United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
plaintiff, Moses Lee Smith, who is self-represented, filed
this civil action in the Richland County Court of Common
Pleas against the defendant, T-Mobile USA, Inc., MetroPCS
(“MetroPCS”), who subsequently removed it to the
United States District Court on the basis of diversity of
citizenship. The plaintiff alleges that MetroPCS breached his
service agreement, asserting claims for invasion of privacy,
breach of trust and contract, and negligence. This matter is
before the court pursuant to 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and
Recommendation on the defendant's motion to compel
arbitration and to dismiss or, in the alternative, motion to
stay. (ECF No. 21.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Smith of the summary judgment and dismissal
procedures and the possible consequences if he failed to
respond adequately to the defendants' motion. (ECF No.
22.) Smith filed a response in opposition (ECF No. 26), and
the defendant replied (ECF No. 27). Having reviewed the
parties' submissions and the applicable law, the court
finds that the defendant's motion should be granted.
litigant can compel arbitration under the Federal Arbitration
Act (“FAA”), 9 U.S.C. §§ 1, et
seq., if the litigant can demonstrate: “(1) the
existence of a dispute between the parties; (2) a written
agreement that includes an arbitration provision which
purports to cover the dispute; (3) the relationship of the
transaction, which is evidenced by the agreement, to
interstate or foreign commerce; and (4) the failure, neglect
or refusal of the [party] to arbitrate the dispute.”
Am. Gen. Life & Accident Ins. Co. v. Wood, 429
F.3d 83, 87 (4th Cir. 2005) (quoting Adkins v. Labor
Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002)). The
FAA provides that written arbitration agreements “shall
be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of
any contract.” 9 U.S.C. § 2. The policy behind the
FAA “was to reverse the longstanding judicial hostility
to arbitration agreements that had existed at English common
law and had been adopted by American courts, and to place
arbitration agreements upon the same footing as other
contracts.” Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 24 (1991). Thus, courts are to
afford a “healthy regard” for the federal policy
favoring arbitration, id. at 26, and arbitration
agreements are to be “rigorously enforced, ”
Perry v. Thomas, 482 U.S. 483, 490 (1987). Doubts
regarding the scope of issues covered by an arbitration
agreement must be resolved in favor of arbitration. Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24-25 (1983).
question of arbitrability arises, the district court, not the
arbitrator, decides whether a matter should be resolved
through arbitration. See Granite Rock Co. v. Int'l
Bhd. of Teamsters, 561 U.S. 287, 299-301 (2010);
First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 942-44 (1995); AT&T Tech., Inc. v. Commc'ns
Workers of Am., 475 U.S. 643, 651 (1986). This
determination, however, is limited to a two-step inquiry: (1)
whether a valid arbitration agreement exists; and (2) whether
the specific dispute falls within the substantive scope of
the arbitration agreement. See Hooters of Am., Inc. v.
Phillips, 173 F.3d 933, 938 (4th Cir. 1999); see
also Chorley Enters., Inc. v. Dickey's Barbeque Rests.,
Inc., 807 F.3d 553, 563 (4th Cir. 2015). Arbitration is
compelled “unless it may be said with positive
assurance that the arbitration [agreement] is not susceptible
of an interpretation that covers the asserted dispute.”
Peoples Sec. Life Ins. Co. v. Monumental Life Ins.
Co., 867 F.2d 809, 812 (4th Cir. 1989) (quoting
United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83 (1960)). If all of
the claims asserted in a complaint are subject to
arbitration, dismissal of the complaint is appropriate.
Choice Hotels Int'l, Inc. v. BSR Tropicana Resort,
Inc., 252 F.3d 707, 709-10 (4th Cir. 2001).
support of its motion, MetroPCS has presented evidence of a
valid arbitration agreement that covers the dispute at issue,
which arises out of the plaintiff's cell service with
MetroPCS. In opposition to MetroPCS's motion, the
plaintiff does not dispute that showing; rather, he argues
that because MetroPCS breached the contract regarding his
service, he is excused from performing under the arbitration
provision. This argument, however, is not supported in the
law. See, e.g., 4 Am. Jur. 2d
Alternative Dispute Resolution § 56 (collecting
cases holding that a party that breaches or repudiates a
contract may nonetheless claim the benefit of an arbitration
clause therein and compel arbitration); see also
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70
(2010) (“[A] party's challenge to another provision
of the contract, or to the contract as a whole, does not
prevent a court from enforcing a specific agreement to
Defendant MetroPCS's motion should be granted, and this
matter should be dismissed with an order compelling
arbitration. (ECF No. 21.) In light of the court's
recommendation, Smith's motions for subpoenas and to
proceed in forma pauperis should be terminated as
moot. (ECF Nos. 9 & 10.)
parties' attention is directed to the important notice on
the next page.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. “[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must ‘only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'
” Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P.
72 advisory committee's note).
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
Robin L. Blume, Clerk United States District Court 901
Richland Street Columbia, South Carolina 29201
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 7 ...