Abedi v. New Age Medical Clinic PA

          OPINION

          KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE.

         Deeba 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).

         In 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.

         Although 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.

         In 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.

         For the 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 without prejudice.

         I. Background^[1]

         The 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, ^[2] its nature and purpose, and whom she met there are not disclosed.

         Abedi 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." (Compl. ¶19).

         During Abedi's visit to New Age, she executed a document titled "Physician-Patient Arbitration Agreement." (DE 5-5).^[3] 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).

         Located 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.).

         On October 5, 2018, Abedi filed a two-count complaint alleging a negligent violation of the TCPA (First Cause of Action); and a willful violation ...