Tom Hargrove v. Wildnerness Sports Warehouse LLC et al

Filing 52

ORDER GRANTING DEFENDANTS' MOTION TO COMPEL ARBITRATION AND DISMISSES PLAINTIFF INDIVIDUAL AND PUTATIVE CLASS CLAIMS IN THESE SEVEN RELATED ACTIONS WITHOUT PREJUDICE (SEE DOCUMENT FOR LIST OF CASES) 41 by Judge Otis D. Wright, II. (Made JS-6. Case Terminated.) (lc)

O
JS-6

1
2
3
4
5
6
7
8

United States District Court
Central District of California

9
10
11
12

JOHN PATRICK, individually and on
behalf of all others similarly situated,
Plaintiff,

13

v.

14
15

RUNNING WAREHOUSE, LLC et al.,
Defendants.

16

Case No. 2:21-cv-09978-ODW (JEMx);
Related Case Nos.
2:21-cv-09980-ODW (JEMx), [28]
5:22-cv-00012-ODW (JEMx), [39]
2:22-cv-00101-ODW (JEMx), [49]
2:22-cv-00297-ODW (JEMx), [35]
2:22-cv-00460-ODW (JEMx), [39]
2:22-cv-01716-ODW (JEMx), [41]
ORDER GRANTING MOTION TO
COMPEL ARBITRATION [48]

17
18
19

I.

INTRODUCTION

20

Defendants Running Warehouse, LLC; Wilderness Sports, LLC d/b/a Tackle

21

Warehouse; and Sports Warehouse, Inc. d/b/a Tennis Warehouse and Racquetball

22

Warehouse move to compel Plaintiffs John Patrick, Bethany Buffington, Craig Arcilla,

23

Laurie Gasnick, Jesse Pfeffer, Erik Solter, Lorne Bulling, and Tom Hargrove to

24

arbitrate their claims against Defendants in seven related cases.1 (Mot. Compel. Arb.

25
26
27
28

1

On March 4, 2022, the Court granted the stipulation of parties in seven related cases, approving a
briefing schedule in which Defendants would file a single motion to compel arbitration directed to
Plaintiffs in all seven cases, and Plaintiffs in the seven cases would file a single unified opposition
brief. (Stip. Br. Compel Arb., ECF No. 43; Order Granting Stip. Br., ECF No. 45.) Thus, this Order
addresses the Motion to Compel Arbitration pertaining to the seven cases listed in the caption.

1

(“Motion” or “Mot.”), ECF No. 48.) The matter is fully briefed. (Mem. P. & A. ISO

2

Mot. (“Mem.”), ECF No. 49; Opp’n, ECF No. 52; Reply, ECF No. 53.) For the

3

reasons discussed below, the Court GRANTS Defendants’ Motion.2
II.

4

BACKGROUND

5

Defendants are companies that own and operate e-commerce websites for the

6

purpose of selling sporting goods. (Mem. 10.) Plaintiffs purchased online goods from

7

Defendants. (Id. at 11.)

8

A.

Website Checkout Process

9

During the checkout process, each Defendant’s website provides an option for

10

consumers to proceed straight to checkout or create an account. (See Decl. Brad Lum

11

(“Lum Decl.”) ¶¶ 4, 13, 26, ECF No. 50-13.)

12

1.

Account Creation

13

When a consumer chooses to create an account during checkout, they must

14

check a box next to the words “Create an Account.” (Id. ¶¶ 9, 17, 32.) On each

15

website, the following statement appears directly next to the account creation

16

checkbox: “[b]y creating an account, you agree to our privacy policy and terms of

17

use.” (Id.) In this statement, the phrase “terms of use” is a hyperlink that leads to the

18

respective Defendant’s terms of use (“Terms”). (Id.)

19

Gasnick, Pfeffer, and Hargrove created accounts on Running’s, Tennis’s, and

20

Tackle’s websites, respectively. (Decl. Drew Munster ¶¶ 4–6, ECF No. 50-9.) Each

21

of those website’s account creation option is depicted below.
Running Warehouse

22
23
24
25
26
27
28

(Lum Decl. Ex. A (“Running Website”) 5 of 10, ECF No. 50-14.)
2

Having carefully considered the papers filed in connection with the Motion, the Court deemed the
matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

2

Tennis Warehouse

1
2
3
4
5
6
7
8

(Lum Decl. Ex. H (“Tennis Account Creation”), ECF No. 50-21.)

9

Tackle Warehouse

10
11
12
13
14

(Lum Decl. Ex. O (“Tackle Account Creation”) 2 of 4, ECF No. 50-28.)

15

2.

Submitting Order

16

Regardless of whether a consumer chooses to create an account, they must

17

confirm their order by clicking a final button to “Place Order” or “Submit Order.”

18

(Lum Decl. ¶¶ 7, 16, 23, 29.) Immediately adjacent to this final button on each

19

website is the following statement, “[b]y submitting your order you . . . agree to our

20

privacy policy and terms of use.” (Id.) In this statement, “terms of use” is a hyperlink

21

that leads to the respective Defendant’s Terms. (Id.)

22

Arcilla, Buffington, Gasnick, and Patrick purchased goods from the Running

23

website, (Mem. 12; Opp’n 9), Bulling and Pfeffer purchased goods from the Tennis

24

website, (Mem. 14; Opp’n 6), Solter purchased goods from the Racquetball website,

25

(Mem. 15; Opp’n 8), and Hargrove purchased goods from the Tackle website,

26

(Mem. 16; Opp’n 4).

27

depicted below.

The relevant portion of each website’s checkout page is

28

3

Running Warehouse

1
2
3
4
5
6
7

(Running Website 10 of 10.)
Tennis Warehouse

8
9
10
11
12

(Lum Decl. Ex. G (“Tennis Website”) 11 of 11, ECF No. 50-20.)

13
14

Racquetball Warehouse

15
16
17
18

(Lum Decl. Ex. I (“Racquetball Website”) 16 of 16, ECF No. 50-22.)

19
20

Tackle Warehouse

21
22
23
24
25
26

(Lum Decl. Ex. K (“Tackle Website”) 13 of 13, ECF No. 50-24.)

27
28

4

1

B.

Relevant Terms

2

Each website’s “terms of use” hyperlink leads to substantively identical Terms.

3

(See Lum Decl. Exs. R–U (collectively, “Terms”), ECF Nos. 50-31 to 50-34.) Each

4

contains the same “Choice of Law, Arbitration, and Venue” provision, which

5

provides, in relevant part:
You agree to arbitrate any and all claims, including all statutory claims,
and any state or federal claims. By agreeing to arbitration, you
understand and agree that you are giving up any rights to litigate claims
in a court or before a jury, or to participate in a class action or
representative action with respect to a claim.

6
7
8
9
10

(Id. (all caps removed).) The arbitration provision continues:
Any claim, dispute or controversy (whether in contract, tort or otherwise,
whether pre-existing, present or future, and including statutory, consumer
protection, common law, intentional tort, injunctive and equitable claims)
between you and us arising from or relating in any way to your use or
purchase of products or services through the website or services will be
resolved exclusively and finally by binding arbitration.

11
12
13
14
15

All Claims shall be decided by one arbitrator pursuant to this provision
and the commercial arbitration rules and procedures of JAMS, Inc. at
their offices located in Orange County, California.

16
17
18

(Id. (all caps removed).)

19

C.

Procedural History

20

In or around October 2021, hackers breached Defendants’ websites and stole

21

Defendants’ consumers’ personally identifiable information (“PII”) (“Data Breach”).

22

(See Compl. ¶ 10, ECF No. 1.)3 Plaintiffs assert that, as part of the Data Breach, the

23

hackers stole Plaintiffs’ PII that they had provided to Defendants when purchasing

24

goods from Defendants online. (See id. ¶ 11.) Based on the Data Breach, Plaintiffs

25

brought these seven putative class actions against Defendants asserting claims of

26

negligence, breach of contract and of implied contract, and quasi contract. (See id.

27
28

3

The Court has considered all seven complaints and all eight Plaintiffs’ claims. For ease of
reference, the Court cites to only Patrick’s complaint.

5

1

¶¶ 80–113.) Defendants now move to compel Plaintiffs to arbitrate their claims4

2

against Defendants, based on the arbitration provision in the Terms.5
III.

3

LEGAL STANDARD

4

The Federal Arbitration Act (“FAA”) provides that contractual arbitration

5

agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as

6

exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “A party

7

aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a

8

written agreement for arbitration may petition any United States district court . . . for

9

an order directing that . . . arbitration proceed in the manner provided for in [the

10

arbitration] agreement.” 9 U.S.C. § 4. The Supreme Court has repeatedly interpreted

11

the FAA as reflecting “a liberal federal policy favoring arbitration agreements.”

12

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).

13

However, “[t]he strong public policy in favor of arbitration does not extend to those

14

who are not parties to an arbitration agreement.” Comedy Club, Inc. v. Improv W.

15

Assocs., 553 F.3d 1277, 1287 (9th Cir. 2009) (quoting Buckner v. Tamarin, 98 Cal.

16

App. 4th 140, 142 (2002)).

17

In deciding whether to compel arbitration, a court’s inquiry is generally limited

18

to “two ‘gateway’ issues: (1) whether there is an agreement to arbitrate between the

19

parties; and (2) whether the agreement covers the dispute.” Brennan v. Opus Bank,

20

796 F.3d 1125, 1130 (9th Cir. 2015) (citing Howsam v. Dean Witter Reynolds, Inc.,

21

537 U.S. 79, 84 (2002)). “If the response is affirmative on both counts, then the Act

22

requires the court to enforce the arbitration agreement in accordance with its terms.”

23

Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).

24

4

25
26
27
28

In the Notice of Motion, Defendants list all Plaintiffs’ causes of action except Hargrove’s fourth
cause of action. (See Mot. 1.) However, in the motion papers, the parties do not differentiate
Hargrove’s fourth cause of action from all other claims. (See, e.g., Mem. 32 (arguing that “all of
Plaintiffs’ claims are subject to arbitration”).) As such, the Court understands the omission of
Hargrove’s fourth cause of action from the Notice as an oversight and considers Defendants’ Motion
as seeking to compel all Plaintiffs’ claims to arbitration, as argued in the Memorandum and Reply.
5
Defendants’ evidentiary objection (ECF No. 54) is overruled as moot, as the Court need not and
does not consider the objected-to evidence to resolve the Motion.

6

IV.

1

DISCUSSION

2

In seeking to compel Plaintiffs to arbitration, Defendants argue that the

3

arbitration provision in the Terms delegates the threshold question of arbitrability to

4

the arbitrator. (Mem. 28.) Conversely, Plaintiffs argue that the arbitration provision

5

does not delegate arbitrability, and even if it did, they argue that the arbitration

6

provision and the Terms are invalid under various theories. (Opp’n 1–2.)

7

A.

Delegation

8

The “gateway issues can be expressly delegated to the arbitrator where ‘the

9

parties clearly and unmistakably’” agree to do so. Brennan, 796 F.3d at 1130 (quoting

10

AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986)). Courts

11

have found that parties clearly delegated arbitrability where they incorporated an

12

arbitrator’s arbitration rules in the agreement. For instance, “[v]irtually every circuit

13

to have considered the issue has determined that incorporation of the American

14

Arbitration Association’s (AAA) arbitration rules constitutes clear and unmistakable

15

evidence that the parties agreed to arbitrate arbitrability.” Oracle Am., Inc. v. Myriad

16

Grp. A.G., 724 F.3d 1069, 1074 (9th Cir. 2013).

17

Defendants argue that the arbitration provision here clearly and unmistakably

18

delegates the question of arbitrability to the arbitrator by incorporating JAMS

19

arbitration rules. (Mem. 28–29.) The arbitration provision provides: “All Claims

20

shall be decided by one arbitrator pursuant to this provision and the commercial

21

arbitration rules and procedures of JAMS, Inc. . . . .”

22

Rule 11(b) of the JAMS Arbitration Rules expressly delegates arbitrability to the

23

arbitrator: “[A]rbitrability disputes, including disputes over the formation, existence,

24

validity, interpretation or scope of the agreement under which Arbitration is

25

sought . . . shall be submitted to and ruled on by [JAMS].” JAMS Comprehensive

26

Arbitration Rules and Procedures (June 1, 2021), https://www.jamsadr.com/rules-

27

comprehensive-arbitration. By agreeing to an arbitration provision that incorporates

28

JAMS Rules, and particularly in light of the language of JAMS Rule 11(b), the Court

7

(See Terms.)

Further,

1

finds that the parties clearly and unmistakably delegated the question of arbitrability to

2

JAMS. See Oracle Am., 724 F.3d at 1074.

3

Plaintiffs argue that Defendants should have included more explicit language

4

addressing enforceability and arbitrability in the Terms, (Opp’n 17–18), but that is

5

unnecessary as a matter of law. Courts in and out of the Ninth Circuit have found that

6

incorporation of JAMS arbitration rules alone is “clear and unmistakable evidence of

7

an agreement to arbitrate arbitrability.” See Belnap v. Iasis Healthcare, 844 F.3d

8

1272, 1283–84 (10th Cir. 2017); O’Connor v. Warner Bros. Animation Inc., No. 2:20-

9

cv-09291-MCS (JPRx), 2021 WL 3598581, at *2 (C.D. Cal. Jan. 21, 2021) (collecting

10

cases) (“The agreements’ incorporation of the JAMS arbitration rules also constitutes

11

clear and unmistakable evidence of an agreement to arbitrate arbitrability.”). Thus,

12

because the parties have agreed to arbitrate according to JAMS rules and procedures,

13

the parties also agreed to delegate the question of arbitrability to the JAMS arbitrator.

14

Alternatively, Plaintiffs urge the Court not to delegate arbitrability to the

15

arbitrator because Plaintiffs are “unsophisticated parties.” (Opp’n 21–24.) Plaintiffs

16

rely chiefly on Brennan, in which the court held that sophisticated parties could

17

delegate arbitrability in a commercial contract by incorporating an arbitrator’s rules.

18

(Id. at 21 (citing Brennan, 796 F.3d at 1130).) However, the court in Brennan rejected

19

Plaintiffs’ suggested rule—to limit the ability to delegate arbitrability through

20

incorporation to only “sophisticated parties”—and expressly cautioned that the court’s

21

“holding [did] not foreclose the possibility that this rule could also apply to

22

unsophisticated parties or to consumer contracts.”

23

(emphasis added).

Brennan, 796 F.3d at 1130

24

Indeed, the Brennan court noted that “the vast majority of the circuits” to hold

25

that incorporation of an arbitrator’s rules clearly and unmistakably delegated

26

arbitrability did not limit that holding to “sophisticated parties.”

27

(emphasis added). Moreover, a “majority of courts have concluded that Brennan

28

applies equally to sophisticated and unsophisticated parties.” Maybaum v. Target

8

Id. at 1130–31

1

Corp., No. 2:22-cv-00687-MCS (JEMx), 2022 WL 1321246, at *5 (C.D. Cal May 3,

2

2022); see, e.g., Miller v. Time Warner Cable Inc., No. 8:16-cv-00329-CAS (ASx),

3

2016 WL 7471302, at *5 (C.D. Cal. Dec. 27, 2016) (“[T]he greater weight of

4

authority has concluded that the holding of [Brennan] applies similarly to

5

non-sophisticated parties.”). The Court agrees with the majority view and finds that

6

incorporation of JAMS arbitration rules constitutes clear and unmistakable evidence

7

that the parties intended to delegate arbitrability, regardless of whether the parties are

8

“sophisticated.”

9

Because Defendants established that all parties agreed to delegate arbitrability

10

in the arbitration provision, the Court now turns to Plaintiffs’ arguments concerning

11

the arbitration provision’s validity.

12

B.

Validity of the Arbitration Provision

13

Plaintiffs argue the arbitration provision, including the delegation clause

14

therein, is invalid for several reasons: (1) the arbitration provision prohibits public

15

injunctive relief, contrary to California law; (2) Defendants failed to provide Plaintiffs

16

with adequate notice of the arbitration provision; and (3) the arbitration provision is

17

unconscionable. (Opp’n 24–42.) The Court addresses each argument in turn.

18

1.

Public Injunctive Relief

19

Plaintiffs first argue that the arbitration provision in the Terms is invalid

20

because it contains a non-severable clause prohibiting public injunctive relief. (Id.

21

at 24–28.)

22

Under California law, a clause prohibiting an arbitrator from issuing a public

23

injunction is invalid and unenforceable. McGill v. Citibank, N.A., 2 Cal. 5th 945, 951–

24

52 (2017). To determine whether an arbitration provision contains such a prohibition,

25

courts consider whether “the arbitrator can grant only individual relief.” Dornaus v.

26

Best Buy Co., Inc., No. 18-cv-04085-PJH, 2019 WL 632957 at *6 (C.D. Cal. Feb. 14,

27

2019). Here, the relevant clause reads: “All Claims shall be brought solely in the

28

parties’ individual capacity, and not as a plaintiff or class member in any purported

9

1

class or representative proceeding.” (Terms.) This language prohibits the consumer

2

from arbitrating as part of a class or representative proceeding, but says nothing about

3

the consumer’s ability to pursue, or the arbitrator’s ability to award, any certain type

4

of relief.

5

The cases on which Plaintiffs rely are inapposite. In each, the arbitration clause

6

contained an explicit term providing that the arbitrator could grant only individual

7

relief.

8

(PJWx), 2020 WL 8461696, at *5 (C.D. Cal. Oct. 21, 2020), the court invalidated a

9

provision providing that “[n]o arbitrator may award relief outside the limits set

10

herein.” In Vianu v. AT&T Mobility LLC, No. 19-cv-03602-LB, 2020 WL 12862941,

11

at *2 (N.D. Cal. Mar. 2, 2020), the court invalidated a provision indicating that “[t]he

12

arbitrator may award declaratory or injunctive relief only in favor of the individual

13

party seeking relief.” And finally, in Dornaus, the court invalidated a provision

14

providing that “[t]he arbitrator . . . may award relief only on an individual basis.”

15

2019 WL 632957, at *4.

16

concerned the arbitrator’s authority to award certain types of relief.

17

provision at issue concerns Plaintiffs’ capacity to bring certain types of claims. The

18

Terms contain no provision resembling the ones in the cases that Plaintiffs cite.

In Jialu Wu v. iTalk Global Communications, Inc., No. 20-cv-7150-PSG

In each of these cases, the unenforceable provision
Here, the

19

The arbitration agreement is not invalid under McGill.

20

2.

21

Plaintiffs next argue that the arbitration agreement is invalid because they did

22

not receive sufficient notice of the Terms, and thus were unable to meaningfully assent

23

to the arbitration provision therein. (See Opp’n 30–33.)

Notice

24

A defendant can establish sufficient notice by proving either “that [plaintiffs]

25

ha[d] actual knowledge of the agreement” or that the defendant provided enough

26

information to put plaintiffs on inquiry notice. Berman v. Freedom Fin. Network,

27

LLC, 30 F.4th 849, 856 (9th Cir. 2022).

28

10

1

Here, every Plaintiff but Arcilla acknowledges seeing a hyperlink to the Terms.6

2

However, all Plaintiffs argue that the existence of this hyperlink did not apprise them

3

of the existence of an arbitration agreement. (Opp’n 1.) This argument is unavailing.

4

With the exception of Arcilla, Plaintiffs’ awareness of the hyperlinked text establishes

5

that they had inquiry notice of the Terms. See Meyer v. Uber Techs., Inc., 868 F.3d 66,

6

79 (2d Cir. 2017) (“While it may be the case that many users will not bother reading

7

the [Terms], that is the choice the user makes; the user is still on inquiry notice.”).

8

As for Arcilla, he does not acknowledge seeing a hyperlink to Running’s

9

website’s Terms. (See Decl. Craig Arcilla (“Arcilla Decl.”), ECF No. 52-5.) Thus, the

10

question is whether Running’s website provided sufficient information to put Arcilla

11

on inquiry notice. See Berman, 30 F.4th at 856. A website provides sufficient inquiry

12

notice “only if: (1) the website provides reasonably conspicuous notice of the terms to

13

which the consumer will be bound; and (2) the consumer takes some action, such as

14

clicking a button or checking a box, that unambiguously manifests his or her assent to

15

those terms.” Id.
a.

16

Reasonably Conspicuous Notice

17

Running uses “browsewrap agreements, in which a website offers terms that are

18

disclosed only through a hyperlink.” Id. (internal quotation marks omitted). To be

19

conspicuous, a browsewrap agreement “must be displayed in a font size and format

20

such that the court can fairly assume that a reasonably prudent Internet user would

21

have seen it.” Id.

22

On Running’s desktop website, the link to the Terms appears in contrasting

23

green font that, although small, is still clearly “legible to the naked eye.” See id.

24

at 856–57; (Running Website 5, 10). The link is located immediately beneath the

25

“Place Order” button, making it unavoidable to a consumer placing an online order.

26

(See Running Website 10.) Considering the font, format, and placement of the Terms

27

6

28

(Aff. Tom Hargrove ¶ 14, ECF No. 52-1; Decl. Lorne Bulling ¶¶ 3, 6, ECF No. 52-2; Decl. Jesse
Pfeffer ¶ 8, ECF No. 52-3; Decl. Erik Solter ¶ 6, ECF No. 52-4; Decl. Bethany Buffington ¶ 6, ECF
No. 52-6; Aff. Laurie Gasnick ¶ 14, ECF No. 52-7; Decl. John Patrick ¶ 8, ECF No. 52-8.)

11

1

hyperlink, and that all of Arcilla’s co-plaintiffs who used Running’s checkout saw the

2

link, (see Decl. Bethany Buffington ¶ 6; Aff. Laurie Gasnick ¶ 14; Decl. John Patrick

3

¶ 8), the Court finds that Running’s checkout page provided Arcilla with “reasonably

4

conspicuous notice” of the Terms, see Berman, 30 F.4th at 856.
b.

5

Unambiguous Manifestation of Assent

6

“A user’s click of a button can be construed as an unambiguous manifestation

7

of assent only if the user is explicitly advised that the act of clicking will constitute

8

assent to the terms and conditions of an agreement.” Id. at 857.

9

Running’s website contains language that does exactly that. To place an order

10

on Running’s website, a consumer must click on a “Place Order” button directly above

11

the following language of assent: “By submitting your order you . . . agree to our

12

privacy policy and terms of use.” (Running Website 10.) Running’s checkout page

13

thus requires the consumer to press a button immediately above a statement “explicitly

14

notify[ing] [the] user of the legal significance of the action she must take to enter into

15

a contractual agreement.” Berman, 30 F.4th at 858. Accordingly, Running’s website

16

is designed in a way that required Arcilla to unambiguously manifest assent to the

17

Terms when he clicked “Place Order” to complete his purchase.

18

(confirming Arcilla made purchases from Running’s website); Arcilla Decl. ¶¶ 8–9

19

(confirming the hyperlink to Running’s Terms appeared directly below the “Place

20

Order” button during Arcilla’s purchase).)

21
22

(See Opp’n 9

As such, Plaintiffs, including Arcilla, had inquiry notice of the Terms, including
the arbitration provision therein, as a matter of law. See Meyer, 868 F.3d at 79.

23

3.

24

Finally, Plaintiffs argue that the arbitration provision is unconscionable, and

25

Unconscionability

thus unenforceable. (Opp’n 33–43.)

26

“Under California law, unconscionable contracts are those that are ‘so one-sided

27

as to shock the conscience.’” Esquer v. Educ. Mgmt. Corp., 292 F. Supp. 3d 1005,

28

1013 (S.D. Cal. 2017) (quoting Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237, 1244

12

1

(2016)). For a court to refuse to enforce a contract, both substantive and procedural

2

unconscionability must be present, although not to the same degree. Armendariz v.

3

Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000). Courts measure the

4

substantive and procedural unconscionability on a “sliding scale”: “the more

5

substantively oppressive the contract term, the less evidence of procedural

6

unconscionability is required to come to the conclusion that the term is unenforceable,

7

and vice versa.” Id.

8

Plaintiffs raise only one substantive unconscionability argument: because the

9

Terms provide Defendants with the unilateral right to amend or modify the Terms

10

without notice, the Terms, and thus the arbitration agreement, are substantively

11

unconscionable.

12

modification clause, and the mere presence of a “unilateral modification clause does

13

not make the arbitration provision itself unconscionable.” See Tompkins v. 23andMe,

14

Inc., 840 F.3d 1016, 1033 (9th Cir. 2016). Therefore, Plaintiffs fail to establish that

15

the Terms are substantively unconscionable and Plaintiffs’ unconscionability argument

16

necessarily fails. See Armendariz, 24 Cal. 4th at 114 (requiring both substantive and

17

procedural unconscionability to find a term unenforceable).

18

C.

(Opp’n 40–41.)

However, no Defendant has exercised the

Dismissal or Stay

19

Defendants request that, in the event the Court grants the Motion, the Court also

20

dismiss Plaintiffs’ claims without prejudice or, in the alternative, stay the seven related

21

cases pending arbitration. (Mot. 1–2.)

22

In the Ninth Circuit, district courts have discretion to dismiss a party’s

23

complaint where the court finds that the arbitration clause covers all of the party’s

24

claims.

25

(9th Cir. 2014) (affirming dismissal of action without prejudice where “all of the

26

claims raised in the action are subject to arbitration”); Sparling v. Hoffman Constr.

27

Co., 864 F.2d 635, 638 (9th Cir. 1988) (finding 9 U.S.C. § 3 “did not limit the court’s

28

authority to grant a dismissal” rather than stay the case).

See, e.g., Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074

13

1

Although Plaintiffs argue for a stay instead of a dismissal, their argument

2

assumes that some claims would not be subject to arbitration. (See Opp’n 43–45.)

3

However, the parties have delegated the question of arbitrability to the arbitrator, and

4

neither side has presented any compelling reason to stay the case. See Loewen v. Lyft,

5

Inc., 129 F. Supp. 3d 945, 966 (N.D. Cal. 2015) (dismissing where neither party

6

provided a compelling reason to keep the case on the docket). Therefore, the Court

7

exercises its discretion and dismisses these seven related actions without prejudice.
V.

8

CONCLUSION

9

For the reasons discussed above, the Court GRANTS Defendants’ Motion to

10

Compel Arbitration and DISMISSES Plaintiffs’ individual and putative class claims

11

in these seven related actions without prejudice:

12

Patrick v. Running Warehouse, No. 2:21-cv-09978-ODW (JEMx), ECF

13

No. 48; Buffington v. Running Warehouse, No. 2:21-cv-09980-ODW (JEMx), ECF

14

No. 28; Arcilla v. Wilderness Sports Warehouse, No. 5:22-cv-00012-ODW (JEMx),

15

ECF No. 39; Gasnick v. Running Warehouse, No. 2:22-cv-00101-ODW (JEMx),

16

ECF No. 49; Pfeffer v. Wilderness Sports Warehouse, No. 2:22-cv-00297-ODW

17

(JEMx), ECF No. 35; Solter v. Sports Warehouse, No. 2:22-cv-00460-ODW (JEMx),

18

ECF No. 39; and Hargrove v. Wilderness Sports Warehouse, No. 2:22-cv-01716-

19

ODW (JEMx), ECF No. 41.

20
21

IT IS SO ORDERED.

22
23
24
25
26

October 18, 2022
____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

27
28

14