HOLDBROOK PEDIATRIC DENTAL, LLC v. PRO COMPUTER SERVICE, LLC
OPINION FILED. Signed by Judge Noel L. Hillman on 7/21/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HOLDBROOK PEDIATRIC DENTAL, LLC,
Civil No. 14-6115 (NLH/JS)
PRO COMPUTER SERVICE, LLC,
Robert H. Montgomery, Esquire
Law Offices of Robert H. Montgomery
230 South Broad Street
Philadelphia, Pennsylvania 19107
Counsel for Plaintiff
Douglas M. Long, Esquire
Long Marmero & Associates LLP
44 Euclid Street
Woodbury, New Jersey 08096
Counsel for Defendant
HILLMAN, District Judge:
This matter comes before the Court by way of motion of
Defendant, Pro Computer Service, LLC (hereafter, “PCS”), seeking
dismissal of this action based on a mandatory arbitration clause
purportedly contained in an agreement between the parties.
alternatively seeks a stay of the litigation and to compel
arbitration, which is currently pending before the American
Arbitration Association (hereafter, “AAA”).
Holdbrook Pediatric Dental, LLC (hereafter, “Holdbrook”),
opposes the motion.
The Court has considered the submissions of
the parties and decides this matter pursuant to Fed. R. Civ. P.
For the reasons that follow, PCS’ motion will be denied
Holdbrook operates two pediatric dental practices in New
On April 1, 2014, Holdbrook entered into an agreement
with PCS whereby PCS would provide information technology
services to Holdbrook in exchange for a monthly fee.
agreement at issue, a “Managed Support Plan,” is attached to the
Holdbrook alleges that on July 24, 2014, one of its
representatives informed PCS by telephone that Holdbrook was
dissatisfied with the services that PCS provided.
approximately fifteen minutes of that conversation, PCS
allegedly remotely accessed Holdbrook’s computers, created
network passwords, and failed to provide the passwords to
As a result, Holdbrook was locked out of its server.
Although Holdbrook demanded that access to the network be
restored, PCS purportedly refused to do so until the following
Holdbrook contends that as a result, it was unable to
access its electronic business records, including patient files,
and was forced to cancel eighty-three previously scheduled
appointments for July 24, 2014 and July 25, 2014.
Holdbrook brings this action pursuant to the Computer Fraud
and Abuse Act, 18 U.S.C. § 1030(a)(5)(A)(i), based upon PCS’
alleged knowing transmission of a program, information, code or
command that intentionally caused damage without authorization
to a protected computer.
Holdbrook also asserts state law
claims for breach of contract, tortious interference with
business relationships, and negligence.
Despite Holdbrook’s filing of this civil action on October
2, 2014, five days later PCS filed a demand for arbitration with
PCS’ position in the arbitration and in the motion to
dismiss presently before the Court is that the Managed Support
Plan agreed to by Holdbrook contains a mandatory arbitration
The Managed Support Plan does not, in itself, contain an
Rather, the provision is contained in a
separate “Terms and Conditions” document that, according to PCS,
was integrated into the contract.
(Br. in Supp. of Mot. to
Dismiss or, in the Alternative, to Compel Arbitration and Stay
Litigation Pending Arbitration (hereafter, “PCS’ Br.”) 3-4.)
The Managed Support Plan had been sent in electronic form to
Holdbrook, and the “Terms and Conditions” document was attached
as a hyperlink 1 to the last page of the contract, directly above
the line where a Holdbrook representative could sign to indicate
acceptance of the agreement.
(Id. at 4.)
Holdbrook argues that
it did not agree to the separate “Terms and Conditions” and is
not bound by the arbitration clause contained therein.
Br. in Opp. to Def.’s Mot. to Dismiss or, in the Alternative, to
Compel Arbitration and Stay Litigation Pending Arbitration
(hereafter, “Holdbrook’s Opp. Br.”) 4-8.)
As Holdbrook asserts a claim under federal law, the Court
has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
The Court may exercise supplemental jurisdiction over
Holdbrook’s state law claims pursuant to 28 U.S.C. § 1367.
A. Standard for Dismissal
PCS moves to dismiss this case pursuant to Fed. R. Civ. P.
12(b)(1) or, alternatively, to stay the matter and compel
“Rule 12(b)(1), however, is not the correct rule
of law under which to assert a contract-based defense requiring
Masoner v. Educ. Mgmt. Corp., 18 F. Supp. 3d 652,
656 (W.D. Pa. 2014).
As explained by the Third Circuit, motions
“A hyperlink electronically provides direct access from one
internet location/file to another, typically by clicking a
highlighted word or icon.” Major v. McCallister, 302 S.W.3d
227, 228 n.1 (Mo. Ct. App. 2009).
to dismiss on the basis that arbitration is required “are not
jurisdictional as they raise a defense to the merits of an
Liberty Mut. Fire Ins. Co. v. Yoder, 112 F. App’x 826,
828 (3d Cir. 2004).
“Rather, such dismissals are ‘generally
effected under Rule 12(b)(6) . . . or Rule 56.’”
citation omitted); see also Nationwide Ins. Co. of Columbus,
Ohio v. Patterson, 953 F.2d 44, 45 n.1 (3d Cir. 1991).
Although courts have been inconsistent on the standard to
be applied, the Third Circuit recently provided guidance on the
In Guidotti v. Legal Helpers Debt Resolution, 716 F.3d
764, 771 (3d Cir. 2013), the Third Circuit held that “‘[w]here
the affirmative defense of arbitrability of claims is apparent
on the face or a complaint (or . . . documents relied upon in
the complaint),’ ‘the [Federal Arbitration Act] would favor
resolving a motion to compel arbitration under a motion to
dismiss standard without the inherent delay of discovery[.]’”
Id. at 773-74 (internal citations omitted). 2
arbitrability is not apparent on the face of the complaint, then
further development of the factual record is necessary and the
motion should be decided under the summary judgment standard.
The Third Circuit noted that the issue of whether an agreement
to arbitrate was actually reached is usually brought in the
context of motions to compel arbitration. Guidotti, 716 F.3d at
771. Here, PCS seeks dismissal of the action, but the Court
nonetheless finds the standard in Guidotti applicable in
deciding PCS’ motion.
Id. at 774.
Moreover, if the complaint and incorporated
documents facially establish arbitrability but the non-moving
party comes forward with enough evidence to question the
parties’ intentions concerning arbitration, the motion to compel
arbitration should be decided under the summary judgment
Under either of these latter two scenarios, “a ‘restricted
inquiry into factual issues’ will be necessary to properly
evaluate whether there was a meeting of the minds on the
agreement to arbitrate.”
Id. (internal citation omitted).
non-moving party “‘must be given the opportunity to conduct
limited discovery on the narrow issue concerning the validity’
of the arbitration agreement[.]”
Id. (internal citation
After limited discovery, the party seeking to compel
arbitration may file a renewed motion, which would be decided
under the summary judgment standard.
Id. at 776.
If the Court
concludes that summary judgment is not warranted, then it may
proceed summarily to a trial on the issue of whether the parties
reached an agreement to arbitrate.
B. Application to This Case
In this case, there is no dispute that Holdbrook signed the
Managed Support Plan, nor is there any dispute that the “Terms
and Conditions” contain a mandatory arbitration clause. 3
dispute centers on whether the “Terms and Conditions,” which
were purportedly contained in a hyperlink, were incorporated
into the Managed Support Plan and were thereby accepted by
Holdbrook when its authorized agent signed the Managed Support
The Court has reviewed the Managed Support Plan attached to
On the last page of the contract, in small font
directly above the signature line, is the following text: “Download Terms And Conditions ”
According to PCS, when
the Managed Support Plan is printed on paper, the coding for the
hyperlink appears as above rather than as a hyperlink.
Br. in Supp. of Mot. to Dismiss or, in the Alternative, to
Compel Arbitration and Stay Litigation Pending Arbitration
(hereafter, “PCS’ Reply Br.”) 3.)
PCS maintains, however, that
when the Managed Support Plan was sent to Holdbrook, it was sent
in an electronic format with a clickable hyperlink to the “Terms
Paragraph 12 of the “Terms and Conditions” states, in relevant
part, as follows: “Mandatory Arbitration: Any controversy or
claim arising out of this Managed Services Agreement, or
relating to it, including any statutory claims, will be settled
by arbitration administered by the American Arbitration
Association. . . . PCS and CLIENT are choosing arbitration
instead of litigation to resolve its disputes and VOLUNTARILY
AND KNOWINGLY WAIVE A RIGHT TO A JURY TRIAL.” (PCS’ Br., Ex.
and Conditions” directly above the signature line.
(Id. at 2-
According to PCS, when Holdbrook’s authorized agent signed
the Managed Support Plan, it should be assumed that she read the
entire agreement -- including the “Terms and Conditions”
contained in the hyperlink -- and assented to such terms.
Holdbrook argues that the “Terms and Conditions” were not
incorporated into the contract for two reasons.
Holdbrook contends that the “Terms and Conditions” contain a
separate signature block to demonstrate acceptance of such
additional terms by both parties.
(Holdbrook’s Opp. Br. 6.)
Neither Holdbrook nor PCS separately signed the “Terms and
Conditions,” and Holdbrook thus asserts there was thus no assent
to these additional terms.
Second, Holdbrook argues that
it was never made aware that the “Terms and Conditions” were to
be incorporated into the agreement.
Holdbrook points to the
fact that the agreement was signed as a hard copy rather than in
electronic format, and the hard copy contained only the coding
for the “Terms and Conditions” hyperlink.
that it was not abundantly clear that there was a hyperlink
which contained additional terms of the contract.
(Id. at 8.)
Additionally, Holdbrook contends that the Managed Support Plan
does not contain any language incorporating the “Terms and
Conditions” by reference, so as to have placed Holdbrook on
notice that there were additional terms beyond those set forth
in the contract itself.
In making the threshold inquiry into whether Holdbrook
accepted the “Terms and Conditions” as part of the Managed
Support Plan, the Court applies state law on the issue of
See Davis v. Dell, Inc., No. Civ. A. 07-
630, 2007 WL 4623030, at *4 (D.N.J. Dec. 28, 2007), aff’d, 2008
WL 3843837, at *1 (D.N.J. Aug. 15, 2008).
In deciding which
state’s law to apply, the Court notes that both parties are New
Jersey entities with principal places of business in New Jersey,
the contract was apparently prepared by a representative of PCS
in New Jersey, 4 and the contract was addressed to Holdbrook at a
New Jersey address.
Both parties cite New Jersey law in their
briefs, and neither party argues that another state would also
have an interest in this matter.
As the Court cannot identify
any state other than New Jersey with an interest in this
dispute, the Court will apply New Jersey law on the issue of
contract formation in deciding the present motion.
The Court begins by consideration of long-standing
principles of contract formation.
Under New Jersey law, a
The agreement states that it was prepared by Dan Sommese, and
Sommese’s phone number is listed as “856-596-4446.” (Compl.,
Ex. A.) This phone number has a New Jersey area code and is the
same as PCS’ phone number, which is associated with PCS’ New
Jersey address. (Id.)
contract term is generally binding if the contract is mutually
agreed upon by the parties, is supported by consideration, and
does not violate codified standards or offend public policy.
Hoffman v. Supplements Togo Mgmt., 419 N.J. Super. 596, 606, 18
A.3d 210 (N.J. Super. Ct. App. Div. 2011) (citing W. Caldwell v.
Caldwell, 26 N.J. 9, 24–26, 138 A.2d 402 (1958)), certif.
granted, 209 N.J. 231, 36 A.3d 1063 (N.J. 2012).
mutually assent to a contract term when there is a meeting of
Id. (citing Pop’s Cones, Inc. v. Resorts Int’l
Hotel, 307 N.J. Super. 461, 467–68, 704 A.2d 1321 (N.J. Super.
Ct. App. Div. 1998)).
“This signifies that each party to the
contract must have been fairly informed of the contract’s terms
before entering into the agreement.”
“An agreement to arbitrate, like any other contract, ‘must
be the product of mutual assent, as determined under customary
principles of contract law.’”
Atalese v. U.S. Legal Serv.
Group, L.P., 219 N.J. 430, 442, 99 A.3d 306 (N.J. 2014)
(internal citation omitted), cert. denied, --- S. Ct. ---, 2015
WL 275587, at *1 (2015).
“Mutual assent requires that the
parties have an understanding of the terms to which they have
“‘An effective waiver requires a party to have
full knowledge of his legal rights and intent to surrender those
Id. (internal citation omitted).
involves a waiver of the right to pursue a case in a judicial
forum, “‘courts take particular care in assuring the knowing
assent of both parties to arbitrate, and a clear mutual
understanding of the ramifications of that assent.’”
442-43 (internal citation omitted).
Where, as here, the contractual provision to be enforced is
not embodied in the document signed by the parties, the Court
must consider whether there was mutual assent to include as part
of the agreement the additional terms contained in a separate
“In order for there to be a proper and enforceable
incorporation by reference of a separate document . . . the
party to be bound by the terms must have had ‘knowledge of and
assented to the incorporated terms.’”
Alpert, Goldberg, Butler,
Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 533, 983
A.2d 604 (N.J. Super. Ct. App. Div. 2009) (internal citation
omitted), certif. denied, 203 N.J. 93, 999 A.2d 462 (N.J. 2010).
In the internet era, when agreements are often maintained,
delivered and signed in electronic form, a separate document may
be incorporated through a hyperlink, but the traditional
standard nonetheless applies: the party to be bound must have
had reasonable notice of and manifested assent to the additional
Liberty Syndicates at Lloyd's v. Walnut Advisory Corp.,
Civ. A. No. 09-1343, 2011 WL 5825777, at *4 (D.N.J. Nov. 16,
2011) (noting that relevant inquiry is whether “the specifics
surrounding [the] agreement revealed either that the user knew
or should have known about the existence of the terms and
conditions . . . [.]”); Hoffman, 419 N.J. Super. at 611, 18 A.3d
Many courts have addressed whether a party may be bound by
terms set forth in a hyperlink in an electronic agreement.
types of contractual scenarios typically discussed in the
digital realm are “clickwrap” agreements and “browsewrap”
In a “clickwrap” agreement, all of the terms of an
agreement are collected in a dialog box and a user must click on
an icon that affirmatively demonstrates assent to be bound by
the terms and conditions.
at *4 n.5.
Liberty Syndicates, 2011 WL 5825777,
In a “browsewrap” agreement, by contrast, the terms
of use are contained in a hyperlink, but the user can utilize a
provider’s services without ever knowing that such services are
being provided subject to the terms and conditions.
also Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 n.1 (E.D.
In Fjeta v. Facebook, Inc., 841 F. Supp. 2d 829 (S.D.N.Y.
2012), the district court conducted an extensive analysis of
cases involving “clickwrap” and “browsewrap” agreements.
issue in Fjeta was whether the plaintiff had agreed to a forum
selection clause when he joined Facebook, as the clause was part
of Facebook’s “Terms of Service.”
A person who joins Facebook
must click a “Sign Up” button, which is immediately above a
notice that states: “‘By clicking Sign Up, you are indicating
that you have read and agree to the Terms of Service.’”
The phrase “Terms of Service” is a hyperlink to Facebook’s
The district court noted that the case did not involve a
“pure-form” browsewrap agreement, but also did not involve a
“pure-form” clickwrap agreement.
Id. at 837-38.
the terms are only visible via a hyperlink, but also somewhat
like a clickwrap agreement in that the user must do something
else -- click “Sign Up” -- to assent to the hyperlinked terms.
Yet, unlike some clickwrap agreements, the user can click to
assent whether or not the user has been presented with the
Id. at 838.
The district court concluded that the
“was informed of the consequences of his assenting click and he
was shown, immediately below, where to click to understand those
Id. at 840.
Another instructive case is Swift v. Zynga Game Network,
Inc., 805 F. Supp. 2d 904 (N.D. Cal. 2011).
There, the terms of
the defendant’s service were not visible on a webpage but were
attached via hyperlink.
Id. at 910.
Directly below an “Accept”
button was a statement that clicking on the button served as
assent to the defendant’s terms of service, along with a blue
hyperlink to the terms of service.
Id. at 911.
court found that the plaintiff was bound by the terms of
service, rejecting the argument that the plaintiff lacked
sufficient notice of the contractual terms because they were
contained in a hyperlink.
Id. at 912.
In so finding, the
district court noted the “recent caselaw holding that clickwrap
presentations providing a user with access to the terms of
service and requiring a user to affirmatively accept the terms,
even if the terms are not presented on the same page as the
acceptance button, are sufficient.”
The case presently before this Court presents a unique
scenario because it involves mixed media.
The Managed Support
Plan was, according to PCS, sent in an electronic form that
purportedly contained a hyperlink, but instead of being accepted
electronically by clicking an icon, it was printed and a hard
copy was signed by a Holdbrook representative.
The contract was
nonetheless much like the “clickwrap” agreements in Fjeta and
Swift, where the “Terms and Conditions” were contained in a
hyperlink immediately next to a mechanism for accepting the
In place of an “I Accept” icon to be clicked, a
Holdbrook representative was required to sign the agreement on
In Fjeta, Swift, and other “clickwrap” case law that the
Court has reviewed, courts find that parties assent to terms
contained in a hyperlink when the consumer is provided
“reasonable notice” that additional terms apply to the
In such cases, the icon to be clicked to indicate
assent was accompanied by a statement that clicking the button
constitutes acceptance of the hyperlinked terms.
Fteja, 841 F. Supp. 2d at 835 (immediately below “Sign Up”
button was statement that “By clicking Sign Up, you are
indicating that you have read and agree to the Terms of Service”
where “Terms of Service” was hyperlink to additional terms and
conditions); Major v. McCallister, 302 S.W.3d 227, 228, 230 (Mo.
Ct. App. 2009) (where user had to click button to register for
website, and notice next to button stated “By submitting you
court held that user could have known of existence of terms of
use); Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 984, 835
N.E.2d 113 (Ill. App. Ct. 2005)(where forms completed online
stated that “All sales are subject to Dell’s Term[s] and
Conditions of Sale,” and terms and conditions were accessible by
clicking on hyperlink, court concluded that statement placed
reasonable person on notice that there were terms and conditions
attached to purchase).
In each of these cases, the statement
drew the user’s attention to the hyperlink, and this opportunity
to view the additional terms in the hyperlink was deemed
sufficient to provide reasonable notice that assent to the
contract included assent to the additional terms. 5
In this case, by contrast, the hyperlink is placed in the
Managed Support Plan in isolation.
Unlike the above-cited
cases, there is no statement that signing the agreement
indicated acceptance of the “Terms and Conditions,” nor is there
an instruction to sign the contract only if Holdbrook agreed to
the additional terms.
The Court finds that the existence of the
hyperlink in the document, without any statement to draw
attention to the link, is insufficient to demonstrate that
Holdbrook had “reasonable notice” that the “Terms and
Conditions” were part of the contract.
Further complicating matters is the fact that although the
Managed Support Plan was sent in electronic form, it could not
be accepted in electronic form.
Thus, unlike the “clickwrap”
cases where an obvious hyperlink appears next to the icon for
accepting the contract, here it may not have been apparent that
there was a hyperlink to additional terms.
In this regard, the
contract had to be printed to be accepted, and there was thus no
need for a Holdbrook representative to review the document
As noted in Fteja, “[w]hether or not the consumer bothers to
look is irrelevant. ‘Failure to read a contract before agreeing
to its terms does not relieve a party of its obligations under
the contract.’” Fteja, 841 F. Supp. 2d at 839 (internal
electronically before accepting the agreement.
the agreement was printed, as PCS acknowledges, the paper
version contained only coding for the hyperlink, and it is not
clear from the printed agreement that there was a hyperlink to
additional terms and conditions.
Accordingly, the Court cannot conclude at this time that
Holdbrook had “reasonable notice” of the “Terms and Conditions”
so as to have assented to the arbitration clause contained
As noted above, if arbitrability is not apparent on
the face of the complaint and documents attached thereto, then
the Court should deny the motion to dismiss and provide the
parties the opportunity to further develop the factual record.
Discovery may reveal that a Holdbrook representative reviewed
the Managed Support Plan electronically, understood that there
was a hyperlink to the “Terms and Conditions,” and had notice of
the additional terms.
However, because the Managed Support Plan
does not contain a statement drawing attention to the separate
“Terms and Conditions,” did not need to be reviewed
electronically to be accepted, and the printed version did not
obviously demonstrate the existence of additional “Terms and
Conditions,” the Court cannot conclude based solely on review of
the document that Holdbrook had reasonable notice that the
Managed Support Plan contained additional terms.
PCS’ motion to
dismiss will therefore be denied at this time, without prejudice
to its right to file a renewed motion after the parties take
limited discovery on issues concerning arbitrability of this
PCS’ Request for a Stay
PCS alternatively asks for a stay of this litigation
pending arbitration before the AAA.
As noted above, five days
after Holdbrook filed a complaint before this Court, PCS filed a
demand for arbitration with the AAA for damages purportedly
resulting from Holdbrook’s failure to pay the balance of the
amount due for services rendered under the Managed Support Plan.
(PCS’ Br. 5.)
PCS argues that Holdbrook can assert in the
arbitration any claims it has in this case.
Holdbrook contends that the AAA has not agreed to hear the
controversy between the parties because of a dispute as to the
validity of the mandatory arbitration provision (Holdbrook’s
Opp. Br. 9), PCS responds that the AAA arbitrator will decide
the issue of arbitrability in the arbitration.
(PCS’ Reply Br.
Under the Federal Arbitration Act (hereafter, “FAA”),
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 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.
For the reasons discussed above, the Court at
this time is unable to determine that the parties entered into
an agreement that included an arbitration provision.
Accordingly, the Court will deny without prejudice PCS’ motion
to stay this action pending arbitration.
Moreover, while PCS argues that the arbitrator is already
deciding the issue of arbitrability, this issue must be decided
by the Court, not the arbitrator.
“‘The question whether the
parties have submitted a particular dispute to arbitration,
i.e., the question of arbitrability, is an issue for judicial
determination unless the parties clearly and unmistakably
Puleo v. Chase Bank USA, 605 F.3d 172, 178
(3d Cir. 2010) (quoting Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002)).
question of arbitrability arises when “there is a threshold
dispute over ‘whether the parties have a valid arbitration
agreement at all[.]’”
Id. (quoting Green Tree Fin. Corp. v.
Bazzle, 539 U.S. 444, 452, 123 S. Ct. 2402, 156 L. Ed. 2d 414
For “a litigant seeking to prove that the parties
intended for the arbitrator to decide questions of
arbitrability,” the burden has been described as “‘onerous.’”
Id. at 187 (quoting Ehleiter v. Grapetree Shores, Inc., 482 F.3d
207, 221 (3d Cir. 2007)).
Here, there has been no showing that the parties agreed to
submit the issue of arbitrability to the arbitrator.
at this time has made a preliminary determination on the issue
of arbitrability, finding that the record is insufficient to
demonstrate that the parties have a valid arbitration agreement
Therefore, the Court will not stay this litigation and
compel arbitration so that the arbitrator may decide the issue
PCS’ alternative request for a stay will,
accordingly, be denied.
For the reasons discussed above, PCS’ motion to dismiss, or
alternatively for a stay of litigation and to compel
arbitration, will be denied, without prejudice to PCS’ right to
file a renewed motion once the parties take discovery on the
issue of arbitrability.
An Order consistent with this Opinion will be entered.
Date: July 21, 2015
s/ Noel L. Hillman____
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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