The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is the defendants' Alltel Communications, LLC (Alltel) and Alltel, as successor in interest to Southern Illinois Cellular Corp., d/b/a First Cellular Southern Illinois (First Cellular), (collectively the defendants unless context dictates otherwise) motion to compel individual arbitration or, alternatively, to stay litigation pending the disposition of Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009), cert. granted, AT&T Mobility LLC v. Concepcion, 130 S. Ct. 3322 (2010) (Doc. 11) currently pending before the Supreme Court. The defendants seek to compel arbitration and stay these proceedings pending the resolution of the individual arbitration pursuant to the Federal Arbitration Act (the Act), 9 U.S.C. §§ 1-16. The plaintiff, Christopher Gore, objects to the motion, contending that the arbitration provision the defendants rely upon does not apply to his claims. The plaintiff has also filed a motion for oral argument on the defendants' motion (Doc.17). For the following reasons, the Court DENIES the defendants' motion (Doc. 11) without prejudice. The plaintiff's motion for oral argument (Doc. 17) is DENIED as moot.
Without getting too much into the facts, because they are in dispute and our review of them is unclear,*fn1 a few background facts are necessary to lay the context of this case. In October of 2005, the plaintiff entered into a contract with First Cellular for cell phone service (the First Cellular agreement). According to the plaintiff's affidavit attached to his memorandum in opposition to the defendants' motion to compel (Doc. 16), the plaintiff entered into a twenty-four month contract with First Cellular that expired on or about October 2007. The plaintiff alleged that as part of the agreement he purchased a global system for mobile communications (GSM) phone for $599.99*fn2 that would operate on First Cellular's wireless network. He also alleged that the First Cellular agreement provided an "unlimited talk time" for a monthly rate of between $30 to $50 per month plus taxes and fees.
On May 1, 2006, during the time that the plaintiff's contract with First Cellular was in effect, Alltel acquired First Cellular.*fn3 Accordingly, Alltel began to transition the plaintiff's service from First Cellular to Alltel beginning in October of 2006. On November 3, 2006, Alltel sent the plaintiff its first bill. Page one of the bill welcomed the plaintiff to Alltel and thanked him for choosing Alltel. It also contained the balance due and indicated that his credit card would be charged on November 23, 2006, for the amount due. Page two of the bill contained two headings entitled "General Information" and "Important Messages." In relevant part, the "General Information" section stated, "These services are subject to Alltel's terms and conditions, which are found on the back of your customer service agreement and at www.altell.com. By paying this bill, you acknowledge that you are bound by these terms and conditions."*fn4 The "Important Messages" stated in whole that "[a]additional important information may be included on the last page of your bill." The next six pages of the plaintiff's bill contained information related to the plaintiff's account and the last two pages of his bill contained the "TERMS AND CONDITIONS FOR COMMUNICATION SERVICES." In relevant part, those terms and conditions contained an "Acceptance" provision near the top of the first page and an "ARBITRATION" provision near the bottom of the second page.
The "Acceptance" provision stated the following: "You accept this Agreement when you do any of the following: (a) give us your written or electronic signature, (b) tell us orally or electronically that you accept, or (c) use or attempt to use any of the Equipment or Services. If you have never used the Services before and do not wish to be bound by these Terms and Conditions, do not begin using the Services or Equipment and notify us immediately."*fn5
The "ARBITRATION" provision stated as follows: "ANY DISPUTE ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES AND EQUIPMENT MUST BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION, USING THE WIRELESS INDUSTRY ARBITRATION RULES. INFORMATION REGARDING THIS PROCEDURE MAY BE FOUND AT WWW.ADR.ORG. EACH PARTY WILL BEAR THE COST OF PREPARING AND PROSECUTING ITS CASE. WE WILL REIMBURSE YOU FOR ANY FILING OR HEARING FEES TO THE EXTENT THEY EXCEED WHAT YOUR COURT COSTS WOULD HAVE BEEN IF YOUR CLAIM HAD BEEN RESOLVED IN A STATE COURT HAVING JURISDICTION. THE ARBITRATOR HAS NO POWER OR AUTHORITY TO ALTER OR MODIFY THE AGREEMENT OR THESE TERMS AND CONDITIONS, INCLUDING THE FOREGOING LIMITATION OF LIABILITY SECTION. ALL CLAIMS MUST BE ARBITRATED INDIVIDUALLY, AND THERE WILL BE NO CONSOLIDATION OR CLASS TREATMENT OF ANY CLAIMS. THIS PROVISION IS SUBJECT TO THE FEDERAL ARBITRATION ACT. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO THIS ARBITRATION CLAUSE, YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL."
Based upon the plaintiff paying this bill*fn6 and subsequent bills containing this same language and the plaintiff extending his service with Alltel on numerous occasions, including up until the time the plaintiff filed his complaint, the defendants contend that the plaintiff agreed to arbitrate his claims against Alltel. The plaintiff disputes this, and he filed a complaint in Illinois state court alleging five counts against the defendants on behalf of himself and two sub-classes defined in his complaint, namely: 1) breach of contract for violations of the First Cellular agreement; 2) violations of the Illinois Consumer Fraud and Deceptive Practices Act and the Uniform Deceptive Practices Act; 3) civil conspiracy between the defendants; 4) aiding and abetting; and 5) unjust enrichment/common law restitution. The defendants then removed the plaintiff's claims from state court to this court on the basis of 28 U.S.C. § 1332.
After removing the plaintiff's claims into federal court, the defendants filed their motion to compel individual arbitration or, alternatively to stay litigation pending the resolution of Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. 2009), cert. granted, AT&T Mobility LLC v. Concepcion, 130 S. Ct. 3322 (2010) (Doc. 11). In the defendants' memorandum in support of their motion (Doc. 12), the defendants argue that the plaintiff agreed to arbitrate all of his claims against Alltel on an individual basis and therefore pursuant to the Federal Arbitration Act (FAA), the plaintiff should be compelled to do so. The defendants contend that the FAA governs this case, and that the court must make two inquiries: (1) whether the parties entered into a valid and enforceable agreement to arbitrate, and if so, (2) whether the present claims fall within the scope of that agreement. In support, the defendants argue that the plaintiff has agreed to arbitrate his claims on at least five separate occasions, beginning on November 23, 2006, when the plaintiff paid his bill with Alltel and agreed to the service terms and conditions. With regard to the whether the plaintiff's claims fall within the scope of the arbitration agreement, the defendants contend that the plaintiff's claims clearly fall within the broad scope of the arbitration provision in the service terms and conditions.
The plaintiff responded in his memorandum in opposition to defendants' motion (Doc. 16) by contending that the defendants' motion must be denied because it is based upon an arbitration provision in a subsequent, different wireless service agreement to which First Cellular was not even a party. The plaintiff argues that his first amended complaint arises from breaches of his agreement with First Cellular, which did not contain an arbitration provision, and not from any subsequent Alltel agreement.
The Act "reflects the fundamental principal that arbitration is a matter of contract." Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2776 (2010). "Although it is often said that there is a federal policy in favor of arbitration, federal law places arbitration clauses on equal footing with other contracts, not above them." Janiga v. Questar Capital Corp., 615 F.3d 735, 740 (7th Cir. 2010). "Any 'preference' for arbitration is reserved for the interpretation of the scope of a valid arbitration clause," id., not whether the parties have a valid arbitration clause in the first place.Accordingly, "courts should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute in issue." Granite Rock Co. v. Int'l Bhd. of Teamsters, 130 S. Ct. 2847, 2857-58 (2010) (emphasis in original). "Where a party contests either or both matters, 'the court' must resolve the disagreement." Id. at 2858.
Under § 4 of the Act, a party may petition the Court for an order directing that arbitration proceed in the manner provided for in the arbitration agreement. Of course, the big kicker is whether an arbitration agreement actually exists between the parties, and if it does, the scope of that agreement, i.e., whether the parties have agreed to arbitrate the dispute at issue. Both of those issues are at play in this case.
Section 4 of the Act provides in relevant part that the Court shall act as follows after a petition ...