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James Shackelford Heating and Cooling, LC v. AT&T Corp.

United States District Court, W.D. Missouri, Western Division

November 21, 2017

AT&T CORPORATION, et al., Defendants.



         Pending is a motion filed by Defendants asking the Court to compel arbitration. Doc. #14. For the following reasons, Defendants' motion is denied.

         I. BACKGROUND[1]

         Plaintiff James Shackelford Heating and Cooling, L.C., is a heating, ventilation, and air-conditioning (HVAC) installation and repair business. Since its inception in 1998, Plaintiff had the same landline phone number (“landline”), which was provided by Defendants AT&T Corporation, AT&T Mobility LLC, and AT&T Mobility II LLC. In July 2011, Plaintiff moved its shop location, and asked Defendants to relocate its landline. Defendants initially informed Plaintiff the landline could be relocated. But after Plaintiff relocated, Defendants explained to Plaintiff the landline could not be relocated. Defendants offered to have Plaintiff's landline ported to a cell phone number, meaning when calls were made to the landline, the call would be received at the cell phone number. According to the parties' briefing on the pending motion, Defendants ported Plaintiff's landline to a personal cell phone number acquired by Plaintiff's sole member, agent, and employee, James Shackelford. Shackelford acquired cell service for his personal cell phone number from AT&T Mobility LLC beginning in or about June 2010.

         Relevant to the pending motion, Shackelford agreed, according to Defendants, to arbitrate disputes arising from his cell service.

         After the landline was ported in July 2011, Plaintiff alleges it experienced “an immediate drop in call volume, ” and “repeatedly contacted Defendants to ensure there was no problem with the ported line.” Plaintiff was assured by Defendants there was no issue, and the ported landline was working as expected. According to Plaintiff, its call volume never increased to the previous level, even though it was assured by Defendants that there was no issue with Plaintiff's ported landline.

         According to Plaintiff's response to the pending motion, Shackelford encountered one of Plaintiff's former clients in 2014. The former client asked Shackelford why Plaintiff closed its business. Shackelford informed the former client that Plaintiff did not close. The former client informed Shackelford that any attempt to call Plaintiff's landline resulted in an automated notification stating the landline was no longer active, and offering to connect he caller with other HVAC businesses. Shackelford went to the client's home where Shackelford called Plaintiff's landline from the client's phone. Shackelford received the recording explained by the former client.

         On February 22, 2017, Plaintiff filed suit against Defendants in the Circuit Court of Jackson County, Missouri, alleging claims of breach of contract, tortious interference with business expectancy, negligence, and failure to deliver calls pursuant to section 392.130.1 of the Missouri Revised Statutes. After Defendants were served in July 2017, they removed the matter to this Court in August 2017. After obtaining extensions of time to respond to Plaintiff's Petition, on October 4, 2017, Defendants filed a motion to compel arbitration and stay action, which is now ripe for the Court's consideration.

         II. STANDARD

         Whether parties agreed to arbitrate disputes is a question for judicial determination. Neb. Mach. Co. v. Cargotec Sols., LLC, 762 F.3d 737, 740-41 (8th Cir. 2014) (citation omitted). The Federal Arbitration Act does not set forth the standard a district court should apply when considering a motion to compel arbitration. Id. at 741-42 (citation omitted). Courts that have addressed the issue have applied a summary judgment standard, particularly when the parties rely upon matters outside the pleadings. See Meierhenry Sargent LLP v. Williams, No. 16-4180, 2017 WL 1653312, at *3 (D. S.D. May 1, 2017) (collecting cases). Neither party establishes what standard is applicable here. But both sides rely upon at least one matter outside the pleadings - to wit, the agreement between Shackelford and AT&T. Given the parties' reliance on matters outside the pleadings and other courts' application of a summary judgment standard under similar circumstances, the Court will apply a summary judgment standard, resolving all factual disputes in the non-moving party's favor. See Neb. Mach. Co., 762 F.3d at 742; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588-89 (1986).


         Under the Federal Arbitration Act, a court's role is “limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute.” Pro Tech Indus. v. URS Corp., 377 F.3d 868, 871 (8th Cir. 2004); see also Int'l Bhd. of Elec. Workers v. Hope Elec. Corp., 380 F.3d 1084, 1098-99 (8th Cir. 2004). This is because arbitration is a matter of consent. Absent an enforceable agreement to arbitrate a particular dispute, neither party can compel arbitration of that dispute. See Bank of Am., N.A. v. UMB Fin. Servs., Inc., 618 F.3d 906, 911 (8th Cir. 2010) (quoting Berkley v. Dillard's Inc., 450 F.3d 775, 777 (8th Cir. 2006)); Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 299-300 (2010). State law must be applied to determine if a binding agreement exists. Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 629-31 (2009); Bank of Am., 618 F.3d at 911. “[T]raditional principles of state law allow a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel.” Bank of Am., 618 F.3d at 911 (citation omitted).

         Defendants do not maintain Plaintiff was a signatory to a written agreement to arbitrate. However, as part of his personal cell phone service contract with AT&T executed in June 2010, Shackelford purportedly agreed to arbitrate claims arising from that contract. Although Plaintiff was not a signatory to that agreement, Defendants argue Plaintiff is a third-party beneficiary to the agreement. Thus, according to Defendants, Plaintiff is required to arbitrate the claims in this lawsuit.

         The arbitration clause states “AT&T and you agree to arbitrate all disputes and claims between us, ” including “claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.” Doc. #14-1, at 31. Claims arising before or after the agreement are also subject to arbitration. Id. The arbitration agreement defines “AT&T” and “you” to include “respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as ...

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