Proctor v. First Premier Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARNITA PROCTOR,
Plaintiff,
v. Civil Action No. 20-2162 (BAH)
FIRST PREMIER CORP., et al., Chief Judge Beryl A. Howell
Defendants.
MEMORANDUM OPINION
Plaintiff Charnita Proctor initiated this lawsuit against nine defendant banking and
debt-collection institutions on July 9, 2020, alleging that each defendant reported inaccurate and
derogatory information related to her credit card account and failed to correct their errors after
receiving notice of plaintiff’s disputes from the credit reporting agencies, all in violation of the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., and the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. See generally 1st Am. Compl., ECF No.
35.1 Defendant First Premier Corp. (“FPC”) responds that these claims are governed by an
arbitration agreement and therefore moves to compel arbitration and either dismiss plaintiff’s
claims or stay the instant lawsuit pending arbitration. FPC’s Mot. Compel Arbitration (“FPC’s
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This plaintiff has initiated at least one lawsuit per year in this District over the last four years. In 2017,
plaintiff filed in Superior Court a lawsuit alleging violations of the FCRA, Maryland Consumer Debt Collection Act,
Maryland Consumer Protection Act, as well as negligence, defamation, and breach of contract, against a collection
of credit card and insurance companies, which lawsuit was eventually settled. See Proctor v. Capital One, N.A. et
al., No. 17-cv-1966 (CKK). In 2018, plaintiff brought an FDCPA lawsuit against a debt-collection company in
Superior Court that was removed to this Court and subsequently voluntarily dismissed. See Proctor v. Portfolio
Recovery Associates, LLC, No. 18-cv-2079 (EGS). The same year, she also filed an FCRA lawsuit in Superior
Court, again removed to this Court, that was eventually dismissed for failure to prosecute, pursuant to Federal Rule
of Civil Procedure 41(b) and Local Civil Rule 83.23. See Proctor v. Experian Information Solutions, Inc., et al., No.
18-cv-1404 (BAH). Finally, in 2019, she filed yet another FCRA lawsuit, which was again removed to this Court
and eventually voluntarily dismissed. See Proctor v. Capital One Auto Finance, Inc et al., No. 19-cv-3240 (CKK).
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Mot.”) at 1, ECF No. 20; FPC’s Mem. Supp. Mot. Compel Arbitration (“FPC’s Mem.”) at 1–2,
ECF No. 20.2 Plaintiff objects that she never assented to an arbitration agreement and
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This motion is only one of five pending motions, with the remaining motions stemming from plaintiff’s
difficulty in naming the correct defendants, and all of which may be resolved here. First, plaintiff originally named
Encore Capital Group, Inc. (“ECG”) as a defendant, see Compl., ECF No. 1-1, and ECG responded with a motion to
dismiss on the grounds that the complaint stated no specific facts to support FCRA or FDCPA claims against it, see
Encore Capital Group, Inc.’s Motion to Dismiss Pursuant to Fed R. Civ. P. 12(B)(6) at 1, ECF No. 24. Indeed,
when plaintiff filed her First Amended Complaint, and proposed Second Amended Complaint, ECG was dropped as
a defendant. See generally 1st Am. Compl.; Proposed Second Am. Compl., ECF No. 52-1. An amended complaint
“supersedes the [original complaint] and remains in effect throughout the action,” such that “the original [complaint]
no longer performs any function in the case.” 6 Arthur R. Miller et al., Federal Practice and Procedure § 1476 (3d
ed. 2020). “[T]he amended complaint controls which persons are defendants in a lawsuit,” L.S. ex rel. Hernandez v.
Peterson, 982 F.3d 1323, 1328 (11th Cir. 2020), and “parties voluntarily dropped from a[] . . . complaint do not
remain in the case,” Palakovic v. Wetzel, 854 F.3d 209, 221 n.13 (3d Cir. 2017). By amending the complaint to
eliminate ECG as a defendant, therefore, plaintiff in essence seeks to voluntarily dismiss the lawsuit against ECG.
See, e.g., Courser v. Allard, No. 1:16-CV-1108, 2016 WL 10592322, at *1 (W.D. Mich. Dec. 19, 2016) (treating
amended complaint dropping defendant as voluntary dismissal as to that defendant); Townsend v. Autozone Stores,
Inc., No. 4:16-cv-04036, 2016 WL 6573983, at *2 (W.D. Ark. Nov. 4, 2016) (same); Cooper v. City of Westerville,
No. 2:13-cv-427, 2014 WL 617650, at *6 (S.D. Ohio Feb. 18, 2014) (same); see also Pedrina v. Chun, 978 F.2d
608, 610 (9th Cir. 1993). A “plaintiff may dismiss an action without a court order” only “before the opposing party
serves either an answer or a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A). Here, because plaintiff
did not amend her complaint until after ECG filed its motion to dismiss, dismissal requires a court order, see Fed. R.
Civ. P. 41(a)(2), and plaintiff’s First Amended Complaint will therefore be construed as a request for voluntary
dismissal of the case against ECG by court order, pursuant to Federal Rule of Civil Procedure 41(a)(2), see
Townsend, 2016 WL 6573983, at *2 (“An amendment pursuant to Rule 15 that eliminates (or proposes to eliminate)
all causes of action against a particular defendant is the same as a motion to dismiss under Rule 41(a)(2) as to that
defendant.” (quoting Dee-K Enters., Inc. v. Heveafil Sdn. Bhd., 177 F.R.D. 351, 355 (E.D. Va. 1998))). Given that
ECG also seeks to have the lawsuit against it dismissed, plaintiff’s request for voluntary dismissal as to ECG is
granted. Since plaintiff’s lawsuit against ECG has been voluntarily dismissed, ECG’s motion to dismiss the
complaint is denied as moot.
Second, on October 14, 2020, plaintiff filed a Motion for Order of Default, ECF No. 31, against defendant
First Savings Bank (“FSB”), which had not yet answered or otherwise responded to plaintiff’s Complaint. On
December 17, 2020, FSB responded, explaining that it was not in the business of issuing credit cards and that
plaintiff must have mistakenly named FSB as a defendant in lieu of another bank with the same name, and that,
though these facts had been brought to plaintiff’s counsel’s attention, plaintiff’s counsel never responded or
withdrew the motion for entry of default. FSB’s Opp’n Pl.’s Mot. Default J. at 1–2, ECF No. 49. Third, on
December 30, 2020, FSB filed a motion to dismiss the First Amended Complaint on the grounds that plaintiff had
mistakenly named the wrong defendant. FSB’s Mot. Dismiss at 1, ECF No. 51. Fourth, in response, plaintiff moved
to file a Second Amended Complaint, which would remove FSB as defendant and replace it with First Savings Bank
d/b/a First Savings Credit Card. See Motion for Leave to Amend the Complaint, ECF No. 52. Plaintiff failed,
however, to confer with defendants, as required by Local Civil Rule 7(m), prompting a direction to plaintiff to
conduct the requisite conferral process belatedly and report back to the Court. See Minute Order (Jan. 11, 2021). On
January 13, 2021, plaintiff submitted the required supplement to her motion to file a Second Amended Complaint,
indicating that no defendant opposed the motion. See Plaintiff’s Suppl. Mot. Leave to Amend ¶¶ 1–9, ECF No. 54.
Plaintiff’s unopposed motion to file a Second Amended Complaint is granted, and, for the reasons already
explained, the Second Amended Complaint will be construed as a request for voluntary dismissal of the case against
ECG by court order, pursuant to Federal Rule of Civil Procedure 41(a)(2). Given that FSB likewise seeks to have
the case against it dismissed, plaintiff’s request for voluntary dismissal as to FSB is granted. Since plaintiff’s
lawsuit against FSB has been voluntarily dismissed, both FSB’s motion to dismiss and plaintiff’s motion for entry of
default against FSB are denied as moot.
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specifically argues that FPC has failed to demonstrate that it sent her the credit card agreement
containing the putative arbitration provision. Pl.’s Opp’n FPC’s Mot. Compel Arbitration (“Pl.’s
Opp’n”) at 3–4, ECF No. 46. For the reasons described below, FPC’s motion is denied.
I. BACKGROUND
Plaintiff’s claims against the defendants are briefly discussed, followed by the factual
background to FPC’s pending motion to compel arbitration, which facts are largely set out in
FPC’s supporting declaration by a long-time employee, whose job title and specific position
remain a mystery, but whose job responsibilities apparently “include the preparation of affidavits
in connection with litigation involving First Premier,” see FPC’s Mot., Attach. A, Decl. of Julie
Gibson (“Gibson Decl.”) ¶ 3, ECF No. 20-1.
A. Plaintiff’s Claims Against FPC and Other Defendants
Plaintiff has credit card accounts with defendants FPC, Kohl’s, CitiGroup, Credit One
Bank, N.A., Merrick Bank, First Savings Bank, First National Bank, TD Bank, and Credit One
Bank. See 1st Am. Compl. ¶¶ 12–18. She alleges that each defendant bank, plus defendant
Midland Credit Management, Inc., which does not issue credit cards but owns a portion of
plaintiff’s credit card debt that she incurred from another credit card issuer, see id. ¶¶ 9, 19,
reported inaccurate or incomplete information to the credit reporting agency Equifax. Id. ¶¶ 11–
19. As pertinent here, plaintiff claims that, at some unspecified time, FPC incorrectly reported to
Equifax that she had paid less than the full balance she owed on her credit card account, even
though in fact she had paid the amount owed or more than the amount owed. Id. ¶ 12. Despite
her disputing FPC’s reporting to Equifax, plaintiff claims that FPC “did not conduct a reasonable
investigation of her dispute and continued reporting the debt inaccurately.” Id. She alleges
similar misconduct on the part of each of the other defendants—again at unspecified times—
namely that each inaccurately or misleadingly reported her debts to Equifax, by either misstating
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her account balance, reporting debts that she was not legally obligated to pay, or failing to report
that she had disputed the amount owed. See id. at ¶¶ 13–19. In Count One of her Second
Amended Complaint, plaintiff alleges that defendant banks have no standardized procedures to
investigate a disputed debt, and failed to conduct a reasonable investigation into her disputes of
her alleged debts, modify disputed reports, report that plaintiff disputed certain debts, and report
mitigating factors concerning the reported debts, all in violation of 15 U.S.C. § 1581s-2(b). Id.
¶¶ 23–32. Count Two alleges that defendant debt-collection institution Midland Credit
Management, Inc. reported false information about plaintiff to Equifax and failed to indicate that
reported information was disputed. Id. ¶¶ 38–41. She seeks compensatory, statutory, and
punitive damages, as well as attorney’s fees. Id. ¶¶ 36, 41.
Plaintiff filed the instant lawsuit in D.C. Superior Court on July 9, 2020, and defendants
removed to federal district court on August 7, 2020. Notice of Removal, ECF No. 1.
B. The Arbitration Agreement Between Plaintiff and FPC
FPC contends that plaintiff’s lawsuit should be stayed or dismissed and plaintiff should
be ordered to arbitrate her claims because her credit card account is governed by a credit card
agreement containing an arbitration provision covering her FCRA claims. FPC’s Mem. at 2.
The credit card agreement to which FPC says plaintiff is a party includes an arbitration
provision, which provides that “[a]ny Claim arising out of or relating to this Contract, or the
breach of this Contract or your Credit Account, shall be resolved and settled exclusively and
finally by binding arbitration, in accordance with this Provision.” Gibson Decl. Ex. 1, Credit
Card Agreement (“Agreement”), at 1, ECF No. 20-2. The provision defines “Claim” as “any
claim, dispute or controversy by either you or [FPC], arising out of or relating in any way to this
Contract, this Provision (including claims regarding the applicability, enforceability or validity
of this Provision), your Credit Account, any transaction on your Credit Account and our
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relationship.” Id. The provision provides the means for its acceptance or rejection, stating that
“[t]o exercise your right to opt out [of the arbitration provision] you must provide [FPC] with
written notice no later than 30 days after your Credit Account is first opened.” Id. “If [FPC]
do[es] not receive your written notice within that time frame, your rights to opt out will
terminate, and you agree that the provisions of [the arbitration provision] will apply.” Id.
In support of its argument that plaintiff is bound by this arbitration agreement, FPC
submitted the declaration of an FPC employee, who has worked for FPC and its affiliates for
approximately 29 years and has “personal knowledge of the general business practices of [FPC]
with respect to its credit card accounts.” Gibson Decl. ¶ 3. The declaration states that the
information relayed is “true and correct to the best of [Gibson’s] knowledge, information and
belief” and is “based on [her] personal knowledge or review of First Premier’s records” or “upon
information provided by persons working under [Gibson’s] direction and supervision.” Id. ¶ 2.
According to the declaration, “[b]ased on [Gibson’s] review of the records pertaining to
[plaintiff’s] Account, . . . after Plaintiff opened the Account, in First Premier’s normal course of
business and regular business practices, it directed its vendor, First Data Resources . . . to mail
via First Class U.S. Mail to the address Plaintiff gave First Premier the applicable credit card for
the Account along with the Credit Card Contract and Account Opening Disclosures containing
the terms and conditions governing the Account.” Id. ¶ 6. Attached to the declaration is “an
exemplar Credit Card Agreement containing the terms and conditions governing the Account
that would have been sent to Plaintiff at the same time the credit card was sent to her.” Id. The
declaration explains that “[t]he Credit Card Agreement afforded Plaintiff a thirty-day window to
‘reject’ the arbitration provision contained in the Credit Card Agreement.” Id. ¶ 9. In addition to
this procedure for opting out of the arbitration provision, the credit card agreement specifies that
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“this Contract is effective upon the earlier of (1) the first Purchase made or Cash Advance taken
on your Credit Account, and (2) the expiration of 30 days from the date we issue the Card to you
if you do not provide us written notice of your desire to cancel within 30 days,” Agreement at 1,
without the need for the consumer to sign and return the agreement to FPC. Notably, no
information from the vendor, First Data Resources, tasked by FPC with sending the agreement to
plaintiff, is provided. Instead, the declaration states that “First Premier never received written
rejection notices of the arbitration provision in the Credit Card Agreement[] from Plaintiff.” Id.
¶ 10.
Additionally, the declaration attaches a record of transactions for which plaintiff used her
credit card. See Gibson Decl., Ex. B, Transaction History, ECF No. 20.3. The transaction
history reflects that plaintiff first used the card on June 29, 2011 and continued to use the card
through October 23, 2012. Gibson Decl. ¶ 7; Transaction History at 2–3.
II. LEGAL STANDARD
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., aims to “counteract judicial
hostility to arbitration.” New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019); see also Gilmer
v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (citing Dean Witter Reynolds Inc. v.
Byrd, 470 U.S. 213, 219–20 & n.6 (1985)). The Act reflects “both a liberal federal policy
favoring arbitration and the fundamental principle that arbitration is a matter of contract,” AT&T
Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (internal quotation marks and citation
omitted), and “strongly favors the enforcement of agreements to arbitrate as a means of securing
prompt, economical and adequate solution of controversies,” Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 479–80 (1989) (internal quotation marks omitted), aiming to “place
arbitration agreements upon the same footing as other contracts,” Southland Corp. v. Keating,
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465 U.S. 1, 10 (1984) (noting that the FAA “declare[s] a national policy favoring arbitration”).
Accordingly, “district courts shall direct the parties to proceed to arbitration on issues as to which
an arbitration agreement has been signed,” Dean Witter Reynolds, 470 U.S. at 218 (emphasis in
original) (citing 9 U.S.C. §§ 3–4), and “any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24–25 (1983); see also Pearce v. E.F. Hutton Grp., 828 F.2d 826, 829 (D.C. Cir. 1987).
Section 2 of the FAA provides that written agreements to arbitrate disputes arising out of
transactions involving commerce “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. A party
seeking to enforce an arbitration agreement may petition a district court with jurisdiction “for an
order directing that such arbitration proceed in the manner provided for in such agreement.” Id.§ 4. The validity of an unambiguous arbitration agreement is a question of law for the court that
may be resolved by summary disposition under the summary judgment standard of Federal Rule
of Civil Procedure 56(c). Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865
(D.C. Cir. 2008). A motion to compel arbitration is treated as a request for “summary
disposition of the issue of whether or not there had been a meeting of the minds on the agreement
to arbitrate.” Id. (quoting Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc., Civil Action No.
15-151 (GK), 2006 WL 1793295, at *1 (D.D.C. June 28, 2006)). “[S]ummary judgment is
appropriate only if ‘there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.’” Id. (alteration omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986)).
Under this standard, “the party resisting arbitration bears the burden of proving that the
claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.
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79, 91 (2000); see also Gilmer, 500 U.S. at 26. Accordingly, “[t]he party opposing arbitration
must identify a triable issue of fact concerning the existence of the agreement in order to obtain a
trial on the merits of the contract.” Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002).
As with summary judgment proceedings, “[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255; see also
Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980) (“The district
court, when considering a motion to compel arbitration . . . , should give to the opposing party
the benefit of all reasonable doubts and inferences that may arise.”).
In resolving a motion to compel arbitration, the focus is on the arbitrability of the dispute
rather than the dispute itself, Aliron Int’l, 531 F.3d at 865, and thus “a court may not weigh the
merits of a grievance when determining whether to compel arbitration,” Trans World Airlines,
Inc. v. Air Line Pilots Ass’n, 172 F.3d 921, 1998 WL 720712, at *1 (D.C. Cir. 1998) (Table); see
also Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019) (concluding
that when parties have agreed to arbitrate, courts have “no business weighing the merits of the
grievance” (quoting AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649–50 (1986))).
The inquiry is instead limited to whether the parties have agreed to arbitrate the matters at issue.
See Aliron Int’l, 531 F.3d at 865.
III. DISCUSSION
“[A]rbitration is a matter of contract, and courts must enforce arbitration contracts
according to their terms.” Henry Schein, Inc., 139 S. Ct. at 529 (citing Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63, 67 (2010)). Thus, the Supreme Court has directed that “the first task of a
court asked to compel arbitration of a dispute is to determine whether the parties agreed to
arbitrate that dispute.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
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626 (1985); see also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297 (2010) (“[A]
court may order arbitration of a particular dispute only where the court is satisfied that the parties
agreed to arbitrate that dispute.” (emphasis omitted)); United Steelworkers of Am. v. Warrior &
Gulf Nav. Co., 363 U.S. 574, 582 (1960) (“[A]rbitration is a matter of contract and a party cannot
be required to submit to arbitration any dispute which he has not agreed so to submit.”). “When
deciding whether the parties agreed to arbitrate a certain matter, courts generally should apply
ordinary state-law principles that govern the formation of contracts.” Aliron Int’l, 531 F.3d at
865 (alterations omitted) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995));
see also Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630–31 (2009).
FPC seeks to compel arbitration of the plaintiff’s claims based on the Arbitration
Agreement supposedly entered into by plaintiff and FPC. See FPC’s Mem. at 1. Plaintiff does
not suggest that her claims would fall outside the scope of the broad arbitration provision, but
rather disputes that a contract exists at all between her and FPC. Specifically, she contests that
she ever received the credit card agreement and posits that, consequently, she could not have
assented to it and is not bound by its arbitration provision. See Pl.’s Opp’n at 3–5. Whether a
contract exists between plaintiff and FPC, and whether plaintiff must therefore arbitrate her
claims against FPC, depends on the sufficiency of the Gibson Declaration, which, along with its
attached exhibits, is the only evidence FPC has submitted that plaintiff received the contract and
agreed to its terms. The law that governs the formation of a contract between plaintiff and FPC
is discussed first, followed by discussion of the sufficiency of the Gibson Declaration to prove
that plaintiff received the credit card agreement and assented to its terms.
A. Choice of Law
At the outset, the parties disagree over which jurisdiction’s law governs the question of
the formation of a contract between plaintiff and FPC, with the latter arguing that South Dakota
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law applies, both because this defendant is incorporated and has its principal place of business in
South Dakota and because the credit card agreement specifies that its interpretation is governed
by South Dakota law. See FPC’s Mem. at 4–5; Agreement at 1. Under South Dakota law, “[t]he
use of an accepted credit card or the issuance of a credit card agreement and the expiration of
thirty days from the date of issuance without written notice from a card holder to cancel the
account creates a binding contract between the card holder and the card issuer with reference to
any accepted credit card.” S.D. Codified Laws § 54-11-9. This means that, if plaintiff received
the credit card agreement, her use of her credit card would constitute acceptance of the
agreement under South Dakota law.
Plaintiff merely assumes, without argument, that District of Columbia law applies. See
Pl.’s Opp’n at 3. Under District of Columbia law, “an offeror is entitled to prescribe an
exclusive method of acceptance,” Vaulx v. Cumis Ins. Soc’y, Inc., 407 A.2d 262, 264 (D.C.
1979); see also Malone v. Saxony Coop. Apartments, Inc., 763 A.2d 725, 729 (D.C. 2000),
including with specified conduct, see, e.g., Malone, 763 A.2d at 729 (holding that purchaser’s
tender of earnest money constituted assent to contract terms), such as plaintiff’s use of her credit
card or her failure to specifically reject terms, see Agreement at 1 (providing that credit card user
assents to credit card agreement unless she provides, within 30 days, written notice of
cancellation of account); id. (providing that credit card user agrees to the arbitration provision of
the credit card agreement unless she provides, within 30 days, written notice of rejection).
Whether South Dakota or District of Columbia law applies need not be resolved, because
the result is the same: if plaintiff received the credit card agreement, then her subsequent use of
the card would constitute acceptance of the agreement’s terms, including its arbitration
provision, and she must arbitrate her claims. See Samenow v. Citicorp Credit Servs., Inc., 253 F.
10Supp. 3d 197, 203–04 (D.D.C. 2017) (noting that use of credit card can constitute assent to
accompanying contract under both South Dakota and District of Columbia law). In other words,
regardless of which law applies, whether plaintiff must arbitrate her claims against FPC turns on
whether she received the credit card agreement, which in turn depends on the sufficiency of the
Gibson declaration for that purpose. That issue is addressed next.
B. The Gibson Declaration
“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4). Rule 56(c)’s
“requirement of personal knowledge by the affiant is unequivocal, and cannot be circumvented,”
Harris v. Gonzales, 488 F.3d 442, 446 (D.C. Cir. 2007) (quoting Londrigan v. FBI, 670 F.2d
1164, 1174 (D.C. Cir. 1981)), and “[a]n affidavit based merely on information and belief is
unacceptable,” Londrigan, 670 F.2d at 1174; see also Harris, 488 F.3d at 446 (“[W]e have
expressly held that affidavits based upon belief are inadequate to support a motion for summary
judgment.”).
Plaintiff argues that FPC is not entitled to summary judgment on the question of contract
formation, because the only evidence presented that plaintiff ever received the credit card
agreement is not admissible under Federal Rule of Civil Procedure 56. See Pl.’s Opp’n at 6.
Although framed as an objection to the Gibson Declaration’s admissibility, see id., in substance
plaintiff argues that the declaration is not sufficient to prove that she was mailed the credit card
agreement. The declaration is admissible because it is based on personal knowledge, including
Gibson’s review of FPC’s business records, see Gibson Decl. ¶ 2, and the fact that it states it is
based on the “best of [Gibson’s] knowledge, information, and belief,” id., rather than solely on
personal knowledge, does not render it inadmissible. Care is required, however, to determine
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what portions of the Gibson Declaration are based on personal knowledge and so may be
properly considered and what portions, if any, are not so based and must therefore be
disregarded. See Harris, 488 F.3d at 446 (holding insufficient an affidavit that states it is based
upon “the best of [affiant’s] knowledge and belief” when affidavit’s statements do not clearly
demonstrate that affiant has personal knowledge); Elzeneiny v. Dist. of Columbia, 125 F. Supp.
3d 18, 30 (D.D.C. 2015) (“tread[ing] carefully in relying on” declarations because they “state
that they are made on ‘knowledge, information and belief’” rather than solely on personal
knowledge, and “accept[ing] only those statements in the declarations that clearly indicate
personal knowledge . . . or are supported by adequate documentation” (citation omitted)).
The fact that the Gibson Declaration is generally admissible, however, does not mean it
provides sufficient evidence, based on the declarant’s personal knowledge, to establish that the
credit card agreement was mailed to plaintiff. The declaration states, on the basis of the
declarant’s review of FPC’s business records, that FPC “directed its vendor, First Data
Resources . . . , to mail via First Class U.S. Mail to the address Plaintiff gave First Premier the
applicable credit card for the Account along with the Credit Card Contract.” Gibson Decl. ¶ 6.
In other words, the declarant has personal knowledge only that FPC directed its third-party
vendor to mail the credit card and credit card agreement to plaintiff, but not that the credit card
agreement was actually mailed. See Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325,
1331 (11th Cir. 2016) (declining to order plaintiff to arbitrate claims because defendant’s
declarant “ha[d] no personal knowledge that a Welcome Kit [including putative arbitration
agreement] in fact was sent to” plaintiff); Webster v. ACB Receivables Mgmt., 15 F. Supp. 3d
619, 631–32 (D. Md. 2014) (disregarding declaration stating that third-party vendor forwarded
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letter because it did “not establish the requisite personal knowledge of the mailing,” absent an
affidavit from the vendor itself or an “electronic record to support that the letter was ever sent”).
To establish that FPC’s vendor mailed plaintiff the credit card agreement, FPC need not
have provided a declaration from the person that actually put the agreement in the mail. See,
e.g., Kernaghan v. Forster & Garbus, LLP, No. 18-CV-0204 (SJF)(AKT), 2019 WL 981640, at
*4 (E.D.N.Y. Feb. 25, 2019) (rejecting argument that declaration could not establish that credit
card agreement had been mailed unless declarant mailed agreement himself and noting that
“[t]here is no requirement that the affiant either personally perform or oversee the mailing”). For
instance, FPC could have provided a statement based on sufficient personal knowledge
concerning its vendor’s ordinary business practices in carrying out directions from FPC in
mailing credit card materials, see, e.g., Marsh v. First USA Bank, N.A., 103 F. Supp. 2d 909, 918
(N.D. Tex. 2000) (“Proof of mailing may be accomplished by presenting circumstantial
evidence, including evidence of customary mailing practices used in the sender’s business.”
(citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983))); Bronia,
Inc. v. Ho, 873 F. Supp. 854, 859 (S.D.N.Y. 1995) (“[A] party must first produce evidence of
mailing, either by offering the testimony of the person who actually mailed the letter or through
indirect evidence such as proof that the mail was sent through office procedures followed in the
regular course of business.”); Beattie v. Credit One Bank, No. 5:15-CV-1315 (LEK/TWD), 2016
WL 4203511, at *3 (N.D.N.Y. Aug. 9, 2016) (“Sworn affidavits of corporate officers are
sufficient proof of mailing because customary mailing practices, even if proven by circumstantial
evidence, can serve to demonstrate that the agreement was actually mailed.”), or a business
record demonstrating that the credit card agreement had been mailed, see, e.g., Kernaghan, 2019
WL 981640, at *3 (holding that declaration describing defendant’s “general mailing procedures,”
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including mailing credit card and credit card agreement together to cardholder, and stating that
defendant created contemporaneous record documenting mailing, was sufficient to establish
mailing).
Here, given that the Gibson Declaration includes a statement, with a supporting business
record, that plaintiff used the card, establishing that she must have received it, a statement based
on personal knowledge that FPC’s vendor’s business practice is to mail a credit card agreement
in the same mailing as the credit card would have established that plaintiff was sent the
agreement. Cf. Saroza v. Client Servs., Inc., Civil Action No. 17-3429, 2019 WL 5677968, at *3
(D.N.J. Aug. 22, 2019) (holding that declaration “mak[ing] clear that it is [credit card issuer’s]
regular practice to mail credit cards and card agreements to customers in the same mailing, and
that [credit card issuer] did so here,” was sufficient to establish mailing); Turfgrass Grp. v. Ga.
Cold Storage Co., 816 S.E.2d 716, 722 n.5 (Ga. Ct. App. 2018) (noting that affidavit “showing a
standard practice of mailing a credit card agreement and a newly issued credit card in a single
envelope” was sufficient to prove mailing (emphasis in original)). No such statement is provided
here and, absent such evidence, a key link is missing from the logical chain that would permit the
inference that plaintiff was mailed the credit card agreement. See Zambrana v. Pressler &
Pressler, LLP, No. 16-CV-2907 (VEC), 2016 WL 7046820, at *4 (S.D.N.Y. Dec. 2, 2016)
(holding that “[d]efendants have no evidence that the [credit card] Agreement was sent to
Plaintiff” because declarant “does not purport to have first-hand knowledge of whether
the . . . Agreement was sent to Plaintiff and does not describe a standard office mailing
procedure”).
Underscoring this point is the fact that the declaration provides only “an exemplar Credit
Card Agreement containing the terms and conditions governing the Account that would have
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been sent to Plaintiff at the same time the credit card was sent to her.” Gibson Decl. ¶ 6. This
statement that the credit card agreement “would have” been sent to plaintiff when she received
her credit card highlights that this declaration contains no information based on sufficient
personal knowledge that an agreement was in fact mailed to plaintiff. Cf. Bazemore, 827 F.3d at
1328 (11th Cir. 2016) (holding insufficient declaration that exemplar credit card agreement
“would have been sent” to plaintiff because it “never stated that . . . a Cardholder Agreement
actually was sent to” plaintiff (emphasis in original) (internal quotation marks omitted)).
FPC’s suggestion that plaintiff’s use of the credit card mailed to her “evidences [that] she
received the Credit Card Agreement,” Gibson Decl. ¶ 7; see also FPC’s Reply Supp. Mot.
Compel at 5, ECF No. 48 (“[T]he Gibson Declaration . . . proves that Plaintiff received the
envelope containing both the plastic credit card and the Credit Card Agreement because Plaintiff
used the card.” (emphasis in original)), does not fill the gap in evidence. As explained, the
Gibson Declaration reflects at most personal knowledge that FPC’s third-party vendor was
directed to mail to plaintiff the credit card and accompanying credit card agreement. To be sure,
that plaintiff used the card proved that she received the card, and thus that the third-party vendor
followed FPC’s instructions to mail her the card. Plaintiff’s use of the card does not prove,
however, that the vendor also followed FPC’s instructions to mail her the credit card agreement,
as it could have mailed her the card without including the agreement.
Thus, considering the Gibson Declaration to the extent that it reflects personal knowledge
and affording plaintiff reasonable inferences, FPC has failed to establish that plaintiff ever
received the credit card agreement, and therefore could have assented to its terms. Absent a
declaration establishing that the credit card agreement was in fact mailed to plaintiff, in
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compliance with the requirements of Rule 56(c), FPC has failed to show that there was an
agreement to arbitrate plaintiff’s claims, and its motion to compel must therefore be denied.
IV. CONCLUSION
For the foregoing reasons, defendant FPC’s motion to compel is denied. An Order
consistent with this Memorandum Opinion will be entered contemporaneously.
Date: January 13, 2021
__________________________
BERYL A. HOWELL
Chief Judge
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