United States District Court, D. New Jersey
DEEBA ABEDI, individual and on behalf of all others similarly situated,, Plaintiff,
NEW AGE MEDICAL CLINIC PA, and DOES 1-10, inclusive, Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE.
Abedi has filed this putative class action against defendant
New Age Medical Clinic PA ("New Age") alleging
violations of the Telephone Consumer Protection Act
("TCPA"), 47 U.S.C. § 227. Abedi essentially
alleges that New Age, using an automatic telephone dialing
system ("ATDS"), texted her cellphone on numerous
occasions from April through September of 2017. Currently
before the Court are two motions: New Age's motion to
dismiss the complaint or in the alternative to compel
arbitration (DE 5); and New Age's motion for sanctions
for Filing a frivolous complaint (DE 8).
support of its motion to dismiss, New Age argues that Abedi
gave prior written consent to receive text communications
from New Age, and that New Age did not used ATDS technology
to text Abedi. In the alternative, New Age requests that the
Court compel arbitration.
addressed as an alternative request for relief, the issue of
arbitrability is more properly discussed in advance of the
merits of Abedi's complaint. If Abedi's TCPA claim is
within the scope of the arbitration clause, then the merits
of that claim should be presented to the arbitrator.
opposition to the motion to compel arbitration, Abedi
contends that the arbitration clause is limited in scope to
medical malpractice claims. Moreover, Abedi contends that the
arbitration agreement is unconscionable.
following reasons, I conclude that arbitration clause is
ambiguous and requires further factual development.
Accordingly, New Age's motion is denied without
prejudice. The parties will be directed to engage in
expedited discovery on the issue of arbitrability, after
which New Age may renew its motion to compel. At that point,
the arbitrability issue will be decided on a summary judgment
standard or, if necessary, tried. Because the motion for
sanctions relates to the merits of Abedi's claims (which
may never be reached by this Court), it, too, is denied
allegations in the complaint are sparse. Defendant New Age, a
medical office, provides nutritional and dietary related
services. (Compl. ¶9). Abedi at some point visited New
Age's offices to obtain information concerning their
services. (Compl. ¶19). The complaint provides no
further detail; the date of the visit to New Age,
nature and purpose, and whom she met there are not disclosed.
alleges that between April of 2017 through September of 2017,
she received promotional offers through text messaging
"from a phone number confirmed to belong" to New
Age, 313-131. (Compl. ¶¶14-15). The text messages
contained hyperlinks to New Age's website, which promoted
New Age's products and services. (Compl. ¶15). Abedi
asserts that these messages qualify as "spam
advertisements and/or promotional offers."
(Id.). Abedi alleges in somewhat conclusory fashion
that she "did not give Defendant consent to solicit her,
through text messaging, about Defendant's services."
Abedi's visit to New Age, she executed a document titled
"Physician-Patient Arbitration Agreement." (DE
5-5). The relevant portions of the Arbitration
Agreement provide as follows:
Article 1: Agreement to Arbitrate: It is
understood that any dispute as to medical malpractice, that
is, as to whether any medical services rendered under this
contract were unnecessary or unauthorized or were improperly,
negligently or incompetently rendered, will be determined by
submission to arbitration pursuant to New York law, and not
by a lawsuit or resort to court process except as New York
law may provide for judicial review of arbitration
proceedings. Both parties to this contract, by entering into
it, are giving up their constitutional right to have any such
dispute decided in a court of law before a jury, and instead
are accepting the use of arbitration.
Article 2: All Claims Must Be Arbitrated: It
is the intention of the parties that this agreement shall
cover all claims or controversies whether in tort, contract
or otherwise, and shall bind all parties whose claims may
arise out of or in any way relate to treatment or services
provided or not provided by the below identified physician,
medical group or association, their partners, associates,
associations, corporations, partnerships, employees, agents,
clinics, and/or providers (hereinafter referred to as
"Physician") to a patient, including any spouse or
heirs of the patient and any children, whether born or
unborn, at the time of the occurrence giving rise to any
claim. In the case of any pregnant mother, the term
"patient" herein shall mean both the mother and the
mother's expected child or children.
The filing by Physician of any action in court by the
Physician to collect any fee from the patient shall not waive
the right to compel arbitration of any malpractice claim.
(DE 5-5). The Arbitration Agreement further states that it is
governed by New York law and includes a Revocation clause:
Article 5: Revocation: This agreement may be
revoked by written noticed delivered to Physician within 30
days of signature and if not revoked will govern all medical
services received by the patient.
(DE 5-5). Additionally, the Arbitration Agreement provides
that the parties will bear their own costs in the
arbitration, and that the arbitrator's fees and expenses
would be split between the parties. (DE 5-5, Art. 3).
right above the signatures of Abedi and the New Age physician
is a notice:
NOTICE: BY SIGNING THIS CONTRACT YOU ARE
AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY
NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A
JURY OR COURT TRIAL, SEE ARTICLE I OF THIS CONTRACT.
(DE 5-5). Abedi signed the Arbitration Agreement on February
16, 2015. (Id.).
October 5, 2018, Abedi filed a two-count complaint alleging a
negligent violation of the TCPA (First Cause of Action); and
a willful violation ...