United States District Court, D. Nevada
ORDER ON MULTIPLE MOTIONS [ECF NOS. 28, 29, 30, 38,
P. GORDON UNITED STATES DISTRICT JUDGE.
motions are pending. The parties are familiar with the facts
of this case, so I provide only a brief summary here.
Francine Edwards brings a putative class action against
Conn’s, Inc. and Conn. Appliances, Inc. (collectively,
Conn. Appliances) for alleged violations of the Telephone
Consumer Protection Act (TCPA). She contends that Conn.
Appliances called her cellular phone on numerous occasions
without her consent seeking payment for a laptop computer
that she rented from AcceptanceNOW in one of Conn.
Appliances’ stores. ECF No. 1. Conn. Appliances moves
to dismiss, arguing 1) the TCPA is an unconstitutional
content-based restriction on speech, and 2) Edwards has not
plausibly alleged Conn. Appliances called her to collect a
debt given that the debt is owed to AcceptanceNOW, not Conn.
Appliances. ECF No. 28.
Appliances also moves to dismiss the non-Nevada putative
class members’ claims for lack of personal
jurisdiction. ECF No. 29. It moves to strike Edwards’
proposed class definition as an improper failsafe that would
overburden discovery proceedings, as well as paragraphs 76
through 81 of her complaint as irrelevant and prejudicial.
ECF No. 30. And it moves to stay the case pending the outcome
of the Ninth Circuit decision in Gallion v. Charter
Communications, arguing the decision will determine the
TCPA’s constitutionality. ECF No. 38.
Edwards moved to amend her complaint. ECF No. 56. The United
States may intervene in the case, depending on my decision
regarding the motion to amend. ECF No. 64. AcceptanceNOW
(through RAC Acceptance East, LLC) moved to intervene in the
case, which I granted as unopposed. ECF Nos. 67; 70.
AcceptanceNOW then moved to compel arbitration, arguing it
has a valid arbitration agreement with Edwards that covers
the claims at issue. ECF No. 73.
Motion to Stay
Appliances moved to stay this case pending the outcome of the
Ninth Circuit decision in Gallion v. Charter
Communications. I deny Conn. Appliances’ motion as
moot. After the briefing was completed, the Ninth Circuit
decided Gallion and held, in an unpublished
decision, that the 2015 amendment to the TCPA, which exempted
calls made to collect “a debt owed to or guaranteed by
the United States, ” is an unconstitutional
content-based speech regulation. Gallion v. United
States, 772 Fed.App’x 604, 605 (9th Cir. 2019)
(quotation and citation omitted). However, the court found
the government debt collection exemption to be severable,
thereby preserving the constitutionality of the remainder of
the TCPA. Id. at 606 (citing Duguid v. Facebook,
Inc., 926 F.3d 1146, 1156-57 (9th Cir. 2019)). Moving
forward, all claims in this case will continue under the
pre-amendment TCPA, which the Ninth Circuit has held to be
content-neutral and consistent with the First Amendment.
See Duguid, 926 F.3d at 1153 (citing prior holdings
that found the TCPA satisfied intermediate scrutiny because
it was narrowly tailored to advance the government’s
interest in residential privacy).
Motion to Compel Arbitration
argues that Edwards’ claims must be resolved through
arbitration because she signed a valid arbitration agreement.
ECF No. 73 at 12-16. It also argues that the delegation
clause in the agreement requires all gateway issues, like
whether her claims are governed by the agreement, to be
decided by an arbitrator. Id. at 7-8. Edwards argues
that she is not asserting any claims against AcceptanceNOW
and that her claims against Conn. Appliances do not arise
from her agreement with AcceptanceNOW. ECF No. 80 at 3.
AcceptanceNOW replies that Edwards’ claims against
Conn. Appliances arise from the lease-purchase agreement she
signed to purchase a laptop. ECF No. 82 at 4-5. Because the
arbitration agreement was signed in connection with her
purchase, it contends that all claims relating to the laptop
must be resolved by the arbitrator. Id.
2 of the Federal Arbitration Act (FAA) “creates a
policy favoring enforcement of agreements to
arbitrate.” Marmet Health Care Ctr., Inc. v.
Brown, 132 S.Ct. 1201, 1203 (2012); 9 U.S.C. § 2.
“A party seeking to compel arbitration has the burden
under the FAA to show (1) the existence of a valid, written
agreement to arbitrate; and, if it exists, (2) that the
agreement to arbitrate encompasses the dispute at
issue.” Ashbey v. Archstone Prop. Mgmt., Inc.,
785 F.3d 1320, 1323 (9th Cir. 2015).
Edwards tried to litigate a claim against AcceptanceNOW
regarding the laptop lease-purchase agreement, she would have
had to arbitrate. But Edwards states she is not asserting a
claim against AcceptanceNOW. I granted AcceptanceNOW’s
motion to intervene because it was unopposed. It is unclear
to me why Edwards did not respond to its motion to intervene.
Regardless, Edwards has now unequivocally stated that she is
not asserting any claims against AcceptanceNOW, so I dismiss
it from this case and deny its motion to compel arbitration
Motion to Amend Complaint
moves to amend her complaint, arguing that the amendment
would clarify her TCPA claims and add more factual detail.
ECF No. 56 at 2. Conn. Appliances opposes, arguing the
proposed amendment was requested in bad faith and amendment