Turner v. Efinancial, LLC

Filing 70

ORDER. The Court DENIES Ms. Turner's Motion to Stay All Web Leads' Pending Arbitration Demand. (Doc. # 61 .) Instead, the Court, at AWL's and Efinancial's request (Doc. ## 59 , 60 ), STAYS this case pending resolution of th e pending Turner-AWL Arbitration. The Court FURTHER ORDERS that this case be ADMINISTRATIVELY CLOSED pursuant to D.C.COLO.LCivR 41.2, subject to re-opening after resolution of those proceedings. The Parties SHALL FILE a status report with this Court on or before 12/26/2018, and every ninety days thereafter, advising this Court as to the status of the Turner-AWL Arbitration, until those proceedings have been resolved. Based on this resolution, the Court also DENIES AS MOOT Efinancial's Motion to Compel Arbitration. (Doc. # 45 .) By Judge Christine M. Arguello on 09/27/2018. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 18-cv-00292-CMA-GPG
JENNIFER TURNER,
Plaintiff,
v.
EFINANCIAL, LLC,
Defendant,
ALL WEB LEADS, INC.,
Defendant-Intervenor.
ORDER STAYING CASE DURING THE PENDENCY OF ARBITRATION BETWEEN
DEFENDANT-INTERVENOR ALL WEB LEADS AND PLAINTIFF JENNIFER
TURNER AND DENYING PLAINTIFF’S MOTION TO STAY ARBITRATION
______________________________________________________________________
On September 6, 2018, this Court ordered the Parties to show cause as to why
this case should not be stayed until the resolution of pending arbitration between
Plaintiff Jessica Turner and Defendant-Intervenor All Web Leads, Inc. (the “Turner-AWL
Arbitration”). (Doc. # 58.) 1 All parties timely responded to the Order. (Doc. ## 59, 60,
62.) Defendant Efinancial, LLC and All Web Leads, Inc. (“AWL”) agree that this case
should be stayed pending the Turner-AWL Arbitration because, they assert, the

The Court learned of the pending Turner-AWL Arbitration when reviewing the documents
submitted by Defendant Efinancial, LLC with its Motion to Compel Plaintiff to attend arbitration
with Efinancial. (Doc. # 46-5.) The Parties have all since confirmed the existence of the TurnerAWL Arbitration. (Doc. ## 59, 60, 61, 62.)

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resolution of that Arbitration will be dispositive of the instant matter. (Doc. # 59, 60.)
Ms. Turner, however, responds that this case should not be stayed because there exists
no contract between the Parties, much less an agreement to arbitrate. (Doc. # 62.) Ms.
Turner accordingly filed a Motion requesting that this Court stay the Turner-AWL
Arbitration and instead allow her present claims to proceed in this venue. (Doc. # 61.)
For the following reasons, the Court finds that a stay of this litigation pending the
outcome of the Turner-AWL Arbitration is warranted. The Court accordingly denies
Plaintiff’s Motion to Stay that Arbitration.
I.

BACKGROUND

At issue in the underlying case is whether Efinancial violated the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227, when it sent Ms. Turner five text
messages regarding life insurance between August and November 2017. (Doc. # 1 at
¶ 1.) Ms. Turner contends that these text messages were unsolicited and unwanted. (Id.
at ¶ 22, 28.) Efinancial responds that it appropriately obtained Ms. Turner’s information
and consequently sent her text messages after she visited AWL’s website and thereby
consented to receive communication from Efinancial.
As pertinent here, AWL is a corporation that “sells insurance leads to insurance
providers.” (Doc. ## 48 at 1; 27 at 2.) “[A]s a part of its business, AWL operates . . . a
website for consumers that are looking for insurance quotes.” (Doc. # 27 at 2.) When a
consumer visits AWL’s website, the consumer provides contact information, “which
includes a telephone number,” and then clicks on a “Get My Quotes” button. (Doc. # 46
at 1.) By clicking on the “Get My Quotes” button, the consumer authorizes “up to eight
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insurance companies or their agents or partner companies, to contact [the consumer] at
the number . . . provided.” (Doc. # 46-1 at 2.) Efinancial is one of the agencies with
whom AWL has agreed to share consumer information, provided they consent by
clicking on the “Get My Quotes” button. Also by clicking on the “Get My Quotes” button,
the consumer agrees to AWL’s “Terms and Conditions.” (Id.) Among other things, those
terms and conditions contain an Agreement to Arbitrate. (Doc. # 46-3.) It provides that
“all disputes or claims that have arisen or may arise . . . relating in any way to or arising
out of” the consumers “use of [AWL’s] Services . . . shall be resolved exclusively
through final and binding arbitration.” (Id.)
Like Efinancial, AWL contends that Ms. Turner visited AWL’s website and clicked
on the “Get My Quotes” button, thereby (1) permitting Efinancial to contact her, and (2)
agreeing to AWL’s Terms and Conditions, including the Agreement to Arbitrate.
Accordingly, on May 25, 2018, AWL, who agreed to defend Efinancial against claims
like those in this case, filed a demand for arbitration against Plaintiff with the American
Arbitration Association (the “Turner-AWL” Arbitration). 2 (Doc. # 46-5.) That arbitration,
which addresses the same issues raised in this case, is currently pending.
Plaintiff denies ever visiting AWL’s website and requests that the Turner-AWL
Arbitration be stayed so that her claims against Efinancial can proceed in this venue;
AWL and Efinancial conversely request for this litigation to be stayed so that the issues
can proceed through the Turner-AWL Arbitration. The Court finds that the latter
approach is more appropriate at this time.

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EWL also filed a Motion to Compel Arbitration in this Court. (Doc. # 45.)
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II.

ARBITRATION STANDARDS

The district court has “broad discretion to stay proceedings as an incident to its
power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 708 (1997). A federal
court may dismiss or stay federal proceedings when a parallel or duplicative proceeding
is pending in another forum. Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999).
The doctrine likewise applies to parallel or duplicative proceedings pending in
arbitration. THI of New Mexico at Las Cruces, LLC v. Fox, 727 F. Supp. 2d 1195, 1208
(D.N.M. 2010). Indeed, 9 U.S.C. § 3 provides that the Court “shall” do so “upon being
satisfied” that an agreement to arbitrate exists that covers the issues involved in
litigation and to which the parties have agreed. Avedon Eng’g, Inc. v. Seatex, 126 F.3d
1279, 1283 (10th Cir. 1997) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 943–45 (1995)).
A court may also stay ongoing arbitration in favor of federal litigation. Although no
provision of the Federal Arbitration Act or the Federal Rules of Civil Procedure
expressly allows this Court to do so, some courts have relied on 9 U.S.C. § 4 as
implicitly providing authority for a stay of arbitration proceedings under “appropriate
circumstances.” See Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 266 n. 3 (2d
Cir. 1996) (“While § 3 of the FAA gives federal courts the power to stay trials pending
arbitration, we note that a number of courts have held that, in appropriate
circumstances, § 4 of the FAA may be applied to stay or enjoin arbitration
proceedings.”); see also Tai Ping Ins. Co., Ltd. v. M/V Warschau, 731 F.2d 1141, 1144–

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46 (5th Cir.1984) (suggesting that an “appropriate circumstance” for a stay may be
found if the dispute is not covered by the arbitration agreement.)
Other courts have stayed arbitration proceedings in reliance on the court’s
inherent power. See Wells Enterprises, Inc. v. Olympic Ice Cream, 903 F. Supp. 2d 740,
751 (N.D. Iowa 2012); see also Landis v. North American Co., 299 U.S. 248, 254 (1936)
(“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.”).
Regardless of the framework used to review a motion to stay an arbitration
proceeding or a motion to stay litigation pending arbitration, the court has wide
discretion in making this decision. See Rogers v. Ameriprise Financial Servs., Inc., No.
07 C 6876, 2008 WL 4826262, at *2 (N.D.Ill. Nov. 4, 2008) (noting that the decision to
issue a stay rests within the court’s discretion which must be exercised in a manner that
is consistent with equity and judicial economy). Moreover, the Federal Arbitration Act
“establishes that, as a matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.” Pikes Peak Nephrology
Assocs., P.C. v. Total Renal Care, Inc., No. CIV.A09CV00928CMAMEH, 2010 WL
1348326, at *5 (D. Colo. Mar. 30, 2010) (citing Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24–25 (1983)).

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Finally, courts “routinely” uphold internet agreements 3 to arbitrate provided the
consumer had “reasonable notice, either actual or constructive, of the terms of the
putative agreement and . . . manifested asset to those terms.” Vernon cv. Qwest
Commc’ns Int’l, Inc., 857 F.Supp.2d 1135, 1149 (D. Colo. 2012.)
III.

ANALYSIS

The only issue before the Court is whether Ms. Turner visited the AWL website
and clicked on the “Get My Quotes” button, thereby assenting to the Agreement to
Arbitrate. Indeed, Ms. Turner’s entire stance against staying this case pending the AWL
Arbitration rests on her contention that she never visited AWL’s website or, therefore,
agreed to arbitrate her instant claims against Efinancial.
Having thoroughly reviewed the briefing, record, and law pertinent to the
resolution of this issue, the Court rejects Ms. Turner’s contentions that she did not visit
the AWL Website for the following reasons.
First, AWL’s Vice President of Marketing has submitted a sworn declaration
contending otherwise—affirming that Ms. Turner “visited www.insurancequotes.com, a
website operated by AWL, provided her contact information including her telephone
number, and clicked the “Get My Quotes button.” (Doc. # 46 at 1.) This declaration is
supported by a second declaration by Michael Gooding, the deputy general counsel and
Internet agreements can take several forms, including (1) “click-wrap agreements” which
present the consumer with terms and conditions followed by an affirmative assent mechanism—
like an “I agree” button; (2) browse-wrap agreements that require no affirmative “click” by the
user; and (3) “hybrid agreements,” where “the terms being accepted do not appear on the same
screen as the accept button, but are available with the use of hyperlink.” Vernon v. Qwest
Commc’ns Int’l, Inc., 857 F. Supp. 2d 1135, 1149 (D. Colo. 2012). The pertinent agreement in
this case is a hybrid agreement.

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chief compliance officer at Efinancial, stating that Efinancial obtained Ms. Turner’s
contact information from AWL. (Doc. # 47.) Ms. Turner has submitted no information or
evidence refuting these declarations. At this stage, her general denials and statements
that she “do[es] recall visiting . . . the website” or “agreeing to arbitrate” are insufficient
to defeat arbitration. (Doc. # 2.) See Stein v. Burt-Kuni One, LLC, 396 F.Supp.2d 1211,
1213 (D. Colo. 2005) (whether to compel arbitration is governed by a standard similar to
that governing a motion for summary judgment, where general denials do not suffice to
create a general issue of disputed material fact).
Second, Ms. Turner, by failing to provide timely discovery responses, has already
admitted that she visited the AWL Website and clicked on the “Get My Quotes” button.
Specifically, she did not timely respond to the following requests for admission:
REQUEST FOR ADMISSION NO. 1.
Admit that, on or about April 11, 2017, you entered the information
requested by the web form or the mobile form attached as Exhibit A and
clicked the “Get My Quote” button.
REQUEST FOR ADMISSION NO. 2.
Admit that, on or about June 24, 2017, you again entered the information
requested by the web form or the mobile form attached as Exhibit A and
clicked the “Get My Quote” button.
REQUEST FOR ADMISSION NO. 3.
Admit that, on or about August 14, 2017, you entered the information
requested by the web form or the mobile form attached as Exhibit B and
clicked the “Get My Quote” button.
REQUEST FOR ADMISSION NO. 4.
Admit that, on or about November 29, 2017, you entered the information
requested by the web form or the mobile form attached as Exhibit C and
clicked the “Get My Quote” button.

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(Doc. # 47–1.) Because Ms. Turner did not timely respond to these requests, these
matters are deemed admitted pursuant to Federal Rule of Civil Procedure 36(a)(3). 4
Accepting the admissions as true, Ms. Turner’s contentions that she did not visit AWL’s
website or click on the “Get My Quote” button are without merit. 5
Third, earlier in this litigation, Ms. Turner agreed that a key issue for this Court’s
consideration would be whether the consent language on AWL’s website satisfied prior
express written consent under the TCPA. (Doc. # 23 at 2.) Indeed, the parties agreed to
initially limit discovery to allow Efinancial to move for partial summary judgment related
to this consent language, which was “purportedly used by Defendant and viewed by
Plaintiff.” (Id. at 5.) Plaintiff has thereby agreed, at least once prior to her discovery
admissions, that she visited the AWL website.
For all these reasons, the Court finds that there is credible and persuasive
evidence that Ms. Turner visited the AWL Website, clicked on the “Get My Quotes”
button, and was thereby notified of the Agreement to Arbitrate included in the Terms
and Conditions of AWL’s operation. Based on the existence of an Agreement to

Ms. Turner responded to these requests for admission nearly one month late. (Doc. # 47.) Ms.
Turner states that her late-filed responses are attributable to correspondence with Efinancial,
wherein Efinancial advised that it was working on a stipulation that would “obviate the need for
her to respond” to the requests for admission. The last of these emails occurred, however, in
early May 2018—over a month before Ms. Turner’s responses to the interrogatories were due.
Between then and June 8, 2018 (the date her responses were due), Ms. Turner never inquired
as to the status of the purported stipulation or requested for an extension of time to respond to
the requests for admission. It is Ms. Turner’s responsibility to comply with important discovery
deadlines or to request an extension if that deadline looks untenable. Neither occurred in this
case and the Court finds no good cause to excuse the delay.
5
Of note, Plaintiff’s late responses to the requests for admission did not expressly disclaim
visiting AWL’s website or clicking on the “Get My Quotes” button. Instead, she stated, “Plaintiff
lacks knowledge or information to admit or deny. Plaintiff has made a reasonable inquiry and
the information she knows or can readily obtain is insufficient to enable her to admit or deny.”
4

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Arbitrate, the Court finds no reason to stay the pending Arbitration between Ms. Turner
and AWL. 6 Moreover, because that Arbitration is intended to address the same issues
raised in this litigation, to prevent duplicative, contrary rulings and a waste of judicial
resources, the Court, in its discretion, stays this litigation pending the outcome of the
Turner-AWL Arbitration. 7
IV.

CONCLUSION

Based on the foregoing, the Court DENIES Ms. Turner’s Motion to Stay All Web
Leads’ Pending Arbitration Demand. (Doc. # 61.) Instead, the Court, at AWL’s and
Efinancial’s request (Doc. ## 59, 60), STAYS this case pending resolution of the
pending Turner-AWL Arbitration.
The Court FURTHER ORDERS that this case be ADMINISTRATIVELY CLOSED
pursuant to D.C.COLO.LCivR 41.2, subject to re-opening after resolution of those
proceedings.
The Court FURTHER ORDERS that the Parties SHALL FILE a status report with
this Court on or before 12/26/2018, and every ninety days thereafter, advising this Court

In so concluding, the Court also declines to address Ms. Turner’s brief alternative arguments
against the enforceability and scope of the Agreement to Arbitrate, which she raised in response
to Efinancial’s Motion to Compel Arbitration, but not in response to this Court’s Order to Show
Cause or in her Motion to Stay Arbitration. The question of who has the “primary power to
decide arbitrability turns upon what the parties agreed about the matter.” Belnap v. Iasis
Healthcare, 844 F.3d 1272, 1280 (10th Cir. 2017). In this case, the Agreement to Arbitrate
clearly provides that the arbitrator, not this Court, has the “exclusive authority” to rule on issues
regarding arbitrability, including “enforceability” or scope of the agreement and whether the
agreement is “void or voidable.” (Doc. # 46-4.) The matter is, therefore, between left for
resolution during the pending AWL Arbitration.
7
Likewise, the Court need not address Efinancial’s pending Motion to Compel Arbitration (Doc.
# 45), wherein Efinancial requests to arbitrate the same issues being addressed in the TurnerAWL Arbitration. The Court, therefore, denies the Motion as moot.
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as to the status of the Turner-AWL Arbitration, until those proceedings have been
resolved.
Based on this resolution, the Court also DENIES AS MOOT Efinancial’s Motion
to Compel Arbitration. (Doc. # 45.)
DATED: September 27, 2018
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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