Opinion
Case No.: A3-00-46
September 22, 2000.
MEMORANDUM AND ORDER
Before the Court is defendant's motion to stay the proceedings in this Court pending arbitration or, alternatively, to dismiss the Complaint. (doc. #5). Plaintiff objects to both, but adds that it prefers some type of judicial oversight over outright dismissal. (doc. #8). Defendant's request for oral argument on the motion is DENIED. (doc. #12). The Court, having considered the submissions of the parties along with the entire file, rules as follows.
I. INTRODUCTION
Simply stated the issue being considered by the Court is whether the contractual arbitration agreement between these two parties precludes the plaintiff from bringing its suit in court. Defendant, Equifax Card Services, Inc., (Equifax), argues that plaintiff is contractually bound to arbitrate its dispute pursuant to the contract clause which provides:
18.1 Initiation: All disputes between the parties which are to be resolved by arbitration as provided hereunder shall be handled as hereinafter described. Either side to the dispute may institute arbitration by giving written notice to the other party of its intention to arbitrate, which notice shall contain the name of the arbitrator selected by the party instituting arbitration, the nature of the controversy, the remedies sought and any other pertinent matter.
Plaintiff, Stutsman County State Bank, (Bank), asserts that this clause provides for permissive rather than mandatory arbitration.
II. DISCUSSION
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et. seq., passed by Congress mandates the enforcement of contractual arbitration agreements and declares a national policy favoring the right of private parties to agree to arbitrate. Dobbins v. Hawk's Enterprises, 198 F.3d 715, 717 (8th Cir. 1999). In the spirit of favoring arbitration, such clauses are to be liberally construed by the court. See Keymer v. Management Recruiters Int'l, Inc., 169 F.3d 501, 504 (8th Cir. 1999) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25(1983)). This pro-arbitration policy, however, does not operate with out regard to the intent of the contracting parties as arbitration is a matter of consent, not coercion. Id. (citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995)). Whether a valid, controlling arbitration clause exists is a matter of ordinary contract interpretation and a matter of law for the court to decide. Id.
In this case the parties have not disputed that the arbitration agreement between them is valid; thus, the question is whether the parties' dispute falls within the scope of the arbitration clause.See id. In other words, the Court directly considers whether the parties have agreed to arbitrate this particular dispute. See id. This inquiry requires the application of ordinary state law contract principles. Id. According to paragraph 30 of the parties' contract, Florida law governs this case.
Equifax is in the business of providing credit card processing services to banks and other financial institutions that issue credit cards to their customers. In 1994, the Bank entered into an agreement with IBAA Bancard, Inc. (IBAA), which authorized IBAA to act as the Bank's agent and enroll the Bank in Equifax's processing program. IBAA, as agent for the Bank, contracted with Equifax to provide processing services. The contract between IBAA and the Bank explicitly incorporates all provisions of the Equifax Agreement. It is the Equifax Agreement that contains the arbitration clause quoted above.
In 1999, the Bank sold its credit card portfolio to a new owner and notified Equifax that the Bank was terminating its processing services. Per the contract, Equifax was entitled to receive a "deconversion fee" for the switch in processors. Equifax contended that the deconversion fee equaled $680,994.73. The Bank disagreed and asserted that the correct fee was $113,472. When the parties were unsuccessful in resolving this dispute between themselves, the Bank initiated an action in this Court. The resolution of this ultimate issue is not currently before the Court. The issue at this juncture is whether the dispute over the correct deconversion fee is referable to arbitration.
"Although contracts are to be construed in order to give effect to the intent of the parties, it is a well settled principle of contract law that where the terms of a contract are unambiguous, the parties' intent must be determined from within the four corners of the document." Burns v. Barfield, 732 So.2d 1202, 1205 (Fla.Dist.Ct.App. 1999). When there is no ambiguity, the language itself is the best evidence of the parties' intent and its plain meaning controls. Id. As quoted above, the arbitration provision provides that "all disputes between the parties which are to be resolved by arbitration as provided hereunder shall be handled as hereinafter described." In examining the scope of this clause, the Court must look to the actual language and the plain meaning of that language, giving effect to each word. See LPI/Key West Assoc. v. Sarah Luna, Inc., 749 So.2d 564, 565 (Fla. Dist. Ct. App. 2000).
Equifax asserts that the dispute over the correct amount of the deconversion fee arises out of the Equifax Agreement. The Court agrees. Equifax further asserts that "the arbitration clause does not limit the scope of issues to be resolved through arbitration — to the contrary, it speaks of 'any disputes between the parties arising under or out of this Agreement.'" Def.'s Br. at p. 7 (emphasis supplied). The Court disagrees. First, the Court notes that the phrase quoted by Equifax is located in paragraph 18.3 of the contract providing for alternating venue and is used out of context. An accurate recital is:
If arbitration is required to resolve any disputes between the parties arising under or out of this Agreement, the proceedings to resolve the first such dispute shall be held in Tampa, Florida, the proceedings to resolve the second such dispute shall be held in Washington, D.C. and the proceedings or [sic] resolve any subsequent disputes shall alternate between Tampa, Florida and Washington, D.C.Obviously, this clause cannot be ascribed the meaning that Equifax attaches to it. The plain language of this clause does not provide that "any dispute" between the parties arising under or out of the Agreement shall be arbitrated. This clause clearly provides that if arbitration is required it shall be held in the designated alternating venues. The clause raises the question: when is arbitration required? It does not answer it. Consequently, this clause does not control the inquiry.
Second, the scope of the arbitration clause in paragraph 18.1 is unambiguously limited. The clause limits itself to only those disputes between the parties "which are to be resolved by arbitration as provided hereunder." The Court must give effect to each word in this phrase. See LPI/Key West, 749 So.2d at 565. The plain meaning of the "as provided hereunder" language of the provision requires that only the disputes that are identified elsewhere in the contract must be arbitrated. Equifax reads this provision to mean that all disputes between the parties arising out of the Agreement shall be resolved by arbitration. See Def.'s Br. at p. 5. This rendering of the provision ignores and gives no effect to the "as provided hereunder" language. Therefore, the Court cannot accept such a reading. Had the parties intended to arbitrate all disputes the language should have simply provided that "all disputes shall be arbitrated." Cf. Primeco Personal Communications v. Commonwealth Distrib., Inc., 740 So.2d 585, 586 (Fla.Dist.Ct.App. 1999) (contract clear and unambiguous where it provided for arbitration of "any claim, controversy or dispute between the parties").
Additionally, the Court has reviewed the Equifax Agreement in detail and has found that there are claims described in the Agreement which are required to be arbitrated. For example, under paragraph 4.9 "the issue of whether an Adverse Event has occurred shall be submitted to binding arbitration pursuant to the provisions of paragraph 18 hereof." This review satisfies the Court that the parties did not intend to require arbitration of all disputes arising under the Equifax Agreement, but instead only intended to require arbitration of those disputes that were specifically provided for thereunder. The parties have cited and the Court has found no clause in the contract which specifically requires the arbitration of a dispute over the deconversion fee. Accordingly, the dispute over the correct amount of the deconversion fee is not referable to mandatory arbitration.
III. CONCLUSION
Based on the foregoing, defendant's motion to stay or dismiss, (doc. # 5), is DENIED.
IT IS SO ORDERED.