Gonzalez v. Citigroup, Inc.
Filing
45
ORDER signed by Judge Lawrence K. Karlton on 11/22/2011 ORDERING 28 Motion for Reconsideration is GRANTED; plaintiff Gonzalez' claims against Citibank in the instant action are to be arbitrated consistent with parties' written arbitration agreement. (Waggoner, D)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RAMONA GONZALEZ, an
individual, on behalf of
herself and all others
similarly situated,
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NO. CIV. S-11-0795 LKK/GGH
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Plaintiffs,
v.
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O R D E R
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CITIGROUP, INC.,
Defendant.
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/
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This
is
a
purported
class
action
filed
on
behalf
of
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individuals who have been contacted by Citibank on their cellular
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phones without prior consent in violation of the Telephone Consumer
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Protection Act of 1991 (“TCPA”). Pending before the court is a
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motion by Citibank for reconsideration of this court’s September
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19, 2011 order. Plaintiff opposes the motion. For the reasons
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stated below, defendant’s motion, ECF No. 28 is GRANTED.
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I. Background
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In her complaint, plaintiff Gonzalez1 alleged that she has
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never owned or opened an account with defendant Citibank and had
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never authorized Citibank to contact her on her cellular telephone.
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The complaint alleged that defendant called plaintiff’s cell phone
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to collect on an allegedly delinquent Citibank debt numerous times
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over a several month period. The telephone contact was made via an
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automatic dialing system, and the calls used an artificial pre-
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recorded device. The calls did not have an emergency purpose.
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In June 2011, defendant filed a motion to compel arbitration.
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In
the
motion,
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ConocoPhillips branded credit card issued by defendant, and that
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the ConocoPhillips credit card account is subject to a written card
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agreement that contains an arbitration clause. Def.’s Mot. to
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Compel 3. Accompanying the motion was a declaration by Citibank
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manager Jamie Moilanen, asserting that Citibank is the issuer of
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ConocoPhillips credit card accounts, and that those accounts are
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governed by card agreements that contain an arbitration clause. The
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declaration included an attached “representative sample” of the
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card
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allegedly, plaintiff’s account. In an order issued on September 19,
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2011, ECF No. 24, the court declined to compel arbitration without
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further proof of an arbitration agreement covering plaintiff’s
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claim.
agreements
defendant
governing
asserted
that
ConocoPhillips
plaintiff
accounts
had
a
including,
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All references to “plaintiff” refer to plaintiff Ramona
Gonzalez.
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Defendant now seeks reconsideration of the court’s September
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19, 2011 order.2
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II. Standard for a Motion for Reconsideration
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Pursuant to L.R. 230, a party seeking reconsideration of a
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district court’s order must brief the “new or different facts or
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circumstances . . . which did not exist or were not shown upon such
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prior motion, or what other grounds exist for the motion. . . and
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why the facts or circumstances were not shown at the time of the
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prior motion.” Generally speaking, before reconsideration may be
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granted there must be a change in the controlling law or facts, the
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need to correct a clear error, or the need to prevent manifest
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injustice. United States v. Alexander, 106 F.3d 874, 876 (9th Cir.
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1997).
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III. Analysis
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As noted in the July 19, 2011 order, a court determining
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whether to issue an order compelling arbitration may not review the
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merits of the dispute, but must limit its inquiry to whether the
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Federal Arbitration Act (“FAA”) applies, whether there exists a
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valid agreement to arbitrate, and whether the dispute falls within
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the
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Nicaragua v. Standard Fruit Co., 937 F.2d 469, 477-78 (9th Cir.
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1991), cert denied, 503 U.S. 919 (1992). If the answer to these
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questions is affirmative, then the court must order the parties to
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arbitration in accordance with the terms of their agreement. 9
scope
of
the
agreement
to
arbitration.
See
Republic
of
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Defendants have also filed an interlocutory appeal of the
order denying the motion to compel. See ECF No. 30.
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U.S.C. § 4.
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Applying a Rule 56 summary judgment standard to defendant’s
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motion to compel arbitration,3 and giving the party opposing
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arbitration the benefit of all reasonable doubts and inferences,4
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this court concluded that there was a genuine issue of material
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fact as to whether an arbitration agreement between plaintiff and
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defendant applied to plaintiff’s claim. This conclusion was based
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on plaintiff’s assertion, in her complaint, that she never owned
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or opened an account with defendant. While defendant asserted that
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it had mailed to plaintiff a “Notice of Change in Terms” containing
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an arbitration clause, plaintiff stated in a declaration that she
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did not recall ever receiving that Notice. Decl. Gonzales, ECF No.
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23. Defendant failed to extinguish the question of whether their
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was an applicable arbitration agreement because it submitted only
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a “representative sample” of the arbitration agreement that it
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alleged covered plaintiff’s claim. The court noted “defendant has
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not produced any records linking the Card Agreements to an account
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held by plaintiff. In most cases, a party to a contract could
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produce a copy of the actual contract that it is asserting. At the
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very least, defendant should be able to produce something akin to
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a serial number on the Card Agreement provided, and then a record
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See, e.g., Concat LP v. Unilever, PLC, 350
F.Supp.2d 796, 804 (N.D. Cal. 2004); Invista North America,
S.a.r.l. v. Rhodia Polyamide Intermediates S.A.S. 503 F.Supp.2d
195, 200 (D.D.C. 2007).
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Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., Inc.
925 F.2d 1136, 1141 (9th Cir. 1991).
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of plaintiff’s account indicating which Card Agreements were mailed
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to her.” Order, September 19, 2011. ECF No. 24.
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Defendant has now submitted such evidence to the court.
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Accompanying
the
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declaration by Jaime Moilanen, containing exhibits indicating
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that
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Citibank, that plaintiff received mail addressed to her at 4851
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Kokomo Drive in Sacramento and paid bills mailed to that address,
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that a Notice of Change in Terms marked “CONCIT58" was mailed to
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plaintiff on May 2, 2008, and that a Notice of Change in Terms
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marked “OP1A109" was mailed to plaintiff on December 31, 2008.
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September 28, 2011 Moinlanen Decl., ECF No. 28-1. Both of the
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notices contain an arbitration clause covering “any claim,
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dispute, or controversy” between plaintiff and defendant. See
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Exs. 4, 7 of Moilanen Decl.
plaintiff
motion
has
a
for
reconsideration
ConocoPhillips
credit
is
card
a
second
issued
by
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Plaintiffs’ opposition to the Motion for Reconsideration
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does not dispute that there is an arbitration agreement covering
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Ms. Gonzalez’s claim. Instead, plaintiffs assert the motion
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should
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complaint naming an additional plaintiff, Mary Salinas, who
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allegedly
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Plaintiffs argue that “if Defendant cannot produce any agreement
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with Ms. Salinas in its reply, the Court has no grounds on which
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to compel arbitration in this matter, and its decision can be
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justified and upheld on that reason alone.” Pls.’ Opp’n to the
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Motion for Reconsideration, ECF No. 36. Plaintiffs’ position is
be
denied
has
no
because
plaintiffs
relationship
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with
have
filed
Citibank
an
amended
whatsoever.
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unpersuasive. Defendant seeks reconsideration of an order denying
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a motion to compel plaintiff Gonzales to arbitration of her
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claim. Allegations with respect to Mary Salinas’ lack of a
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relationship with Citibank are irrelevant as to whether Ms.
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Gonzales’ claim is governed by an arbitration agreement.
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Plaintiffs’ more meritorious argument is that defendant is
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not entitled to reconsideration because it has not explained why
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the exhibits accompanying the second Moilanen declaration were
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not produced when the original motion to compel was filed. The
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court agrees that the exhibits should have, and could have been
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filed then. Defendant has not offered any explanation for its
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failure to do so.5
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However, the court notes that plaintiff was allowed to file
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a declaration after the hearing on the motion to compel, and
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defendant was not afforded an opportunity to rebut the evidence
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in the declaration. In light of the overwhelming evidence now
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showing that plaintiff Gonzalez’s claims are subject to an
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arbitration agreement, the court now reconsiders its prior order
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in order to prevent manifest injustice. Accordingly, defendant’s
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motion is GRANTED.
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IV. Conclusion
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For the reasons stated herein, the court ORDERS as
follows:
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In response to the court’s concern at the hearing on
defendant’s motion to compel, defendant’s counsel stated “This is
a credit card business. We’re dealing with millions of
customers...” Hearing Transcript 4:14-15.
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[1] Defendant’s Motion for Reconsideration. ECF No.
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28 is GRANTED.
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[2] Plaintiff Gonzalez’ claims against Citibank in
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the instant action are to be arbitrated consistent
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with the parties’ written arbitration agreement.
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IT IS SO ORDERED.
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DATED:
November 22, 2011.
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