Van Buren v. Pro Se Planning, Inc.

Filing 16

ORDER AND REASONS granting 7 Motion to Compel Arbitration as set forth in document; FURTHER ORDERED that case is STAYED pending final resolution of all arbitrable issues. Signed by Judge Ivan L.R. Lemelle on 11/17/2014. (lag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LATOISHA VAN BUREN

CIVIL ACTION

VERSUS

NO. 14-2099

PRO SE PLANNING, INC.

SECTION “B”(2)
ORDER AND REASONS

Before

the

Court

is

Defendant’s,

Pro

Se

Planning,

Inc.

(“Defendant”), Motion to Compel Arbitration, or Alternatively,
Motion

to

Dismiss

Pursuant

to

Fed.

R.

Civ.

P.

12(b)(3),

or

Alternatively, to Transfer Pursuant to 28 U.S.C. §1404(a) (Rec.
Doc.

7);

Plaintiff’s,

Latoisha

Van

Buren

(“Plaintiff”)

opposition thereto (Rec. Doc. 11); and Defendant’s Reply (Rec.
Doc. 15). Defendant seeks recognition of the enforceability of
an

alleged

executed

arbitration

with

dismissing

agreement

Plaintiff

or

staying

as

contained

the

a

as

well

in
of

this

order

instant

contract

proceedings

Court
pending

arbitration of this dispute. Alternatively, in the event the
Court

finds

the

alleged

arbitration

agreement

unenforceable,

Defendant seeks dismissal or transfer of this dispute, pursuant
to

the

subject

terms

of

contract

Washington

as

a

forum

selection

designating

the

venue

contract.
Facts and Cause of Action:

the

for

clause

state

disputes

or

contained
federal

arising

in

courts

out

of

the
of
the

Defendant

is

a

Washington

corporation

that

produces

a

website through which various services are offered to assist
individuals in completing the documentation necessary to achieve
their own divorces. (See Rec. Doc. 7-1 at 1).1 In August of 2014,
Plaintiff, a Louisiana resident, sought to obtain a petition for
divorce

and

visited

Defendant’s

website,

located

at

“www.DivorceWriter.com,” to that end. (Rec. Doc. 1-1 at 4). On
Defendant’s

website,

Plaintiff

filled

out

an

online

questionnaire relating to her marital status and contracted for
the preparation of various legal documents, ostensibly based on
her responses to these questions, for which she paid the sum of
approximately $149.00. (Rec. Doc. 1-1 at 4). Although the record
does

not

reflect

Plaintiff’s

success

in

the

pursuit

of

her

divorce, her subsequent initiation of the instant putative class
action suggests unsuitable results. Plaintiff filed the instant
suit in state court in Louisiana on August 13, 2014, seeking
recovery

of

the

fees

paid

by

her

and

all

those

similarly

situated to Defendant. (Rec. Doc. 1-1 at 3). Plaintiff alleges
in her putative class action that Defendant is engaged in the
unauthorized practice of law in Louisiana, pursuant to La. Rev.
Stat. ann. 37:212(A), thereby rendering the contract contrary to
public

1

policy

and

absolutely

null.

(Rec.

Doc.

1-1

at

5-7).

Plaintiff cites information from Defendant’s website describing its service
offerings as “‘[a] sophisticated [and] easy to use website [that] allows you
to create divorce documents quickly and easily’ via an ‘online interview.’”

Defendants removed the action to this Court on the basis of
diversity jurisdiction and subsequently filed the present motion
seeking enforcement of an arbitration provision contained in the
Terms of Use to which Plaintiff allegedly agreed to be bound in
executing her contract with Defendant.
Contentions of Movant:
Defendant

argues,

first,

that

the

Terms

of

Use

(“TOU”)

incorporated into its contract with Plaintiff include a binding
arbitration agreement which requires the parties to resolve the
instant dispute through arbitration. Thus, Defendant moves this
Court to dismiss the instant proceedings, or, at the very least,
to stay them pending resolution by arbitration.
Alternatively,

Defendant

contends

the

forum

selection

clause included in the TOU designates the exclusive venue for
any dispute arising out of or pertaining to the subject matter
of

the

TOU

to

be

state

or

federal

court

in

Washington.

Accordingly, to the extent the Court might find the arbitration
agreement (or portions thereof) unenforceable, Defendant argues
this Court must dismiss the instant action for improper venue,
or alternatively, transfer the matter to the appropriate federal
district

court

in

the

consideration.
Contentions of Opponent:

state

of

Washington

for

further

Plaintiff
Plaintiff

opposes

argues

on

arbitration

the

arbitration

four

grounds.

agreement

at

First,

issue

here

violates the “effective vindication” doctrine sanctioned by the
United States Supreme Court in cases such as Mitsubishi Motors
Corp. v. Soler Chrylser-Plymouth, Inc., 473 U.S. 614, 636-37,
105 S.Ct. 3346, 3360, 87 L.Ed.2d 444 (1985) and Green Tree Fin.
Corp.-Alabama v. Randolph., 531 U.S. 79, 91-92, 121 S.Ct. 513,
522-23,

148

L.Ed.2d

373

(2000).

This,

Plaintiff

argues,

is

because the cost of arbitration is likely to far exceed the
amount

of

any

potential

recovery,

thereby

operating

as

an

impermissible liability shield for Defendant. Second, Plaintiff
argues

the

arbitration

clause

is

unenforceable

as

illusory

because Defendant has retained the right to unilaterally alter
the

terms

Plaintiff.

of

the

Third,

agreement

at

any

Plaintiff

argues

time
there

without
is

no

notice

to

applicable

arbitration agreement at all, because the alleged agreement to
arbitrate is part of a broader contract that is contrary to
public policy and void ab initio. Finally, Plaintiff argues the
alleged

arbitration

agreement

is

unenforceable

on

grounds

of

unconscionability, based primarily on its physical appearance
(i.e., that it was concealed) and also on the lack of mutuality
in terms of its enforcement.
With

respect

to

the

forum

selection

clause

(“FSC”)

discussed supra, Plaintiff makes the following arguments. First,

Plaintiff contends the clause is inapplicable in light of its
inclusion in a broader contract that is void ab initio. Second,
Plaintiff

argues

§1404(a)

(the

indicate

to

the

federal

which

FSC

violates

venue

specific

the

transfer
court’s

terms

statute)

of
by

jurisdiction

28

U.S.C.

failing
the

to

parties

allegedly consented for purposes of venue (i.e., that the clause
fails by designating the state or federal courts of Washington).
Finally,
argues

similarly

the

FSC

as

is

with

the

unenforceable

arbitration
due

to

clause,

Plaintiff

Defendant’s

alleged

unilateral right to alter the terms of the agreement as well as
the

concealment

and

lack

of

mutuality

relating

to

the

TOU

generally.
Law and Analysis:
Section 2 of the Federal Arbitration Act (“FAA”) provides:
A written provision in . . . a contract
evidencing a transaction involving commerce
to settle by arbitration a controversy
thereafter arising out of such contract or
transaction ... 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. §2.2 It is trite law at this point that §2 reflects a
“liberal

2

federal

policy

favoring

arbitration”

and

“the

The act applies by virtue of the subject contract’s indisputable nature as
one “evidencing a transaction involving commerce” as well as the express
terms of the TOU. See Rec. Doc. 7-3 at 3 (“You and DivorceWriter agree that:
(1) the parties are participating in transactions affecting interstate
commerce; (2) this abirtration provision and any resulting arbitration are
governed by the Federal Arbitraion Act (Title 9 of the United States Code . .
. .”).

fundamental principle that arbitration is a matter of contract.”
AT&T

Mobility

L.Ed.2d

742

LLC

v.

Concepcion,

(2011)(internal

131

citations

S.Ct.

1740,

omitted).

1745,

179

Accordingly,

courts must enforce arbitration agreements according to their
terms, except “upon such grounds as exist at law or in equity
for the revocation of any contract.” Concepcion, 131 S.Ct. at
1746.

Arbitration

agreements

may

be

invalidated

only

by

“generally applicable contract defenses, such as fraud, duress,
or unconscionability,” which are, in turn, determined according
to applicable state contract law. Id.; accord Washington Mut.
Fin. Co. v. Bailey, 364 F.3d 260, 264 (5th Cir. 2004)(because
the

purpose

arbitration
contracts,

of

the

agreements
“courts

Federal
the

apply

Arbitration

same

the

force

contract

and
law

Act

is

to

effect
of

the

as

give
other

particular

state that governs the agreement.”).
Additionally, in the context of challenges to the validity
of an entire contract, the Supreme Court has established the
following propositions:
First, as a matter of substantive federal
arbitration law, an arbitration provision is
severable
from
the
remainder
of
the
contract. Second, unless the challenge is to
the arbitration clause itself, the issue of
the contract's validity is considered by the
arbitrator in the first instance. Third,
this arbitration law applies in state as
well as federal courts.

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46,
126 S. Ct. 1204, 1209, 163 L. Ed. 2d 1038 (2006)(citing Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct.
1801, 18 L.Ed.2d 1270 (1967); Southland Corp. v. Keating, 465
U.S.

1,

104

S.Ct.

852,

79

L.Ed.2d

1

(1983)).

“But

that

agreements to arbitrate are severable does not mean that they
are unassailable. If a party challenges the validity under § 2
of the precise agreement to arbitrate at issue, the federal
court
with

must
that

consider

the

agreement

challenge

under

§

4.”

before

ordering

Rent-A-Ctr.,

compliance

W.,

Inc.

v.

Jackson, 561 U.S. 63, 71, 130 S.Ct. 2772, 2778m 177 L.Ed.2d 403
(2010).
In

light

of

the

foregoing,

a

court

asked

to

compel

arbitration must conduct a two-step inquiry:
“First, the court must determine whether the
parties agreed to arbitrate the dispute.
Once the court finds that the parties agreed
to arbitrate, it must consider whether any
federal statute or policy renders the claims
non-arbitrable.” R.M. Perez & Assocs., Inc.
v. Welch, 960 F.2d 534, 538 (5th Cir.1992).
In conducting this two-step inquiry, courts
must
not
consider
the
merits
of
the
underlying action. Snap–On Tools, 18 F.3d at
1267.”
Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir.
2004). As to the first inquiry, two component questions must be
answered:

“whether

there

is

a

valid

agreement

to

arbitrate

between the parties; and . . . whether the dispute in question

falls

within

the

scope

of

that

arbitration

agreement.”

Id.

However, where the arbitration agreement contains a provision
referring issues of arbitrability to the arbitrator in the first
instance

(aka

a

“delegation

clause”),

the

Supreme

Court

has

recognized an additional layer to the arbitration analysis. As
the Court stated in Rent-A-Center, supra:
[A] delegation provision is an agreement to
arbitrate threshold issues concerning the
arbitration agreement. We have recognized
that
parties
can
agree
to
arbitrate
‘gateway’ questions of ‘arbitrability,’ such
as whether the parties have agreed to
arbitrate or whether their agreement covers
a particular controversy. . . . An agreement
to arbitrate a gateway issue is simply an
additional antecedent agreement the party
seeking arbitration asks the federal court
to enforce, and the FAA operates on this
additional arbitration agreement just as it
does any other. The additional agreement is
valid under §2 ‘save upon such grounds as
exist at law or in equity for the revocation
of any contract,’ and federal courts can
enforce the agreement by staying federal
litigation
under
§3
and
compelling
arbitration under §4.
561 U.S. at 69-70. Thus, the relevant question is “whether the
delegation provision is valid under §2.” Id. at 70. Importantly,
as noted above, the Supreme Court has held that a challenge to
the validity of a contract as a whole is insufficient to warrant
court intervention in the absence of a specific challenge to the
included arbitration agreement. Consequently, in the context of
an arbitration agreement containing a delegation clause (which

the

Court

within

has

an

construed

arbitration

as

an

arbitration

agreement),

the

agreement

party

seeking

nested
court

intervention must further “challenge[] the delegation provision
specifically,” or the court must “treat it as valid under §2,
and must enforce it under §§3 and 4, leaving any challenge to
the validity of the Agreement as a whole for the arbitrator.”
Rent-A-Center, 561 U.S. at 72.
In the instant case, the dispute resolution procedure is
set forth in a five-page document entitled “Terms of Use”. (Rec.
Doc. 7-3).3 The relevant provisions are set forth as follows:
IF YOU DO NOT AGREE WITH THESE TERMS OF USE
AND DO NOT WISH TO BE BOUND BY THESE TERMS
OF USE, DO NOT USE DIVORCEWRITER. BY USING
DIVORCEWRITER YOU AGREE THAT YOU ARE AT
LEAST 18 YEARS OF AGE, ARE LEGALLY ABLE TO
ENTER INTO A CONTRACT AND AGREE TO THESE
TERMS OF USE.
. . .
11. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE NOTE THAT THIS AGREEMENT PROVIDES FOR
THE MANDATORY ARBITRATION OF DISPUTES AND
INCLUDES A WAIVER OF THE RIGHT TO A JURY
TRIAL AND CLASS ACTION WAIVER, AS SET FORTH
BELOW.

3

According to the pleadings, in initially contracting for Defendant’s
services, Plaintiff was required to click a box indicating: “I accept the
DivorceWriter terms of use.” (Rec. Doc. 11 at 16). Although the TOU were not
themselves set forth on the page including the dialogue box wherein Plaintiff
entered her payment information, a question mark icon appears next to the
above phrase, the clicking of which directs parties to a “Terms of Use” link
at the bottom of the page from where users may review the TOU. (Rec. Doc. 11
at 16). The appropriateness of this procedure implicates the enforceability
of the arbitration agreement which, as explained below, is a question
foreclosed to the Court at this juncture.

Most user issues can be resolved informally
by contacting DivorceWriter customer service
by
e-mail
at
[e-mail].
However,
if
you
have
a
dispute
with
DivorceWriter, and you are unable to resolve
the
dispute
informally,
you
and
DivorceWriter agree that upon demand by
either you or DivorceWriter, the dispute
will
be
resolved
through
binding
arbitration. A “dispute” is any unresolved
disagreement between you and DivorceWriter,
regardless of when the claim arose, and
includes claims based on contracts, torts,
statutes,
regulations,
common
law,
and
equitable claims. All statutes of limitation
applicable to any dispute shall apply in any
arbitration between you and DivorceWriter.
YOU AGREE THAT YOU ARE EACH WAIVING THE
RIGHT TO A JURY TRIAL OR A TRIAL BEFORE A
JUDGE IN COURT.
. . .
You and DivorceWriter agree that: (1) the
parties are participating in transactions
affecting interstate commerce; (2) this
arbitration provision and any resulting
arbitration are governed by the Federal
Arbitration Act (Title 9 of the United
States Code); (3) the arbitrator shall
decide
any
dispute
regarding
the
interpretation,
application,
or
enforceability
of
this
arbitration
provision; (4) neither party will disclose,
to any third party, any information obtained
from the other party in the arbitration
proceeding, except as required by applicable
law; and (5) neither party will be entitled
to rely on any arbitration award, finding of
fact, or conclusion of law issued in any
other arbitration proceeding involving only
one
of
the
parties.
This
arbitration
provision shall survive the termination of
any
other
contract
between
you
and
DivorceWriter.

(Rec. Doc. 7-3 at 3)(emphasis added). As the foregoing clearly
reflects,

the

only

arbitration

for

challenged
of

dispute

resolution

disputes

relating

clause
to

the

calls

not

underlying

contract, but refers issues of the “interpretation, application,
or enforceability of the arbitration provision” itself to the
arbitrator; i.e., it includes a delegation clause. See, Rent-ACenter,

561

U.S.

at

71

(deeming

provision

giving

arbitrator

“exclusive authority to resolve any dispute relating to the . .
.

enforceability

clause).4

Although

.

.

.

neither

of

[the]

party

Agreement”

specifically

a

delegation

addresses

the

import of the delegation clause in pleadings, the presence of
this provision effectively ends the Court’s inquiry. Following,
as this Court must, the Supreme Court’s Prima Paint and Rent-ACenter line of decisions, the Plaintiff’s failure to articulate
a specific challenge to the delegation clause requires the Court
to abstain from deciding the merits of any dispute concerning
enforceability of the arbitration agreement or the underlying

4

Delegation is further supported here by the designated arbitral forum and
rules. The TOU state that each arbitration “will be administered by the
American Arbitration Association (the “AAA”) according to its Commercial
Arbitration Rules and the Supplementary Procedure for Consumer-Related
Disputes (together, the “AAA Rules”). (Rec. Doc. 11-3 at 3). The Fifth
Circuit has recognized: “The AAA Rules for commercial arbitration include
Rule 7, which provides that “[t]he arbitrator shall have the power to rule on
his or her own jurisdiction, including any objections with respect to the
existence, scope, or validity of the arbitration agreement or to the
arbitrability of any claim or counterclaim.” In Petrofac, Inc. v.
DynMcDermott
Petroleum
Operations
Co.,
we
concluded
that
express
incorporation of the same AAA Rules constitutes clear and unmistakable
evidence that the parties agreed to arbitrate arbitrability. 687 F.3d 671,
765 (5th Cir. 2012)(collecting
cases).” Crawford Prof’l Drugs, Inc. v. CVS
Caremark Corp., 748 F.3d 249, 262-63 (5th Cir. 2014).

contract and refer the matter to arbitration. See, e.g., Rent-ACenter, 561 U.S. at 77 (Stevens, J., dissenting)(“Even when a
litigant

has

specifically

challenged

the

validity

agreement to arbitrate he must submit that challenge

of

an

to the

arbitrator unless he has lodged an objection to the particular
line in the agreement that purports to assign such challenges to
the arbitrator--the so-called ‘delegation clause.’”)
As

noted

provision,

above,

this

even
may

Court

in

the

only

absence

entertain

of

a

delegation

challenges

to

the

validity of the arbitration agreement specifically, rather than
to the contract as a whole. See Buckland, 546 U.S. at 448-49
(“We reaffirm today that, regardless of whether the challenge is
brought in federal or state court, a challenge to the validity
of

the

contract

as

a

whole,

and

not

specifically

to

the

arbitration clause, must go to the arbitrator.”). Even if the
Court were to afford Plaintiff the benefit of characterizing her
arbitration-specific challenges as pertaining to the delegation
clause particularly, these would be limited to: (1) a challenge
to

the

agreement

fee

arrangement

(See

Rec.

Doc.

called

for

11

9)

at

under
and

(2)

the
a

arbitration
challenge

of

substantive unconscionability (Plaintiff argues the clause is
illusory and lacks mutuality) (See Rec. Doc. 9 at 12).5 Because

5

Plaintiff’s other challenges implicate the validity of the underlying
agreement as a whole and therefore fail to raise the type of arbitration-

the Court decides the instant motion on other grounds, there is
no need to address the merits of these particular challenges in
any

detail.

However,

the

Court

writes

briefly

to

note

the

improbability of their success in the context of a challenge to
the enforceability of the arbitration agreement as a whole.
As the Supreme Court noted in Green Tree Fin. Corp.-Alabama
v. Randolph, where “a party seeks to invalidate an arbitration
agreement on the ground that arbitration would be prohibitively
expensive, that party bears the burden of showing the likelihood
of incurring such costs.” 531 U.S. 79, 91-92, 121 S.Ct. 513,
522-23,

148

L.Ed.2d

373

(2000).

This,

in

turn,

has

been

interpreted to require the Plaintiff to show that her particular
circumstances would render her unable to afford any required
fees
Inc.,

of

arbitration.

153

Wash.

2d

(2004)(conscionability

See,

e.g.,

293,
of

Zuver

309-10,

v.

103

fee-splitting

Airtouch
P.3d

Commc’ns,

753,

provisions

is

763-63
to

be

determined in the context of the particular circumstances of the
parties); accord Alexander v. Anthony Int’l, L.P., 341 F.3d 256,
268-69 (3d Cir. 2003)(plaintiff must produce evidence showing an
inability to pay and information regarding arbitration costs);
Shankle v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230, 1235
(10th Cir. 1999)(plaintiff produced sufficient evidence showing
he could not afford arbitrator’s fees); Bradford v. Rockwell
specific challenge required by Prima Paint and progeny at this stage of the
proceedings.

Semiconductor

Sys.,

Inc.,

238

F.3d

549,

557-58

(4th

Cir.

2001)(plaintiff must produce specific evidence showing that he
could not afford the arbitrator’s fees).6 Although Plaintiff has
provided some evidence of the fees that could be charged were
the

matter

referred

to

AAA

Arbitration,

there

has

been

absolutely no showing of Plaintiff’s particular means or ability
to cover these fees (nevermind any showing as to the possibility
of recovering fees or costs in the event of a favorable result
in

arbitration).

Plaintiff’s

(See

fee-based

Rec.

Doc.

challenge

to

11
the

at

9-10).

As

enforceability

such,
of

the

arbitration agreement as a whole is relatively weak (even if it
were

directed

Nevertheless,

specifically
this

is

an

to

issue

the

delegation

properly

delegated

clause).
to

the

arbitrator under the express provisions of the TOU.

6

Although neither party adequately addresses the issue of which law applies
to the contract, the TOU includes a choice-of-law provision designating the
laws of the State of Washington. (See Rec. Doc. 7-3 at 4). A federal district
court sitting in diversity applies the choice-of-law rules of the state in
which it sits. Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d
249, 257-59 (5th Cir. 2014). Louisiana’s rules generally will apply the law
selected by the parties, pursuant to La. Civ. Code. art. 3540, unless the
enforcement of the contract would contravene the public policy of the state
whose law would otherwise be applicable under La. Civ. Code art. 3537. Both
Washington and Louisiana recognize public policies favoring enforcement of
arbitration agreements. See Mendez v. Palm Harbor Homes, Inc., 111 Wash. App.
446, 454, 45 P.3d 594, 599 (2002) (“There is a strong public policy in
Washington State favoring arbitration of disputes.”); Aguillard v. Auction
Mgmt. Corp, 04-2804 (La. 6/29/05), 908 So. 2d 1, 18 (“Due to the strong and
substantial similarities between our state arbitration provisions and the
federal law as seen through a comparison of La. Rev. Stat. §§ 9:4201 and
9:4202 and 9 U.S.C. §§2 and 3, the federal jurisprudence provides guidance in
the interpretation of our provisions.”) In the absence of divergent public
policies, there is reason to believe that Washington law, selected by the
parties, would govern interpretation of the instant agreement. Accordingly,
the standards for challenging fee arrangements in arbitration agreements
endorsed by Washington courts, supra, are instructive.

Plaintiff’s
implicates

the

agreement.

sole

remaining

alleged

Assuming

characterizes

various

arbitration-related

substantive
arguendo

provisions

unconscionability

that
of

challenge

Plaintiff

the

of

the

correctly

agreement

to

allow

Defendant to unilaterally alter terms of the agreement as well
as affording Defendant certain unilateral advantages in opting
to

compel

arbitration,

Plaintiff’s

concerns

are

effectively

mooted by the presence of a “severability clause” in the broader
agreement. Paragraph 19 of the TOU provides:
If any provision of these Terms of Use
is
found
to
be
unlawful,
void
or
unenforceable, then that provision shall be
deemed modified or limited only to the
extent necessary to bring it within a legal
requirement or will be severable from the
Terms of Use and shall not affect the
validity and enforceability of the Terms of
Use.
(Rec. Doc. 1103 at 4-5). As such, even in the event the Court
agreed with Plaintiff’s particular conscionability challenges to
the arbitration agreement (notwithstanding issues of the failure
to

challenge

the

delegation

clause

specifically),

the

Court

would be bound to modify or excise the offending provision for
purposes of rendering that agreement enforceable.7
7

Severability clauses are enforced in both Washington and Louisiana,
accordingly whichever state’s law ultimately applies to the agreement, the
Court would be compelled, where possible, to bring any offending
provisions of the arbitration agreement into compliance with applicable
law, rather than invalidating the provision as a whole. See, e.g., SWAT 24
Shreveport Bossier, Inc. v. Bond, 00-1695 (La. 5/29/01) 808 So.2d 294, 309
(“In light of this severability clause which reflects the parties’ intent
and in accordance with this court’s decision in AMCOM, we, like the court

In light of the foregoing, the Court is bound to compel
arbitration of the instant dispute. We turn now briefly to the
issues raised in Defendant’s motion relating to the propriety of
the instant venue. In brief, Defendant argues the Court should
dismiss this action pursuant to Fed. R. Civ. P. 12(b)(3) for
improper venue, given the parties’ selection of the courts of
Washington in the “Governing Law” provision of the TOU. (See
Rec. Doc. 7-1 at 10). This argument, however, is without merit.
28 U.S.C. §1391 defines three categories of forum where venue
exists.8 The Supreme Court has recognized that if the chosen
forum falls into any one of these categories, venue is proper
and the presence or absence of a forum-selection clause in a
particular contract has no bearing on the propriety of that
venue. See Atlantic Marine Const. Co., Inc. v. Court for Western
Dist. Of Texas, 134 S.Ct. 568, 577, 187 L.Ed.2d 487 (2013).
Plaintiff resides in the Eastern District of Louisiana and was
located there when she accessed Defendant’s website and received

of appeal below, will sever the null clause from the agreement.”); Zuver
v. Airtouch Commc’ns, Inc., 153 Wash. 2d 293, 320-21, 103 P.3d 753, 768-69
(2004) (“Consequently, when parties have agreed to a severability clause
in
an
arbitration
agreement,
courts
often
strike
the
offending
unconscionable provisions to preserve the contract’s essential term of
arbitration.”)
8

These are: (1) a judicial district where any defendant resides, if all
defendants are residents of the State in which the district is located; (2) a
judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is
the subject of the action is situated; or (3) if there is no district in
which an action may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the court’s personal
jurisdiction with respect to such action.” 28 U.S.C. §1391.

the

output

of

Defendant’s

services

which

were

aimed

at

facilitating a divorce to occur in Louisiana. (Rec. Doc. 1-1 at
4-5). As such, a substantial part of the events or omissions
giving rise to the claim occurred in this district and venue is
proper pursuant to 28 U.S.C. §1391(b)(2). The Court therefore
will not dismiss this action under Fed. R. Civ. P. 12(b)(3). Any
further issues relating to potential transfer under 28 U.S.C.
§1404(a) are deferred for possible resolution in the event the
matter

returns

to

this

Court

following

submission

to

arbitration.
Conclusion
The Supreme Court has spoken in no uncertain terms as to
the

federal

enforcement

courts’
of

mandate,

arbitration

pursuant

clauses

to

save

the
on

FAA,
those

to

favor

generally

applicable grounds of state contract law. Plaintiff has failed,
for purposes of the instant motion, to surmount the presumption
in favor of arbitration, rendered particularly onerous where, as
here, the agreement includes both delegation and severability
clauses. Accordingly,
IT

IS

ORDERED

that

the

parties

submit

this

matter

to

arbitration pursuant to the procedures called for under the TOU.
IT IS FURTHER ORDERED that the case be STAYED, pursuant to 9
U.S.C. §3, pending final resolution of all arbitrable issues,

the extent of which is to be determined by the arbitrator as
discussed fully, infra.
New Orleans, Louisiana this 17th day of November, 2014.

____________________________
UNITED STATES DISTRICT JUDGE