COOK v. WELLS FARGO BANK (2024)

ORDER

Before the Court is Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) motion to compel arbitration. Dkt. No. 12. The motion has been fully briefed and is ripe for review. See Dkt. Nos. 15, 19.

BACKGROUND

Plaintiffs Lawrence and Jane Cook are a married couple who share a joint Wells Fargo checking account (“Checking Account”), as well as a Wells Fargo money market savings account (“Savings Account”). Dkt. No. 1 ¶ 14. Plaintiffs allege that their online access to these two accounts was hacked through a scam on August 29, 2022, which resulted in Plaintiffs becoming victims of fraud. Id. ¶¶ 18, 22. Plaintiffs bring this lawsuit against Wells Fargo for allegedly shirking its legal obligations under the Electronic Funds Transfer Act to refund the money stolen from their accounts through the scam. Id. ¶¶ 34, 38.

In response to Plaintiffs’ complaint, Defendant Wells Fargo filed a motion to compel arbitration and dismiss the complaint or, alternatively, to stay this action. Dkt. No. 12. Attached to Defendant's motion is the declaration of SaVita Davis, a Business Execution Consultant with Wells Fargo. Dkt. No. 12-1 at 20 ¶¶ 1, 2. The following facts are taken from Defendant's motion and Ms. Davis's declaration and do not appear to be disputed by Plaintiffs except where indicated.

On or about February 1, 2010, Plaintiffs opened a Checking Account with Wachovia, which at the time was going through a merger with Wells Fargo. Id. at 2, 21 ¶ 5. In opening the Checking Account, both Plaintiffs executed a Customer Access Agreement. Id. at 3, 21 ¶ 6, 27, 29. The Customer Access Agreement states, in relevant part:

This Agreement, both now and as it may be amended from time to time by Wachovia, is applicable to any deposit account that you open with any Wachovia Bank either now or in the future for yourself or jointly with another person or authorized signer.

․

I agree to be bound by the terms and conditions including, but not limited to Wachovia's Deposit Agreement and Disclosures, applicable to each product or service which I obtain from Wachovia now or in the future, which terms and conditions will be provided to me.

Id. at 27.

On or about May 10, 2010,¹ Plaintiffs opened a Savings Account. Id. at 3, 21 ¶ 8. At that time, “there was no requirement that separate account opening documents be executed by a bank customer when opening [such a savings account] if the bank customer already had a bank account opened.” Id. at 21 ¶ 9. Wells Fargo contends any such savings account opened by a preexisting customer would be governed by the same terms and conditions outlined in the account opening documents for the preexisting account. Id. at 22 ¶ 10.

By November 18, 2010, Plaintiffs’ Checking and Savings Accounts had been converted into Wells Fargo accounts and, Defendant contends, governed by the terms and conditions of “any Wells Fargo deposit agreement,” as “may be amended from time to time.” Id. ¶¶ 11, 12. This is where Defendant and Plaintiffs diverge.

Defendant contends that, effective May 9, 2022, the Checking and Savings Accounts were governed by the Wells Fargo Deposit Account Agreement with the same date. Id. ¶ 13. That agreement states, inter alia, that it applies to existing customer accounts and “constitutes the ‘Agreement’ that governs” the customer's account with Wells Fargo along with “[a]ny additional disclosures, amendments, or addenda [Wells Fargo] provide[s] to [the customer].” Id. at 32. Further, the agreement states that it “replaces all prior agreements regarding [the customer's] account” and that the customer “consents to the terms of this Agreement” through “use” of his account, that is, “keep[ing the] account open.” Id.

The May 9, 2022 Deposit Account Agreement contains an arbitration provision. It provides, in relevant part, that “[i]f [the customer's] banker or another Wells Fargo employee is unable to resolve [the customer's] dispute, [the customer] agree[s] that either Wells Fargo or [the customer] can initiate arbitration as described in this section.” Id. at 65. Further, the agreement provides that “Wells Fargo and [the customer] each agree to waive the right to a jury trial or a trial in front of a judge in a public court.” Id. Defendant contends the arbitration provision “mandate[s] that any controversy or dispute between Plaintiffs and Wells Fargo, including those relating to transactions involving the [Checking and Savings] Accounts, must be resolved in binding arbitration.” Id. at 6.

Defendant contends that as of July 25, 2023, Plaintiffs’ Checking and Savings Accounts were governed by a Deposit Account Agreement with the same date. Id. at 3 ¶ 14. It contains virtually the same terms as those identified in the May 9, 2022 Deposit Account Agreement. Id. at 73, 106. Defendant contends the July 25, 2023 Deposit Account Agreement is the currently operative agreement governing Plaintiffs’ Checking and Savings accounts. Id. at 23 ¶ 15.

Finally, Defendant states that “[a]s the Deposit Account Agreement was amended from time to time, Wells Fargo would provide notice to its customers of the amendment, and also would provide notice to its customers that by maintaining and using a Wells Fargo account, they were agreeing to be bound by the terms of the Deposit Account Agreement, including its Arbitration Agreement.” Id. at 23 ¶ 17. Plaintiffs dispute that they agreed to arbitrate disputes with Wells Fargo. See Dkt. No. 15 at 2, 3.

LEGAL AUTHORITY

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., “embodies a liberal federal policy favoring arbitration agreements.” Mason v. Midland Funding LLC, 815 F. App'x 320, 323 (11th Cir. 2020) (quoting Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005)). “The FAA creates a ‘presumption of arbitrability,’ and under it, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’ ” Id. (quoting Dasher v. RBC Bank (USA), 745 F.3d 1111, 1115 (11th Cir. 2014)). “Nevertheless, ‘while doubts concerning the scope of an arbitration clause should be resolved in favor of arbitration, the presumption does not apply to disputes concerning whether an agreement to arbitrate has been made.’ ” Id. (quoting Dasher, 745 F.3d at 1116). Rather, “[t]he FAA reflects the fundamental principle that arbitration is a matter of contract.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010).

The Eleventh Circuit has recognized “that issues concerning contract formation are generally reserved for the courts to decide.” Solymar Invs., Ltd. v. Banco Santander S.A., 672 F.3d 981, 989 (11th Cir. 2012) (citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). Such determinations are “threshold question[s] in any dispute involving arbitration,” and thus, a district court should “first resolve any issue that calls into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce.” Id. at 989–90 (quotation marks and citations omitted).

In analyzing whether an agreement to arbitrate exists at all, the Eleventh Circuit has instructed that district courts should employ a “summary judgment-like standard” and that in so doing “a district court may conclude as a matter of law that parties did or did not enter into an arbitration agreement only if there is no genuine dispute as to any material fact concerning the formation of such an agreement.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016). “As in a traditional summary judgment motion, an examination of substantive law determines which facts are material.” Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017). Likewise, a dispute cannot be said to be “genuine” where “it is unsupported by the evidence or is created by evidence that is merely colorable or not significantly probative.” Bazemore, 827 F.3d at 1333. Moreover, “conclusory allegations without specific supporting facts have no probative value for a party resisting summary judgment.” Id. Further, if the party seeking to enforce an arbitration agreement fails to carry its burden during this “summary judgment-like” inquiry, it is not afforded a second opportunity to do so. See id. (declining to find that a party is required to be “afforded a second bite at the apple—an opportunity to prove the agreement's existence at trial” after “los[ing] a motion to compel arbitration for failure to prove an arbitration agreement exists”).

DISCUSSION

Defendant Wells Fargo moves the Court to compel Plaintiffs to arbitrate their dispute under the terms of the arbitration provision contained in the Deposit Account Agreements. Dkt. No. 12-1. Plaintiffs oppose Defendant's motion to compel arbitration, arguing that Wells Fargo has failed to show Plaintiffs assented to the terms of the Deposit Account Agreements, including the arbitration provisions. Dkt. No. 15 at 4. Defendant Wells Fargo maintains that it has met all the requirements to show the parties agreed to arbitrate all disputes arising from Plaintiffs’ accounts. Dkt. No. 19 at 2.

Whether the parties agreed to arbitrate is a matter of contract. Rent-A-Center, 561 U.S. at 67, 130 S.Ct. 2772. “Federal courts in Georgia ² apply state law principles to issues of contract formation.” Anderson v. Angie's List, Inc., No. 1:22-CV-4344-TWT, 2023 WL 2933263, at *2 (N.D. Ga. Apr. 13, 2023). “In Georgia, ‘[t]o constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.’ ” Bazemore, 827 F.3d at 1330 (quoting O.C.G.A § 13-3-1). “The existence and terms of a contract must be proven by a preponderance of the evidence.” Id. (citing Wallace v. Triad Sys. Fin. Corp., 212 Ga.App. 665, 442 S.E.2d 476, 478 (1994); Gentry v. Beverly Enters.–Ga., Inc., 714 F. Supp. 2d 1225, 1229 (S.D. Ga. 2009)). “ ‘The party asserting the existence of a contract has the burden of proving its existence and its terms.’ ” Id. (quoting Jackson v. Easters, 190 Ga.App. 713, 379 S.E.2d 610, 611 (1989)) (citing Yates v. CACV of Colo., 303 Ga.App. 425, 693 S.E.2d 629, 634 (2010) (“As the party seeking to enforce the alleged arbitration agreement, CACV bore the burden of proving the existence of such a valid and enforceable agreement.”)).

The only contractual element Plaintiffs appear to challenge is the element of assent. Dkt. No. 15 at 4. Therefore, under Georgia law, Wells Fargo as the party asserting the existence of an arbitration agreement has the burden of proving Plaintiffs’ assent to the terms thereof. Bazemore, 827 F.3d at 1330.

“The element of assent requires ‘ “(a) a meeting of the minds (b) on the essential terms of the contract.” ’ ” Id. (quoting Regan v. Stored Value Cards, Inc., 85 F. Supp. 3d 1357, 1362 (N.D. Ga. 2015) (quoting John K. Larkins, Jr., Ga. Contracts Law and Litigation § 3:2 (2d ed.)), aff'd sub nom. Reagan v. Stored Value Cards, Inc., 608 F. App'x 895 (11th Cir. 2015)). In order to show Plaintiffs assented to the arbitration terms contained in the Deposit Account Agreements, Wells Fargo must show Plaintiffs had notice of those terms. Id. at 1332 (finding defendant had not met its burden under Georgia law to prove the existence and terms of an arbitration agreement because, in part, defendant had not provided the court with “competent evidence that the contract was sent to the plaintiff”). Plaintiffs contend “Wells Fargo provides no evidence that the Deposit Agreement containing the arbitration clause was ever actually provided to the Plaintiffs,” and, thus, Wells Fargo “has failed to show that Plaintiffs assented to those terms.” Dkt. No. 15 at 4. Plaintiffs are correct.

The parties do not dispute that Plaintiffs signed a Customer Access Agreement with Wachovia on February 1, 2010 when they first opened their Checking Account.³ See Dkt. No. 12-1 at 27, 29; Dkt. No. 15 at 8. Wells Fargo has produced signed copies of that agreement. See Dkt. No. 12-1 at 27, 29. The parties also do not dispute that the Customer Access Agreement governed Plaintiffs’ later opened Savings Account. That agreement, however, does not contain an arbitration provision. See id. Only the Deposit Account Agreements dated May 9, 2022 and July 25, 2023 contain arbitration provisions. See id. at 65, 106. The question, therefore, is whether Plaintiffs assented to the terms of the May 9, 2022 and July 25, 2023 Deposit Account Agreements.

Wells Fargo argues that, by “maintaining and using” their accounts, Plaintiffs assented to the amended terms of the Deposit Account Agreements, including the arbitration provision. Dkt. No. 12-1 at 9. However, Plaintiffs cannot assent to terms unless those terms were first provided to them. Indeed, the Customer Access Agreement anticipated future amendments to the terms and conditions governing Plaintiffs’ accounts and noted that such amended “terms and conditions will be provided to [the customer].” Id. at 27.

To support its contention that Plaintiffs were provided with the Deposit Account Agreements, Wells Fargo offers Ms. Davis's declaration. Id. at 9. Recall that Ms. Davis serves as a Business Execution Consultant for Wells Fargo. Dkt. No. 12-1 at 20 ¶ 2. Ms. Davis's declaration is “based upon [her] own personal knowledge and [her] review of relevant records.” Id. ¶ 3. Attached to her declaration are “reports, records, or data compilation, made at or near the time by, or from information transmitted by, persons with knowledge, and are kept in the normal course of Wells Fargo's business.” Id. ¶ 4. In her declaration, Ms. Davis states:

As the Deposit Account Agreement was amended from time to time, Wells Fargo would provide notice to its customers of the amendment, and also would provide notice to its customers that by maintaining and using a Wells Fargo account, they were agreeing to be bound by the terms of the Deposit Account Agreement, including the Arbitration Agreement.

Id. at 23 ¶ 17. This one statement is the only evidence Wells Fargo puts forth to show that it provided Plaintiffs with the amended terms of the Deposit Account Agreements.

Plaintiffs argue “there can be no meeting of the minds, and thus, assent to the Deposit Account Agreement and attendant arbitration provision when Defendant fails to put forth when it sent the agreement, how it sent the agreement, by what means it sent the agreement or demonstrate in any way how the Plaintiffs were to have accessed the agreement.” Dkt. No. 15 at 7. Plaintiffs point to the Eleventh Circuit's decision in Bazemore to support their argument that Ms. Davis's declaration is “woefully inadequate” to meet Wells Fargo's burden of showing that an arbitration agreement existed. Id.

In Bazemore,

the plaintiff “applied on the Internet for a credit card[,] ․ charged several items on the card but failed to pay in full.” 827 F.3d at 1327. Approximately three years after the plaintiff applied for the credit card, another entity “acquired all right, title and interest to [the plaintiff's] account.” Id. The plaintiff sued the successor entity pursuant to federal finance law, and the successor entity “moved to compel arbitration in reliance on an arbitration clause said to have been contained in a cardholder agreement between [the plaintiff] and its predecessor-in-interest.” Id.

“The only evidence” of “whether [the plaintiff] agreed to any terms and conditions in the course of” applying for a credit card on the Internet was “a declaration of ․ an individual employed at the time [the plaintiff] applied for her credit card by [a company] which maintained records for such credit cards on behalf of [the predecessor-in-interest].” Id. The employee testified “in conclusory terms that [the plaintiff] ‘accepted the terms governing her account and opened the account’ ․, [but] he did not assert that he ha[d] any personal knowledge on that score or produce any documents to support that assertion.” Id. “[T]here [wa]s no evidence that the Internet web page or pages that [the plaintiff] viewed, or upon which she applied for her [credit card], displayed or referred to any terms or conditions of the credit card she sought, much less that she was required to consent to any such terms in order to obtain her credit card.” Id. at 1327–28.

The employee for the records company further testified that a cardholder agreement “would have been sent to [the plaintiff] about ten days after she applied for the credit card and that it would have contained a form of the [cardholder agreement that was] attached to [the employee's] declaration.” Id. at 1328 (alterations accepted) (emphasis omitted) (internal quotation marks omitted). The cardholder agreement attached to the employee's declaration contained the arbitration clause that the successor entity relied on in support of its motion to compel. Id. But the employee did not testify “that the form of the [cardholder agreement] that would have been sent to [the plaintiff] was the same as that attached to his declaration,” nor did he testify “that the form of the [cardholder agreement] that would have been sent to [the plaintiff] contained an arbitration clause of any kind, much less the clause found on the form attached to his declaration.” Id. (internal quotation marks omitted). Despite reviewing the business records in preparing for his declaration, the employee “never state[d] that a [cardholder agreement] actually was sent to [the plaintiff], merely that one would have been sent as part of the company's regular and ordinary practice.” Id. (emphasis omitted) (internal quotation marks omitted).

The Eleventh Circuit held that the successor entity defendant's motion to compel was due to be denied because it failed to “me[e]t its burden under Georgia law to prove the existence and terms of the arbitration agreement it s[ought] to enforce.” Id. at 1330–32. The court concluded that the successor entity (1) “presented no competent evidence as to what, if any, terms plaintiff agreed to when ordering her credit card” or “that she entered into any relevant arbitration agreement”; (2) “presented no competent evidence that a [cardholder agreement] containing the arbitration agreement it ․ s[ought] to enforce [was] ever was mailed to [the plaintiff]”; and (3) “did not meet its burden of proving that plaintiff assented to the ‘essential terms of the contract’ for the simple reason that the terms of exactly what, if anything, [the plaintiff] agreed to when she applied for the credit card [we]re unknown.” Id. at 1331.

Further, although the Bazemore court acknowledged “that courts routinely enforce unsigned service contracts ․ where the contract is sent to a recipient who thereafter demonstrates his or her assent to its terms by using the service provided,” it observed that the successor entity could not meet its burden to prove the existence of an arbitration agreement because it did not provide the court with “(1) competent evidence that the contract was sent to the plaintiff and (2) a copy of the actual contract [it] w[as] seeking to enforce.” Id. at 1332. The court observed that the successor entity did not “provide[ ] evidence concerning the contents of any clickwrap agreement to which plaintiff assented while ordering her credit card online.” Id.

Cooley v. KDVH Enters., LLC, No. 2:21-CV-802-AMM, 2022 WL 980843, at *3–4 (N.D. Ala. Mar. 30, 2022) (alteration removed).

Defendant argues Bazemore is distinguishable for multiple reasons. First, Defendant argues that “unlike the declaration in Bazemore, Ms. Davis is an employee of Wells Fargo and her testimony is ‘based on [her] own personal knowledge’ and her ‘review of [the] relevant records’ attached to her declaration.” Dkt. No. 19 at 6 (quoting Dkt. No. 12-1 at 20 ¶ 3). Fair enough, Defendant is correct, Ms. Davis is not an employee of a third-party records custodian company retained by a predecessor company. This distinction, alone, matters not given the holes in her testimony.

Second, Defendant argues “unlike the Bazemore third-party declarant who would not have knowledge of what predecessor company screens the plaintiff would have clicked through when opening her account online, Ms. Davis, as a Wells Fargo employee, has actual knowledge of what agreements govern Wells Fargo accounts,” and Ms. Davis attached to her declaration not a “form” of the agreement sought to be enforced but the “actual agreements Wells Fargo seeks to enforce.” Dkt. No. 19 at 7-8. Defendant is correct again.

Next, Defendant argues that “unlike the Bazemore declaration, Ms. Davis's declaration does more than provide unspecified testimony of a ‘welcome kit’ that would have been sent to Wells Fargo customers.” Id. at 9. Defendant contends Ms. Davis's testimony “confirms that in addition to Wells Fargo providing notice to its customers of any amendment to its Deposit Account Agreement, Wells Fargo also provides notice to its customers that by maintaining and using a Wells Fargo account, they were agreeing to be bound by the terms of the applicable Deposit Account Agreement, including the Arbitration Agreement contained therein.” Id. Defendant gets off track here.

In her declaration, Ms. Davis states “Wells Fargo would provide notice to its customers” of the amended Deposit Account Agreement terms. Dkt. No. 12-1 at 23 ¶ 17. Like the declarant in Bazemore, however, Ms. Davis “does not explain how [s]he knows this.” 827 F.3d at 1330. To elucidate, Ms. Davis states that her declaration is based upon (1) her “own personal knowledge” and (2) her “review of relevant records,” including “reports, records, or data compilation,” “copies of which are attached hereto.” Dkt. No. 12-1 at 20 ¶¶ 3, 4. One major problem with her declaration is that it is too general. The most she purports to know is that Wells Fargo (in some unidentified way and at some unidentified time) “would provide notice to its customers.” Id. at 23 ¶¶ 3, 17. Although she does claim to have some general “personal knowledge,” that claim is not dispositive because the declaration is silent on any details about what her personal knowledge is. The second problem with her declaration is that no such reports, records or data compilations are actually attached. All that is appended to her declaration is the Wachovia Customer Access Agreement signed by each Plaintiff, id. at 27, 29, the May 9, 2022 Deposit Account Agreement, id. at 31, and the July 25, 2023 Deposit Account Agreement, id. at 72. None of those attachments shows anything about when, where, how or by whom these Plaintiffs were informed of the arbitration provisions. No “relevant records” concerning notice to customers of a change in terms are actually attached to Ms. Davis's declaration.

According to Federal Rule of Civil Procedure 56(c)(4), a declaration “used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the ․ declarant is competent to testify on the matters stated.” “Additionally, the ․ declaration must state the basis for such personal knowledge.” Duke v. Nationstar Mortg., LLC, 893 F. Supp. 2d 1238, 1244 (N.D. Ala. 2012) (citing Bruce Constr. Corp. v. United States, 242 F.2d 873, 877 (5th Cir. 1957)). While “personal knowledge can be based on a review of relevant business files and records,” id., the record shows that no records relevant to notice are attached to Ms. Davis's declaration. Thus, Ms. Davis's personal knowledge regarding whether Wells Fargo would send notice to its customers of a change in terms cannot be based on her review of records. The only other “basis for such personal knowledge” provided in Ms. Davis's declaration is her statement that she is “employed by Wells Fargo Bank ․ where [she] serve[s] as a Business Execution Consultant.” Dkt. No. 12-1 at 20 ¶ 2. This statement, without more, is not sufficient to show that Ms. Davis is competent to testify as to Wells Fargo's notice to customers of a change in terms.

Also like in Bazemore, Defendant does not “substantiate ․ with documentary proof” that Wells Fargo had a practice of providing notice to its customers nor that notice was actually provided to Plaintiffs. 827 F.3d at 1330. Though some records are attached to Ms. Davis's declaration, contrary to what the declaration says, there are no “reports” or “data compilations.” Dkt. No. 12-1 at 20 ¶ 4. The only relevant records attached that Ms. Davis claims personal knowledge and review of are the Wachovia Customer Access Agreement signed by each Plaintiff, id. at 27, 29, the May 9, 2022 Deposit Account Agreement, id. at 31, and the July 25, 2023 Deposit Account Agreement, id. at 72. Critically, there is no report, record or data compilation of how agreements were sent—mail, email, or otherwise.⁴ There is no report, record or data compilation of when the particular agreements sought to be enforced here were sent. There is no report, record or data compilation of where such agreements were sent. There is no report, record or data compilation of how any of this was accomplished.

As the Eleventh Circuit explained in Mason,

the facts here are materially indistinguishable from our recent decision in Bazemore. There, like here, the defendants relied on a single declarant to provide evidence that they hoped would trigger the mailbox rule's presumption of receipt. We explained that the submitted evidence was insufficient because testimony that “a Cardholder agreement with an arbitration clause ‘would have been sent to [p]laintiff’ ” did not trigger the mailbox rule since it did not reflect “personal knowledge that [the agreement] in fact was sent” to the plaintiff. Bazemore, 827 F.3d at 1331. We also noted that the declarant had failed to claim that he reviewed records showing the agreement had been mailed. Id. For that reason, we held that the defendant could not compel the Bazemore plaintiff to arbitrate. Id. at 1330-32.

815 F. App'x at 326.

Ms. Davis's statement that Wells Fargo “would provide notice to its customers,” without more, is conclusory. “ ‘[C]onclusory allegations without specific supporting facts have no probative value’ for a party resisting summary judgment.” Bazemore, 827 F.3d at 1333 (quoting Leigh v. Warner Bros., 212 F.3d 1210, 1217 (11th Cir. 2000)). The reader of her declaration learns nothing about what, how, when or where Plaintiffs received notice.

The cases Defendant cites to support the enforcement of an arbitration agreement are readily distinguishable from the facts of this case. If anything, the key differences in the facts of the cases cited by Defendant and the facts presented in the present dispute serve to highlight what is missing from Defendant's proof. In Brittian v. JPMorgan Chase Bank, N.A., the defendant sought to enforce an arbitration agreement contained in the plaintiffs’ offer of employment letter. No. 1:16-cv-4683, 2018 WL 10974506, at *3 (N.D. Ga. Mar. 30, 2018). Each offer letter included terms of employment as well as the following language:

Binding Arbitration Affirmation

I understand my employment is subject to my and JPMorgan Chase's agreement to submit employment-related disputes that cannot be resolved internally to binding arbitration, as set forth in the Binding Arbitration Agreement . By signing below I acknowledge and agree that I have read and understand the Binding Arbitration Agreement, have accepted its terms and understand that it is a condition of my employment with JPMorgan Chase.

Id. The plaintiffs signed their offer letters in two places, including the “Binding Arbitration Affirmation” section. Id. However, plaintiffs argued that they “were never given a copy of an arbitration agreement and never agreed to arbitrate claims against” defendant. Id. at *4. The court first concluded that the arbitration agreement was enforceable even if the plaintiffs did not click on the hyperlink and read the agreements. Id. at *6. The court explained, “the difficult issue here is not whether the Plaintiffs actually clicked on the hyperlink and read the Binding Arbitration Agreement. Rather, the issue is whether Defendants provided sufficient evidence that the two versions of the Binding Arbitration Agreement were indeed what Plaintiffs would have seen if they clicked the hyperlink in their offer letters.” Id. In its analysis, the court found the facts before it were distinguishable from those in Bazemore, because the defendants presented the signed offer letters as evidence that the plaintiffs actually received materials with the binding arbitration language and with the hyperlink to the Binding Arbitration Agreement, and, further, the defendants presented two versions of the Binding Arbitration Agreement, either of which the plaintiffs would have seen if they followed the hyperlink.

The facts in Brittian are distinguishable from those in this case for one primary reason. In Brittian, the defendant provided the court with signed offer letters from each plaintiff, offer letters which contained a hyperlink to the arbitration agreements sought to be enforced. The court was thus able to compel arbitration because defendants had presented evidence that the plaintiffs actually received the arbitration terms. Here, Defendant has provided no agreement or other document signed by Plaintiffs that indicates in any way that they received notice of any arbitration provision.

Next, Defendant cites Umana v. Citigroup, Inc., No. 18-60977, 2018 WL 11473760 (S.D. Fla. Nov. 5, 2018). There, the court compelled arbitration when the plaintiff used a credit card for which she had applied, and such use constituted her acceptance of the card agreement's terms, including an arbitration provision, and created a binding contract. Id. at *3. Umana is simply not analogous to the facts of this case because, in that case, there was “no genuine dispute” that “Defendant mailed the Card Agreements” containing the arbitration provision to the plaintiff. Id. at *3. Here, Defendant has failed to show that it mailed or otherwise sent Plaintiffs notice of any arbitration provision.

Finally, Defendant cites GastroCare, PC v. TrxServices, LLC, No. 7:16-cv-1286, 2017 WL 2623768 (N.D. Ala. June 16, 2017). GastroCare does not involve an arbitration agreement but a forum-selection clause. There, the defendant provided an affidavit from its president who swore that defendant had provided plaintiff with a set of terms and conditions, which included a forum selection clause, “through its web-portal system and it was agreed to by one of [plaintiff's] agents by logging into the system and acknowledging he or she had received and agreed to the new set of terms and conditions.” Id. at *3. The court found “there is no question as to how [plaintiff] agreed to the terms and conditions” because defendant had provided a Merchant Acceptance provision, which expressly referenced terms and conditions, with “two physical signatures from [plaintiff's] representatives.” Id. at *6. Here, Defendant has provided no agreement or other document signed by Plaintiffs that indicates in any way that they received notice of any arbitration provision.

The burden to prove that an arbitration agreement existed is ultimately Defendant's. Bazemore, 827 F.3d at 1334. The competent evidence submitted by Defendant to prove the existence of the arbitration provision contained in the Deposit Account Agreement is insufficient because Defendant provides no evidence that the Deposit Account Agreement, as amended, was ever sent to Plaintiffs. Id. “[E]ntry of summary judgment is appropriate ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). As Wells Fargo has offered no competent evidence to show the existence of a genuine issue of material fact concerning Plaintiffs’ assent to arbitrate, its motion to compel arbitration, dkt. no. 12, must be DENIED as a matter of law without the need for a trial. Id.

CONCLUSION

Because the Court cannot find the parties agreed to arbitrate disputes, the Court “cannot compel the parties to settle their disputes in an arbitral forum.” Bazemore, 827 F.3d at 1329 (quoting Klay v. All Defendants, 389 F.3d 1191, 1200 (11th Cir. 2004)). Therefore, Defendant's motion to compel arbitration, dkt. no. 12, is DENIED. Further, Defendant's motion to dismiss Plaintiffs’ complaint or, alternatively, to stay this case, id., is DENIED as moot. The Parties are ORDERED to file their Rule 26(f) report within fourteen days of the date of this Order.

SO ORDERED, this 23rd day of April, 2024.

FOOTNOTES

1.   Defendant's motion and Ms. Davis's declaration state that Plaintiffs opened the Savings Account on May 10, 2020 rather than May 10, 2010. The Court assumes that the 2020 date is a typographical error, because Defendant states that Plaintiffs had opened both their Checking and Savings Accounts before November 18, 2010. Dkt. No. 12-1 at 3, 22 ¶ 11.

2.   The parties do not dispute that Georgia law applies to the question of whether they had an agreement to arbitrate.

3.   Plaintiffs point out that the Customer Access Agreement incorporates “Wachovia's Deposit Agreement and Disclosures,” and that Defendant does not provide a copy of same. Dkt. No. 15 at 6. Because Defendant neither argues that Wachovia's Deposit Agreement and Disclosures governed Plaintiffs’ accounts nor that such agreement contained an arbitration provision, the Court need not address the agreement further.

4.   To elaborate, Ms. Davis does not attest to “specific office procedures,” such as mail or email, that supposedly resulted in notice to Plaintiffs of the amended Deposit Account Agreement terms. See Mason, 815 F. App'x at 327. For example, the common law has long recognized “a rebuttable presumption that an item properly mailed was received by the addressee.” Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1239 (11th Cir. 2002) (quoting Konst v. Fla. E. Coast Ry. Co., 71 F.3d 850 (11th Cir. 1996)). To trigger the “mailbox rule” presumption, it must be established that “(1) the document was properly addressed; (2) the document was stamped; and (3) the document was mailed.” In re E. Coast Brokers & Packers, Inc., 961 F.2d 1543, 1545 (11th Cir. 1992). This can be done by providing “[t]estimony concerning specific office procedures for preparing and mailing notices in addition to evidence of mail received from the purported sender at the same address.” Seasons Hospice & Palliative Care of S. Fla. v. Azar, No. 19-CV-24440, 2020 WL 5848769, at *8 (S.D. Fla. Oct. 1, 2020) (quoting Kerr v. McDonald's Corp., 427 F.3d 947, 952 (11th Cir. 2005)). Evidence can also be presented based on personal knowledge that the document was in fact placed in the mail. Mason, 815 F. App'x at 326 (citing Bazemore, 827 F.3d at 1331). Here, Defendant does not even argue for application of the mailbox rule.

LISA GODBEY WOOD, JUDGE