              Case: 18-10188   Date Filed: 07/26/2018     Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10188
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 5:17-cv-00415-JSM-PRL



CANDY RAY,

                                                   Plaintiff - Appellee,

versus

NPRTO FLORIDA, LLC,
d.b.a. Progressive Leasing,

                                                   Defendant - Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (July 26, 2018)

Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Candy Ray, whose husband signed a lease-to-own contract for a bed, filed

suit alleging that Progressive Leasing violated the Telephone Consumer Protection

Act, 42 U.S.C. § 227, and the Florida Consumer Collection Practices Act, Fla. Stat.

§ 559.55, by making hundreds of calls to her cell phone number in an attempt to

collect her husband’s debt. Progressive Leasing moved to compel arbitration

under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, pursuant to the arbitration

provision in the lease agreement signed by Mr. Ray, who is not a party in this

action, and to stay litigation pending the completion of arbitration. The district

court denied Progressive Leasing’s motion, concluding that Mrs. Ray, as a non-

signatory to the lease agreement, was not bound by its arbitration provision.

Progressive Leasing appeals, and we affirm.

                                         I

      In September of 2015, Mr. Ray purchased a bed from Progressive Leasing

through a lease-to-own program. Mrs. Ray did not co-sign the lease agreement for

the bed, but Mr. Ray provided her cell phone number as the “mobile phone

number” to be associated with the account.

      Mr. Ray’s lease agreement with Progressive Leasing contained a provision

requiring arbitration (upon election by either party) of “any claim under this

arbitration provision.” The provision contained the following definitions:

      References to “we,” “us” and “our” include our “Related Parties” – all
      our parent companies, subsidiaries and affiliates, and our and their
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      employees, directors, officers, shareholders, governors, managers and
      members. Our “Related Parties” also include third parties that you
      bring a Claim against at the same time you bring a Claim against us or
      any other Related Party, including, without limitation, the merchant
      who sold us the Property we leased you.
      ...
       “Claim” means any claim, dispute or controversy between you and us
      . . . that arises from or relates in any way to this Lease or the Property
      (including any amendment, modification or extension of this Lease);
      … any of our marketing, advertising, solicitations and conduct
      relating to this Lease, the Property and/or a prior Lease and related
      property; our collection of any amounts you owe; or our disclosure of
      or failure to protect any information about you. “Claim” is to be given
      the broadest reasonable meaning and includes claims of every
      constitution, statute, regulation, ordinance, common law rule
      (including rules relating to contracts, torts, negligence, fraud or other
      intentional wrongs) and equity. It includes disputes that seek relief of
      any type, including damages and/or injunctive, declaratory or other
      equitable relief. (emphasis added)

D.E. 14-1 at 7-8.    The lease agreement allowed Mr. Ray to opt out of the

arbitration provision within 30 days of signing the lease, without affecting any

other provisions of the lease. There is no evidence he opted out of the arbitration

provision.

      Soon after he signed the lease agreement, Mr. Ray had a billing dispute with

Progressive Leasing, which resulted in a “heated exchange” between them. In

October of 2015, during a telephone conversation between Mr. Ray and a

representative of Progressive Leasing, Mrs. Ray intervened and spoke to the

representative in an attempt to resolve the billing dispute. Thereafter, Progressive




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leasing began a “relentless campaign of placing daily, repeated robocalls” to Mrs.

Ray’s cell phone in an attempt to collect the debt owed by Mr. Ray.

      In January of 2016, Mrs. Ray says, she expressly revoked any consent

Progressive Leasing may have believed it had to place robocalls to her cell phone.

Progressive Leasing did not stop calling her, however, and indicated it would not

stop calling her, despite the fact that she said she was not going to pay her

husband’s alleged debt.

      In February of 2016, Mrs. Ray claims she again expressly revoked consent

to receive robocalls from Progressive Leasing and informed the company that she

would hire a lawyer. From March through October of 2016, Progressive Leasing

placed hundreds of robocalls to her cell phone, often more than once per day, and

sometimes even as often as three, four, or five times per day. Progressive Leasing

called from over a dozen different phone numbers, so Mrs. Ray never knew when

it was “safe” to answer her phone.

                                         II

      We review de novo a district court’s denial of a motion to compel

arbitration. See Garcia v. Wachovia Corp., 699 F.3d 1273, 1277 (11th Cir. 2012).

Whether a party has agreed to arbitrate an issue is a matter of contract law and

interpretation. See Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1208 (11th

Cir. 2011). “[I]t is the language of the contract that defines the scope of disputes


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subject to arbitration.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289 (2002).

“[N]othing in the [Federal Arbitration Act] authorizes a court to compel arbitration

of any issues, or by any parties, that are not already covered in the agreement.” Id.

                                         III

       On appeal, Progressive Leasing argues that, under Florida law, a non-

signatory can be bound by a broad arbitration agreement (e.g., one with language

such as “any controversy arising out of or related to”).         See, e.g., Armas v.

Prudential Secs., Inc., 842 So. 2d 210, 212 (Fla. 3d DCA 2003) (citing cases). We

decline to address this Florida-law based argument.

       In the district court, Progressive Leasing cited only federal law in support of

its argument that the broad language of the lease agreement bound Mrs. Ray. See

D.E. 14 at 11-13. Progressive Leasing did not cite any Florida cases to the district

court in its motion, and when Mrs. Ray responded to the motion and asserted that

Florida law applied to this issue, see D.E. 20 at 3-6, 9-10, Progressive Leasing did

not file a reply.

       The district court based its decision in large part on Mendez v. Hampton

Court Nursing Center, LLC, 203 So. 3d 146 (Fla. 2016), yet in its briefs on appeal,

Progressive Leasing fails to mention Mendez even once, much less explain why the

district court’s reliance on it was misplaced. Also, the only post-Mendez Florida

case Progressive Leasing cites is Sawgrass Ford, Inc. v. Vargas, 214 So. 3d 691,


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693 (Fla. Dist. Ct. App. 2017), and only for the general proposition that public

policy favors arbitration that any question about the scope of an arbitration

agreement and waiver should be resolved in favor of arbitration.

      Progressive Leasing has therefore abandoned challenging the primary basis

on which the district court ruled. See Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678, 680 (11th Cir. 2014) (“To obtain reversal of a district court judgment

that is based on multiple, independent grounds, an appellant must convince us that

every stated ground for the judgment against [it] is incorrect. When an appellant

fails to challenge properly on appeal one of the grounds on which the district court

based its judgment, [the appeallant] is deemed to have abandoned any challenge of

that ground, and it follows that the judgment is due to be affirmed.”). Because

Progressive Leasing essentially ignores the well-reasoned analysis of the district

court’s order, we affirm the decision of the district court.

                                          IV

      Because Progressive Leasing abandoned its challenge to the principal basis

on which the district court made its decision, we affirm.

      AFFIRMED.




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