MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Defendants Keith Shindler and Michael Joyce have moved to compel arbitration and stay this Fair Debt Collection Practices Act ("FDCPA") case. Because the defendants can enforce the arbitration provision, the motion to compel arbitration and stay this case is granted.
Plaintiff David Leibowitz, acting as trustee for the bankruptcy estate of Theodoric Owens, Senior ("Owens"), sued Defendants Keith Shindler and Michael Joyce as individuals and the partnership Shindler & Joyce for violating the FDCPA.
A district court may compel arbitration under the Federal Arbitration Act, 9 U.S.C. § 4, if the movant makes three showings: "a written agreement to arbitrate, a dispute within the scope of the arbitration agreement, and a refusal to arbitrate."
The first question, therefore, is whether the FDCPA claim falls within the ambit of the arbitration agreement. Shindler & Joyce devote a single paragraph with no citations beyond the language of the contract in arguing that it does. See Mot. at 6. While such poor argument would generally be insufficient to prove a required condition, there is a presumption of arbitrability and arbitration should be ordered unless the clause "is not susceptible of an interpretation that covers the asserted dispute." IBEW Local 2150 v. NextEra Energy Point Beach, LLC, 762 F.3d 592, 594 (7th Cir. 2014). Furthermore, the Seventh Circuit reads provisions requiring arbitration of disputes "arising out of and relating to" a contract to be "extremely broad and capable of an expansive reach." Gore v. Alltel Communs., LLC, 666 F.3d 1027, 1033-34 (7th Cir. 2012). The plaintiff has not argued that this suit is not "related to" the contract, so the Court considers this prong conceded by the plaintiff.
Both parties focus their arguments on whether or not Shindler & Joyce can equitably enforce the arbitration agreement (having not been a party to the original contract). The arbitration provision provides that "You" (the consumer) and "Us" are allowed to invoke the provision. "Us" is defined as the "Seller and/or Seller's assignee (including, without limitation, Credit Acceptance Corporation) or their employees, assignees, or any third party providing any goods or services in connection with the origination, servicing and collection of amounts due under the Contract if such third party is named as a party between You and Us." See Def.'s Ex. 1 at 4. It seems plain Shindler & Joyce was never so named as a party,
Equitable estoppel generally applies when a "signatory's claims are grounded in or intertwined with claims under the agreement that subjects the signatory to arbitration." Pa. Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, 713 F.Supp.2d 734, 745 (N.D. Ill. 2010). "[W]hen each of a signatory's claims against a nonsignatory `makes reference to' or `presumes the existence of the written agreement, the signatory's claims arise out of and relate directly to the written agreement and arbitration is appropriate." Hoffman v. Deloitte & Touche, LLP, 143 F.Supp.2d 995, 1004-05 (N.D. Ill. 2001) (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)). Here, it is at least arguable that the claim presumes the existence of the written agreement, because part of the plaintiff's argument is that Owens signed the agreement in a different judicial district.
More importantly, however, equitable estoppel also applies when the signatory and the non-signatory are involved in "substantially interdependent and concerted misconduct." Hoffman, 143 F. Supp. 2d at 1005. An agent who sends debt collection letters on behalf of a contract party can invoke the arbitration agreement signed by the principal. See Johnston v. Arrow Fin. Servs., LLC, No. 06 C 0013, 2006 WL 2710663, at *5 (N.D. Ill. Sept. 15, 2006); see also Holden v. Deloitte & Touche LLP, 390 F.Supp.2d 752, 767 n.14 (N.D. Ill. 2005). Here, the alleged FDCPA violation arises out of Shindler & Joyce's representation of a contract party (Credit Acceptance Corporation) in a lawsuit attempting to collect on the defaulted contract balance. Originally both Credit Acceptance Corporation and Shindler & Joyce were named as defendants in this suit and both were alleged to have violated the statute when they (together) brought the collection suit in the wrong venue. Their actions were substantially interdependent and concerted, as Shindler & Joyce were serving as Credit Acceptance Corporation's lawyers. Thus, Shindler & Joyce can invoke the arbitration agreement through equitable estoppel, standing in the shoes of Credit Acceptance Corporation.
Finally, Owens argues that Shindler & Joyce waived their right to arbitrate when they filed the debt collection suit against him rather than proceeding to arbitration. See Resp. at 10. The arbitration agreement itself is voluntary, not mandatory—either party "may require any Dispute to be arbitrated"—and the agreement specifically states that arbitration may be invoked "before or after a lawsuit has been started over the Dispute." See Def.'s Ex. 1 at 5. The right to arbitrate is waived when "a party acted inconsistently with the right to arbitrate," especially when it was not diligent in asserting its right to arbitration. Kawasaki Heavy Indus. v. Bombardier Rec. Prods., 660 F.3d 988, 994 (7th Cir. 2011). "Other factors that we consider include whether the allegedly defaulting party participated in litigation, substantially delayed its request for arbitration, or participated in discovery." Id. As Shindler & Joyce notes, there has been no discovery in this case and the request for arbitration was filed promptly after this case was filed.
Moreover, Shindler & Joyce invoked its right to arbitration at the first possible moment. While Credit Acceptance Corporation obviously had a right to arbitrate the collections claim, Shindler & Joyce only became able to assert the arbitration provision on its own behalf when it was charged with misconduct as a party in this lawsuit. Few lawyers would assert they have the ability to compel their clients to participate in arbitration regarding contracts between their clients and third parties if they are not parties themselves to the dispute. Thus, Shindler & Joyce acted promptly to invoke the arbitration clause and did not waive their right to arbitration.
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For the reasons stated above, the motion to compel arbitration is granted. Shindler & Joyce have the ability to equitably enforce the arbitration clause and have not waived their right to do so. The Court therefore compels arbitration in this matter and stays this case pursuant to 9 U.S.C. § 3. The parties are required to submit a report on the status of the arbitration proceeding on September 1, 2017, and every 90 days thereafter during the pendency of the arbitration, and a report within 30 days of the completion of the arbitration proceeding.