DeMidio et al v. REV Recreation Group Inc

Filing 24

OPINION AND ORDER: DENYING 16 Amended MOTION to Dismiss for Lack of Jurisdiction pursuant to 12(b)(3) to Dismiss Plaintiffs' Complaints or, Alternatively, to Stay the Action Pursuant to 9 U.S.C. 3 by Defendant REV Recreation Group Inc. Associa ted Cases: 1:17-cv-00326-WCL-SLC, 1:17-cv-00350-WCL-PRC. The Court's Order of Consolidation, its purpose fulfilled, is hereby WITHDRAWN and each case will proceed before the judicial officer to whom it was previously assigned (1:17-CV-350, Chief Judge Theresa L. Springmann; 1:17-CV-326, Judge William C. Lee). Signed by Judge William C Lee on 4/10/2018. (lhc) Modified on 4/11/2018 to add text (lhc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DIANNE and VINCENT DeMIDIO,
Plaintiffs,
v.
REV RECREATION GROUP, INC.,
Defendant.

KIMBERLY GREENWELL AND
ALFRED JOHN GREENWELL
Plaintiffs,
v.
REV RECREATION GROUP, INC.,
Defendant.

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No. 1:17-CV-326
Consolidated with
No. 1:17-CV-350
Solely for the Purpose of Ruling on the
Motions to Dismiss

No. 1:17-CV-350

OPINION AND ORDER
These two cases, as the caption indicates, were consolidated for ruling on two motions to
dismiss filed by Defendant REV Recreation Group. REV filed its original motion to dismiss in
the first case, 1:17-CV-326, on September 29, 2017 (ECF 4), asking the Court to dismiss the
complaint filed by Plaintiffs Dianne and Vincent DeMidio or, in the alternative, to stay the case
pending arbitration. The DeMidios filed a response in opposition on November 3, 2017 (ECF 10)
and REV filed a reply on November 27 (ECF13). REV filed a motion to dismiss in case number
1:17-CV-350 on October 13, 2017 (ECF 5), seeking dismissal of the complaint filed by Plaintiffs
Kimberly and Alfred John Greenwell based on the same arguments raised in the DeMidio case.
Before the Greenwells filed a response in opposition, the parties filed a joint motion to

consolidate these cases pursuant to Federal Rule 42(a) and Local Rule 42-2(a), which was
granted on December 14, 2017. Court Order of Consolidation (1:17-CV-326, (ECF 15); 1:17CV-350, (ECF 20)). In accordance with that order of consolidation, REV filed an Amended
Motion to Dismiss Plaintiffs’ Complaints; or, Alternatively, to Stay the Action[s] Pursuant to 9
U.S.C. § 3 on December 29 (ECF 16 in 1:17-CV-326 and ECF 21 in 1:17-CV-350). It is this
amended motion that is before the Court. The DeMidios and Greenwells filed a joint response in
opposition on January 26, 2018 (ECF 20) and REV filed a reply on February 15 (ECF 21).
Finally, on March 9, the Plaintiffs filed a Notice of Supplemental Authority (ECF 22), to which
REV responded on March 16 (ECF 23). For the reasons discussed below, REV’s amended
motion to dismiss is DENIED. The Court’s Order of Consolidation, its purpose fulfilled, is
hereby WITHDRAWN and each case will proceed before the judicial officer to whom it was
previously assigned (1:17-CV-350, Chief Judge Theresa L. Springmann; 1:17-CV-326, Judge
William C. Lee).
BACKGROUND
The DeMidios and the Greenwells bought recreational vehicles manufactured and
warranted by REV. The DeMidios purchased their RV, a 2017 Fleetwood Storm 32A, on
December 3, 2016, and the Greenwells purchased their 2017 Holiday Rambler Endeavor 40E on
March 15, 2017. Plaintiffs’ Response in Opposition, pp. 2, 3. The couples allege that their
respective RVs had many problems and defects that REV failed to repair. The DeMidios sued the
company for “breach of warranty and/or contract,” violations of the Magnuson Moss Warranty
Act, and “violation of applicable state Udap laws, being the New York Deceptive Acts law . . .
and/or the Indiana Deceptive Consumer Sales Act[.]” DeMidio Complaint (ECF 1). The
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Greenwells did likewise, suing REV and alleging the same three claims, except the Greenwells
allege that their state law deceptive practices claim arises out “of applicable state Udap laws,
being the Florida Deceptive and Unfair Trade Practices Act . . . and the Indiana Deceptive
Consumer Sales Act[.]” Greenwell Complaint (ECF 1, 1:17-CV-350). The underlying facts
giving rise to the Plaintiffs’ claims are mostly irrelevant for present purposes, save for those
assertions pertaining to the arbitration provision that is the subject of REV’s motion. REV’s
motion to dismiss or stay is based solely on its contention that the Plaintiffs are bound by an
arbitration provision contained in the written limited warranty covering the DeMidio and
Greenwell RVs. REV contends that neither couple can proceed with their case “because there
exists a binding arbitration agreement requiring the Plaintiffs to resolve any claim or controversy
arising out of or relating to the warranty upon which their claims are based via arbitration in
Milwaukee, Wisconsin. As such, venue in this district is improper.” Amended Motion to
Dismiss, pp. 1-2. Therefore, argues REV, these cases must be dismissed pursuant to Rule
12(b)(3). REV argues alternatively that “should this Court determine that dismissal is improper, a
stay must be entered in order to allow the arbitrable claims to be resolved in arbitration as
required under the warranty at issue.” Id., p. 2. REV insists that the arbitration requirement
contained in the limited warranty covering the RVs is valid in both cases and so litigation must
be stayed pursuant to Section 3 of the Federal Arbitration Act. Id., p. 2. That statute provides as
follows:
If any suit or proceeding be brought in any of the courts of the United States upon
any issue referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial of the action
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until such arbitration has been had in accordance with the terms of the agreement,
providing the applicant for the stay is not in default in proceeding with such
arbitration.
9 U.S.C. § 3.
The Plaintiffs argue that no valid arbitration agreement was ever formed and so REV
cannot compel them to participate in that process. The Plaintiffs insist that the “private
arbitration process in Defendant’s warranty is unenforceable here because (1) it does not comply
with the federal disclosure requirements, (2) Plaintiffs never agreed to arbitrate this matter, and
(3) the arbitration clause is illusory and violates public policy.” Plaintiffs’ Memorandum in
Opposition (ECF 20), p. 2. The DeMidios and Greenwells claim the arbitration clause is void
because neither couple was aware of it since REV “did not comply with the law’s minimum
disclosure requirements[.]” Id. As to the DeMidios, they state as follows:
Prior to purchasing the RV, the salesman told the DeMidios that the REV
warranty covered parts, equipment, and labor for one year. The salesman did not
discuss any other terms contained in the REV warranty with the DeMidios.
Notably, he did not discuss the arbitration clause. And, there were no signs in the
dealership showroom, in the finance office, or on the RV itself that indicated that
the REV warranty would be made available to the DeMidios before the sale.
After the DeMidios signed the sales paperwork, the dealership employee gave
them a binder containing various documents on how to use various parts of the
Rv. However, the Owner’s Manual, which contained a copy of the REV warranty,
was packed inside the RV in a cabinet. And, the DeMidios did not have access to
the RV until after they signed the sales paperwork. Moreover, REV never
mentioned the arbitration clause when the DeMidios family complained directly
to REV about its failure to repair the RV. Thus, at no time prior to filing their case
in court was the DeMidio family aware of any arbitration clause in the warranty.
Id., p. 3 (internal citations to Affidavit of Vincent DeMidio omitted). The Greenwells likewise
claim that they “were completely unaware of the arbitration clause until REV filed its motion to
dismiss.” Id., p. 4. The Greenwells state that “[p]rior to purchasing the RV, the Greenwells asked
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the salesman about the warranty[]” and “[t]he salesman told the Greenwells that the REV
warranty was for one year and that the chassis had a 3 year warranty. . . . The Salesman did not
disclose any other terms contained in the REV warranty with the Greenwells.” Id., pp. 4-5. They
elaborate as follows:
Although the Owner’s Manual contains a copy of the warranty, the Owner’s
Manual was packed inside the RV in a cabinet. However, the Greenwells did not
have access to the RV until after they signed the sales paperwork. . . . [D]espite
repeatedly complaining to REV about the RV, REV never mentioned the
arbitration clause. . . .
To make matters worse, the Greenwells never had an opportunity to review the
Owner’s Manual or the REV warranty since the RV has been in either the
defendant’s dealership or REV’s possession for repair attempts during nearly the
entire time the Greenwells have owned it. Moreover, since the RV was not in their
possession, the Greenwells asked the dealership for a copy of the warranty, but the
dealership told the Greenwells that they had to get a copy of the warranty from
REV. When the Greenwells asked REV for a copy of the warranty, REV told the
Greenwells that they had to get a copy of the warranty from the dealership. And,
neither the dealership nor REV provided the Greenwells with a copy of the
warranty for the Greenwells to review when they requested it.
Id., p. 5.
Based on these factual assertions, the Plaintiffs contend that they cannot be compelled to
arbitrate their claims under an arbitration agreement they knew nothing about. The Plaintiffs
argue that “[t]he binding arbitration clause contained in the Owner’s Manual does not comply
with the Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. § 2301 et seq., the FTC Pre-Sale
Availability of Written Warranty Terms, 16 C.F.R. § 702.3, or the FTC Informal Dispute
Settlement Procedures Rule, 16 C.F.R. § 703.1 et seq.” Id., p. 7. The Plaintiffs assert that “[a]n
integral part–if not the central part–of the MMWA is the comprehensive disclosure requirements.
. . . The MMWA delegates promulgation of specific disclosure requirements to the Federal Trade

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Commission, but requires that the terms of any written warranty be made available to the
consumer or prospective consumer prior to sale.” Id. (citing 15 U.S.C. § 2302(a), (b)(1)(A);
Cunningham v. Fleetwood Motor Homes of Ga., 253 F.3d 611, 621 (11th Cir. 2001)).
The Plaintiffs then get even more specific, arguing that the arbitration clause is
unenforceable because: 1) “Defendant failed to make the warranty available pre-sale as required
by 16 C.F.R. § 702.03[]” (id., p. 8); 2) “Defendant failed to properly disclose the arbitration
clause on the face of the warranty as required by 16 C.F.R. § 703.2(b)[]” (id., p. 9); and 3)
“Defendant failed to take steps reasonably calculated to make Plaintiffs aware of the existence of
the arbitration clause as required by 16 C.F.R. § 703.2(d)[]” (id., p. 10).
The Plaintiffs’ second argument in opposition to REV’s motion, which is really a sibling
to the first, is that “[i]n addition to failing to disclose the arbitration clause in the manner
required in violation of federal law, Plaintiffs also never agreed to arbitrate this matter.”
Plaintiffs’ Response, p. 18. The Plaintiffs argue as follows:
A fundamental principle of contract law is that the parties mutually agree to all
essential terms in the contract. . . . A Court can assume that a party has assented to
the terms of a contract if the party is aware of the terms in the proposed contact
and enters into the contract without indicating any non-acquiescence to those
terms. . . . Here . . . Plaintiffs were completely unaware of the arbitration clause in
the warranty until Defendant filed its motion to dismiss in this case.
Id., p. 19; see Exh. 1 (ECF 20-1), Affidavit of Vincent DeMidio, ¶ 17; Exh. 4 (ECF 20-4),
Affidavit of Alfred Greenwell, ¶ 10. Since they could not assent to a provision they knew nothing
about, the Plaintiffs contend that the arbitration requirement is rendered unenforceable as a
matter of law.
The Plaintiffs’ third argument in opposition to REV’s motion is that the arbitration

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provision violates public policy. The Plaintiffs insist that “Defendant’s arbitration clause is
unenforceable because it contains a fee shifting provision that is contrary to the Indiana
Deceptive Consumer Sales Act, I.C. § 24-5-0.5-0.1 et seq (‘IDCSA’)[.]” Id., p. 20. In other
words, forcing the Plaintiffs to engage in binding arbitration would deny them a remedy that
Indiana law otherwise provides, and therefore the arbitration provision violates public policy. Id.,
pp. 20-24.
In its reply brief, REV counters the Plaintiffs’ arguments with four of its own. First, REV
contends that “arbitration agreements are not subject to the requirements governing informal
dispute settlement procedures under the [MMWA].” Defendant’s Reply (ECF 21), p. 2. REV
points out that both the DeMidios and the Greenwells “specifically allege that they relied on
REV’s warranty in purchasing the subject RV[]” and that “[t]he limited written warranty upon
which the Plaintiffs relied plainly informed them that . . . ‘any claim or controversy arising out of
or relating to this limited warranty, or breach thereof, shall be settled by arbitration administered
by the American Arbitration Association in Milwaukee, Wisconsin in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.’” Id., pp. 2-3 (citing to
DeMidio Complaint, ¶ 14; Greenwell Complaint, ¶ 12). REV contends that “[i]n light of this
agreement [to submit to arbitration], the pending matter must be dismissed and arbitration
compelled before the American Arbitration Association.” Id., p. 3. REV then notes that “[t]he
issue of binding arbitration under the [MMWA] has been considered by various courts, the
majority of which have found that such provisions are enforceable.” Id. (citing Walker v.
DaimlerChrysler Corp., 856 NE.2d 90, 99 (Ct.App.Ind. 2007); Walton v. Rose Mobile Homes
LLC, 298 F.3d 470, 478 (5th Cir. 2002); Davis v. S. Energy Homes, Inc., 305 F.3d 1268, 1280
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(11th Cir. 2002)).
Next, REV argues that “a more fundamental obstacle belies the notice arguments raised
by the Plaintiffs. The Plaintiffs have sued for breach of contract and breach of the warranty of
containing the binding arbitration provision. To establish these claims, they have alleged that
they relied upon, and were induced by the written warranty. However, they now seek to eschew
the binding arbitration provisions, while at the same time enforcing those terms beneficial to
them. This they cannot do.” Id., p. 5. REV states that “[i]t is axiomatic that, in a cause of action
under the [MMWA], the plaintiff bears the burden of establishing compliance with the terms of
the warranty. . . . Considering that the Plaintiffs have specifically sued for breach of contract and
breach of written warranty, they are unable to meet their burden of proof as a matter of law
without complying with the binding arbitration provisions plainly contained in the warranty. In
other words, Plaintiffs’ own statements in the[ir] Complaint[s] demonstrate their assent to the
terms and conditions of the warranty, including the binding arbitration clause.” Id., p. 6 (citations
omitted).
REV’s third argument is that it complied with notice requirements simply by making a
copy of the limited warranty (containing the arbitration provision) available to the Plaintiffs.
REV states that under 16 C.F.R. § 702.3, “the warrantor complies with its warranty disclosure
obligations by simply ‘providing a copy of the warranty with every consumer product.’ See 16
C.F.R. § 702.3(b)(1)(i)(A). Plaintiffs have not and cannot argue that REV failed to provide a
copy of the warranty with the product. Consequently, their argument fails.” Id., pp. 6-7.
Finally, REV maintains that “Plaintiffs’ public policy argument is unavailing.” Id., p. 7.
REV states that “Plaintiffs argue that because the arbitration clause states that the parties shall
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bear the ‘costs, fees and expenses of arbitration,’ the provision is void as a matter of Indiana
public policy because it eliminates the possibility that the Plaintiffs will recover their attorneys’
fees.” Id. (citing to Plaintiffs’ Response, p. 23 (“Defendant’s arbitration clause changes the fee
shifting nature of [Indiana law], and places an enormous and unbearable financial risk on the
consumer.”)). Not so, says REV, since “the rules of the American Arbitration Association . . .
clearly give the arbitrator the power to award fees to the prevailing party in his or her discretion if
such an award is ‘authorized by law.’ . . . The Plaintiffs are free to argue that they are entitled to
fees under applicable law in an arbitration setting, just as they can in court.” Id. (quoting Section
R-47, Commercial Rules of the American Arbitration Association).
The parties’ briefs raise a host of arguments and on many fronts, and both sides are guilty
of over-arguing the finer points of nondeterminative issues. But the threshold and determinative
issue is whether the parties entered into a legally enforceable arbitration agreement. The Court
concludes the answer is no, and so REV’s motion must be denied and both cases will proceed in
this Court.
DISCUSSION
I. Standard of review.
As stated, REV argues that there is a valid arbitration agreement between the parties that
mandates that the Plaintiffs’ claims against REV be resolved by way of arbitration under the
Federal Arbitration Act, so the Plaintiffs’ complaints must be dismissed under Federal Rule
12(b)(3) for improper venue. REV contends that mandatory, binding arbitration is the proper
forum for resolution of the Plaintiffs’ claims, not this Court. “When ruling on a 12(b)(3) motion
to dismiss, we take all allegations in the complaint as true, unless contradicted by an affidavit,
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and we can consider facts outside the complaint.” Serac Inc. v. United Packaging Grp., LLC,
2018 WL 1469016, at *2 (N.D. Ill. Mar. 26, 2018) (citing Nagel v. ADM Inv’r Servs., Inc., 995
F.Supp. 837, 843 (N.D. Ill. 1998)); see also, Faulkenberg v. CB Tax Franchise Sys., LP, 637
F.3d 801, 809-10 (7th Cir. 2011) (“[w]hen ruling on a motion to dismiss for improper venue, the
district court is not ‘obligated to limit its consideration to the pleadings [or to] convert the motion
to one for summary judgment’ if the parties submit evidence outside the pleadings.”) (quoting
Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005)).1 In this case, both the
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As REV notes (see Defendant’s Memorandum, pp. 4-5), the federal courts are split on
whether Rule 12(b)(3) is the proper vehicle for enforcing an arbitration agreement. Some circuits
hold that “[t]he appropriate procedure [is] for the district court to stay or dismiss the case based
on a Rule 12(b)(6) or Rule 56 motion pending arbitration.” Seldin v. Seldin, 879 F.3d 269, 272
(8th Cir. 2018) (citations omitted). But as a sister court in this circuit explained:
There is . . . competing authority as to the source of authority upon which district
courts should rely in granting a motion to compel arbitration:
Some courts have taken the view that, if a district court determines that
parties have agreed to arbitrate a dispute, the district court, at least
temporarily, no longer has the authority to resolve arbitrable claims. See 9
U.S.C. § 3. Those courts consider that such a determination is jurisdictional
and therefore, a Rule 12(b)(1) dismissal is appropriate. Other courts
characterize the action as the plaintiff’s failure to state a claim cognizable in
federal court, a Rule 12(b)(6) dismissal. Indeed, there is authority indicating
that the dismissal is entirely separate from the Rule 12(b) rubric.
Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 732 (7th Cir. 2005)
(footnotes omitted). Defendant relies on Rule 12(b)(3), which the Seventh Circuit
has also held is an appropriate ground for a request to compel arbitration. Id. at
733; see also Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 807 (7th
Cir. 2011). In this case, the source of authority makes no difference in the overall
analysis. In any event, since the Seventh Circuit has expressly sanctioned the use
of Rule 12(b)(3) in deciding motions to compel arbitration, the court need not
address the question further.
Dries v. Onebeacon Am. Ins. Co., 2016 WL 755655, at *7, n. 1 (W.D. Wis. Feb. 25, 2016).
Accordingly, REV based its motion to dismiss on Rule 12(b)(3), which is proper procedure in
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DeMidios and the Greenwells submitted affidavits in support of their arguments. See Plaintiffs’
Response, Exh. 1, Affidavit of Vincent DeMidio (ECF 20-1); Exh. 4, Affidavit of Alfred
Greenwell (ECF 20-4).
The standard to be applied to REV’s alternative request for a stay comes from the
statutory language in Section 3 of the FAA, to wit: if a case is “referable to arbitration under an
agreement in writing for such arbitration, the court in which such suit is pending, upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration under such
an agreement, shall on application of one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3 (italics
added). But while it was proper for REV to bring its present motion under Rule 12(b)(3), at least
in this circuit (see footnote 1), REV’s alternative request faces a legal obstacle. It is well
established that a district court cannot compel arbitration in another district. As the Seventh
Circuit has explained:
[U]nder § 4 of the FAA, a district court cannot compel arbitration outside the
confines of its district. See Haber v. Biomet, Inc., 578 F.3d 553, 558 (7th Cir.
2009) (“[O]nly the district court in that forum can issue a § 4 order compelling
arbitration. Otherwise, the clause of § 4 mandating that the arbitration and the
order to compel issue from the same district would be meaningless.” (quotation
marks omitted)). In this situation, we have held that a Rule 12(b)(3) motion to
dismiss for improper venue, rather than a motion to stay or to compel arbitration,
is the proper procedure to use when the arbitration clause requires arbitration
outside the confines of the district court’s district.
Faulkenberg, 637 F.3d at 808 (citing Cont’l Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 (7th
Cir. 2003)); see also Harris Capital Fund, LLC v. Grillo, 160 F.App’x 727, 728, 2005 WL

this circuit.
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3514594 (10th Cir. 2005) (“[T]his court has published Ansari [v. Qwest Commc’ns Corp.], 414
F.3d 1214, [1217 (10th Cir. 2005)], in which we joined the majority of courts holding that
“‘where the parties agreed to arbitrate in a particular forum only a district court in that forum has
authority to compel arbitration under [9 U.S.C.] § 4. In other words, a district court lacks
authority to compel arbitration in other districts, or in its own district if another has been
specified for arbitration.)’ Id. at 1219-20.”); Faulkenberg, 637 F.3d at 808 (“[A] Rule 12(b)(3)
motion to dismiss for improper venue, rather than a motion to stay or to compel arbitration, is the
proper procedure to use when the arbitration clause requires arbitration outside the confines of
the district court’s district.”); Zoller v. UBS Sec. LLC, 2018 WL 1378340, at *8, n. 1 (N.D. Ill.
Mar. 19, 2018) (same, citing Faulkenberg).
These cases make clear that this Court lacks the authority to stay this case pending
arbitration in another district, i.e., the Eastern District of Wisconsin in Milwaukee, and so REV’s
request for a stay is improper. REV tacitly acknowledges this issue in its memorandum by stating
that “the Plaintiffs’ actions should be dismissed given that the arbitration clause requires
arbitration outside the confines of this district.” Defendant’s Memorandum, p. 7. But REV
asserts in the next breath that “in the event that dismissal is inappropriate, section 3 of the FAA
requires this Court enter a stay so that arbitration can be held in accordance with the terms of the
limited warranty.” Id., p. 8. REV fails to explain how this Court would have the authority to do
so. REV’s reply brief ignores the conundrum altogether. In the end, though, this is a non-issue
given the Court’s conclusion that the arbitration provision at issue in this case is unenforceable
and therefore REV is not entitled to relief under Rule 12(b)(3) or 9 U.S.C. § 3.
II. Analysis.
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As stated above, the threshold issue before the Court, which is also the determinative one,
is whether the subject arbitration provision is enforceable in the first place. That determination
involves discussion and application of both federal law, as it pertains to the Federal Arbitration
Act, and Indiana contract law.
As this Court (Judge Lozano) has explained:
Congress enacted the FAA, 9 U.S.C. §§ 1 et seq., to reverse the pervasive judicial
hostility towards arbitration and to institute a national policy both favoring it and
“plac[ing] arbitration agreements on equal footing with all other contracts.”
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204,
163 L.Ed.2d 1038 (2006). If contracts to arbitrate involve “commerce,” the FAA
deems those agreements “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. While section 2 reflects a “liberal federal policy favoring arbitration,” it also
provides recognition that agreements to arbitrate are ultimately matters of
contract. AT & T Mobility LLC v. Concepcion, – U.S. –, 131 S.Ct. 1740, 1745,
179 L.Ed.2d 742 (2011) (citations omitted). As such, the Supreme Court has
stated that arbitration agreements are to be enforced pursuant to their written
terms and that “parties may agree to limit the issues subject to arbitration, to
arbitrate according to specific rules, and to limit with whom a party will arbitrate
its disputes.” Id. at 1748-49 (citations and emphasis omitted). See also Rosenblum
v. Travelbyus.com Ltd., 299 F.3d 657, 662 (7th Cir. 2002) (“arbitration is a matter
of contract between the relevant parties; no party can be required to arbitrate
absent an agreement to do so.”). As the Supreme Court has recently reemphasized,
“[a]rbitration is strictly a matter of consent, and thus is a way to resolve those
disputes–but only those disputes–that the parties have agreed to submit to
arbitration.” Granite Rock Co. v. Int’l Bhd. of Teamsters, – U.S. – , 130 S.Ct.
2847, 2857, 177 L.Ed.2d 567 (2010) (emphasis in original) (citations and internal
quotation marks omitted).
Under the FAA, “arbitration may be compelled if the following three elements are
shown: a written agreement to arbitrate, a dispute within the scope of the
arbitration agreement, and a refusal to arbitrate.” Zurich American Ins. Co. v.
Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005). It is a matter for the court to
determine “whether parties have agreed to submit a particular dispute to
arbitration.” Granite Rock, 130 S.Ct. at 2855 (citation and internal quotation
marks omitted). Questions regarding the applicability of an arbitration clause to a
particular dispute are governed by “ordinary state-law principles that govern the
formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,
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944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). However, as courts analyze these
issues, “‘due regard must be given to the federal policy favoring arbitration, and
ambiguities as to the scope of the arbitration clause itself resolved in favor of
arbitration.’” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62,
115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (quoting Volt Info. Scis., Inc. v. Bd. of Trs.
of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d
488 (1989)). Only when a court has determined that “the parties’ arbitration
agreement [i]s validly formed and that it cover[s] the dispute in question and [i]s
legally enforceable,” should arbitration be compelled. Granite Rock, 130 S.Ct. at
2858. In addition, the Seventh Circuit has recently stated:

To determine whether a contract’s arbitration clause applies to a given
dispute, federal courts apply state-law principles of contract formation.
Once it is clear, however, that the parties have a contract that provides for
arbitration of some issues between them, any doubt concerning the scope of
the arbitration clause is resolved in favor of arbitration as a matter of federal
law. To this end, a court may not deny a party’s request to arbitrate an issue
unless it may be said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted dispute.
Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1033 (7th Cir. 2012) (internal
quotation marks and citations omitted).
Hoopes v. Gulf Stream Coach, Inc., 2012 WL 1029352, at *2-4 (N.D. Ind. Mar. 26, 2012).
Decisions from Indiana courts on this issue are particularly helpful. In Anonymous, M.D. v.
Hendricks the court explained as follows:
When determining whether parties have agreed to arbitrate a dispute, we apply
state law interpretation principles governing contracts. Blimpie Intern., Inc. v.
Choi, 822 N.E.2d 1091, 1094 (Ind.Ct.App. 2005). We must attempt to determine
the intent of the parties at the time the contract was made by examining the
language used to express their rights and duties. Id. Parties are bound to arbitrate
all matters not explicitly excluded that reasonably fit within the language used,
although we will not extend arbitration agreements by construction or implication.
Id. Furthermore, when interpreting a contract, we must read it as a whole and
construe the language so as not to render any words, phrases, or terms ineffective
or meaningless. Brownsburg Mun. Bldg. Corp. v. R.L. Turner Corp., 933 N.E.2d
905, 907 (Ind.Ct.App. 2010). Like any other contract, arbitration agreements may
be invalidated by generally applicable contract defenses such as fraud, duress,
impossibility, or unconscionability. Brumley v. Commonwealth Business College
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Educ. Corp., 945 N.E.2d 770, 776 (Ind.Ct.App. 2011).
Anonymous, M.D. v. Hendricks, 994 N.E.2d 324, 329 (Ind.Ct.App. 2013). The Indiana Court of
Appeals has also explained that “arbitration agreements, like any other contract, are subject to
general contract law and defenses and can be challenged ‘upon such grounds as exist at law or in
equity for the revocation of any contract.’ 9 U.S.C. § 2. For example, agreements to arbitrate
could still be attacked as being unconscionable or as having resulted from fraud or unequal
bargaining power.” Walker v. DaimlerChrysler Corp., 856 N.E.2d at 99, n. 2. The Indiana Court
of Appeals has also held that “[u]nder Indiana contract law, the party seeking to compel
arbitration has the burden of demonstrating the existence of an enforceable arbitration
agreement.” Progressive Se. Ins. Co. v. Empire Fire & Marine Ins. Co., 88 N.E.3d 188, 197
(Ind.Ct.App. 2017) (citing Wilson Fertilizer & Grain, Inc. v. ADM Milling Co., 654 N.E.2d 848,
849 (Ind.Ct.App. 1995)). “Then, the movant must demonstrate that the disputed matter is the type
of claim the parties agreed to arbitrate.” Id. (citing Brumley, 945 N.E.2d at 776).
In Mohammed v. Uber, the plaintiff sued Uber alleging a host of claims arising out of his
employment with the company. Uber moved to compel arbitration based on an arbitration
provision contained in an employment agreement. The plaintiff argued that he never saw or
agreed to the provision when he accepted the terms of his employment. The district court
concluded that Uber failed to meet its burden of establishing that a valid arbitration agreement
was formed, explaining as follows:
Here, Mohammed disputes whether he ever formed an arbitration agreement with
Uber in the first place. His argument that he never signed the agreement, assented
to it, or authorized the DSR to assent to it on his behalf are precisely the type of
questions that go to an agreement’s formation, as articulated by the Supreme
Court in Buckeye. As every first-year law student learns, formation of a valid
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contract requires an offer and acceptance. Ass’n Benefit Servs., Inc. v. Caremark
RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007). “An offer is the manifestation of
willingness to enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will conclude it.”
Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 561 (7th Cir. 2012) (quoting
Restatement (Second) of Contracts § 24 (1981)). Acceptance, in turn, requires an
outward manifestation of assent to be bound by words or acts. Sgouros v.
TransUnion Corp., 817 F.3d 1029, 1034 (7th Cir. 2016).
Here, Mohammed’s account of his interaction with the DSR raises issues as to
whether a valid offer and acceptance ever occurred.
Mohammed v. Uber Techs., Inc., 237 F.Supp.3d 719, 728-29 (N.D. Ill. 2017). The district court
further held:
A party opposing a motion to compel arbitration bears the burden of identifying a
triable issue of fact as to the existence of the purported arbitration agreement.
Tinder [v. Pinkerton Sec.], 305 F.3d [728] at 735 [(7th Cir. 2002)]. The
opponent’s evidentiary burden is akin to that of a party opposing summary
judgment under Rule 56. Id. “[A] party cannot avoid compelled arbitration by
generally denying the facts upon which the right to arbitration rests; the party must
identify specific evidence in the record demonstrating a material factual dispute
for trial.” Id. The Court must believe the evidence of the party opposing
arbitration and draw all justifiable inferences in its favor. Id.
Id. at 725. See also, A.D. v. Credit One Bank, N.A., 2018 WL 1414907, at *3 (7th Cir. Mar. 22,
2018) (“because arbitration agreements are contracts, a party ‘cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.’”) (citing Scheurer v. Fromm
Family Foods, LLC, 863 F.3d 748, 751 (7th Cir. 2017) (quoting in turn United Steelworkers of
Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)).
In the present case the DeMidios and Greenwells argue that they never assented to an
arbitration agreement–never knew about it, in fact–and thus no valid agreement was formed as a
matter of law. REV’s argument is that the arbitration provision was included in the limited
warranty that was “provided” to the DeMidios and the Greenwells when they purchased their
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RVs, and the Plaintiffs are therefore bound by its terms. But REV’s argument ignores, or leaps
over, the fundamental first step–that “arbitration is a matter of contract between the relevant
parties [and] no party can be required to arbitrate absent an agreement to do so.” Rosenblum v.
Travelbyus.com, 299 F.3d at 662. In this case there is no evidence that the Plaintiffs agreed to the
arbitration provision. Still, REV argues that they should be charged with knowledge of it because
it was included in the written limited warranty that was “provided” to them and so they had
actual or at least constructive knowledge of it (although REV does not expressly use that term).
REV presents no authority to support its argument that the Plaintiffs can be said to have agreed to
the arbitration provision under such circumstances. On the contrary, the law says otherwise.
Parties cannot be compelled to arbitrate if they did not contract to do so, which in this case they
clearly did not.
REV tries to bolster its argument by claiming that the Plaintiffs cannot avoid or reject the
arbitration provision while at the same time suing REV for breach of the very warranty that
contains that provision. That is, the Plaintiffs should not be permitted to cherry pick those
provisions of the written limited warranty they like and cast aside the ones they don’t. As noted
previously, REV argues that “[t]he Plaintiffs have sued for breach of contract and breach of the
warranty of containing the binding arbitration provision. To establish these claims, they have
alleged that they relied upon, and were induced by the written warranty. However, they now seek
to eschew the binding arbitration provisions, while at the same time enforcing those terms
beneficial to them. This they cannot do.” Defendant’s Reply, p. 5. This argument is unavailing
because, once again, it presumes the existence of a valid arbitration agreement. But consumers do
not necessarily agree to an arbitration provision simply because it was part and parcel of a
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broader contract. “[I]f a party accepts benefits under a contract, this conduct does not constitute
acceptance of specific, written terms unless there is evidence that the party took the benefits with
knowledge of those terms.” Mohammed v. Uber, 237 F.Supp.3d at 728-29 (citing Sgouros v.
TransUnion Corp., 817 F.3d 1029, 1036 (7th Cir. 2016) (refusing to conclude that a party who
accepted benefits under a contract thereby accepted an arbitration agreement where he had no
notice of the agreement’s terms); F.T.C. v. Cleverlink Trading Ltd., 519 F.Supp.2d 784, 796
(N.D. Ill. 2007) (holding that a party’s receipt of service under a contract did not indicate
acceptance of specific, punitive terms under the contract because there was no evidence that the
party knew of or agreed to the terms)). As stated at the outset, the Plaintiffs submitted
supplemental authority in support of this argument on March 9 (ECF 22-1). That filing is a copy
of a decision issued by the district court for the Northern District of Alabama on February 28,
2018, in which the Court denied the defendant RV manufacturer’s attempt to enforce an
arbitration agreement under circumstances that are strikingly similar to those of the DeMidios
and Greenwells. The Court ruled that “[w]hile plaintiff received warranty repairs to the RV . . .
there is no evidence that he was aware of an arbitration clause pertaining to the warranty. . . .
Accordingly, there is a lack of evidence to support defendant’s contention that plaintiff should be
considered to have assented to the arbitration clause by his conduct.” Id. (Garcia v. Tiffin Motor
Homes, Inc., No. 3:17-CV-1162, p.10 (N.D. Ala. Feb. 28, 2018)). REV responded to this
supplemental authority by insisting that the Garcia case is factually distinguishable from the
cases at bar. Defendants’ Response (ECF 23), p. 2). But those factual differences do not change
the calculus, and the reasoning and holding in Garcia is informative notwithstanding that it is a
non-binding opinion from a district court in another circuit. In any event, while the Garcia case is
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informative, this Court did not rely on it when reaching its conclusion in the cases at bar. For
these reasons, REV’s argument that the Plaintiffs should be bound by the arbitration provision
simply on the basis that it was included in the written limited warranty is unavailing. REV fails
to carry its burden of establishing the validity and enforceability of the arbitration provision and
its motion to dismiss must be denied.

CONCLUSION
For the reasons discussed above, the Amended Motion to Dismiss Plaintiffs’ Complaints;
or, Alternatively, to Stay the Action[s] Pursuant to 9 U.S.C. § 3 filed by Defendant REV
Recreation Group, Inc. (ECF 16 in 1:17-CV-326; ECF 21 in 1:17-CV-350) is DENIED.

Date: April 10, 2018.
/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana

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