated, the Court dismisses Plaintiff’s claims in favor ? of arbitration”); Olsavsky v. Prestige Healthcare, No. 4:14CV510, 2014 WL 1333670, at 10 *2 (N.D. Ohio Apr. 1, 2014) (granting, in part, a joint motion to stay a case pending i arbitration but ordering that the case must be dismissed in its entirety because “all of the Ie parties’ claims are subject binding arbitration and there is nothing left before this Court 13 except to execute judgment”). Because the Parties indicate all claims will be arbitrated 4 and do not raise any non-arbitrable claims, the Court finds that all claims are subject to Is binding arbitration, so there is nothing left before this Court to except to execute 16 judgment. Thus, the Court DENIES the Parties’ request for a stay, GRANTS their M7 request to arbitrate, and dismisses this case without prejudice. CONCLUSION 19 For the above reasons, the Court GRANTS IN PART the Joint Motion as follows: 20 1. The parties shall submit Plaintiff’s claims to final and binding arbitration I pursuant to the terms of the arbitration agreement referenced in the parties’ Joint Motion. 22 2. The instant action, and all proceedings herein, are dismissed without 23 prejudice. a4 3. The Clerk of the Court is directed to close this case. 25 IT IS SO ORDERED. " 2611 DATED: April 15, 2021 27 ON. ROGER T. BENITE 28 United States District Judge _4-