SAUBERMAN v. AVIS RENT A CAR SYSTEM, L.L.C.
OPINION. Signed by Judge William J. Martini on 5/25/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOSHUA SAUBERMAN, individually
and on behalf of all others similarly situated,
Civ. No. 2:17-0756 (WJM)
AVIS RENT A CAR SYSTEM, L.L.C.,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Joshua Sauberman brings this putative class action against Defendant
Avis Rent a Car System, L.L.C., alleging that Defendant violated the Telephone
Consumer Protection Act (“TCPA”).
This matter comes before the Court upon Defendant’s motion to compel
arbitration. For the reasons set forth below, the motion is DENIED WITHOUT
PREJUDICE. The parties are ordered to engage in limited discovery as to whether
Plaintiff made the rental car reservation at issue through Defendant’s Preferred Member
program, or signed any other rental agreement with Defendant containing an arbitration
clause. Following discovery, Defendant may renew its motion, which this Court will
assess under a Rule 56 summary judgment standard.
Plaintiff, on behalf of himself and all others similarly situated, has filed a putative
class action Complaint against Defendant, asserting violations of the TCPA. ECF No. 1
(Compl). Plaintiff alleges that, when renting a car via Avis’s website, a customer is
“presented with a checkbox asking whether the consumer consents to receiving alerts via
text message.” Id. ¶¶ 12-13. However, according to Plaintiff, even if a customer does
not consent to receiving text messages, Avis automatically text messages that customer
anyway, in violation of the TCPA. Id. ¶ 14.
In response to the Complaint, Defendant has filed the instant motion to compel
arbitration. ECF No. 6 (Mot.). Defendant states that arbitration is required because, “as
an Avis Preferred member, Plaintiff agreed to Avis’s Preferred Rental Transaction Terms
and Conditions . . . which include a conspicuous, broad, and unambiguous arbitration
provision and a class action waiver.” Specifically, Defendant asserts that, in 2011,
Plaintiff enrolled in the Avis preferred program (also called the “Wizard” program), and
by doing so, he agreed to resolve any claim against Avis in arbitration.
Plaintiff opposes the motion to compel arbitration, asserting that he did not enter
his Avis Preferred Member information when making the instant reservation. ECF No.
10 (Opp.). Plaintiff contends that this fact is fatal to Defendant’s present motion, because
the Preferred program agreement states: “You understand that these Terms and
Conditions will apply to each rental of a car to you by us using Avis Preferred, as fully as
if contained in a separate agreement signed by you.” Id. at 14 (emphasis added). The
agreement also states it “covers the rental of each car by us to you under Avis Preferred.”
Opp, Ex. B (Agreement) (emphasis added).
In reply, Defendant declares, inter alia, that, “Plaintiff did use his Wizard number
when making the rental at issue, and limited discovery on this point will quickly bear that
out.” ECF No. 11 (Reply) at 2. Therefore, Defendant “requests that this Court direct the
Parties to engage in limited discovery to discern whether Plaintiff in fact used his Wizard
number to place the reservation at issue.” Id. at 3.
Before compelling arbitration pursuant to the FAA, a court must determine that:
“(1) a valid agreement to arbitrate exists, and (2) the particular dispute falls within the
scope of the agreement.” Kirleis v. Dickie, McCarney & Chilcote, P.C., 560 F.3d 156,
160 (3d Cir. 2009). Here, the parties disagree as to whether a valid agreement to arbitrate
exists: Defendant contends that Plaintiff entered his Wizard number when booking the
car rental at issue and, therefore, the arbitration agreement governing the Avis Preferred
program applies to this dispute. Plaintiff, on the other hand, maintains that he did not
enter his Wizard number and further states that Defendant has not demonstrated that he
used his Wizard number to make this reservation, rendering arbitration of this action
In Guidotti v. Legal Helpers Debt Resolution, L.L.C., the Third Circuit explains
which standard to apply when a question arises as to whether a valid arbitration
agreement exists. 716 F.3d 764 (3d Cir.2013). Where arbitrability is apparent on the
face of the complaint, a Rule 12(b)(6) standard of review should be applied to the motion
to compel arbitration. Id. at 774. However, where the complaint does not establish on its
face that the parties have agreed to arbitrate, or when the party opposing arbitration has
come forward with reliable evidence that it did not intend to be bound by an arbitration
agreement, the non-movant must be given a limited opportunity to conduct discovery on
the narrow issue of whether an arbitration agreement exists. Id.
In this case, Plaintiff’s Complaint makes no reference to the Avis Preferred
program agreement: Plaintiff neither mentions the Preferred program in the Complaint,
nor does he attach the agreement as an exhibit. Because the Complaint does not establish
on its face that the parties agreed to arbitrate, the Court cannot decide the present motion
without first ordering limited discovery as to the question of arbitrability. Id. (“Under
the first scenario, arbitrability not being apparent on the face of the complaint, the motion
to compel arbitration must be denied pending further development of the factual
record.”). This conclusion is further bolstered by Defendant’s request to conduct limited
discovery as to whether Plaintiff entered his Wizard number in making the current
reservation. Once the factual record is developed, the issue must be decided under the
Rule 56 summary judgment standard. Id; see also Laudano v. Credit One Bank, No. 157668, 2016 WL 3450817, at *5 (D.N.J. June 22, 2016) (ordering discovery under
Guidotti where Plaintiff’s complaint did not mention or attach as an exhibit the alleged
agreement containing the arbitration provision); Ross v. CACH, LLC, No. 2:14-6321,
2015 WL 1499282, at *1 (D.N.J. Apr. 1, 2015) (same).
At this stage, the Court need not reach step two of the Guidotti inquiry, i.e., it need
not decide whether Plaintiff has put forth credible evidence that he is not bound by the
arbitration agreement. See Guidotti, 716 F.3d at 774 (“The second scenario will come
into play when the complaint and incorporated documents facially establish arbitrability
but the non-movant has come forward with enough evidence in response to the motion to
compel arbitration to place the question in issue.”). Because an agreement to arbitrate
cannot be gathered from the face of the Complaint, the Court will deny the motion
without prejudice, order limited discovery on whether an agreement to arbitrate exists
with respect to this rental, and if necessary, entertain a future motion to compel
arbitration under a summary judgment standard.
For the foregoing reasons, the motion to compel arbitration is DENIED
WITHOUT PREJUDICE. The parties are to engage in discovery on the narrow issue
of whether an agreement to arbitrate exists. Defendant may re-file its motion to compel
following the completion of discovery. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: May 25, 2017
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