Marc v. Uber Technologies, Inc. et al
Filing
18
OPINION AND ORDER granting 9 Defendants' Motion to Compel Arbitration and Strike Class Action Allegations from 8 Plaintiff's Amended Complaint. Plaintiff is ordered to proceed with individual arbitration of her claims. The case is h ereby stayed pending notification by the parties that Plaintiff has exhausted arbitration and either the stay is due to be lifted or the case is due to be dismissed. The Clerk shall terminate all deadlines and administratively close the case. Signed by Judge John E. Steele on 12/13/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANISE MARC, individually and
on behalf of all others
similarly situated,
Plaintiff,
v.
Case No: 2:16-cv-579-FtM-99MRM
UBER TECHNOLOGIES, INC., AND
RASIER (FL), LLC,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Compel Arbitration and Strike Class Action Allegations (Doc. #9)
filed on September 6, 2016.
Plaintiff filed a Response in Partial
Opposition (Doc. #14) on October 12, 2016, and Defendant filed a
Reply (Doc. #17) on October 28, 2016.
For the reasons set forth
below, Defendants’ Motion is granted.
I.
On August 17, 2016, Plaintiff Anise Marc filed a First Amended
Class
Action
Complaint
(Doc.
#8)
against
Defendants
Technologies, Inc. (Uber) and Rasier (FL), LLC (Rasier). 1
Uber
The
Amended Complaint asserts claims of i) tortious interference with
prospective
1
business
relations;
ii)
breach
of
contract;
iii)
Uber is a company that pays individuals to transport customers who request and pay for a ride using Uber’s smartphone application
- in the driver’s personal vehicle. (Doc. #8, ¶ 7.) Rasier is
an Uber subsidiary. (Id. ¶ 8.)
violation of the Florida Deceptive and Unfair Trade Practices Act,
Fla.
Stat.
§
501.202(2)
et
seq.;
iv)
unjust
enrichment;
v)
conversion; vi) fraud and misrepresentation; and vii) violations
of Florida’s Minimum Wage Law, Title XXXI, Ch. 48, Section 110 et
seq.
Plaintiff’s proposed class is “[a]ll individuals who are
currently working for or who have worked for Defendants as drivers
within the State of Florida.”
(Doc. #8, ¶ 40.)
Defendants now move for an order i) directing Plaintiff to
arbitrate her claims pursuant to a provision (the Arbitration
Provision) contained in a “Software License and Online Services
Agreement” (Services Agreement or Agreement) (Doc. #9-2, pp. 1331), whose terms Plaintiff was required to electronically accept
before she could begin working for Defendants, and ii) striking
the Amended Complaint’s class allegations and ordering arbitration
to proceed on an individual basis, in light of the Arbitration
Provision’s class-action waivers.
In her Response in Partial Opposition, Plaintiff “concedes
that a valid arbitration agreement exists” by which she “has
consented to submit her claims to arbitration,” (Doc. #14, p. 1),
but
she
opposes
allegations.
that
the
Defendants’
request
to
strike
the
class
Without substantively addressing Defendants’ claim
Agreement
expressly
forecloses
class
arbitration,
Plaintiff argues that the (non-)availability of class arbitration
is an issue appropriately resolved by the arbitrator.
- 2 -
The sole
issue before this Court, then, is who – the arbitrator or the
undersigned – should enforce the Agreement’s class-action waivers.
II.
“[A]rbitration is a creature of contract.
Parties must agree
to arbitrate in the first instance, and may contractually limit or
alter the issues to be presented to the arbitrators, the scope of
the award, and . . . the form of the award.” 2
Cat Charter, LLC v.
Schurtenberger, 646 F.3d 836, 843 (11th Cir. 2011).
the
Federal
contained
in
Arbitration
Act
“a
evidencing
contract
(FAA),
Pursuant to
arbitration
a
transaction
provisions
involving
commerce” are presumed “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.
“[T]he central or ‘primary’ purpose of the FAA is to ensure
that private agreements to arbitrate are enforced according to
their terms.”
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559
U.S. 662, 682 (2010) (citations omitted).
To that end, Section 4
of the FAA authorizes parties “aggrieved by the alleged failure,
neglect,
or
refusal
of
another
to
arbitrate
under
a
written
agreement for arbitration” to petition for a district court “order
directing that such arbitration proceed in the manner provided for
2
“[P]arties may agree to class-action waivers [in arbitration
agreements].”
Kaspers v. Comcast Corp., 631 F. App’x 779, 782
(11th Cir. 2015) (per curiam) (citing AT & T Mobility LLC v.
Concepcion, 563 U.S. 333, 343 (2011)).
Having reviewed the
Services Agreement, the Court identifies at least three such
waivers provisions. (Doc. #9-2, pp. 26, 27, 29.)
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in such agreement.”
9 U.S.C. § 4.
“If the making of the
arbitration agreement or the failure, neglect, or refusal to
perform the same be in issue, the court shall proceed summarily to
the trial thereof.”
Id.
Otherwise, “the court shall make an
order directing the parties to proceed to arbitration in accordance
with the terms of the agreement.” 3
3
Id. (emphasis added).
First, however, the district court must ensure it has
“jurisdiction under Title 28,” 9 U.S.C. § 4, since the FAA “does
not supply an independent basis for federal jurisdiction.” Cmty.
State Bank v. Strong, 651 F.3d 1241, 1252 (11th Cir. 2011). In
ascertaining whether such jurisdiction exists, the “district court
should ‘look through’ a [Section] 4 petition” to the underlying
controversy.
Vaden v. Discover Bank, 556 U.S. 49, 66 (2009).
Where, as here, the controversy was “‘embodied’ in pending
litigation” before the petition was filed, the court may look only
to the well-pled allegations in the plaintiff’s complaint.
Strong, 651 F.3d at 1253 (quoting Vaden, 556 U.S. at 68 n.16).
Plaintiff’s
Amended
Complaint
avers
that
subject
matter
jurisdiction exists pursuant to 28 U.S.C. § 1332(d)(2) and the
Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109–2, 119
Stat 4.
CAFA extends federal jurisdiction to class-action
lawsuits meeting certain criteria, however, “[c]lass-action claims
filed in or removed to federal court under CAFA can be dismissed
for lack of jurisdiction if those claims contain frivolous attempts
to invoke CAFA jurisdiction or lack the expectation that a class
may be eventually certified.”
Wright Transp., Inc. v. Pilot
Corp., No. 15-15184, --- F.3d ---, 2016 WL 6871883, at *4 (11th
Cir. Nov. 22, 2016) (citation omitted).
Neither party has
challenged this Court’s CAFA jurisdiction, and when the Court
“looks through” Defendants’ Motion to Compel to the allegations in
the Amended Complaint, the Court sees a Rule 23 class action
involving i) parties that are minimally diverse, ii) at least 100
potential members, and iii) at least $5,000,000 in controversy –
that is, a controversy over which the Court has CAFA jurisdiction.
See 28 U.S.C. §1332(d). As such, the Court has authority under
the FAA to issue an order compelling arbitration to proceed in the
manner set forth in the Services Agreement.
See Dell Webb
Communities, Inc. v. Carlson, 817 F.3d 867, 871 (4th Cir. 2016)
(district court had jurisdiction over Section 4 petition because
allegations
in
complaint
indicated
existence
of
CAFA
jurisdiction).
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Defendants’ Motion seeking to compel arbitration and strike
Plaintiff’s class allegations pursuant to the class-action waivers
in the Services Agreement’s Arbitration Provision is precisely the
kind of federal “petition” Section 4 authorizes.
Notwithstanding,
Plaintiff contends that because she agrees to arbitrate her claims,
there is nothing else for this Court to do or decide; Rather,
“applicable law and the arbitration agreement itself requires that
all threshold decisions regarding the scope and nature of the
arbitration should be left to the arbitrator and are not a matter
for the Court.”
(Doc. #14, p. 1.)
The “applicable law” to which Plaintiff cites is a recent
decision
from
particular
decision
the
California
arbitration
on
the
Supreme
agreement
availability
at
of
Court
holding
that
the
issue
“allocate[d]
the
class
arbitration
arbitrator, rather than reserv[ed] it for a court.”
Lebo Auto., Inc., 376 P.3d 506, 514 (Cal. 2016).
to
the
Sandquist v.
Plaintiff argues
that Sandquist applies here, since the parties’ Services Agreement
contains a choice of law provision selecting California law to
govern interpretation of the Agreement, including the Arbitration
Provision.
However, California law – and Sandquist’s application
thereof - are irrelevant to the specific inquiry before the Court.
This case, unlike Sandquist, involves a Section 4 petition filed
in
a
federal
district
court,
and
thus
all
questions
of
arbitrability are governed by the “body of federal substantive law
of arbitrability” that the FAA creates, not by state law.
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Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983); see also Anders v. Hometown Mortg. Servs., Inc., 346 F.3d
1024, 1033 (11th Cir. 2003).
Moreover, Sandquist involved an
arbitration provision that was silent as to class arbitration. 4
The text of FAA Section 4 and Jenkins v. First American Cash
Advance of Georgia, L.L.C., 400 F.3d 868 (11th Cir. 2005), compel
a different result where, like here, a party has petitioned a
federal district court – not to interpret or decide anything – but
simply to enforce an express prohibition on class arbitration
contained
in
the
parties’
agreement.
Jenkins
involved
an
arbitration agreement containing an express class-action waiver
that the plaintiff challenged as unconscionable - a contention
with which the District Court agreed.
In vacating that finding
on appeal, the Eleventh Circuit first observed that a challenge to
the validity or enforceability of an express contractual provision
barring class arbitration is an issue that “may be decided by a
federal court” pursuant to Section 4 of the FAA, since it “places
the making of the Arbitration Agreements in issue.”
Id. at 877.
In other words, whether to enforce an express class-arbitration
4
Sandquist did acknowledge that multiple Circuit Courts of Appeals
have concluded that the issue of whether an agreement that is
ostensibly silent on class arbitration so permits is appropriately
decided by a court.
Dell Webb, 817 F.3d at 868; Opalinski v.
Robert Half Int’l Inc., 761 F.3d 326, 331 (3d Cir. 2014); Reed
Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594,
597 (6th Cir. 2013). Neither the Supreme Court nor the Eleventh
Circuit has yet decided this issue. Oxford Health Plans LLC v.
Sutter, 133 S. Ct. 2064, 2068 n.2 (2013); S. Commc’ns Servs., Inc.
v. Thomas, 720 F.3d 1352, 1358 n.6 (11th Cir. 2013).
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ban is a “gateway” issue of arbitrability that is presumptively
for the court to resolve.
Puleo v. Chase Bank USA, N.A., 605 F.3d
172, 181 (3d Cir. 2010); see also Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 84 (2002) (“[A] gateway dispute about whether
the parties are bound by a given arbitration clause raises a
‘question of arbitrability’ for a court to decide.” (emphasis
added) (citation omitted)).
Parties are, of course, free to instead delegate issues of
arbitrability to the arbitrator, including the “gateway issue of
the enforceability of [a] class-action waiver.”
Emilio v. Sprint
Spectrum L.P., 508 F. App’x 3, 6 (2d Cir. 2013) (per curiam).
The
agreement must, however, “clearly and unmistakably [so] provide.” 5
AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649
(1986); see also Carson v. Giant Food, Inc., 175 F.3d 325, 330
(4th
Cir.
1999)
(“[I]f
contracting
parties
wish
to
let
an
arbitrator determine the scope of his own jurisdiction, they must
indicate that intent in a clear and specific manner.”).
The Services Agreement at issue here does not clearly and
specifically indicate the parties’ intent to have the arbitrator
decide if class-action claims are authorized.
The Arbitration
Provision does state that all disputes “arising out of or relating
to . . . the enforceability, revocability or validity of the
Arbitration Provision or any portion of the Arbitration Provision
5
Where parties have done so, “the district court [is] not free to
decide that question for itself.” Emilio, 508 F. App’x at 6.
- 7 -
. . . shall be decided by an Arbitrator and not by a court or
judge.”
(Doc. #9-2, pp. 27-28.)
But a general clause committing
“all disputes” to the arbitrator does “not suffice to force the
arbitration of arbitrability disputes.”
Carson, 175 F.3d at 330.
The Supreme Court’s “clear and unmistakable” standard “requires
more than simply saying that the arbitrator determines the meaning
of any disputed contractual terms.”
Id. at 329.
In fact, what the Agreement’s “How Arbitration Proceedings
Are Conducted” section does leave clear is that “[t]he Arbitrator
shall have no authority to consider or resolve any claim or issue
any relief on any basis other than an individual basis.”
#9-2, p. 29.)
(Doc.
This specific provision unambiguously “designates
a clear boundary of arbitral authority” as it relates to issues
surrounding the Agreement’s class-action waivers.
Puleo, 605 F.3d
at 183; cf. Cassan Enters., Inc. v. Dollar Sys., Inc., 131 F.3d
145
(9th
Cir.
1997)
(“According
to
California
law,
specific
provisions of a contract trump general provisions of the contract.”
(citing 1 Witkin, Summary of California Law (Contracts) § 695 (9th
ed. 1987 & Supp. 1996))).
In sum, because the Arbitration Provision expressly mandates
that arbitration proceed on an individual basis and removes from
the arbitrator’s purview the ability to consider claims or issues
dealing with class arbitration, and since Plaintiff has raised no
objection to the validity or enforceability of the class-action
waivers, this Court’s only task is to order the parties to proceed
- 8 -
with arbitration in the individual manner set forth in the Services
Agreement.
9 U.S.C. § 4; Puleo, 605 F.3d at 181-82; see also
Gipson v. Cross Country Bank, 354 F. Supp. 2d 1278, 1289 (M.D.
Ala. 2005) (ordering parties “to pursue arbitration in accordance
with the arbitration agreement, including the prohibition against
class actions,” pursuant to FAA Section 4).
to
Compel
Arbitration
and
Strike
Defendants’ Motion
Plaintiff’s
Class
Action
Allegations is, therefore, granted.
These proceedings are stayed
pending the outcome of arbitration.
9 U.S.C. § 3.
Accordingly, it is hereby
ORDERED:
1.
Defendants’
Motion
to
Compel
Arbitration
and
Strike
Class Action Allegations (Doc. #9) is GRANTED, and Plaintiff is
ordered to proceed with individual arbitration of her claims.
2.
The case is hereby stayed pending notification by the
parties that Plaintiff has exhausted arbitration and either the
stay is due to be lifted or the case is due to be dismissed.
3.
The
Clerk
shall
terminate
all
deadlines
and
administratively close the case.
DONE and ORDERED at Fort Myers, Florida, this 13th day of
December, 2016.
Copies: Counsel of Record
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