In Savage v. Citibank N.A., 2015 WL 2214229 (N.D. Cal. 2015), Judge Freeman denied a petition to compel arbitration of a TCPA lawsuit because the lawsuit did not fall within the terms of the arbitration clause.
Defendants contend that Plaintiff’s claims in this lawsuit—premised upon collection activity in connection with a Macy’s card issued by DSNB—fall within the scope of the arbitration provision set forth in the Sears card agreements. Def.’s Mot. 10–11. As to the claims against Citi, Defendants argue that the arbitration provision from the Sears card agreements extends to all claims relating to “our relationship,” meaning the relationship between Plaintiff and the issuer of the Sears cards—Citi. Because Plaintiff’s claims concern unauthorized calls to his cell phone number, and Plaintiff provided the same cell phone number to Citi in connection with his Sears cards, Citi contends that Plaintiff’s claims are based upon their “relationship” and accordingly subject to arbitration. Def.’s Mot. 10; see also Barnette Decl. ¶ 5. Defendants moreover contend that Plaintiff’s claims against FDS and DSNB must be sent to arbitration because Plaintiff has alleged that they are Citi’s agents, and the Sears card agreements provide that a cardholder’s claims against the issuer’s agents is also subject to arbitration. Def.’s Mot. 11. . . . Here, there is no basis for concluding that in accepting the Sears card agreements, Plaintiff consented to arbitrate all claims that could ever arise between him and Citi. Accepting Defendants’ interpretation that the “our relationship” language extends to any interaction between Plaintiff and Citi would mean that one credit card agreement could be used to dictate the parties’ “relationship” ad infinitum, regardless of the subject matter of their future interactions. That is an absurd consequence. For one, in collecting on the Macy’s card account, Citi identifies itself as the servicer on that card. See Decl. of Scott F. Savage, ECF 28 Exh. 1. There is no reason for a consumer in Plaintiff’s position to believe that he had a direct “relationship” with Citi regarding the Macy’s card issued by DSNB when Citi identified itself merely as a servicer of the account. Moreover, there is no evidence that the Macy’s card account and the Sears card accounts are in any way related, other than that they were respectively issued to Plaintiff by DSNB and its alleged parent Citi. Finally, there is no evidence that when Plaintiff entered into an agreement with DSNB regarding the Macy’s card, he was aware or provided notice that such account might one day be serviced by Citi. Similarly, when entering into agreements on the Sears cards, Plaintiff had no notice that Citi might one day call him to collect on a different credit card issued by a different entity. It thus stretches the bounds of reason to interpret the “our relationship” language so broadly to encompass all other interactions with Citi, whether anticipated or not. . . . Plaintiff has clearly limited this lawsuit to allegations regarding telephone calls to collect on his Macy’s card account. To be sure, this might have been a closer question had Plaintiff broadly alleged that Defendants called him on his cell phone without authorization. Because Plaintiff provided the same cell phone number to Citi in connection with the Sears card accounts, there could be some ambiguity as to whether his claims arise in connection with those credit cards. However, it is clear from the Complaint that the gravamen of Plaintiff’s claims concern calls made in connection with the Macy’s card issued by DSNB. Plaintiff’s declaration indicates that he received no further calls from Citi regarding the Sears cards. Savage Decl. ¶ 4. To the extent discovery may demonstrate that some of alleged calls were in fact made regarding the Sears cards, those calls are not the subject of Plaintiff’s lawsuit here. See Pl.’s Opp. 4 (“Savage brought claims solely regarding collection harassment relating to the Macy’s account.” (emphasis added)); see also id. (“Savage has not brought any claims relating to any conduct arising from the Citibank Sears account.”). As such, “it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT & T, 475 U.S. at 650 (citation and quotation marks omitted).