United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, UNITED STATES DISTRICT JUDGE
Sirius XM Radio, Inc. has filed a Motion to Stay Proceedings
and Compel Arbitration (d/e 25). Defendant contends that pro
se Plaintiff William Herman Viehweg's defamation claims
are subject to arbitration pursuant to the Customer Agreement
that it entered into with Plaintiff. Because Plaintiff's
defamation claims are not subject to arbitration,
Defendant's Motion is DENIED.
2017, Plaintiff, a resident of Macoupin County, Illinois,
filed a Complaint against Defendant Sirius XM Radio, Inc., a
company that provides proprietary radio content over the
internet using satellites. In November 2017, Plaintiff filed
an Amended Complaint pleading two counts of defamation
against Defendant. See Pl.'s Stipulation (d/e
21) (stating that Plaintiff's Amended Complaint only
pleads two counts of defamation).
Amended Complaint and documents submitted by the parties in
response to Defendant's motion provide the following
October 8, 2015, Plaintiff purchased a new car and received a
free 90-day trial subscription to Sirius XM Radio. On
December 28, 2015, before his trial subscription ended on
January 8, 2016, Plaintiff telephoned Defendant and agreed to
purchase five months of service. During that telephone call,
the Sirius XM customer care agent asked Plaintiff the
Your customer agreement can be found on our website at
siriusxm.com or you can request that at any time by phone. If
there is an email address on your account, a confirmation of
this transaction will be sent to that email address within
five days. Do you accept these terms?
Plaintiff responded, “Yes.” Declaration of Jeanne
Hutchins, Exhibit A (d/e 25-2); see also Customer
Agreement (d/e 25-1, p. 3 of 19) (advising the customer that,
by using the site or the service, he agrees to be legally
bound by the Agreement; if he does not accept the terms, he
should notify the company immediately and the subscription
will be cancelled; and if the subscription is not cancelled
within three business days of the start of the plan, the
customer agrees to the Agreement).
between March 2016 and June 2016, and unbeknownst to
Plaintiff, Defendant improperly merged Plaintiff's
account with the account of another individual with a similar
name, William Harry Viehweg (“Harry”), a distant
relative of Plaintiff's who resides in Madison County,
Illinois. Defendant purportedly left some of Plaintiff's
information on the account but designated Harry's credit
card as the active card.
alleges that, on June 8, 2016, he telephoned Defendant to
extend his subscription for one year. Harry's credit card
next day, Plaintiff discovered his Sirius XM radio receiver
was deactivated. Plaintiff called Defendant and learned that
his vehicle had been removed from the account and replaced
with another vehicle. Defendant ultimately agreed to
reactivate Plaintiff's Sirius XM radio, remove the other
vehicle from the account, and credit the account's credit
card in the amount of $20.
about June 10, 2016, Harry's wife, Bridget Viehweg
(“Bridget”), contacted Defendant about
unauthorized transactions on Harry's credit card.
Defendant allegedly told Bridget that Plaintiff committed
identity theft. Bridget called the Madison County
sheriff's office to report that Plaintiff committed
identity theft. The Madison County sheriff's office
contacted the Mt. Olive police department, who then made
contact with Plaintiff. The Mt. Olive police officer
immediately concluded that the problem was not identity theft
but account management by Defendant and arranged for Bridget
to contact Plaintiff. Bridget spoke to Plaintiff and then
contacted Defendant. Defendant again allegedly told Bridget
that Plaintiff committed identity theft and purportedly
“rewarded her for her acceptance, or silence.”
Am. Compl. ¶ 16. Bridget refuses to accept
Plaintiff's calls, and Defendant subsequently deactivated
Plaintiff's Sirius XM radio service. Defendant refuses to
acknowledge Plaintiff as a subscriber.
alleges that he has suffered injuries, including
embarrassment and injuries to his reputation. He seeks
compensatory damages in excess of $85, 000 and punitive
damages in excess of $85, 000.
Customer Agreement contains a provision entitled
“RESOLVING DISPUTES.” See Declaration of
Julie Manning, Exhibit A, Customer ...