Metter v. Uber Technologies, Inc.

Filing 43

ORDER by Judge Richard Seeborg denying 40 Uber's Motion for Leave to File Motion for Reconsideration. (cl, COURT STAFF) (Filed on 5/10/2017)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 JULIAN METTER, Case No. 16-cv-06652-RS Plaintiff, 11 United States District Court Northern District of California v. ORDER DENYING UBER’S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION 12 13 UBER TECHNOLOGIES, INC., Defendant. 14 15 16 17 I. INTRODUCTION Defendant Uber Technologies, Inc. (“Uber”) moves for leave to file a motion for 18 reconsideration of the order denying its motion to compel arbitration. Because it is flawed in 19 numerous respects, Uber’s motion is denied. 20 21 II. BACKGROUND On April 17, 2017, the Court issued an order denying Uber’s motion to compel arbitration 22 of plaintiff Julian Metter’s putative class claims. The Court found Metter’s declaration that he 23 never saw Uber’s terms of service alert credible and consistent with the functioning of the Uber 24 app because, during ordinary use of the app, a pop-up keypad would have obscured the terms of 25 service alert before a user would have had notice of it. Accordingly, the Court held Metter raised 26 a genuine issue of fact concerning his notice of, and assent to, Uber’s terms of service (and 27 included arbitration agreement), and that it was therefore improper to conclude as a matter of law 28 that Metter had actual notice of Uber’s terms of service, or that he was on inquiry notice of the 1 terms of service and affirmatively assented to them. The Court therefore denied Uber’s motion to 2 compel arbitration. On May 5, 2017, Uber filed a motion for leave to file a motion for 3 reconsideration of the Court’s order denying its motion to compel arbitration. 4 III. LEGAL STANDARD 5 A party seeking leave to file a motion for reconsideration must show: 6 (1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or 7 8 9 10 United States District Court Northern District of California 11 12 (2) The emergence of new material facts or a change of law occurring after the time of such order; or (3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. 13 Civ. Local R. 7-9(b). “No motion for leave to file a motion for reconsideration may repeat any 14 oral or written argument made by the applying party in support of or in opposition to the 15 interlocutory order which the party now seeks to have reconsidered.” Civ. Local R. 7-9(c). “Any 16 party who violates this restriction shall be subject to appropriate sanctions.” Id. 17 18 IV. DISCUSSION Uber’s proposed bases for reconsideration are: that the court erred in its findings regarding 19 whether Metter would have seen Uber’s terms of service alert, and that the court erred in not 20 immediately ordering a trial on the issue of Metter’s assent to Uber’s terms of service as required 21 by the Federal Arbitration Act (“FAA”). 22 23 A. Whether Metter Would Have Seen the Terms of Service Alert This proposed basis for reconsideration is actually a series of seven arguments, all of them 24 unsuccessful. Most of the arguments fault the Court’s finding that “[t]he keypad would have 25 remained activated for as long as Metter entered numerical information, and until Metter pressed 26 “REGISTER” to complete the registration process.” Order Denying Motion to Compel 27 Arbitration at 2-3. Uber attempts to advance these arguments under the first provision of the ORDER DENYING MOTION FOR RECONSIDERATION CASE NO. 16-cv-06652-RS 28 2 1 reconsideration rule — “a material difference in fact or law” — but, betraying one of the primary 2 weaknesses in its argument, fails to acknowledge that success under this provision requires 3 showing that “in the exercise of reasonable diligence [it] did not know such fact or law at the time 4 of the interlocutory order.” Id. 5 First, Uber argues Metter could have scrolled down at any time to see the terms of service 6 alert. Uber presented this argument with its motion to compel arbitration; the Court rejected it. 7 See Order Denying Motion to Compel Arbitration at 6 (“Uber never explains why Metter would 8 have scrolled down to find a terms of service alert he was not otherwise aware of, especially when 9 the registration and payment screen neither instructed him to scroll down nor presented any reason for him to do so.”). There is no basis for entertaining this sanctionable reargument. See Civ. 11 United States District Court Northern District of California 10 Local R. 7-9(c). 12 Second, Uber argues Metter could have pressed the standard triangle button in the lower 13 left corner of his phone in order to disengage the keypad at any time, thereby un-obscuring the 14 terms of service alert. This argument fails at the outset because it introduces new facts not raised 15 in connection with Uber’s initial motion, and Uber makes no showing that “in the exercise of 16 reasonable diligence [it] did not know such fact” at the time of its initial motion. Civ. Local R. 7- 17 9(b). Moreover, Uber never explains why Metter would have pressed the triangle button while 18 entering his credit card information, especially when the registration and payment screen neither 19 instructed him to do so nor presented any reason for him to do so. 20 Third, Uber argues Metter could have disengaged the keypad after he completed entering 21 his credit card information by pressing the checkmark icon on the keypad. This argument also 22 fails because it introduces new facts not raised in connection with Uber’s initial motion, and Uber 23 makes no showing that “in the exercise of reasonable diligence [it] did not know such fact” at the 24 time of its initial motion. Civ. Local R. 7-9(b). Uber also fails to explain why Metter would have 25 pressed the checkmark button when the registration and payment screen neither instructed him to 26 do so nor presented any reason for him to do so. 27 Fourth, Uber argues Metter provided no information regarding his Android operating ORDER DENYING MOTION FOR RECONSIDERATION CASE NO. 16-cv-06652-RS 28 3 1 system or hardware settings, which may have allowed him to see the terms of service alert 2 throughout the registration process. Again, this argument fails because it introduces new facts not 3 raised in connection with Uber’s initial motion, and Uber makes no showing that “in the exercise 4 of reasonable diligence [it] did not know such fact” at the time of its initial motion. Civ. Local R. 5 7-9(b). Furthermore, Uber’s abstract speculation that Metter may have had non-default settings 6 that effected the appearance and functioning of its app is not sufficient to raise a genuine dispute 7 of any material fact. Uber should know this well; in a related case, it successfully faulted a 8 plaintiff for engaging in the same sort of broad speculation without affirmatively specifying what 9 his settings were or how they effected the appearance and functioning of Uber’s app. See Cordas 10 United States District Court Northern District of California 11 v. Uber Techs., Inc., No. 16-CV-04065-RS, 2017 WL 658847, at *3 (N.D. Cal. Jan. 5, 2017). Fifth, Uber argues it is entitled to reconsideration of the Court’s finding that “[t]he keypad 12 would have remained activated for as long as Metter entered numerical information, and until 13 Metter pressed “REGISTER” to complete the registration process,” because Metter never 14 presented evidence to that effect, and it therefore could not anticipate the Court’s finding. This 15 argument for reconsideration does not fall under any of the three categories for reconsideration 16 17 18 19 20 motions provided in Civil Local Rule 7-9(b). Moreover, Uber misrepresents the case it cites in support of this basis for reconsideration, Kane v. Chobani, Inc., No. 12-CV-02425-LHK, 2013 WL 5529723 (N.D. Cal. July 25, 2013). Uber describes Kane as “granting leave to file motion for reconsideration based in part on defendant’s contention that the court’s decision relied on a fact plaintiff did not allege.” Mot. at 5. Kane does not so hold. It is entirely silent on any such theory, and granted defendants’ motion for leave to file a motion for reconsideration on the stipulation of 21 the parties. See Kane, 2013 WL 5529723 at *1. In any event, the Court’s conclusion that “[t]he 22 keypad would have remained activated for as long as Metter entered numerical information” was 23 24 25 26 based on evidence of the app’s functioning Uber presented in its briefs, declarations, and oral argument, and on Metter’s contention that he never saw the terms of service alert and that it would have been blocked by the keypad while he entered his credit card information. Sixth, Uber argues the Court’s order created a special “call out” rule for arbitration clauses 27 ORDER DENYING MOTION FOR RECONSIDERATION CASE NO. 16-cv-06652-RS 28 4 1 in violation of the FAA. This argument is disingenuous at best and frivolous at worst; no fair 2 reading of the Court’s order supports it. The Court found Uber failed to put Metter on notice of 3 any of its terms of service (which contained the arbitration provision at issue) because the terms of 4 service alert was obscured by the pop-up keypad. It neither created nor imposed any special duties 5 to call out, highlight, or otherwise emphasize arbitration clauses separate from the other terms of 6 service Uber sought to impose. 7 Seventh, Uber argues “the Court should take into account the context of Mr. Metter’s 8 assent.” Mot. at 7. Essentially, Uber argues that, because Metter engaged in a credit card 9 transaction with Uber, he should have understood he was agreeing to its terms of service. This is a new legal argument Uber did not raise in connection with its motion to compel arbitration, and 11 United States District Court Northern District of California 10 Uber makes no showing that “in the exercise of reasonable diligence [it] did not know such fact or 12 law at the time.” Civ. Local R. 7-9(b). Likewise, binding case law precludes this extraordinary 13 theory of universal assent regardless of notice. See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 14 (9th Cir. 2014). 15 B. Whether the Court Should Have Ordered a Trial on the Issue of Consent 16 Because the Court held Metter raised a genuine issue of fact concerning his notice of, and 17 assent to, Uber’s terms of service, Uber argues the Court should have immediately ordered a trial 18 on the issue of Metter’s consent to Uber’s arbitration clause, as required by the FAA. See 9 19 U.S.C. § 4 (“If the making of the arbitration agreement or the failure, neglect, or refusal to perform 20 the same be in issue, the court shall proceed summarily to the trial thereof.”). Uber argues the 21 Court manifestly failed to consider this argument in denying Uber’s motion to compel arbitration. 22 The Court, however, did not so fail; Uber never presented this argument in connection with its 23 motion to compel arbitration. See Civ. Local R. 7-9(b)(3) (“A manifest failure by the Court to 24 consider material facts or dispositive legal arguments which were presented to the Court before 25 such interlocutory order.”) Accordingly, reconsideration is not warranted. 26 27 V. CONCLUSION Uber’s motion for leave to file a motion for reconsideration is denied. ORDER DENYING MOTION FOR RECONSIDERATION CASE NO. 16-cv-06652-RS 28 5 1 IT IS SO ORDERED. 2 3 4 5 Dated: May 10, 2017 ______________________________________ RICHARD SEEBORG United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER DENYING MOTION FOR RECONSIDERATION CASE NO. 16-cv-06652-RS 28 6

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