United States District Court, S.D. Illinois
ANDREA CAMPBELL, individually and on behalf of all others similarly situated, Plaintiffs,
SI WIRELESS, LLC, and DOES 1-25, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE
SI Wireless's Motion to Dismiss for Improper Venue or, in
the Alternative, to Compel Arbitration (Doc. 10) is pending
before the Court. For the reasons set forth below, the Motion
to Dismiss is denied.
And Procedural Background
November 2014, Andrea Campbell entered into a service
agreement with SI Wireless, LLC (d/b/a MobileNation) to
obtain a telephone line. (Doc. 11-1, pp. 4-8; Doc. 12, p. 2).
The original agreement did not contain an arbitration clause
or class action waiver. (Doc. 11-1, pp. 1-3). The
contract, however, did contain the following provision:
Your service is subject to our business policies, practices,
and procedures, which may need to change without notice.
Unless otherwise prohibited by law, we can also change prices
and any other conditions in this agreement at any time by
sending you notice prior to the billing period in which the
changes would take effect. If you choose to use your service
after we send you the notice of changes, you accept the
changes. However, you can end the affected service, without
any early termination fee, by contacting us within 30 days
after we send you the notice of change.
11-1, p. 2).
Wireless amended its Terms and Services to add a paragraph
entitled “ARBITRATION/WAIVER OF CLASS ACTION” on
August 24, 2015. (Doc. 11-1, pp.2-3). The Arbitration Clause
20. ARBITRATION/WAIVER OF CLASS ACTIONS.
Most customer concerns or disputes can be resolved through
our customer service representatives. However, if either of
us has an issue which cannot be resolved without third party
intervention, you and we both agree to submit to binding
arbitration before the American Arbitration Association. This
means that all disputes arising from or relating in
any way to your Services, whether under these Terms &
Conditions or not, will be resolved through
arbitration, not in court or through judge or jury.
Moreover, to the fullest extent allowed by law both of us
agree to waive any rights to pursue a claim arising from or
relating to these Terms & Conditions or the Services as a
class action; that is, you or we will not join a claim with
the claim of any other person or entity or pursue a claim on
behalf of any other person or entity. The arbitration shall
take place in McCracken County, Kentucky or Madison County,
Tennessee, at your option. The waivers in this section
continue in force and effect after the termination of this
agreement. Only actions relating to failure to timely
pay billed charges, such as service charges and related fees
and taxes (collection claims), may be brought in a
court; provided that all such actions will be
brought in small claims or another court with jurisdiction;
and further provided that if any counterclaims or claims
unrelated to collection are asserted in the action by any
party then the case shall be transferred to arbitration.
11-1, pp. 2-3) (emphasis added).
notify customers of this modification to the contract, SI
Wireless purportedly sent the following text message on
either August 24 or August 25, 2015:
SMS: MobileNation Updated Terms and Policies - Please review
by visiting http://mymobilenation.com/terms/ Thanks for being
a MobileNation member.
11-1, p. 2).
Memorandum in Opposition, Campbell asserts the link provided
in the text message did not actually connect to the
arbitration clause language. (Doc. 12, p. 6). Rather, it
linked to a page titled “Policies & Terms”
that contained two paragraphs relating to “Network
Management” and “Surcharges.” (Doc. 12, p.
6; Doc. 12-1, p. 2).Further, Ms. Campbell states she does not
recall ever seeing this text message or the arbitration
clause language. (Doc. 12, p. 3).
nine months later, Campbell entered into a second contract
with SI Wireless for a different phone line. (Doc. 11-1, p.
3). Nothing in the second contract appears to refer to the
prior contract or incorporate the prior phone line into the
new contract. (Doc. 11-1, pp. ...