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Turner v. Efinancial, LLC

United States District Court, D. Colorado

September 27, 2018

EFINANCIAL, LLC, Defendant, ALL WEB LEADS, INC., Defendant-Intervenor.



         On September 6, 2018, this Court ordered the Parties to show cause as to why this case should not be stayed until the resolution of pending arbitration between Plaintiff Jessica Turner and Defendant-Intervenor All Web Leads, Inc. (the “Turner-AWL Arbitration”). (Doc. # 58.)[1] All parties timely responded to the Order. (Doc. ## 59, 60, 62.) Defendant Efinancial, LLC and All Web Leads, Inc. (“AWL”) agree that this case should be stayed pending the Turner-AWL Arbitration because, they assert, the resolution of that Arbitration will be dispositive of the instant matter. (Doc. # 59, 60.) Ms. Turner, however, responds that this case should not be stayed because there exists no contract between the Parties, much less an agreement to arbitrate. (Doc. # 62.) Ms. Turner accordingly filed a Motion requesting that this Court stay the Turner-AWL Arbitration and instead allow her present claims to proceed in this venue. (Doc. # 61.) For the following reasons, the Court finds that a stay of this litigation pending the outcome of the Turner-AWL Arbitration is warranted. The Court accordingly denies Plaintiff's Motion to Stay that Arbitration.

         I. BACKGROUND

         At issue in the underlying case is whether Efinancial violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, when it sent Ms. Turner five text messages regarding life insurance between August and November 2017. (Doc. # 1 at ¶ 1.) Ms. Turner contends that these text messages were unsolicited and unwanted. (Id. at ¶ 22, 28.) Efinancial responds that it appropriately obtained Ms. Turner's information and consequently sent her text messages after she visited AWL's website and thereby consented to receive communication from Efinancial.

         As pertinent here, AWL is a corporation that “sells insurance leads to insurance providers.” (Doc. ## 48 at 1; 27 at 2.) “[A]s a part of its business, AWL operates . . . a website for consumers that are looking for insurance quotes.” (Doc. # 27 at 2.) When a consumer visits AWL's website, the consumer provides contact information, “which includes a telephone number, ” and then clicks on a “Get My Quotes” button. (Doc. # 46 at 1.) By clicking on the “Get My Quotes” button, the consumer authorizes “up to eight insurance companies or their agents or partner companies, to contact [the consumer] at the number . . . provided.” (Doc. # 46-1 at 2.) Efinancial is one of the agencies with whom AWL has agreed to share consumer information, provided they consent by clicking on the “Get My Quotes” button. Also by clicking on the “Get My Quotes” button, the consumer agrees to AWL's “Terms and Conditions.” (Id.) Among other things, those terms and conditions contain an Agreement to Arbitrate. (Doc. # 46-3.) It provides that “all disputes or claims that have arisen or may arise . . . relating in any way to or arising out of” the consumers “use of [AWL's] Services . . . shall be resolved exclusively through final and binding arbitration.” (Id.)

         Like Efinancial, AWL contends that Ms. Turner visited AWL's website and clicked on the “Get My Quotes” button, thereby (1) permitting Efinancial to contact her, and (2) agreeing to AWL's Terms and Conditions, including the Agreement to Arbitrate. Accordingly, on May 25, 2018, AWL, who agreed to defend Efinancial against claims like those in this case, filed a demand for arbitration against Plaintiff with the American Arbitration Association (the “Turner-AWL” Arbitration).[2] (Doc. # 46-5.) That arbitration, which addresses the same issues raised in this case, is currently pending.

         Plaintiff denies ever visiting AWL's website and requests that the Turner-AWL Arbitration be stayed so that her claims against Efinancial can proceed in this venue; AWL and Efinancial conversely request for this litigation to be stayed so that the issues can proceed through the Turner-AWL Arbitration. The Court finds that the latter approach is more appropriate at this time.


         The district court has “broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 708 (1997). A federal court may dismiss or stay federal proceedings when a parallel or duplicative proceeding is pending in another forum. Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999). The doctrine likewise applies to parallel or duplicative proceedings pending in arbitration. THI of New Mexico at Las Cruces, LLC v. Fox, 727 F.Supp.2d 1195, 1208 (D.N.M. 2010). Indeed, 9 U.S.C. § 3 provides that the Court “shall” do so “upon being satisfied” that an agreement to arbitrate exists that covers the issues involved in litigation and to which the parties have agreed. Avedon Eng'g, Inc. v. Seatex, 126 F.3d 1279, 1283 (10th Cir. 1997) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-45 (1995)).

         A court may also stay ongoing arbitration in favor of federal litigation. Although no provision of the Federal Arbitration Act or the Federal Rules of Civil Procedure expressly allows this Court to do so, some courts have relied on 9 U.S.C. § 4 as implicitly providing authority for a stay of arbitration proceedings under “appropriate circumstances.” See Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 n. 3 (2d Cir. 1996) (“While § 3 of the FAA gives federal courts the power to stay trials pending arbitration, we note that a number of courts have held that, in appropriate circumstances, § 4 of the FAA may be applied to stay or enjoin arbitration proceedings.”); see also Tai Ping Ins. Co., Ltd. v. M/V Warschau, 731 F.2d 1141, 1144- 46 (5th Cir.1984) (suggesting that an “appropriate circumstance” for a stay may be found if the dispute is not covered by the arbitration agreement.)

         Other courts have stayed arbitration proceedings in reliance on the court's inherent power. See Wells Enterprises, Inc. v. Olympic Ice Cream, 903 F.Supp.2d 740, 751 (N.D. Iowa 2012); see also Landis v. North American Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”).

         Regardless of the framework used to review a motion to stay an arbitration proceeding or a motion to stay litigation pending arbitration, the court has wide discretion in making this decision. See Rogers v. Ameriprise Financial Servs., Inc., No. 07 C 6876, 2008 WL 4826262, at *2 (N.D.Ill. Nov. 4, 2008) (noting that the decision to issue a stay rests within the court's discretion which must be exercised in a manner that is consistent with equity and judicial economy). Moreover, the Federal Arbitration Act “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Pikes Peak Nephrology Assocs., P.C. v. Total Renal Care, Inc., No. CIV.A09CV00928CMAMEH, 2010 WL 1348326, at *5 (D. Colo. Mar. 30, 2010) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).

         Finally, courts “routinely” uphold internet agreements[3] to arbitrate provided the consumer had “reasonable notice, either actual or constructive, of the terms of the putative agreement and . . . manifested asset to those terms.” Vernon cv. Qwest Commc'ns Int'l, Inc., 857 F.Supp.2d 1135, 1149 (D. Colo. 2012.)

         III. ...

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