DANIEL v. EBAY, INC. et al

Filing 23

MEMORANDUM OPINION AND ORDER rejecting 15 Report and Recommendation and DENYING 6 , 9 eBay's motion to compel arbitration. eBay and Mr. Ly are therefore directed to file their answers to Mr. Daniel's complaint by no later than August 27, 2018. Within thirty days thereafter, the parties shall meet and confer as required by Federal Rule of Civil Procedure 26(f). The Clerk is directed to mail a copy of this Memorandum Opinion and Order to the address where Mr. Ly was served, as deta iled on page 7 of 5 proof of service, by first-class mail, certified receipt. The Clerk is also directed to mail a copy to Mr. Daniel's address of record by first-class mail, certified receipt. Signed by Judge Emmet G. Sullivan on 7/26/2018. (lcegs3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PATRICK DANIEL,
Plaintiff,
v.
EBAY, INC., et. al.,
Defendants.

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) Civil Action No. 15-1294 (EGS)
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MEMORANDUM OPINON AND ORDER
Plaintiff Patrick Daniel (“Mr. Daniel”), an attorney
proceeding pro se, brings suit against eBay, Inc. (“eBay”) and
individual eBay seller Jack Ly (“Mr. Ly”)(also known as David
Kennedy). Mr. Daniel brings several claims against both
defendants, including “breach of contract, fraud, collusion,
conspiracy, failure to monitor business and its agents, failure
to supervise business and its sellers, agency, unjust
enrichment, redhibition, theft by deception, theft by
conversion, unfair and deceptive trade practices, and violations
of [unspecified] laws, statutes, and/or regulations designed for
the safety of consumers.” Compl., ECF No. 1 ¶ 13. Mr. Daniel’s
claims all arise from his purchase of an allegedly counterfeit
watch from Mr. Ly through eBay’s online marketplace. Arguing
that Mr. Daniel had agreed to submit to arbitration, eBay filed
a motion to compel arbitration and stay this litigation. Def.’s

1

Mot. to Arb., ECF Nos. 6, 9. 1 Pending before the Court are Mr.
Daniel’s objections to Magistrate Judge G. Michael Harvey’s
Report and Recommendation (“R&R”), which recommends that the
Court grant eBay’s motion to compel arbitration and stay
litigation. See R&R, ECF No. 15.
Upon consideration of the R&R, Mr. Daniel’s objections,
eBay’s response to those objections, eBay’s motion to compel
arbitration, the responses and replies thereto, and the relevant
law, the Court declines to adopt Magistrate Judge Harvey’s R&R
and DENIES eBay’s motion to compel arbitration and stay the
litigation pending before the Court.
I.

Background

Mr. Daniel does not appear to object to Magistrate Judge
Harvey’s recitation of the facts. See Pl.’s Objections, ECF No.
17. To briefly summarize, Mr. Daniel bought what he thought was
an “authentic” Audemars Piguet Royal Offshore Watch from Mr. Ly,
a registered eBay seller, via eBay’s online marketplace on July
9, 2015. Compl., ECF No. 1 ¶¶ 4-6, 8. The watch was allegedly
worth $75,000. Id. On July 14, 2015, Mr. Daniel learned that the
watch was counterfeit, not “authentic” as marketed. Id. ¶¶ 7, 8.
Upon learning the watch was counterfeit, Mr. Daniel contacted

1

eBay’s motion to compel was filed as docket entry number 6, but
eBay filed an amended memorandum in support of its motion to
compel as docket entry number 9.
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Mr. Ly and arranged a meeting to return the watch, but Mr. Ly
did not appear. Id. ¶ 10. Mr. Daniel notified eBay, but it
allegedly “refused” to provide him with Mr. Ly’s contact
information or refund his money. Id. ¶ 9. Within a month, Mr.
Daniel sued eBay and Mr. Ly for breach of contract, fraud, and
unjust enrichment, among several other charges. See id. ¶ 13.
eBay contends that Mr. Daniel is required to arbitrate his
claims against the company pursuant to various iterations of its
“User Agreements.” See Def.’s Mot. to Arb., ECF No. 9; R&R, ECF
No. 15 at 3-6. When Mr. Daniel registered as an eBay user in
March 1999, he was required to accept the 1999 User Agreement by
clicking “I accept” on an online form. Long Decl., ECF No. 6-2
¶¶ 3-12. The 1999 User Agreement did not contain an arbitration
clause, but provided that eBay may “amend this Agreement at any
time by posting the amended terms on our site.” Long Decl., ECF
No. 6-2 ¶ 13; 1999 User Agreement (“U.A.”), ECF No. 6-2 at 13.
Pursuant to that “change-in-terms” provision, eBay amended
its User Agreement to include an arbitration clause in August
2012. Long Decl., ECF No. 6-2 ¶ 14; 2 2012 U.A., ECF No. 6-2 at
22-29. The 2012 User Agreement stated that users and eBay agree
that “any and all disputes or claims that have arisen or may
arise between [the user] and eBay shall be resolved exclusively

2

Paragraph 14 of the Long Declaration appears to be incomplete
and paragraph 15 is missing. See Long Decl., ECF No. 6-2.
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through final and binding arbitration, rather than in court.”
2012 U.A., ECF No. 6-2 at 27. The User Agreement allowed users
to “opt out” of the arbitration provision by mailing eBay a
written opt-out notice within a certain amount of time. Id. at
28. According to eBay, Mr. Daniel did not “opt out.” Long Decl.,
ECF No. 6-2 ¶ 17.
In June 2015, eBay amended its User Agreement again. Id. ¶
18; 2015 U.A., ECF No. 6-2 at 31-40. This version of the User
Agreement was in effect when Mr. Daniel purchased the
counterfeit watch in July 2015. Long Decl., ECF No. 6-2 ¶ 18.
The 2015 User Agreement contained an arbitration provision
practically identical to the 2012 version:
[The user] and eBay each agree that any and
all disputes or claims that have arisen or may
arise between [the user] and eBay relating in
any way to or arising out of this or previous
versions of the User Agreement, [the user’s]
use of or access to eBay’s Services shall be
resolved exclusively through final and binding
arbitration, rather than in court . . . . The
Federal
Arbitration
Act
governs
the
interpretation
and
enforcement
of
this
Agreement to Arbitrate.
2015 U.A., ECF No. 6-2 at 37.
Mr. Daniel denies receiving notification of either amended
User Agreements. Daniel Aff., ECF No. 17 at Ex. 2 ¶¶ 2, 3 (“At
no time have I received an email [or message] from eBay
notifying me of a proposed compulsory arbitration provision.”).
eBay responds, stating that Mr. Daniel was notified of the 2015
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User Agreement via an email sent to his registered email
address. Long Decl., ECF No. 6-2 ¶ 19; see also Form Email with
2015 U.A., ECF No. 6-2 at 42-43.
II.

Standards of Review

A. Objections to a Magistrate Judge’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered a recommended disposition, a party
may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to,” and “may accept, reject or
modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
Proper objections “shall specifically identify the portions of
the proposed findings and recommendations to which objection is
made and the basis for objection.” Local Civ. R. 72.3(b). “As
numerous courts have held, objections which merely rehash an
argument presented to and considered by the magistrate judge are
not ‘properly objected to’ and are therefore not entitled to de
novo review.” Shurtleff v. U.S. Envtl. Prot. Agency, 991 F.
Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, Case No.
08–2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)
(collecting cases)). Likewise, a court need not consider cursory
objections made only in a footnote. Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also

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Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir.
2009) (Williams, J. concurring) (internal citations omitted).
B. Motion to Compel Arbitration
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq.,
“governs the enforcement of contractual arbitration provisions”
related to matters of interstate commerce. Aneke v. Am. Express
Travel Related Servs., Inc., 841 F. Supp. 2d 368, 373 (D.D.C.
2012). It provides that written agreements to arbitrate “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. The “saving clause” in this section
“permits agreements to arbitrate to be invalidated by generally
applicable contract defenses, such as fraud, duress, or
unconscionability, but not by defenses that apply only to
arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2011) (internal quotations and
citations omitted).
The FAA reflects “a liberal federal policy favoring
arbitration and the fundamental principle that arbitration is a
matter of contract.” Id. (internal quotations and citations
omitted). It “strongly favors the enforcement of agreements to
arbitrate as a means of securing prompt, economical and adequate
solution of controversies.” Rodriguez de Quijas v.
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Shearson/Am. Express, Inc., 490 U.S. 477, 479–80 (1989).
Therefore, “district courts shall direct the parties to proceed
to arbitration on issues as to which an arbitration agreement
has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 218 (1985) (citing 9 U.S.C. §§ 3, 4)(emphasis in original).
When adjudicating a motion to compel arbitration, district
courts apply the summary judgment standard of Federal Rule of
Civil Procedure 56(c). Aliron Int'l, Inc. v. Cherokee Nation
Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008). Under Rule 56,
summary judgment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56. To that end,
“the party seeking to stay the case in favor of arbitration
bears an initial burden of demonstrating that an agreement to
arbitrate was made . . . . [while] the party resisting
arbitration bears the burden of proving that the claims at issue
are unsuitable for arbitration.” Saki v. Estee Lauder Cos., -F. Supp. 3d --, 2018 WL 1953899 at *4-5 (D.D.C. April 25,
2018)(citing Green Tree Fin. Corp.-Ala. V. Randolph, 531 U.S.
79, 91 (2000)).
III.

Analysis

In its motion to compel arbitration, eBay argues that Mr.
Daniel is required to submit to arbitration because he agreed to
the 1999 User Agreement, which contained the change-in-terms
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clause. See Def.’s Mot. to Arb., ECF No. 9. Because eBay amended
its User Agreement to require arbitration pursuant to that
clause, eBay argues that Mr. Daniel agreed to the changes. See
id. eBay points to the fact that Mr. Daniel did not opt out of
the arbitration provision even though he had the option to do
so. See id. at 3. In response, Mr. Daniel argues that he never
agreed to the 2012 and 2015 arbitration clauses because he never
received notification of the amended terms. See Pl.’s Opp’n, ECF
No. 11. Alternatively, he argues that the arbitration agreement,
if any, is unenforceable and does not encompass his claims
against eBay. See id.
The R&R recommends that the Court grant eBay’s motion to
compel because: (1) the parties entered into a valid arbitration
agreement, see R&R, ECF No. 15 at 12-14; (2) the arbitration
agreement is enforceable, see id. at 14-16, 19-27; and (3) the
arbitration clause encompasses Mr. Daniel’s claims, see id. at
16-18. In recommending this outcome, the R&R did not resolve the
choice of law dispute between the parties. See R&R, ECF No. 15
at 9-11 (“When determining whether an arbitration agreement is
valid, ‘courts apply ordinary state-law principles that govern
the formation of contracts.’”) (quoting First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 955 (1995)). Mr. Daniel argues
that Louisiana law applies, see Pl.’s Opp’n, ECF No. 11 at 2, 610, while eBay asserts that “either Utah or Texas law applies,”
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see Def.’s Reply, ECF No. 14 at 5, 7. The R&R does not resolve
the issue because it concludes that eBay’s motion to compel
arbitration should be granted pursuant to the law of each
jurisdiction. See R&R, ECF No. 15 at 9-11. While the Court
disagrees that eBay’s motion should be granted, it agrees that
it need not resolve the choice of law issue as the laws of these
jurisdictions produce identical results. See Nat’l R.R.
Passenger Corp. v. Lexington Ins. Co., 365 F.3d 1104, 1107 (D.C.
Cir. 2004)(“we need not delve into choice of law issues, as
there is no conflict of law for this Court to resolve”).
Consequently, the Court looks to Utah, Louisiana, and Texas law.
In his objections, Mr. Daniel seems to argue that the Court
should apply California law. See Pl.’s Objection, ECF No. 17 at
5-6. Not only does California not appear to have a significant
interest in the application of its law to this dispute, see
Geico v. Fetisoff, 958 F.2d 1137, 1141 (D.C. Cir. 1992), but Mr.
Daniel also did not argue that California law should apply when
opposing eBay’s motion to compel arbitration, see Pl.’s Opp’n,
ECF No. 11. Mr. Daniel is entitled to a de novo review of
Magistrate Judge Harvey’s findings; he is “not, however,
entitled to a de novo review of an argument never raised.”
Aikens v. Shalala, 956 F. Supp. 14, 22 (D.D.C. 1997).

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A. Mr. Daniel Did Not Consent to Arbitration
In adjudicating motions to compel arbitration, the Court must
determine (1) whether the parties entered into a valid and
enforceable arbitration agreement; and, if so, (2) whether the
arbitration agreement encompasses the parties’ claims. See
Courville v. Allied Prof’ls Ins. Co., 174 So.3d 659, 663 (La.
Ct. App. 2015) (“In ruling on a motion to compel arbitration,
the court must first determine whether the parties agreed to
arbitrate the type of claim that is at issue.”); Bybee v.
Abdulla, 189 P.3d 40 ¶ 26 (Utah 2008)(“ For a dispute to be
subject to arbitration, an agreement to arbitrate must exist
that binds the party whose submission to arbitration is sought
and the dispute to be arbitrated must fall within the scope of
the agreement.”) (internal citations omitted); In re Conseco
Fin. Serv. Corp., 19 S.W.3d 562, 567 (Tex. App. 2000)(same).
The R&R finds that eBay and Mr. Daniel had agreed to
arbitrate because Mr. Daniel accepted the 1999 User Agreement,
which contained the change-in-terms provision that allowed eBay
to amend future User Agreements. See R&R, ECF No. 15 at 12-14.
Therefore, the R&R concludes that the 2012 and 2015 User
Agreements—which contained arbitration clauses—are enforceable
by virtue of the 1999 User Agreement. Id. By failing to opt out
of the arbitration provision, Mr. Daniel “manifested his assent
to the terms of eBay’s User Agreement and the arbitration clause
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therein.” Id. at 14. The R&R did not consider whether Mr. Daniel
could consent to the later-added arbitration provisions without
personal notice of the changes or whether posting the amended
User Agreements on eBay’s website was sufficient notice. See id.
Although the R&R assumes that Mr. Daniel was entitled to notice
of the arbitration provisions, it does not address whether the
record establishes that eBay sent such notice. See id.
Mr. Daniel objects to the R&R by arguing that he never
consented to arbitration. Pl.’s Objections, ECF No. 17 at 2-3,
7-9. Mr. Daniel does not dispute that he consented to the 1999
User Agreement by clicking “I accept” when he registered for an
eBay account. See generally Pl.’s Opp’n, ECF No. 11; Pl.’s
Objections, ECF No. 17. He also does not dispute that the 1999
User Agreement allows eBay to amend its contract by “posting the
amended terms on [eBay’s] site.” See id.; 1999 U.A., ECF No. 6-2
at 13. Instead, Mr. Daniel argues that he never received
notification of the amended User Agreements and thus, eBay
“cannot offer credible evidence of [his] intent to be bound to
arbitration.” Id. at 1, 3; Pl.’s Aff., ECF No. 17 at 22 ¶¶ 2-4.
Mr. Daniel contends that he had no intent to be bound to
arbitrate when he accepted a contract that did not contain an
arbitration provision thirteen years earlier. See Pl.’s
Objections, ECF No. 17 at 3-4, 8-9 (“eBay has no proof of [Mr.
Daniel’s] consent to arbitrate”). At issue, then, is whether Mr.
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Daniel consented to the later-added arbitration clause by virtue
of the change-in-terms provision and whether Mr. Daniel could
consent to the arbitration clauses without notice of them.
As a matter of “basic contract formation principles, an
agreement to arbitrate is not created by a unilateral offer from
one party”; it requires “mutual assent” to be enforceable.
Morgan v. Bronze Queen Mgmt. Co., 474 S.W.3d 701, 706 (Tex. App.
2014). Indeed, “the general rule of arbitration agreements is
that one who has not manifested assent to an agreement to
arbitrate cannot be required to submit to arbitration.”
Ellsworth v. Am. Arb. Ass’n, 148 P.3d 983, 989 ¶ 19 (Utah 2006).
Therefore, the “minimum threshold” for enforcement of an
arbitration provision is “direct and specific evidence of an
agreement [to arbitrate] between the parties.” Id. at 987 ¶ 14
(quotations and citations omitted). A plaintiff is “not bound by
the terms of [] later-added arbitration clauses unless he
consented to them, as a ‘substantive change in the terms of a
contract requires the consent of parties.’” FIA Card Servs. v.
Weaver, 62 So.3d 709, 718 (La. 2011)(quoting Lanier v. Alenco,
459 F.2d 689, 693 (5th Cir. 1972)). Therefore, the Court rejects
the R&R’s finding that eBay and Mr. Daniel agreed to arbitrate
solely because Mr. Daniel accepted the 1999 User Agreement,
which contained the change-in-terms provision that allowed eBay
to amend future User Agreements.
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A party may consent to a later-added arbitration clause if
the party: (1) is notified about the arbitration clause; and (2)
assents via continued use of the product or service. See FIA, 62
So.3d at 718 (“it is black letter law that, if a credit card
company sends a notice of change in terms of the agreement, the
customer assents to the new terms by his continued use of the
card”); Koontz v. Citibank, Civ. No. 01-08-495, 2010 WL 2545583
at *2 (Tex. App. 2010)(finding that the consumer consented to a
later-added arbitration clause, despite not signing a new
contract, because she received a notice explaining the change,
did not opt out of the provision, and continued using the
product). Therefore, while a party need not necessarily sign a
contract with a later-added arbitration clause in order to
assent, the party cannot agree to a newly-added arbitration
clause without personal notice of that provision. See McCoy v.
Blue Cross & Blue Shield, 20 P.3d 901, 904 ¶ 13 (Utah).
Notice of a later-added arbitration provision is essential
because “when parties agree to arbitrate, they waive the
substantial right to judicial resolution of their disputes.” Id.
¶ 15. While the FAA “requires courts [to] rigorously . . .
enforce arbitration agreements,” Epic Sys. Corp. v. Lewis, -- S.
Ct. --, 2018 WL 2292444 at *5 (May 21, 2018)(quotations and
citations omitted), “the policy of liberally construing
agreements in favor of arbitration is conditioned upon the prior
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determination that arbitration is a ‘remedy freely bargained for
by the parties and [which] provides a means of giving effect to
the intention of the parties,’” McCoy, 20 P.3d at 904 ¶ 15. This
is not to say that eBay must prove that Mr. Daniel actually
received notice. FIA, 62 So.3d at 718 n.7 (“There is no
requirement that FIA prove Weaver, specifically, received the
notice.”). However, eBay must show and the record must reflect
that it undertook specific efforts to send notice of the new
arbitration provisions to Mr. Daniel on a certain date. See id.
(citing Nolan v. Mabray, 51 So.3d 665 (La. 2010)(not enforcing a
later-added arbitration clause because the record did not
contain evidence “showing when or if the notices were mailed to
customers”)); see also Marsh v. First USA Bank, N.A., 103 F.
Supp. 2d 909, 918–19 (N.D. Tex. 2000)(enforcing a valid
arbitration provision because the record established, via
depositions and affidavits, that the company had quality
assurance controls to ensure that every customer received notice
of the later-added arbitration provision).
In McCoy v. Blue Cross & Blue Shield, the Utah Supreme
Court applying Utah law—eBay’s preferred forum—denied a motion
to compel arbitration for failure to demonstrate notice and
assent. 20 P.3d at 905 ¶¶ 17, 18. Relying on a change-in-terms
clause, Blue Cross argued that the plaintiff had agreed to
arbitrate because the parties had agreed that Blue Cross “had
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the absolute right to modify or amend [its] agreement from time
to time.” Id. ¶ 16. Notwithstanding that provision, the Utah
Supreme Court found that the plaintiff had not agreed to
arbitrate by merely agreeing that Blue Cross could amend the
contract terms at a later time. Id. ¶ 17. Instead, the company
was required to establish that it had notified the plaintiff
“personally” about the newly-added arbitration provision. Id. ¶
18. Blue Cross’ statement that it had mailed a notice to all
subscribers was not sufficient: “its evidence described general
procedures but did not establish any actual mailing, or even
attempt to mail, that was directed to [the plaintiff]
personally.” Id. So here too.
eBay has not established that it notified Mr. Daniel about
the 2012 and 2015 amended User Agreements containing the
arbitration clauses. First, eBay contends that Mr. Daniels
received notice when it posted the amended User Agreements on
its website. See 2012 U.A., ECF No. 6-2 at 22 (posted on eBay’s
website); 2015 U.A., ECF No. 6-2 at 31 (posted on eBay’s
website); Long Decl., ECF No. 6-2 ¶¶ 14, 19. eBay does not
provide any authority from any of the three jurisdictions for
the proposition that such posts constituted notice sufficient to
demonstrate an agreement to arbitrate. See generally Def.’s Mot.
to Arb., ECF No. 9. Indeed, in eBay’s preferred forum claims of
“general” notice without evidence of “personal[]” and “actual”
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mailing to affected customers was insufficient to demonstrate
consent. See McCoy, 20 P.3d at 905 ¶ 18.
Next, eBay asserts that it sent the 2012 User Agreement to
Mr. Daniel “through his My eBay Message Center.” Def.’s Mot. to
Arb., ECF No. 9 at 3 (citing Long Decl., ECF No. 6-2 ¶ 18); see
also Def.’s Reply, ECF No. 14 at 2 (citing Long. Decl., ECF No.
6-2 ¶¶ 18-20). The record does not support this assertion.
Paragraphs 18 and 19 of the Long Declaration do not state that
Mr. Daniel was sent a message regarding the 2012 User Agreement
via the “Message Center” and paragraph 20 does not exist. See
Long Decl., ECF No. 6-2. Moreover, eBay does not provide a copy
of any message sent to Mr. Daniel.
Finally, eBay asserts that its “records show that Daniel
was notified of the [2015] revisions via an email sent to his
registered email address.” Def.’s Mot. to Arb., ECF No. 9 at 3-4
(citing Long Decl., ECF No. 6-2 ¶ 20; Form Email with 2015 U.A.,
ECF No. 6-2 at 42-43). Again, the record does not support this
assertion. Not only is there no paragraph 20 in the Long
Declaration, but the email attached as an exhibit to the
Declaration was not addressed to Mr. Daniel. Instead, eBay
relies on a form email that it states was sent to eBay users to
notify them of updates to the 2015 User Agreement. See Long.
Decl., ECF No. 6-2 ¶ 19; Form Email with 2015 U.A., ECF No. 6-2
at 42-43(form email is addressed to “[USER]” without any email
16

address or date sent). eBay has therefore failed to demonstrate
that it sent Mr. Daniel an email notifying him of the 2015 User
Agreement. See McCoy, 20 P.3d at 905 ¶ 18 (requiring evidence of
personal notification to establish consent to arbitration); FIA,
62 So.3d at 718-19 (vacating arbitration award because the
company failed to provide evidence that notice of the
arbitration clause was mailed to customers and as such, the
court was “unable to conclude that [the consumer] ever consented
to resolve his credit card disputes via arbitration”); Koontz,
2010 WL 2545583 at *2-3 (finding that the consumer had consented
to arbitration because it was undisputed that the company had
sent the consumer the agreement to arbitrate). In sum, eBay has
failed to establish mutual assent to arbitrate because it failed
to meet its burden of demonstrating that Mr. Daniel was
personally notified of the 2012 or 2015 User Agreements
containing the arbitration provisions. 3
IV.

Conclusion and Order

For the aforementioned reasons, the Court declines to adopt
Magistrate Judge Harvey’s R&R. Accordingly, the Court DENIES
eBay’s motion to compel arbitration and stay the litigation.

3

Mr. Daniel also argues that the arbitration agreement is
unenforceable because it is unconscionable and illusory. Pl.’s
Objections, ECF No. 17 at 5-6, 10-12. He also contends that any
arbitration agreement does not fully encompass his claim. Id. at
9-10. Because the Court finds that eBay did not establish mutual
assent to arbitrate, it need not reach these arguments.
17

Pursuant to the Court’s September 30, 2015 Minute Order, eBay
is directed to file its answer to Mr. Daniel’s complaint by no
later than August 27, 2018. Within thirty days after eBay has
filed it answer, the parties shall meet and confer as required
by Federal Rule of Civil Procedure 26(f). See Court’s Standing
Order ¶ 9.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 26, 2018

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