United States District Court, E.D. Tennessee, Chattanooga
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
civil action was removed from the Circuit Court for Hamilton
County, Tennessee, based on diversity jurisdiction [Doc. 1].
Plaintiff David Asa asserts claims of negligence, negligent
infliction of emotional distress, gross negligence, and
violation of the Tennessee Consumer Protection Act
(“TCPA”), Tenn. Code Ann. § 47-18-104,
et seq. These claims arise from events in 2015 -
2017 in which plaintiff's cellular services account with
Verizon Wireless was hacked by an unknown person.
Communications, Inc. is the named defendant. However, Verizon
Communications Inc. has responded to the complaint by
advising that Verizon Communications, Inc. is an inactive
corporation that provided no services to the plaintiff [Doc.
12-1 at ¶ 2]. Verizon Communications Inc. is a holding
company that indirectly wholly owns Cellco Partnership d/b/a
Verizon Wireless [Id. at ¶ 3]. Cellco
Partnership (hereinafter “Verizon Wireless”) is
the business entity that provided wireless service to the
plaintiff [Id. at ¶ 4].
Wireless has moved the Court to compel plaintiff to arbitrate
all of his claims and to dismiss this action pursuant to
Fed.R.Civ.P. 12(b)(1) or 12(b)(6) [Doc. 12]. Verizon Wireless
has filed supporting briefs and exhibits [Docs. 13, 22] and
plaintiff has responded in opposition [Docs. 19, 21]. For the
reasons set forth herein, the defendant's motion [Doc.
12] will be GRANTED.
October 2013, plaintiff entered into contract with Verizon
Wireless for cellular services [Doc. 1-1 at ¶ 8]. On
November 4, 2013, plaintiff assented to a receipt-form
Customer Agreement with Verizon Wireless, which included a
mandatory arbitration provision [Doc. 12-4]. On September 23,
2014, plaintiff executed a receipt-form Customer Agreement
with Verizon Wireless, which also included a mandatory
arbitration provision [Doc. 12-5]. In pertinent part, this
Customer Agreement provided:
I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER AGREEMENT
… WHICH I HAVE HAD THE OPPORTUNITY TO REVIEW. I
UNDERSTAND THAT I AM AGREEING TO … SETTLEMENT OF
DISPUTES BY ARBITRATION AND OTHER MEANS INSTEAD OF JURY
TRIALS, AND OTHER IMPORTANT TERMS IN THE CUSTOMER AGREEMENT.
[Id. at pp. 2-3]. On March 15, 2017, plaintiff added
a device and changed services to his account, once again
executing an agreement that included an arbitration provision
full Verizon Wireless Customer Agreement, referenced in each
of the receipt-form agreements signed by plaintiff, includes
the following arbitration provision:
YOU AND VERIZON BOTH AGREE TO RESOLVE DISPUTES ONLY BY
ARBITRATION OR IN SMALL CLAIMS COURT. YOU UNDERSTAND THAT BY
THIS AGREEMENT YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM
IN COURT OR IN FRONT OF A JURY. … THE FEDERAL
ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL
CLAIMS COURT CASES, ANY DISPUTE THAT IN ANY WAY RELATES TO OR
ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS
AND SERVICES YOU RECEIVE FROM U.S. … WILL BE RESOLVED
BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN
ARBITRATION ASSOCIATION (“AAA”) OR BETTER
BUSINESS BUREAU (“BBB”).
[Doc. 12-3 at pp. 5-6].
September 2015, an unidentified party attempted to gain
unauthorized access to plaintiff's Verizon Wireless
account [Doc. 1-1 at ¶ 9]. In March 2016, plaintiff
received notice of an online user account password change
[Id. at ¶ 10]. Plaintiff subsequently learned
that an unidentified party attempted to activate an
unauthorized cellular phone on his Verizon Wireless account
by calling the customer service call center [Id.].
Following the March 2016 incident, Verizon Wireless assigned
plaintiff a password and a password-protected verification
process, by which plaintiff would be required to provide the
assigned password to receive customer support from Verizon
Wireless, including activating a new phone [Id. at
April 15, 2017, an unidentified party accessed
plaintiff's Verizon Wireless account several times to
activate an unauthorized cellular phone [Id. at
¶¶ 12-21]. Plaintiff took steps to thwart this
unauthorized activity to his account by using Verizon's
online support system and by speaking with Verizon's
customer service representatives by phone and in person
[Id.]. Verizon Wireless representatives repeatedly
advised that plaintiff's account had been flagged and
that additional security measures were added to protect his
account [Id.]. Nevertheless, the next day, April 16,
2017, an unauthorized party again activated an unauthorized
cellular phone on plaintiff's Verizon Wireless account
[Id. at ¶ 22].
the times when the unauthorized phone was activated on
plaintiff's account, the hacker was able to use the
unauthorized phone to obtain password resets to
plaintiff's online commercial, personal, and media
accounts [Id. at ¶ 23]. These password resets
allowed the hacker access to plaintiff's Bitcoin account,
from which 7.3 bitcoins were transferred at a present value
of over $32, 000 [Id ...