United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, United States Magistrate Judge
matter is before the Court upon a Motion to Dismiss filed by
Defendant FBCS, Inc. (“FBCS”) (Docket No. 6) and
a “Motion to Compel Arbitration and to Dismiss (or, in
the Alternative, Stay) Plaintiff's Lawsuit” filed
by Defendant Comcast Corporation (“Comcast”)
(Docket No. 9). Along with its Motion, each Defendant has
filed a supporting Memorandum of Law. Docket Nos. 7, 10.
Defendant Comcast has additionally filed the Declaration of
Claudia Salcedo with Exhibits (“Salcedo Dec.”).
Docket No. 10-1.
has not responded to either Motion.
originally filed his Complaint in this action in the Circuit
Court for Davidson County at Nashville, Tennessee.
See Docket No. 1-2. Defendant FBCS subsequently
removed Plaintiff's action to this Court (Docket No. 1),
and Defendant Comcast consented to that removal (Docket No.
1-4). Although Plaintiff's Complaint names FBCS, Inc. as
a Defendant, the allegations of Plaintiff's Complaint
relate solely to Defendant Comcast. See Docket No.
1-2. Specifically, Plaintiff avers that he had been a Comcast
internet customer in good standing, that he moved locations
and changed his services from a Comcast residential account
to a Comcast business class account, and that Comcast never
closed out his residential account, even though the Comcast
business class account representative “promised that he
would.” Id. Plaintiff avers that, unbeknownst
to him, his old residential account continued to stay active
and incurring charges, even though Plaintiff had moved, had
Comcast internet service at the new location, and had
returned the residential equipment from his previous
location. Id. Plaintiff contends that Comcast
reported fraudulently that he owed money and had a delinquent
account, and that, once he was made aware of his supposedly
delinquent account, he notified Comcast both verbally and in
writing that they had fraudulently reported his account as
delinquent. Id. Plaintiff avers that Comcast refused
to take his account out of collections, and maintains that he
has been the subject of repeated written and telephonic
attempts to collect the fraudulent debt. Id.
Plaintiff contends that Comcast representatives claimed that
the business class account representative “was not
authorized to close the account at the previous resident,
” and hung up on him. Id. Plaintiff further
avers that Comcast has refused to provide records showing
that he had returned his residential equipment, and he
maintains that Comcast told him that the accounting of such
transactions are deleted after one year. Id.
Plaintiff seeks an amount of “not less than $500, 000
in actual damages, ” an amount of “not less than
$500, 000 in punitive damages, ” costs and
“reasonable discretionary expenses of litigation,
” as well as “general relief.” Id.
FBCS, Inc.'s Motion to Dismiss
seeks dismissal of Plaintiff's Complaint pursuant to
Fed.R.Civ.P. 12(b)(6) because Plaintiff's Complaint names
them in the caption, but contains no allegations against them
whatsoever. Docket No. 6.
not so stated, it appears that FBCS, Inc., may be a
collections agency, and may be the collections agency to
which Comcast turned over Plaintiff's allegedly
delinquent account for collection. Docket No. 10. Liberally
construing the allegations of Plaintiff's Complaint with
this in mind, the only allegation that could be relevant to
FBCS is that “Defendant has refused to take account out
of collections, has written, called and continued to attempt
to collect these fraudulent debts.” Docket No. 1-2,
¶ 3. Taking these allegations as true, as the Court must
do at this stage in the proceeding, Plaintiff does not allege
that FBCS, when attempting to collect the disputed debt
threatened, harassed, or in any way violated his rights.
is well-settled that “only a complaint that states a
plausible claim for relief survives a motion to
dismiss.” See Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009); Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1965 (2007). Inasmuch as the
Court can liberally construe Plaintiff's allegations
against FBCS, Plaintiff has failed to state a claim against
FBCS upon which relief can be granted. The undersigned
therefore recommends that Defendant FBCS, Inc.'s Motion
to Dismiss be GRANTED, and that FBCS, Inc. be terminated as a
Defendant in this action.
“Motion to Compel Arbitration and to Dismiss (or, in
the Alternative, Stay) Plaintiff's
argues that Plaintiff was admittedly a subscriber of Comcast
services and is therefore bound by Comcast's service
agreement, “which unambiguously provides that Plaintiff
or Comcast may elect to resolve any and all claims relating
to the [sic] Comcast services through
arbitration.” Docket No. 9. Comcast asserts that it has
elected to proceed with arbitration, thereby exercising its
rights under the service agreement. Id. Comcast
therefore asks this Court to compel Plaintiff to participate
in binding arbitration as required by the service agreement
at issue and to dismiss (or alternatively stay) this action
in light of the contractual requirement that claims be
submitted to binding arbitration. Id.
argues that, when Plaintiff signed up for its residential
services in December 2012, Plaintiff was provided with a
written copy of its Agreement for Residential Services
(“Agreement”), which Plaintiff accepted by using
Comcast's services. Id., citing Salcedo
Dec., ¶¶ 3-5, 8. The Agreement contained an
arbitration provision that survives the termination of
Comcast services, which was specifically noted on the first
page of the Agreement. Id., ¶ 6; Ex. B. The
Agreement also contained an “opt out” option,
which allowed Comcast users to opt out of the arbitration
provision without having an adverse effect on his/her
relationship with Comcast. Id. Plaintiff did not opt
out of the arbitration provision. Id., ¶ 7.
notes that, in addition to the opt out option, the Agreement
contained a number of additional consumer-friendly provisions
to ensure that the arbitration was not burdensome “or
otherwise unpalatable for subscribers such as
Plaintiff.” Id. Specifically, the
Agreement's arbitration provision affords subscribers a
convenient arbitral forum, requires Comcast to advance all
arbitral filing fees and all of the arbitrator's costs
and expenses, does not demand confidentiality, and provides
for specific appellate procedures. Id.,
citing Ex. B to Salcedo Dec.
the Federal Arbitration Act (“FAA”), in order to
be enforceable, arbitration agreements must be in writing and
must be part of a “contract evidencing a transaction
involving commerce.” 9 U.S.C. § 2. In the instant
action, Comcast's arbitration provision is in writing and
evidences a transaction in interstate commerce. See