Christopher L. Gore v. Alltel Commu , 666 F.3d 1027 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2089
C HRISTOPHER L. G ORE,
Plaintiff-Appellee,
v.
A LLTEL C OMMUNICATIONS, LLC, AND
A LLTEL C OMMUNICATIONS, LLC, as
Successor in Interest to SOUTHERN ILLINOIS
C ELLULAR C ORP., doing business as
F IRST C ELLULAR S OUTHERN ILLINOIS,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cv-00735—David R. Herndon, Chief Judge.
A RGUED O CTOBER 31, 2011—D ECIDED JANUARY 19, 2012
Before K ANNE and W ILLIAMS, Circuit Judges, and
D EG UILIO , District Judge. Œ
Œ
Of the United States District Court for the Northern District
of Indiana, sitting by designation.
2 No. 11-2089
W ILLIAMS, Circuit Judge. Christopher Gore brought
this class action against his wireless services provider,
Alltel Communications, LLC, for failing to honor the
terms of an agreement he previously made with a
company Alltel acquired, but Alltel moved to compel
arbitration in light of a broad arbitration clause included
in its service agreement with Gore. The district court
denied that motion, concluding that a genuine dispute
existed regarding the scope of the arbitration clause.
We disagree. Because Gore’s claims are based in part on
the products and services he received under the Alltel
Agreement, we find that the arbitration clause applies,
and so we reverse.
I. BACKGROUND
Gore entered into a long-term wireless service agree-
ment with Southern Illinois Cellular Corporation, d/b/a
First Cellular Southern Illinois (“First Cellular”) on
October 6, 2005. By that agreement (the “First Cellular
Agreement”), First Cellular contracted to provide wire-
less telephone and other multimedia services to Gore
for a two-year period in exchange for Gore paying ap-
proximately $40 each month. Gore subscribed to four
different wireless lines under the First Cellular Agree-
ment. Three lines used First Cellular’s Code Division
Multiple Access (“CDMA”) technology, and the other
used the company’s Global System for Mobile Communi-
cations (“GSM”) technology. The First Cellular Agree-
ment did not contain an arbitration clause.
No. 11-2089 3
On May 1, 2006, Alltel acquired First Cellular. At the
time, the First Cellular Agreement had approximately
17 months remaining before its scheduled expiration.
Gore claims that before the First Cellular Agreement
expired Alltel began dismantling First Cellular’s GSM
network, causing the network and its features to be
periodically unavailable. Gore’s three CDMA lines were
fully transitioned to the Alltel network at some point
in October 2006. However, Alltel informed Gore that
because it “did not use GSM technology, [Gore’s GSM
line] could not be transitioned to Alltel” until some later
date. The GSM line was transitioned in April 2007.
In November 2006, Alltel sent Gore an invoice, dated
November 3, 2006, showing a balance of $100.77 and
indicating that Gore’s credit card would be charged that
amount on November 23, 2006. On page 2 of the invoice,
under a “General Information” heading, the following
text appeared (in approximately size 7 font):
These services are subject to Alltel’s terms
and conditions, which are found on the back
of your customer service agreement and at
www.alltel.com. By paying this bill, you acknowl-
edge that you are bound by these terms and condi-
tions.
Page 9 of the ten-page invoice included an “Acceptance”
provision that explained:
You accept this Agreement when you do any of
the following: (a) give us your written or electronic
signature, (b) tell us orally or electronically that
you accept, or (c) use or attempt to use any of the
4 No. 11-2089
Equipment or Services. If you have never used
the services before and do not wish to be bound
by these Terms and Conditions, do not begin
using the Services or Equipment and notify us
immediately.
And the last page of the invoice contained the arbitration
provision at issue in this case (in approximately size 6
font):
ANY DISPUTE ARISING OUT OF THIS AGREE-
MENT OR RELATING TO THE SERVICES AND
EQUIPMENT MUST BE SETTLED BY ARBITRA-
TION . . . . ALL CLAIMS MUST BE ARBITRATED
INDIVIDUALLY, AND THERE WILL BE NO
CONSOLIDATION OR CLASS TREATMENT OF
ANY CLAIMS. . . .
(all capitalizations in original).
The invoice made clear, “This ‘Agreement’ includes [the]
Terms and Conditions and your Service Order.” It defined
“Service(s)” as “any services you have asked us to
provide you through this agreement.” And it declared
that “Equipment” included “any communication equip-
ment or accessories you purchase or lease from us or use
in any manner in connection with your Services.” Gore’s
credit card was charged, and Alltel took that as
Gore’s acceptance of described terms and conditions.
When Alltel completed the transition of Gore’s lines
to the Alltel network, Gore’s GSM line was rendered
“completely inoperable.” At the time, approximately
6 months remained on the First Cellular Agreement.
No. 11-2089 5
Alltel informed Gore that he needed to purchase an Alltel-
compatible phone and agree to a new wireless service
plan or pay a $250 termination fee to disconnect his
service. Gore purchased an Alltel phone, entered into a
new service contract with Alltel, and agreed to pay
$109 per month for a wireless service plan similar to
the plan for which he contracted with First Cellular.
Gore initiated this class action suit against Alltel, as
First Cellular’s successor in interest, in an Illinois state
trial court. He asserts a handful of claims against both
First Cellular and Alltel. His first claim charges Alltel
with breach of contract for rendering his GSM phone
and equipment useless, refusing to honor the features
and prices of the First Cellular Agreement, and seeking
to enforce the early termination provision despite First
Cellular’s breach. Gore’s second claim is for deceptive
trade practices under Illinois law; he alleges that First
Cellular knowingly and deceptively induced him and
other customers to enter into 24-month agreements
despite knowing that the services would soon be
rendered inoperable. His third claim is for civil conspir-
acy. It is predicated on an alleged agreement between
First Cellular and Alltel to unlawfully breach the First
Cellular Agreement after Alltel’s acquisition of First
Cellular. His next claim seeks to hold First Cellular
liable for aiding and abetting Alltel in carrying out the
fraudulent scheme. And his final claim is one for unjust
enrichment, through which he seeks disgorgement of the
profits and revenues that First Cellular obtained as a
result of its failure to disclose the acquisition plan and
its intent to eliminate the GSM service, and the profits
6 No. 11-2089
that Alltel made by refusing to honor the First Cellular
Agreement.
Alltel removed this case to the Southern District of
Illinois under the Class Action Fairness Act, 28 U.S.C.
§ 1453. It then moved to compel arbitration. The district
court denied the motion without prejudice. In doing so,
the court found that the parties genuinely disputed
whether they entered into an arbitration agreement,
when they did so, and whether Gore’s causes of action
fell within the scope of that agreement. As a result, the
court ordered discovery and a trial under section 4 of
the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq.
Alltel moved for reconsideration, and it requested that
the court alter or amend its order to make clear that
discovery should be limited to the question of whether
the parties entered into a valid arbitration agreement.
Gore opposed Alltel’s motion for reconsideration but
agreed to limited discovery. The court denied Alltel’s
motion for reconsideration and ordered discovery on
the merits concurrent with discovery on the arbitration
issue. Alltel filed this interlocutory appeal pursuant
to section 16 of the FAA. 9 U.S.C. § 16(a)(1)(A) (permitting
an appeal to be taken from an order “refusing a stay
of action under section 3 of this title”).
II. ANALYSIS
The primary issue on appeal is whether this dispute
falls within the scope of the Alltel Agreement’s arbitra-
tion clause. Alltel argues that the district court erred by
denying its motion to compel arbitration. Gore disagrees,
No. 11-2089 7
and responds that even if the arbitration clause encom-
passes his claims, applying it to this dispute would be
procedurally unconscionable. We address both issues
in turn.
A. The Broad Scope of the Arbitration Clause
Title 9, section 2 of the United States Code (section 2 of
the FAA) provides, in pertinent part:
A written provision in any . . . contract evidencing
a transaction involving commerce to settle by
arbitration a controversy thereafter arising out
of such contract or transaction . . . shall be valid,
irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the
revocation of any contract.
9 U.S.C. § 2. This provision embodies both a “liberal
federal policy favoring arbitration and the fundamental
principle that arbitration is a matter of contract.” AT&T
Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011)
(citations and internal quotation marks omitted). But
because arbitration is a matter of contract, “a party
cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.” Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (citation and
internal quotation marks omitted). Rather, “courts must
place arbitration agreements on an equal footing with
other contracts, and enforce them according to their
terms.” Concepcion, 131 S. Ct. at 1745 (citation omitted).
To determine whether a contract’s arbitration
clause applies to a given dispute, federal courts apply
8 No. 11-2089
state-law principles of contract formation. Rosenblum v.
Travelbyus.com Ltd., 299 F.3d 657, 662 (7th Cir. 2002). Once
it is clear, however, that the parties have a contract
that provides for arbitration of some issues between
them, any doubt concerning the scope of the arbitration
clause is resolved in favor of arbitration as a matter
of federal law. Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983); Miller v. Flume,
139 F.3d 1130, 1136 (7th Cir. 1998). “To this end, a
court may not deny a party’s request to arbitrate an
issue ‘unless it may be said with positive assurance
that the arbitration clause is not susceptible of an inter-
pretation that covers the asserted dispute.’ ” Kiefer
Specialty Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909 (7th
Cir. 1999) (quoting United Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582-83 (1960)). We review
de novo a district court’s grant or denial of a motion to
compel arbitration. Id.
In cases like this, where the parties enter into two
agreements—though only one contains an arbitration
clause, and the plaintiff brings a cause of action based,
at least in part, on conduct contrary to the agreement
that does not have the arbitration clause, the parties can
be compelled to arbitrate only if (1) the clause itself
is broad enough to encompass their dispute, or (2) the
agreement containing the clause incorporates the
other by reference. Rosenblum, 299 F.3d at 662. The
Alltel Agreement does not incorporate the First Cellular
Agreement by reference. Alltel’s insistence that the
Alltel Agreement’s merger clause does so is unavailing
because “[a] merger clause does not incorporate other
No. 11-2089 9
contracts by reference,” and one contract incorporates
another only if there is “an express intent to incorporate.”
Id. at 665-66. We must decide, therefore, only whether
the clause itself is broad enough to encompass this dis-
pute. And it is undisputed that Illinois law governs
our inquiry. See Tinder v. Pinkerton Sec., 305 F.3d 728,
733 (7th Cir. 2002).
In Illinois, “the objective in interpreting a contract is
to ascertain and give effect to the intent of the parties.”
Carey v. Richards Bldg. Supply Co., 856 N.E.2d 24, 27 (Ill.
App. Ct. 2006) (citation omitted). Most important are
“the objective manifestations of the parties, including
the language they used in the contract.” Id. (citation
omitted). Where the contract’s language is plain, the
agreement should be enforced as written. Id. (citation
omitted).
The arbitration clause in this case provides that “[a]ny
dispute arising out of this agreement or relating to
the services and equipment must be settled by arbitra-
tion.” “Service(s)” means “any services [Gore has] asked
[Alltel] to provide [Gore] through this agreement”; and
“Equipment” refers to “any communication equipment
or accessories [Gore] purchase[s] or lease[s] from [Alltel]
or use[s] in any manner in connection with [Gore’s]
Services.” The language is unambiguous: any dispute
“arising out of” the Alltel Agreement or “relating to the
services and equipment” that Gore asked for under
that agreement must be arbitrated.
We have previously said that “ ‘arising out of’ reaches
all disputes having their origin or genesis in the contract,
10 No. 11-2089
whether or not they implicate interpretation or perfor-
mance of the contract per se.” Sweet Dreams Unlimited,
Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 642 (7th Cir.
1993) (emphasis omitted). But “relating to” does not
substantially broaden the scope of an arbitration clause
containing “arising out of” language. See id. (“[W]e do not
believe that adding ‘relating to’ to ‘arising out of’ sub-
stantially broadens the scope of the clause as applied to
the present complaint.”). Even so, we read both “arising
out of” and “relating to” broadly. E.g., Kiefer, 174 F.3d
at 909.
In Kiefer, for example, we questioned whether such
language appearing in distributorship agreements
was broad enough to reach a dispute stemming from a
breach of an employment agreement that did not have
an arbitration provision but was executed as a condi-
tion precedent to the distributorship agreements. Kiefer,
174 F.3d at 908. There, we held that “[b]ecause a
significant relationship exists between Kiefer’s claim of
tortious interference and the arbitration provision con-
tained in the parties’ distributorship agreements,” the
dispute fell within the scope of the arbitration provision.
Id. at 910-11. We characterized “arising out of or relating
to” language as “extremely broad and capable of an
expansive reach.” Id. at 909. Such broad language “neces-
sarily create[s] a presumption of arbitrability,” id. at
910, which requires that “any doubts concerning the
scope of arbitrable issues should be resolved in favor of
arbitration.” Mercury Constr., 460 U.S. at 24-25. With this
presumption of arbitrability squarely in mind, we
analyze each of Gore’s claims individually to determine
No. 11-2089 11
whether they are subject to arbitration. KPMG LLC v.
Cocchi, 132 S. Ct. 23 (2011) (per curiam) (“[C]ourts must
examine a complaint with care to assess whether any
individual claim must be arbitrated. The failure to do
so is subject to immediate review.”).
1. Gore’s Individual Claims are Subject to Arbitra-
tion
Gore’s first claim is for breach of contract. He alleges
that First Cellular and Alltel breached the First Cellular
Agreement by making his GSM phone inoperable
before that agreement expired, by not honoring its
features and prices through expiration, and by seeking
to enforce its early termination provision. It can fairly
be said that Gore’s breach of contract claim relates only
tangentially to the Alltel Agreement. Indeed, had Gore
brought suit against First Cellular and alleged specific
conduct by First Cellular alone in breach of the First
Cellular Agreement, the Alltel Agreement’s arbitration
clause arguably would not have applied. But Gore
sued Alltel as First Cellular’s successor in interest, and
his breach of contract claim is predicated on action taken
by Alltel in connection with the services it provided
him under the Alltel Agreement. The Alltel Agreement’s
arbitration clause applies because Gore’s claims are
based on Alltel’s rendering of his GSM phone inoperable
and refusal to honor the terms of the agreement he
made with First Cellular. Gore implicitly concedes that
Alltel’s conduct is at the heart of his breach of contract
claim by alleging that Alltel intended to fraudulently
12 No. 11-2089
induce members of the putative class to transition
from First Cellular to Alltel. Gore’s breach of contract
claim, as presently constituted, is predicated on the
wireless services that he received under the Alltel Agree-
ment not being in conformity with the services he was
promised by First Cellular.
Gore argues that this case should follow AGCO and
Rosenblum. AGCO Corp. v. Anglin, 216 F.3d 589 (7th Cir.
2000); Rosenblum, 299 F.3d 657. We disagree. In both
of those cases we were confronted with a similar
issue, whether a dispute arising out of one agreement
is subject to arbitration under a separate agreement’s
arbitration clause, but our holdings depended on facts
that were significantly different from those presented
here. In those cases, the dispute at issue was one
wholly arising out of a separate and independent agree-
ment not containing an arbitration clause. Gore’s claims
do not fit that mold.
In AGCO, we held that an arbitrator exceeded its au-
thority by arbitrating claims arising out of a contract
that did not contain an arbitration clause, even though
the claims related to the subject matter of a separate
contract containing an arbitration provision. AGCO,
216 F.3d at 596. In that case, Max and Gary Anglin per-
sonally guarantied Silver Lake’s liabilities to Agricredit
under a Retail Finance Agreement (“RFA”), but neither
the guaranties nor the RFA provided for arbitration. Id.
at 591. AGCO agreed to finance Silver Lake, and the
Anglins personally guarantied Silver Lake’s indebted-
ness to AGCO. Id. The AGCO guaranties contained a
No. 11-2089 13
broad arbitration provision requiring arbitration of “all
actions . . . arising out of or directly or indirectly relating to (a)
this Guaranty.” Id. (emphasis original). After AGCO
acquired Agricredit, and Silver Lake defaulted on the
RFAs, AGCO sought arbitration of the dispute between
Agricredit and Silver Lake. Id. at 592. The issue before the
court was whether the arbitration clause in the AGCO
guaranties encompassed a dispute over the Anglins’
Agricredit guaranties. We found that “the arbitration
clause did not seek to incorporate by reference any pro-
visions of the [RFAs] . . . . [And] because the two compa-
nies shared no corporate identity as of June 3, 1992, the
Anglins had no reason to suspect that their arbitration
agreement with AGCO would expand to encompass
a dispute with Agricredit, a nonsignatory.” Id. at 594
(citation omitted). As a result, we held that the
Agricredit guaranties were not subject to mandatory
arbitration. Id. at 595.
We reached the same conclusion in Rosenblum despite
different facts. Rosenblum, 299 F.3d at 664. In that case,
Michael Rosenblum and Travelbyus.com Ltd. executed
an agreement for Travelbyus to purchase Rosenblum’s
travel publication business. Id. at 659. As a condition
precedent to the acquisition agreement, the parties also
executed an employment agreement, under which
Rosenblum would remain employed at his former com-
pany. Id. at 660. The employment agreement contained
a broad arbitration provision, mandating arbitration
for “any matter in dispute under or relating to this Agree-
ment.” Id. The acquisition agreement did not have
an arbitration provision. See id. After Travelbyus
breached the terms of the acquisition agreement, Rosen-
14 No. 11-2089
blum sued. See id. Explaining that “[t]he parties’ deal
consisted of two . . . contracts [that] are separate, and
there is no indication that the parties intended that the
terms of the Employment Agreement apply to disputes
arising under the Acquisition Agreement,” we held that
“[t]he arbitration clause cannot be read to include
Mr. Rosenblum’s claims under the Acquisition Agree-
ment.” Id. at 663-64.
This case is different from AGCO and Rosenblum
because Gore’s breach of contract claim is interlinked
with both the First Cellular Agreement and the Alltel
Agreement. In AGCO, “the Anglins’ dispute involve[d]
a third party, Agricredit, which [was] not a signatory to
the arbitration agreement.” AGCO, 216 F.3d at 594. And
the contracts under review in Rosenblum were “both
necessary, but self-contained . . . components of a com-
prehensive business transaction. . . . The employment
contract deal[t] exclusively with Mr. Rosenblum’s em-
ployment . . . [and] the Acquisition Agreement con-
cern[ed] the parties’ rights and duties with respect to . . .
[the] sale.” Rosenblum, 299 F.3d at 663. Because Gore
alleges facts suggesting that his breach of contract claim
is based on both Alltel’s and First Cellular’s conduct in
providing him wireless services, we cannot say that the
claim arises out of the First Cellular Agreement alone.
Resolving, as we must, our doubt in favor of arbitrability,
Mercury Constr., 460 U.S. at 24-25, we find that Gore’s
breach of contract claim falls within the scope of the
Alltel Agreement’s arbitration clause.
For the same reasons, Gore’s third, fourth, and fifth
claims suffer the same fate as his first. His civil conspiracy
No. 11-2089 15
claim is predicated on an alleged agreement between
First Cellular and Alltel to unlawfully funnel First
Cellular customers into service agreements with Alltel.
His aiding and abetting claim is based on First Cellular
assisting Alltel with this allegedly fraudulent scheme.
And his unjust enrichment claim seeks disgorgement of
the profits that First Cellular and Allltel reaped as a
product of the fraud. All of these claims implicate the
services and equipment that Gore, and other members
of the putative class, received under the Alltel Agree-
ment. Given our broad reading of “arising out of and
relating to,” we are confident that these claims also fall
within the scope of the arbitration clause. Welborn Clinic
v. MedQuist, Inc., 301 F.3d 634, 639 (7th Cir. 2002) (“[W]e
have naturally been willing to read these admittedly
expansive clauses quite broadly to include all manner
of claims tangentially related to the agreement, in-
cluding claims of fraud, misrepresentation, and other
torts . . . .” (citing Kiefer, 174 F.3d at 909-10)).
2. Gore’s Consumer Fraud Claim “Arises Out
Of” the Alltel Agreement
Gore’s second claim, however, is slightly different
from the rest. Count II of his complaint alleges that
First Cellular violated the Illinois Consumer Fraud and
Deceptive Practices Act and the Uniform Deceptive
Trade Practices Act by “requir[ing] GSM Sub-Class Mem-
bers to purchase GSM phone and/or other equipment
as part of the First Cellular Agreement . . . despite knowing
[and not disclosing] that the phones/equipment and
16 No. 11-2089
wireless service under the Agreements would soon be
rendered inoperable or ineffective by the transition of
the GSM network.” This allegation, on its face, relates
only to First Cellular’s allegedly fraudulent conduct.
But digging deeper into the particularized factual allega-
tions of the fraud shows the claim is inextricably linked
to the services he received under the Alltel Agreement.
First, the omission that Gore insists First Cellular had
a duty to disclose was its intention to transition the
GSM users to the Alltel network post-acquisition. Sec-
ond, Gore alleges that Alltel acquired First Cellular
with an intent to breach the First Cellular Agreements
without compensating the GSM users, and with an intent
to “impos[e] additional fees, charges, and expenses . . .
in excess of those permitted under the First Cellular
Agreements.” Finally, Gore alleges that Alltel required the
putative class members to enter into “new wireless agree-
ments on less-favorable terms” and “threatened [the
class members] that if they did not purchase the new
equipment and/or enter into the less-favorable ex-
tended service contracts with Alltel . . ., [they] would be
charged an early termination fee of $250.” But for
Alltel’s conduct in transitioning the First Cellular cus-
tomers to the Alltel network and allegedly forcing the
First Cellular customers to enter into the less-favorable
Alltel Agreement, Gore’s consumer fraud claim would
be a simple breach of contract claim. As we have made
clear in the past, “Whether a particular claim is arbitrable
depends not upon the characterization of the claim,
but upon the relationship of the claim to the subject
matter of the arbitration clause. Were the rule otherwise,
No. 11-2089 17
a party could frustrate any agreement to arbitrate
simply by the manner in which it framed its claims.” In
re Oil Spill by the “Amoco Cadiz” off the Coast of France
March 16, 1978, 659 F.2d 789, 794 (7th Cir. 1981). Given the
substance of Gore’s factual allegations, his consumer
fraud claim is one arising out of or relating to the Alltel
Agreement. That claim too must therefore be arbitrated.
B. The Arbitrator Must Decide if the Agreement is
Unconscionable
The only other issue is whether application of the
arbitration clause to this dispute is procedurally uncon-
scionable. This issue, however, is one properly resolved
by the arbitrator in the first instance because Gore
attacks as unconscionable the entire Alltel Agreement,
not just the arbitration clause itself. See Prima Paint Corp.
v. Flood & Conklin Mfg., 388 U.S. 395, 403-04 (1967) (“[I]f
the claim is fraud in the inducement of the arbitration
clause itself—an issue which goes to the ‘making’ of the
agreement to arbitrate—the federal court may proceed to
adjudicate it. But the statutory language does not permit
the federal court to consider claims of fraud in the in-
ducement of the contract generally. . . . [A] federal court
may consider only issues relating to the making and
performance of the agreement to arbitrate.”). Gore’s oral
argument confirmed his broad challenge to the Alltel
Agreement as a whole. Faced with a similar challenge
in Sweet Dreams, we followed the Supreme Court’s
holding in Prima Paint, 388 U.S. at 403-04, and ordered
that the dispute be resolved by the arbitrator. Sweet
18 No. 11-2089
Dreams, 1 F.3d at 641. The same result must obtain
here. Because Gore is challenging as procedurally uncon-
scionable the entire Alltel Agreement, not just the arbitra-
tion clause itself, we remand this case to the district
court to stay the proceedings pending arbitration.1
III. CONCLUSION
For the above-stated reasons, the district court’s denial
of the Alltel’s motion to compel arbitration is R EVERSED
and this case is R EMANDED for further proceedings con-
sistent with this opinion.
1
Alltel also appealed the district court’s expansive discovery
order, but counsel for Gore conceded at oral argument that
the district court should have limited discovery to the
narrow issue of the arbitration clause’s enforceability and
applicability to the present dispute. Because we reverse the
district court’s denial of Alltel’s motion to compel arbitra-
tion, we need not address the scope of the discovery order.
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