Gilead v. Early Warning Services, LLC et al

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.
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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.
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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).
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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.
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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
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