United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge
Robin Breda (“Breda”) brings two claims against
Cellco Partnership d/b/a Verizon Wireless
(“Cellco”) under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq.
(“TCPA”), for violations of the limitations on
making calls using “any automatic telephone dialing
system or artificial or prerecorded voice” to a
cellular telephone service, 47 U.S.C. § 227(b)(1)(A). D.
1. Cellco has moved for summary judgment. D. 58. Cellco
subsequently moved to compel arbitration. D. 71. For the
reasons stated below, the Court DENIES Cellco's motion to
compel arbitration, D. 71, and ALLOWS its motion for summary
judgment, D. 58.
Standard of Review 3
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant
bears the burden of demonstrating the absence of a genuine
issue of material fact. Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a
general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
otherwise noted, the following material facts are
undisputed. Cellco placed calls to Breda's phone
number to discuss a Verizon customer's account status in
error (the “Verizon Calls”). D. 67, ¶ 5.
Cellco had an inaccurate contact phone number for the
account, which caused Cellco to continue to call Breda with
recorded messages about another person's account status.
Id. When Breda received the Verizon Calls, she had
moved her phone service and phone number from Cellco to
Republic Wireless (“Republic”). Id.,
¶ 6. Republic provides telephone service to customers
using technology that “prefers” Voice over
Internet Protocol (“VoIP”) for the transmission
of its customers' calls. Id., ¶ 7. Republic
does not have direct access to telephone numbers itself and,
therefore, “ported” Breda's telephone number
from Cellco to Bandwidth, a third party that provides VoIP
service for Republic's customers. D. 67, ¶¶
8-10. Bandwidth does not provide cellular telephone service
and its customers' phone numbers are not cellular
telephone numbers, but rather “wireline” numbers.
D. 67, ¶¶ 11-12. Breda pays a fixed monthly fee for
her phone service through Republic and was not charged on a
per call basis for the Verizon Calls. Id.,
instituted this action on July 21, 2016. D. 1. The Court has
heard the parties on the then ripe, pending motion for
summary judgment, D. 58, and took the matter under
advisement. D. 80. Since that hearing, Cellco's
motion to compel arbitration, D. 71, has become ripe as Breda
has filed its opposition to same, D. 84. The Court now turns
to both motions.
Motion to Compel Arbitration
reaching the merits of Cellco's motion for summary
judgment, Cellco has moved to compel arbitration and dismiss
this case, staying consideration of any other pending matters
in this case until the Court rules on this motion. D. 71.
relationship with Breda was governed by the Verizon Wireless
Customer Agreement (the “Agreement”). D. 73-1.
Breda contends that the Agreement does not govern the
activity forming the basis of her TCPA claim in this case.
The Agreement defines the terms of Breda's
“service” provided by Verizon. D. 73-1 at 2. The
Agreement defines Breda's service as “allowances
and features, where you can use them . . . and their monthly
and pay-per-use charges.” Id. The Agreement
states that when a phone number is ported to another
provider, Verizon treats such a request “as though you
asked us to cancel your Service for that number.”
Id. at 4. The arbitration clause of the Agreement
states that it applies to “ANY DISPUTE THAT IN ANY WAY
RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY
EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US.”
Id. at 9.
party who is seeking to compel arbitration must demonstrate
‘that a valid agreement to arbitrate exists, that the
movant is entitled to invoke the arbitration clause, that the
other party is bound by that clause, and that the claim
asserted comes within the clause's scope.'”
Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa &
Casino, 640 F.3d 471, 474 (1st Cir. 2011) (quoting
Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638
F.3d 367, 375 (1st Cir. 2011)). “Whether or not a
company is bound to arbitrate . . . is a matter to be
determined by the court.” Litton Fin. Printing Div.
v. N.L.R.B., 501 U.S. 190, 208 (1991) (citing
AT&T Techs., Inc. v. Comm'ns Workers, 475
U.S. 643, 651 (1986)). If the agreement a party seeks to
enforce has expired, there is still a presumption “in
favor of post-expiration arbitration of matters unless
‘negated expressly or by clear implication'”
in the contract. Litton, 501 U.S. at 204 (quoting
Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243,
255 (1977)). The First Circuit has interpreted this exception
to the presumption as a two-pronged inquiry: first, to
“determine if the particular dispute has its real
source in the contract, ” and if that is established,
to “consider whether postexpiration arbitration of the
issue was negated expressly or by clear implication.”
United Parcel Serv., Inc. v. Union De Tronquistas De
P.R., Local 901, 426 F.3d 470, 473 ...