The opinion of the court was delivered by: GEORGE HOWARD, District Judge
Plaintiff brings this action alleging that defendants violated
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. ("FDCPA") and the Federal Arbitration Act, 9 U.S.C. § 1 et
seq. ("FAA"). Additionally, he brings state claims for invasion
of his right of privacy, intentional infliction of emotional
distress and libel.
Defendant MBNA has filed a motion to dismiss. MBNA argues that
the claims attacking or seeking to vacate the arbitration award
are barred by the statute of limitations of the FAA.
Pursuant to 9 U.S.C. § 12, challenges to arbitration awards
must be filed within 90 days of the award. ("Notice of a motion
to vacate, modify, or correct an award must be served upon the
adverse party or his attorney within three months after the award
is filed or delivered."). "A party to an arbitration award who
fails to comply with the statutory precondition of timely service
of notice forfeits the right to judicial review of the award."
Piccolo v. Dain, Kalman & Quail, Inc., 641 F.2d 598, 600
(8th Cir. 1981).
Here, the arbitration award was issued on November 6, 2003.
Plaintiff did not file this action until December 17, 2004.
Plaintiff raises a number of arguments concerning the validity
of the arbitration agreement. Arguments similar to those raised
by plaintiff have been rejected by the courts. In Morton v.
AMISUB St. Joseph Hospital, 155 F. 3d 1040, 1041 (8th Cir. 1998), the court rejected the plaintiff's
assertion that there was no binding agreement to arbitrate, and
that the agreement to arbitrate was an unenforceable contract of
adhesion. The court affirmed the dismissal of the complaint,
finding that the plaintiff "waived her right to pursue her claims
in the lawsuit by . . . participating in the arbitration, and
failing to file a timely petition or motion to vacate the
Similarly, there is no basis or authority for the application
of "due diligence" or "equitable tolling", as urged by plaintiff,
in this situation. Plaintiff has offered no justification as to
why his federal action was filed more than 9 months after the
issuance of the aware.
Under the FAA, a court may vacate an arbitration
award in any of the following cases: (1) where the
award was procured by corruption, fraud, or undue
means; (2) where there was evident partiality or
corruption in the arbitrators; (3) where the
arbitrators were guilty of misconduct in refusing to
postpone the hearing, or in refusing to hear evidence
material to the controversy, or of any other
misbehavior; or (4) where the arbitrators exceeded
their powers, or so imperfectly executed them that a
mutual, final, and definite award upon the subject
matter was not made. 9 U.S.C.A. § 10(a) (Supp. 1997).
Under § 12 of the FAA, a party can file a motion to
"vacate, modify, or correct an award."
9 U.S.C.A. § 12 (1970). Such a motion, however, "must be served
upon the adverse party or his attorney within three
months after the award is filed or delivered." Id.
Furthermore, we have held that a "failure to file a
motion to vacate, modify, or correct within three
months of either the initial award or the
Clarification of Award waived any defenses to
confirmation that might be asserted in a timely
motion to vacate." Domino Group, Inc. v. Charlie
Parker Memorial Foundation, 985 F.2d 417, 419 (8th
Cir. 1993) (citations omitted).
Val-U Const. Co. of S.D. v. Rosebud Sioux Tribe, 146 F.3d 573
578-579 (8th Cir. 1998).
The Court finds that plaintiff's Second and Sixth Claims for
Relief those brought pursuant to the FAA are barred by the
statute of limitaitons and are therefore dismissed.
MBNA also seeks dismissal of the remaining claims on the basis
of res judicata, collateral estoppel and other statutory
provisions. That there has been a previous ruling that the debt
was properly due and owing does not preclude plaintiff from bringing an action based on defendants' actions with regard to
the collection of the debt. The FDCPA was enacted to "stop `the
use of abusive, deceptive and unfair debt collection practices by
many debt collectors.' 15 U.S.C.A. § 1692(a). Impermissible
practices include harassing, oppressive or abusive conduct;
false, deceptive or misleading representations; and unfair or
unconscionable collection methods. 15 U.S.C.A. § 1692d-f. . . .
The case law on this issue focuses on the debt collector's
actions, and whether an unsophisticated consumer would be
harassed, misled or deceived by them." Freyermuth v. Credit
Bureau Services, Inc., 248 F.3d 767, 771 (8th Cir. 2001). An
action under the FDCPA is not contingent upon the validity of the
underlying debt. McCartney v. First City Bank, 970 F.2d 45, 47
(5th Cir. 1992). Thus the defenses of res judicata and
collateral estoppel are not applicable to plaintiff's FDCPA and
state law claims.
MBNA further states that it is not a "debt collector" under
15 U.S.C. § 1692(a)(6). In considering a motion to dismiss, the
Court must view the allegations in the complaint in a light most
favorable to the non-moving party to determine whether he can
prove any set of facts that would entitle him to relief. Madsen
v. Audrain Health Care, Inc., 297 F.3d 694, 697 (8th Cir.
2002). Here, plaintiff has alleged that MBNA is involved in the
collection of personal debts and that it regularly attempts to
collect personal consumer credit card debts by using the mails
and telephone. Plaintiff alleges actions done by MBNA, by agents
of MBNA or on behalf of MBNA associated with the collection of
the debt. Based on the allegations in the complaint, the Court
cannot find that MBNA is not a "debt collector" under the Act.
MBNA further alleges that plaintiff's claim under the FDCPA is
barred by the one-year statute of limitations. Actions for
violation of the FDCPA must be brought within one year of the
date on which the violation occurred. 15 U.S.C. § 1692k(d);
James v. Ford Motor Credit Co., 47 F. 3d 961, 962 (8th Cir.
1995). The harassing actions of which plaintiff complains began
in 2001. According to the allegations in the complaint,
defendants have continued to harass plaintiff even after the
arbitration award. Based on the allegations in the complaint, the
Court cannot find that plaintiff's claim is barred by the statute of limitations.
MBNA also asserts that plaintiff's pendent claims are preempted
by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
("FCRA"). Under 15 U.S.C. § 1681h(e), actions in the nature of
defamation, invasion of privacy, or negligence with respect to
the reporting of information are precluded except as to false
information furnished with malice or wilful intent to injure the
consumer. "The FCRA preempts state law defamation or negligent
reporting claims unless the plaintiff consumer proves `malice or
willful intent to injure' him. 15 U.S.C. § 1681h(e)." Young v.
Equifax Credit Information Services, Inc., 294 F.3d 631, 638
(5th Cir. 2002); See Thornton v. Equifax, Inc.,
619 F. 2d 700, 703 (8th Cir. 1980) (under limitation of § 1681h) (e),
no defamation or like action allowed under FCRA unless malice or
wilful intent is alleged); Yutesler v. Sears Roebuck and Co.,
263 F. Supp. 2d 1209 (D. Minn. 2003) (allegations of "wilful
disregard" in complaint sufficient to bring plaintiff's state law
claim for defamation of credit within § 1681h(e). Here, plaintiff
alleges "actual malice or reckless disregard as to the falsity of
these reports by defendant . . ." Thus, the Court is not
persuaded that the third and fifth claims for relief, that is the
claims for invasion of privacy and libel, should not be
Accordingly, the motion to dismiss is granted in part and
denied in part. The claims alleging violation of the FAA and
seeking vacation of the arbitration award as well as damages for
violation of the FAA (Second and Sixth Claims) are ...