Opinion
C. A. 23-545 WES
06-17-2024
LISA DE SIMONE, individually and on behalf of all others similarly situated, Plaintiff, v. CITIZENS BANK, N.A., Defendant.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Plaintiff Lisa De Simone maintains a checking account with Defendant Citizens Bank, N.A. (“Citizens”). Compl. ¶ 7, ECF No. 1. As a customer, she signed Citizens's Personal Deposit Account Agreement (“PDAA”). Id. ¶¶ 39, 45, 51; see generally Ex. A Compl. (“PDAA”), ECF No. 1-1. According to her Complaint, Citizens breached the PDAA when it refused to provide De Simone with certain documents related to her accounts for the last five years and incorrectly charged her overdraft fees. See Compl. ¶¶ 19-21, 38 55. De Simone alleges these practices are deceptive and violate New York law. See id. ¶¶ 56-70. De Simone brings the instant action in her individual capacity and on behalf of a putative class of similarly situated Citizens customers. Id. ¶ 26.
At issue here is the enforceability of the PDAA's arbitration clause. De Simone abided by the terms of the PDAA when she initiated arbitration for her claims with the American Arbitration Association (the “AAA”) and issued a demand for arbitration to Citizens. Decl. Lynn Toops (“Toops Decl.”) ¶¶ 2-3, ECF No. 31-1; Compl. ¶ 4. A hiccup arose when it came time for Citizens to pay the administrative fees by April 21, 2023. Decl. Robert Hannen (“Hannen Decl.”) ¶ 8, ECF No. 9-1. The AAA extended Citizens's fee deadline to May 29, 2023. Id. ¶ 9; Toops Decl. ¶¶ 5-6. Citizens's then-attorney at Clark Hill, PLC submitted payment to the AAA via Automated Clearing House (“ACH”) on May 26, 2023, three days before the May 29 due date. Hannen Decl. ¶ 10. Because the due date was also Memorial Day, the payment was not processed, and the AAA did not receive the payment, until May 30, 2023. Id.
When considering a motion brought under Federal Rule of Civil Procedure 12(b)(6), “a court ordinarily may only consider facts alleged in the complaint and exhibits attached thereto, or else convert the motion into one for summary judgment.” Douglas v. Hirshon, 63 F.4th 49, 57 (1st Cir. 2023) (quoting Freeman v. Town of Hudson, 714 F.3d 29, 35-36 (1st Cir. 2013)). “Narrow exceptions” to this rule exist “for documents the authenticity of which are not disputed by the parties; . . . for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The Personal Deposit Account Agreement (“PDAA”) and the several documents referred to in this opinion fall within these narrow exceptions.
Subsequently, the AAA issued a letter stating it never received payment and, therefore, declined to administer the case. Ex. B Compl., AAA Ltr. (June 1, 2023), ECF No. 1-2. Invoking its Consumer Arbitration Rule R-1(d), the AAA stated that, because it declined to administer the arbitration, “either party may choose to submit its dispute to the appropriate court for resolution.” Id. The next day, Citizens's attorney attempted to rectify the situation by notifying the AAA of the payment. See Ex. 1 Decl. Geoffrey Millsom, June 2023 Email Correspondence (“June 2023 Emails”) at 2-3, ECF No. 30-1. The case remained closed, however, because De Simone objected to its reopening. Id. at 1-2.
Taking advantage of this good fortune, De Simone filed a lawsuit in the Western District of New York the day after the AAA informed the parties it would not take the case. See generally Compl. The parties stipulated to transferring venue to the District of Rhode Island to determine the validity, scope, and enforceability of the PDAA's arbitration clause. Joint Stipulation Transfer Venue 1-2, ECF No. 18. Now with the case before this Court, Citizens filed a Motion to Dismiss or Stay Pending Completion of Individual Arbitration, or Alternatively to Dismiss Class Action Complaint (“Def.'s Mot.” or “Motion”), ECF No. 29, under “9 U.S.C. § 3 and/or Fed.R.Civ.P. 12 or 56,” id. at 1. De Simone opposes the Motion. See generally Pl.'s Resp. Opp'n Def.'s Mot. Dismiss (“Pl.'s Opp'n”), ECF No. 31. For the reasons below, the Court GRANTS Citizens's Motion and STAYS the action pending completion of arbitration.
I. STANDARD OF REVIEW
The Federal Arbitration Act (“FAA”) dictates that “[a] written provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract . . . 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. When an arbitration clause is contained in a contract, that clause creates a “presumption of arbitrability.” Johnson Controls Sec. Sols., LLC v. Int'l Bhd. of Elec. Workers, Loc. 103, 24 F.4th 87, 90 (1st Cir. 2022) (quoting AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650 (1986)). Thus, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). This presumption, however, “does not authorize federal courts to invent special, arbitration-preferring procedural rules.” Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022). Indeed, “[i]f an ordinary procedural rule - whether of waiver or forfeiture or what-have-you - would counsel against enforcement of an arbitration contract, then so be it. The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.” Id.
The party seeking arbitration “must demonstrate (1) that a valid agreement to arbitrate exists, (2) that they are entitled to invoke the arbitration clause, (3) that the other party is bound by that clause, and (4) that the claim asserted comes within the clause's scope.” Bosse v. N.Y. Life Ins. Co., 992 F.3d 20, 27 (1st Cir. 2021) (internal quotation and alteration marks omitted).
II. DISCUSSION
Citizens moves to dismiss or stay the Complaint under Section 3 of the FAA, 9 U.S.C. § 3. Def.'s Mot. 1. Section 3 provides that a court should stay an arbitrable case “until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3. Based on the allegations in De Simone's Complaint and her own actions, there is no disagreement that the arbitration clause contained in the PDAA is valid, binds both parties, and applies to De Simone's claims. See Compl. ¶ 4 (alleging that De Simone “initiated an arbitration proceeding against” Citizens concerning her allegations); Toops Decl. ¶¶ 2-4 (describing how De Simone's counsel initiated arbitration); see generally Pl.'s Opp'n (making no argument that the arbitration clause in the PDAA is invalid or does not apply to the parties or De Simone's claims).
Instead, the pertinent issue is whether Citizens is currently “entitled to invoke the arbitration clause.” Bosse, 992 F.3d at 27 (quoting Grand Wireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 6 (1st Cir. 2014)). De Simone argues that Citizens is not entitled to invoke the arbitration clause because it is “in default in proceeding” under Section 3 and otherwise waived its right to compel arbitration. Pl.'s Opp'n 5-12. The Court will review the PDAA's arbitration clause and address the parties' arguments concerning the enforceability of the PDAA's arbitration clause.
De Simone tries to distinguish between a party being “in default” and waiving their right to arbitration. Compare Pl.'s Resp. Opp'n Def.'s Mot. Dismiss (“Pl.'s Opp'n”) 5-11, ECF No. 31, with id. at 11-12. Under First Circuit precedent, there is no distinction between the two concepts; the analysis of whether the arbitration clause is enforceable is the same for each. See Marie v. Allied Mortg. Corp., 402 F.3d 1, 13 (1st Cir. 2005).
A. Arbitration Agreement under the PDAA
To find the arbitration clause in the PDAA, one must turn to the section titled “XXII. Arbitration” on page twenty-six. It states, in relevant part:
Binding Arbitration
If you have a dispute with us, and we are not able to resolve the dispute informally, you and we agree that upon demand by either you or us, the dispute will be resolved through the arbitration process as set forth in this part. A “claim” or “dispute,” as used in this Arbitration Agreement, is any unresolved disagreement between you and us, arising from or relating in any way to the Account Agreement (including any renewals, extensions, addendums or modifications) or the deposit relationship between us. It includes any disagreement relating in any way to services, accounts or any other matters; to your use of any of our banking facilities; or to any means you may use to access your account(s). Any claims or disputes arising from or relating to the advertising of our services, the application for, or the approval or establishment of your account are also included. Claims are subject to arbitration, regardless of on what theory they are based, whether they seek legal or equitable remedies, or whether they are common law or statutory (federal or state) claims. Arbitration applies to any and all such claims or disputes, whether
they arose in the past, may currently exist, or may arise in the future.
However, “claim” or “dispute” as used in this Arbitration Agreement does not include any dispute or controversy about the validity, enforceability, coverage or scope of this Arbitration Agreement or any part thereof (including, without limitation, the “Class Action and Class Arbitration Waiver” set forth below, subparts (1) and (2) of the “Severability and Survival” part set forth below and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide; but disputes about the validity or enforceability of this Account Agreement as a whole are for the arbitrator and not a court to decide. ANY DISPUTE CONCERNING THE VALIDITY, ENFORCEABILITY, COVERAGE OR SCOPE OF THIS ARBITRATION AGREEMENT SHALL BE RESOLVED IN A RHODE ISLAND STATE OR FEDERAL COURT OF LAW, AND THE PARTIES HEREBY SUBMIT TO THE JURISDICTION OF SUCH A COURT FOR SUCH PURPOSE.
TRIAL WAIVER
YOU AGREE THAT YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL AND TRIAL BEFORE A JUDGE IN A PUBLIC COURT upon demand by either party for arbitration. However, you and we retain the right to pursue in small claims court (or an equivalent state court) any dispute that is within that court's jurisdiction and advance only an individual claim for relief. If either you or we fail to submit to binding arbitration of an arbitrable dispute following lawful demand, the party so failing shall bear all costs and expenses incurred by the other party in compelling arbitration.PDAA at 26-27.
Arbitration takes place in the federal judicial district where the customer resides, which, in this case, would be the Western District of New York. See id. at 27; Compl. ¶ 7. As noted above, disputes concerning the “validity, enforceability, coverage[,] or scope” of the PDAA's arbitration clause must be litigated in a state or federal court in Rhode Island. PDAA at 27. The PDAA, including the enforceability of the arbitration clause, is governed by federal law and, “to the extent not preempted by federal law,” New York law because that is where De Simone opened the account. Id. at 31; Compl. ¶ 11.
The Arbitration section requires either the AAA or the Judicial Arbitration and Mediation Services (“JAMS”) to arbitrate applicable claims. PDAA at 27. If, however, the AAA or JAMS are “unable to handle the dispute for any reason,” the parties must agree on a neutral arbiter to oversee the case or, if the parties cannot agree on an arbiter, a court must select one in accordance with the FAA. Id.
B. Whether Citizens is in Default by Waiving its Right to Invoke the Arbitration Clause
A party can waive - either explicitly or implicitly - a known right to arbitration, like any contract right, “by acting inconsistently with that right.” Morgan, 596 U.S. at 419; see Toddle Inn Franchising, LLC v. KPJ Assocs., LLC, 8 F.4th 56, 64 (1st Cir. 2021). In determining whether a party waived its right to arbitrate, courts in the First Circuit “employ a non-exclusive factor-based test.” Morales Posada v. Cultural Care, Inc., No. 1:20-cv-11862-IT, 2024 WL 841414, at *4 (D. Mass. Feb. 28, 2024), appeal filed, No. 24-1248 (1st Cir. Mar. 13, 2024). Those factors include:
(1) [W]hether the parties participated in a lawsuit or took other action inconsistent with arbitration; (2)
whether the litigation machinery has been substantially invoked and the parties are well into preparation of a lawsuit by the time an intention to arbitrate is communicated; (3) whether there has been a long delay and trial is near at hand; (4) whether the party seeking to compel arbitration has invoked the jurisdiction of the court by filing a counterclaim; [and] (5) whether discovery not available in arbitration has occurred.FPE Found. v. Cohen, 801 F.3d 25, 29 (1st Cir. 2015) (internal quotation and alteration marks omitted) (citing Restoration Pres. Masonry v. Grove Eur., Ltd., 325 F.3d 54, 60-61 (1st Cir. 2003)). No one factor is dispositive, for “each case is to be judged on its particular facts.” Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc., 540 F.Supp.3d 182, 194 (D.R.I. 2021) (quoting In re Tyco Int'l Ltd. Sec. Litig., 422 F.3d 41, 46 (1st Cir. 2005)). The burden of demonstrating an arbitration waiver is no heavier than showing a waiver in any other contractual context. Morgan, 596 U.S. at 417-18.
The sixth factor for waiver under the First Circuit Court of Appeals' decision in FPE Foundation v. Cohen requires the Court to consider “whether the party asserting waiver has suffered prejudice.” 801 F.3d 25, 29 (1st Cir. 2015). Since the First Circuit issued FPE Foundation, however, the Supreme Court has disapproved of lower courts considering prejudice in determining whether a party waived its right to arbitration. See Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022); Crean v. Morgan Stanley Smith Barney, LLC, 652 F.Supp.3d 171, 183 (D. Mass. 2023).
De Simone argues that Citizens waived its right to pursue arbitration by failing to pay the AAA filing fee on time and for its “repeated failures to comply with AAA's policies and deadlines.” Pl.'s Opp'n 8. This course of conduct, according to De Simone, caused the AAA to decline arbitration and invoke its Rule R-1(d), allowing her to pursue litigation. Id. at 8-10.
In particular, De Simone argues that Citizens has been dilatory in its interactions with the AAA starting from when she first initiated the arbitration. She contends that when the AAA informed Citizens of De Simone's demand, Citizens neglected to pay the filing fee by the required April 21 due date. Ex. C Toops Decl., AAA Ltr. (Apr. 7, 2023), ECF No. 31-1; Pl.'s Opp'n 10. The AAA followed up with another letter informing Citizens that it had until May 8, 2023 to remit payment. Ex. D Toops Decl., AAA Ltr. (Apr. 24, 2023), ECF No. 31-1. This same letter informed Citizens that, if it failed to pay the fee, the AAA would be forced to administratively close the case. Id. Subsequently, the AAA gave Citizens an extension to pay the fee by May 29, 2023. Ex. E Toops Decl., May 2023 Email Communications (“May 2023 Emails”), ECF No. 31-1. Then, even with the deadline extension, Citizens still managed to miss the deadline. Pl.'s Opp'n 4, 10. Taken together, De Simone argues, this is sufficient to constitute a waiver by Citizens of its right to arbitrate her claims.
Citizens tells a different story. In its version of events, it has been diligent in responding to De Simone's request for arbitration. See Def.'s Mem. Law Supp. Mot. Dismiss or Stay Pending Completion Individual Arbitration, or Alternatively Dismiss Class Action Compl. (“Def.'s Mem.”) 5-6, 16-17, ECF No. 29-1; Def.'s Reply 4-6, ECF No. 32. On March 15, 2023, the AAA sent a letter noting that De Simone failed to pay the filing fee on time and gave her until March 29, 2023 to do so or else the AAA would not administer the case. Ex. 1 Decl. Geoffrey Millsom, AAA Ltr. (Mar. 15, 2023), ECF No. 33-1. Afterwards, Citizens contends that it had not heard from the AAA since its March 15 letter, so its counsel contacted the AAA for a status update. May 2023 Emails. The AAA failed to respond to that communication, so counsel reached out again on May 11, 2023. Id. Four days later, the AAA responded and attached the April 2023 correspondence that required Citizens to remit its administrative fee by May 8. Id. The AAA gave Citizens a one-time extension of May 29, 2023 to pay the fee. Id. Citizens issued a payment on May 26, 2023, but the payment did not reach the AAA's account until May 30. Hannen Decl. ¶ 10. This course of events, according to Citizens, “was the result of an innocent and understandable misunderstanding as to the status of the case.” Def.'s Reply 5.
Considering the FPE Foundation factors, the Court is convinced that Citizens did not waive its right to invoke the PDAA's arbitration clause. Of the five factors, the facts in this situation only seem to implicate the first one - “whether the parties participated in a lawsuit or took other action inconsistent with arbitration.” FPE Found., 801 F.3d at 29. Based on the above, the facts demonstrate Citizens took actions consistent with arbitration.
Apparently, Citizens never received the AAA's April 2023 correspondence. See May 2023 Emails. Recognizing this, after Citizens's counsel contacted the AAA in May, the AAA extended -without receiving a request - the time Citizens could pay the filing fee until May 29, 2023. Id. Citizens acted consistently with this mandate by issuing a payment on May 26, 2023 via ACH transfer - three days before the payment was due. Hannen Decl. ¶ 10. Due to circumstances beyond Citizens's control, the payment did not post to the AAA's bank account until May 30. Id. In all, these actions exhibited an intent to arbitrate and do not reflect dilatory action on the part of Citizens.
Courts regularly require parties to return to arbitration even after the AAA closes a case due to the defendant's failure to comply with its rules. For example, in Russell v. Wyndham Vacation Resorts, Inc., the AAA closed the file when the defendants failed to comply with the AAA's policies regarding consumer claims. No. 22-cv-0880-L-DDL, 2023 WL 139803, at *2 (S.D. Cal. Jan. 9, 2023). The court sent the parties back to arbitration because the defendants demonstrated a willingness to arbitrate when they sought guidance from the AAA on how to ensure their arbitration provision complied with the AAA's rules. Id. at *4-5. Also, in Jaramillo v. TXU Energy, the court found that the defendant did not waive its right to arbitration when the AAA's sole point of contact with the defendant - its counsel - was hospitalized with COVID-19, causing the defendant to pay the arbitration fee late. EP-20-CV-00115-DCG, 2021 WL 1177888, at *3 (W.D. Tex. Mar. 29, 2021). Like in Russell, Citizens was diligent in correcting its payment issue when it collaborated with the AAA to get the issue resolved. Additionally, as in Jaramillo, Citizens's delay in paying the fee was the result of circumstances that were of no fault of its own.
De Simone heavily relies on two cases. In the first, Bedgood v. Wyndham Vacation Resorts, Inc., the Eleventh Circuit affirmed the lower court's denial of the defendant's motion to compel arbitration. 88 F.4th 1355, 1371 (11th Cir. 2023); see Pl.'s Opp'n 5-6. There, the AAA found that the defendant failed to comply with its policies by not registering its arbitration clause with the AAA, so the AAA declined to administer the case. Id. at 135961. The record before the court did not reflect whether the defendant had attempted to rectify the problem following the AAA's notice. Id. at 1361. Consequently, the court did not have the power to compel arbitration under Section 3 for the defendant's failure to comply with the AAA's rules. Id. at 1363-64.
The situation in Bedgood is distinguishable. Here, unlike in Bedgood, Citizens complied with the AAA's requirement by submitting its arbitration fee payment before May 29, but a technological snafu thwarted the registration of the payment. As soon as the AAA issued a letter explaining it was closing the case, Citizens's counsel advised the AAA that it had issued the payment before May 29. Significantly, the AAA was willing to reopen the matter. In Bedgood, as the court emphasized, the defendant “made no effort to investigate - let alone remedy - its noncompliance before the AAA.” Id. at 1366. Citizens taking immediate efforts to rectify its payment issues is a critical distinction.
Second, De Simone relies on Merritt Island Woodwerx LLC v. Space Coast Credit Union, where the AAA declined to administer a case because the defendant failed to submit its consumer dispute resolution plan for review or pay the arbitration fee. No. 6:23-cv-1066-PGB-DCI, 2023 WL 8699470, at *3 (M.D. Fla. Dec. 15, 2023), appeal filed, No. 24-10019 (11th Cir. Jan. 3, 2024); see Pl.'s Opp'n 11-12. Once again, Merritt Island is distinguishable. Significantly, the defendant there did not attempt to engage in arbitration until two days after the plaintiff filed its action, which was more than a month after the AAA declined to administer the arbitration. Merritt Island, 2023 WL 8699470, at *7. The court found the defendant's behavior “lackadaisical,” which made requiring arbitration inappropriate. Id.
One cannot credibly claim Citizens has been lackadaisical here. It engaged with the AAA to ensure the arbitration proceeded. Though Citizens appears to have missed the AAA's April 2023 correspondence, once counsel contacted the AAA in May, it made substantial efforts to ensure it complied with the AAA's requirements, including by attempting to make a timely payment. When Citizens realized its payment did not go through, it immediately contacted the AAA. This all occurred before De Simone filed her lawsuit. Unlike the defendants in Merritt Island, Citizens did not sit on its hands in dealing with De Simone's arbitration requests.
In sum, Citizens did not waive its right to arbitration by acting “inconsistent[ly]” with that right. FPE Found., 801 F.3d at 29. Given this, the Court does not find Citizens is “in default” and arbitration may proceed. 9 U.S.C. § 3.
Because the Court has concluded that Citizens did not waive its right to arbitration, it declines to address Citizens's alternative argument that the Court should dismiss De Simone's class action allegations because the PDAA's class action waiver precludes them. See Def.'s Mem. Law Supp. Mot. Dismiss or Stay Pending Completion of Individual Arbitration, or Alternatively Dismiss Class Action Compl. 18-23, ECF No. 29-1; Def.'s Reply 1114, ECF No. 32; see also Ex. A Compl. 27, ECF No. 1-1.
C. The AAA's Invocation of Rule R-1(d) Does Not Preclude the Court from Mandating Arbitration
De Simone argues that this case should not proceed to arbitration because the AAA invoked Consumer Arbitration Rule R-1(d). Pl.'s Opp'n 8-10. Citizens argues that the Rule does not apply because the parties never explicitly adopted the AAA rules in the PDAA. Def.'s Mem. 12-14. Both arguments miss the mark because both parties want to have their cake and eat it too.
Citizens is wrong in stating that the parties never adopted the AAA rules. The PDAA expressly states, “Each arbitration . . . shall be administered by the American Arbitration Association (AAA) . . . according to such forum's rules and procedures.” PDAA at 27 (emphasis added). By agreeing to abide by the AAA's rules, it agreed to abide by all the rules, including the rules concerning the administrability of a case, like Rule R-1(d). See Hernandez v. MicroBilt Corp., 88 F.4th 215, 220 (3d Cir. 2023); Greco v. Uber Techs., Inc., No. 4:20-cv-02698-YGR, 2020 WL 5628966, at *3 (N.D. Cal. Sept. 3, 2020). Such rules apply even when the arbitration agreement outlines other avenues for arbitration. Hernandez, 88 F.4th at 220. Thus, if the AAA's last word is that it will not take a case and the parties may file suit in court, the invoking party must abide by that determination.
Luckily for Citizens, the AAA's invocation of Rule R-1(d) is not its last word. After Citizens clarified the issue regarding the payment, the AAA responded that it would reopen the case. But De Simone objected to reopening the case. See June 2023 Emails at 1-2. Said differently, the AAA was willing to exercise its power to administer the case but for De Simone's objection. See Merritt Island, 2023 WL 8699470, at *5. De Simone cannot now claim that the parties must pursue litigation under Rule R-1(d) when the AAA was willing to administer the arbitration had she not objected to the case reopening. Accordingly, the AAA's previous invocation of Rule R-1(d) does not preclude arbitration given that the AAA was willing to administer the arbitration.
D. The Remedy Going Forward
Citizens, under Section 3, asks the Court to either dismiss or stay the action if it finds that De Simone's claims are subject to arbitration. Def.'s Mem. 8; Def.'s Mot. 1. It further contends that the Court may dismiss De Simone's suit if the Court finds that all her claims are subject to arbitration. Def.'s Mem. 8. But, as the Supreme Court recently held, Section 3 does not give federal courts the power to dismiss claims subject to arbitration. Smith v. Spizzirri, 144 S.Ct. 1173, 1177-78 (2024). The plain text of Section 3 mandates a stay even if the entire action is subject to arbitration. 9 U.S.C. § 3 (stating when an issue in a suit or a proceeding is subject to arbitration, the court “shall . . . stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement” so long as the moving party is not in default (emphasis added)); Smith, 144 S.Ct. at 1177-78. Thus, the Court will stay the litigation rather than dismiss the case.
III. CONCLUSION
For the reasons explained above, Citizens Bank's Motion to Dismiss or Stay Pending Completion of Individual Arbitration, or Alternatively to Dismiss Class Action Complaint, ECF No. 29, is GRANTED. Accordingly, the action is STAYED pending completion of arbitration.
IT IS SO ORDERED.