0:25-cv-60774•Gilead v. Early Warning Services, LLC et al
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION CASE NO. 25-60774-CIV-SMITH/HUNT ARMA GILEAD, Plaintiff, v. EARLY WARNING SERVICES, LLC, and WELLS FARGO BANK, N.A., Defendants. _________________________________/ REPORT AND RECOMMENDATIONS THIS CAUSE is before this Court on Defendant Wells Fargo’s Motion to Compel Arbitration. ECF No. 18. The Honorable Rodney Smith, United States District Judge, referred this Motion to the undersigned for disposition. ECF No. 41; see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Having carefully reviewed the Motion, the Response, the Reply and Sur-Reply thereto, the entire record, and applicable law, and being otherwise fully advised in the premises, the undersigned respectfully RECOMMENDS that Defendant’s Motion be Denied for the reasons outlined below. BACKGROUND As is relevant here, this case concerns allegations that Defendant Wells Fargo sent false information to credit reporting agencies regarding Plaintiff Arma Gilead’s personal bank account ending in 6445, initially opened November 1, 2006, with Defendant’s predecessor, Wachovia Bank. Defendant now seeks to compel arbitration, arguing that Plaintiff has previously agreed to arbitrate such claims. The motion is now ripe for consideration. Case 0:25-cv-60774-RS Document 61 Entered on FLSD Docket 01/12/2026 Page 1 of 5
2 LEGAL STANDARD “The F[ederal] A[rbitration] A[ct] provides that an agreement to arbitrate is ‘valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’” Greene v. Subcontracting Concepts, L.L.C., No. 13 CIV. 01500 AJN, 2014 WL 1087999, at *2 (S.D.N.Y. Mar. 19, 2014) (quoting 9 U.S.C. § 2). “Generally, in deciding whether to compel arbitration, a court must determine two ‘gateway’ issues: (1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute.” Cullen v. Shutterfly Lifetouch, LLC, No. 20-CV-06040-BLF, 2021 WL 2000247, at *5 (N.D. Cal. May 19, 2021) (quoting Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)). “If the response is affirmative on both counts, then the [Federal Arbitration Act] requires the court to enforce the arbitration agreement in accordance with its terms.” Id. (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). ANALYSIS As an initial matter, all Parties agree that the arguments contained in Defendant’s initial Motion, which pertained to Plaintiff’s credit card account with Defendant, do not apply to the matter before the Court. Plaintiff pointed out in her response that this matter concerned Plaintiff’s personal banking account ending in 6445, rather than the credit card account discussed in Defendant’s Motion. In reply, Defendant noted that there was some confusion regarding whether Plaintiff’s claim against Wells Fargo arose from her credit card account, one or more deposit accounts, or both, and in reply argued that the bank’s Deposit Account Agreement nonetheless compelled arbitration in this case. Case 0:25-cv-60774-RS Document 61 Entered on FLSD Docket 01/12/2026 Page 2 of 5
3 Of course, “arguments raised for the first time in a reply brief are not properly before a reviewing court.” Riechmann v. Fla. Dep’t of Corr., 940 F.3d 559, 579 (11th Cir. 2019) (citing Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005)). For this reason alone, Defendant’s Motion could be denied. However, Plaintiff sought leave and filed a sur-reply answering the new arguments. The undersigned therefore considers the new arguments on the merits. Having considered the new arguments, as well as the newly submitted evidence, the undersigned nonetheless finds that Defendant’s Motion should be denied because the undersigned cannot find any evidence before it that Plaintiff has assented to arbitration on the 6445 account. Defendant points to no evidence that Plaintiff agreed to arbitration when she opened her Wachovia account.1 Likewise, there is no evidence that she has agreed to arbitration on that account since. To be sure, Suhady Almonte, a Business Support Consultant at Wells Fargo attested that “[d]uring the times described in the subject Complaint (i.e., 2023-2024), the [relevant] Account is governed by Wells Fargo’s Deposit Account Agreement (the “6445 Agreement”).” ECF No. 28-1 at 2. Almonte attested that a true and correct copy of that Agreement was attached as Exhibit “C,” and Exhibit C does provide a Deposit Account Agreement from Wells Fargo effective July 25, 2023. ECF No. 28-1 at *15. But Defendant fails to show how that agreement governs an account opened at a predecessor bank in 1 Notably, the Eleventh Circuit has noted that the arbitration clauses by Wells Fargo and Wachovia are different despite Wells Fargo being Wachovia’s successor. See Garcia v. Wachovia Corp., 699 F.3d 1273, 1275–76 (11th Cir. 2012) (quoting the different language in the banks’ respective clauses). Case 0:25-cv-60774-RS Document 61 Entered on FLSD Docket 01/12/2026 Page 3 of 5
4 2006. Although Almonte attested that a true and correct copy of the Wachovia Agreement, which may have provided some clarity, was attached as Exhibit “E,” no such exhibit appears in the record. See ECF No. 28-1 at *3. And merely maintaining and using an account through the transition from Wachovia to Wells Fargo does not necessarily demonstrate that Plaintiff assented to the Wells Fargo’s terms under Deposit Account Agreements. See Cook v. Wells Fargo Bank, N.A., 731 F. Supp. 3d 1335, 1340 (S.D. Ga. 2024). In short, Defendant’s argument, even should the Court consider it, is wholly lacking the connective tissue that ties the 6445 account to Defendant’s arbitration clause. Simply declaring it to be so is not enough. Such declaration must be accompanied by evidence, and Defendant here has failed to provide such evidence. Accordingly, Defendant’s Motion to Compel Arbitration should be denied. Case 0:25-cv-60774-RS Document 61 Entered on FLSD Docket 01/12/2026 Page 4 of 5
5 RECOMMENDATION Based on the foregoing, the undersigned recommends Defendant’s Motion to Compel Arbitration, ECF No. 18, be DENIED. Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the District Court’s order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3–1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985). DONE AND SUBMITTED at Fort Lauderdale, Florida, this 12th day of January 2026. _____________________________________ PATRICK M. HUNT UNITED STATES MAGISTRATE JUDGE Copies furnished to: Honorable Rodney Smith All Counsel of Record Case 0:25-cv-60774-RS Document 61 Entered on FLSD Docket 01/12/2026 Page 5 of 5
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