GUIDOTTI v. LEGAL HELPERS DEBT RESOLUTION, L.L.C. et al

Filing 273

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 4/26/2017. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DAWN GUIDOTTI, on behalf of
herself and other class
members similarly situated,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 11-1219 (JBS/KMW)

v.
MEMORANDUM OPINION
GLOBAL CLIENT SOLUTIONS, LLC
and ROCKY MOUNTAIN BANK &
TRUST OF COLORADO SPRINGS,
COLORADO,
Defendants.
SIMANDLE, Chief Judge:
Presently before the Court are the two remaining submotions to the First Motion in limine by Plaintiff Dawn Guidotti
(hereinafter “Plaintiff”)[Docket Item 249] regarding the
upcoming jury trial1 on the narrow issue of whether Plaintiff
agreed to arbitrate with Defendant Global Client Solutions, LLC.2
For the following reasons, the Court denies both sub-motions.

1

This case is scheduled for a jury trial before the undersigned
beginning on May 1, 2017.
2 Plaintiff submitted a motion in limine “to limit the issue set
forth in the Joint Final Pretrial Order that are to be submitted
to the jury,” but this motion included five submotions. [Docket
Item 249.] This Memorandum Opinion only concerns the second and
fifth submotions. Plaintiff’s remaining three submotions, as
well as the other outstanding motions in limine, were addressed
at the April 24, 2017 telephone conference. [Docket Item 269.]

1.

Assent by Conduct.

First, Plaintiff requests that

Defendants’ Issues #3 and #4, as well as Plaintiff’s Issue #4
set forth in the Joint Final Pretrial Order (“JFPTO”) are issues
of law for the Court to decide, not factual issues for the jury.
Defendants’ Issue #3 states:
Whether Guidotti accepted and assented to the arbitration
agreement when she used her Special Purpose Account (SPA)
after receiving the [Account Agreement and Disclosure
Statement] AADS which contained the arbitration agreement.
Defendants’ Issue #4 states:
Whether Guidotti ratified the AADS, including the
arbitration provision contained therein, by her use of the
SPA.
Finally, Plaintiff’s Issue #3 states:
Whether Plaintiff’s actions in reference to the SPA after
receiving the AADS manifested assent by plaintiff to the
terms and provisions of the AADS and whether Global and
Rocky could unilaterally amend the terms thereof.
At oral argument, the Court rephrased these issues as
“whether Ms. Guidotti assented to the arbitration agreement
through her performance under the party’s contract.” (4/24/17
Tr. at 4:9-11.) Plaintiff argues that there is nothing here for
the jury to determine because the Court must decide whether a
contract was formed, regardless of how Defendants characterize
the timeline in this case.

Defendants respond that Plaintiff is

“effectively seeking to re-hash the arguments made at the
summary judgment stage of this case and have the Court determine
as a matter of law issues the Third Circuit clearly stated must

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be determined by the factfinder, a jury in this case.”3

The

Court agrees with Defendants, as the jury alone must determine
whether Plaintiff agreed to arbitrate with Defendants, not the
Court.
2.

Additionally, Plaintiff has failed to explain why

these issues of assent also appear in its “Contested Facts”
portion of the JFPTO. See, e.g., Docket Item 199 at 3
(“Plaintiff did not manifest any clear intention by her actions
after receiving the AADS to accept the terms of the AADS and
neither the SPAA or AADS permitted unilateral amendment of their
terms.”); Id. (“The arbitration clause in the AADS was not
sufficiently clear to manifest an assent to arbitration.”). The
Court therefore agrees with Defendants that “the jury cannot
decide whether the agreement between Guidotti and Defendants
contains an arbitration provision without making factual
determinations about whether Guidotti manifested her assent to
the terms of the Account Agreement and Disclosure Statement.”
(Opp’n at 9.)

If the Court were to take away these issues from

3

Defendants point to language in Guidotti v. Legal Helpers Debt
Resolutions, L.L.C., 639 F. App’x 824, 827 (3d Cir. 2016)
stating: “[T]he resolution of this question [of preemption] is
unnecessary if Guidotti never received the AADS or otherwise
failed to assent to arbitrate her claims. Accordingly, we will
vacate the District Court’s order denying Global and RMBT’s
motion and remand with instructions to resolve this factual
dispute.”

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the jury, it would be unclear what else would be left for the
jury to decide.

This contradicts the letter and the spirit of

the Third Circuit’s instructions in this matter; thus, the Court
denies Plaintiff’s motion in limine to the extent it seeks to
keep issues of assent from the jury.
3.

Incorporation by Reference. Next, Plaintiff argues

that the issue of whether the Account Agreement and Disclosure
Statement was incorporated by reference into the SPAA is a
question of law for the Court, not a question of fact for the
jury. Courts generally hold that incorporation by reference is a
question of law. See, e.g., Northrop Grumman Info. Tech, Inc. v.
United States, 535 F.3d 1139, 1343 (Fed Cir. 2008); see also 11
Richard A. Lord, Williston on Contracts § 30:25 (4th ed.
1999)(observing that terms of a contract may be expressed in
separate documents and the determination of which terms are
incorporated into the contract is a question of law).4 Defendants
respond that whether the SPAA incorporated the AADS by reference
is a factual issue because “in order for the jury to make a
determination whether the SPAA incorporated the AADS by

4

Under New Jersey law,“[i]n order for there to be a proper and
enforceable incorporation by reference of a separate document,
the document to be incorporated must be described in such terms
that its identity may be ascertained beyond doubt and the party
to be bound by the terms must have had ‘knowledge of and
assented to the incorporated terms.’” Alpert v. Quinn, 410 N.J.
Super. 510, 533 (App. Div. 2009).
4 

reference the jury will have to make a threshold factual finding
[that] the SPAA referenced the AADS, a determination driven by
documentary evidence and testimony about the respective parties’
actions.” (Opp’n at 13.) In Safeway, Inc. v. Nordic PCL Const.,
Inc., 312 P.3d 1224, 1236 (Haw. App. 2013), which the parties
discussed at the April 24th hearing, the court concluded as a
matter of law that the relevant documents were incorporated by
reference, but acknowledged that “[i]f, however, because of the
existence of genuine issues of material fact, it could not
conclude either way as a matter of law, then it would remain to
resolve those factual issues in order to answer the question of
incorporation.” Id. at 1235.
4.

Here, whether Plaintiff had knowledge and assented to

the AADS incorporation are factual questions that the jury must
decide in order to determine whether Plaintiff agreed to
arbitrate with Defendant.

While the Court understands that

incorporation by reference is generally a question of law where
the answer is to be provided by construction of the contract’s
terms, such is not the circumstance here; given the unique
procedural posture of this case, the Court finds that there are
factual issues precluding a determination by this Court that the
SPAA incorporated the AADS as a matter of law, if the AADS was
unknown to Plaintiff at the time she accepted the SPAA’s terms.
When the acceptance occurred, and whether Plaintiff had

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knowledge of the provisions of the AADS, are matters in factual
dispute, as the Third Circuit’s opinion recognizes.

Therefore,

the Court denies Plaintiff’s motion in limine regarding
incorporation by reference.
5.

The accompanying Order will be entered.

April 26, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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