UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) GOLZAR AMIRMOTAZEDI, ) ) Plaintiff, ) ) v. ) Civil Action No.10-765 (GK) ) VIACOM, INC., et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION
On April 21, 2010, Plaintiff Golzar Amirmotazedi brought this
action in the Superior Court for the District of Columbia alleging
invasion of privacy, intentional infliction of emotional distress,
and negligent infliction of emotional distress against Defendants
Viacom, Inc., MTV Networks, and Bunim-Murray Productions
(“Defendants”). On May 12, 2010, Defendants removed the action to
this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. This
matter is presently before the Court on Defendants’ Motion to
Compel Arbitration, or in the Alternative, to Stay the Litigation
[Dkt. No. 12] (“Defs.’ Mot.”). Upon consideration of the Motion,
the Opposition, and the Reply, and for the reasons set forth
herein, Defendants’ Motion to Compel Arbitration is denied. I. Background
A. Factual History1
Defendants produce and televise a reality show named The Real
World. Defs.’ Answer ¶ 5. Each season, the show chronicles the
career ambitions, friendships, and romantic attachments of a
different group of young people living in a house together for
several months. Defs.’ Mot. at 1-2. Individuals audition to be cast
on the program, and cameras follow the cast members both inside and
outside of the group house. Id. at 2. In the fall of 2009, The Real
World was set in the District of Columbia (“D.C.”), and the
housemates resided in a town house in the Dupont Circle area of
D.C. Compl. ¶ 6.
Because the show chronicles the cast members’ lives both
inside and outside of their group house, it often features members
of the public with whom the cast members interact. Defs.’ Mot. at
2. It is the show’s policy to obtain the consent of such
individuals to appear on the show before including them in an
episode. Id. If an individual chooses to enter The Real World group
house, access to which is limited by Defendants, he or she must
first sign a Voluntary Participation Agreement (Guest Release),
which governs the terms of their entry into the group house. Id. at
3. The Voluntary Participation Agreement (Guest Release) contains
1 All facts herein are undisputed except where specifically indicated otherwise.
2 an arbitration provision (“Arbitration Agreement”) that assigns the
final determination of “any controversy or claim arising out of or
relating to this Agreement” to binding arbitration. See Voluntary
Participation Agreement (Guest Release) and Arbitration Provision
at ¶ 11 (Ex. A to Defs.’ Mot.).
On September 10, 2009, Plaintiff, a twenty-two year old woman,
encountered The Real World’s cast members for the first time at a
restaurant in the Georgetown area of Washington, D.C., where she
was filmed by the production crew. Defs.’ Mot. at 2. The next
evening, on September 11, 2009, Plaintiff met the cast members
again at The Sign of the Whale, a mid-town Washington, D.C. bar and
restaurant. Once again, the production crew filmed Plaintiff. Id.;
Compl. ¶¶ 7-8.
The precise events of September 11, 2009 that gave rise to
this suit are the subject of some dispute. It is undisputed that
Plaintiff and a companion named Isabella were walking by the Sign
of the Whale that evening when they encountered some male cast
members near the restaurant. Compl. ¶¶ 7-8. The male cast members
invited Plaintiff and Isabella to join them inside the restaurant,
and the latter agreed. Id. ¶ 8.
The parties dispute what occurred after Plaintiff entered the
restaurant. Plaintiff alleges that from 11:00 p.m. until
approximately 1:30 a.m., the cast members “fed [her]” between 8 and
10 alcoholic beverages. Id. ¶ 9. Although Plaintiff claims she has
3 no recollection of leaving the restaurant because of her
intoxicated state, she believes that she and the other cast members
left the restaurant around 1:30 a.m. and went to The Real World
group house. Id. ¶¶ 9-10. Before entering the group house,
Plaintiff signed and dated the Arbitration Agreement and gave her
name, date of birth, address, and telephone number. Defs.’ Mot. at
4; Ex. A to Defs.’ Mot. at 4. At or around 3:00 a.m., however,
Plaintiff alleges that Defendants, over her objections and fully
aware of her intoxicated state, threw her out of the house because
she did not wish to have sexual relations with one of the male cast
members. Compl. ¶ 11.
The parties also dispute the extent of Plaintiff’s
intoxication. Amirmotazedi does not deny that she signed the
Arbitration Agreement before entering The Real World residence but
claims she has no recollection of having done so because she was
heavily intoxicated. Pl.’s Opp’n at 6. Defendants contend that
Plaintiff was not intoxicated when she entered the house or when
she signed the four-page Arbitration Agreement just prior to
entering the house. Defs. Mot. at 18. In support of their
contention, Defendants offer evidence that the show’s producers,
who were present the night of September 11, 2009, did not believe
Amirmotazedi to have been intoxicated, and that it is the program’s
policy to prohibit intoxicated individuals from entering or
remaining in The Real World residence. Id. Defendants also rely on
4 video footage from that evening which features Plaintiff and which,
Defendants argue, proves that she was not so intoxicated that she
could not have entered into a legally binding agreement to
arbitrate. Id. at 19.
On or about March 10, 2010, Defendants aired two episodes of
The Real World entitled “Girlfriends and Dead Ends” and
“Aftershow.” Compl. ¶ 12. The parties dispute the way in which
Plaintiff was portrayed on the episodes. Defendants claim that the
episodes “speak for themselves,” accurately depicting Plaintiff’s
conduct. Answer ¶ 15. Plaintiff contends that the episodes
contained edited video footage that misrepresented her as an
individual with multiple emotional and psychological problems.
Compl. ¶ 13. In particular, the episodes showed various cast
members referring to Plaintiff as “that ugly girl” and a “hot
mess,” and a male cast member referring to her as the “girl he
could not get rid of.” Id. ¶ 14-15. The episodes also disclosed
statements that Plaintiff made but wished to keep private, such as
remarks that she was bullied in high school, has “problems, and
wears sunglasses frequently because she suffers from anxiety.” Id.
¶ 15.
Outtakes from the episodes, entitled “Too Much Andrew
Attention,” were later posted on Defendants’ The Real World Dailies
website. Id. ¶ 17. Defendants dispute Plaintiff’s claim that the
portrayal of her in the episodes and outtakes gave rise to
5 offensive, humiliating comments on websites operated by Defendants
and others. Id. ¶ 19.
On or about March 30, 2010, Plaintiff’s attorney notified
Defendants that the episodes and outtakes had caused Amirmotazedi
public ridicule and emotional distress. Id. ¶ 21. In response,
Defendant MTV Networks, Inc. forwarded Plaintiff’s concerns to
Defendant Bunim-Murray Productions, but did not cease dissemination
of the episodes. Id. ¶ 22.
B. Procedural History
On April 16, 2010, Plaintiff filed the instant Complaint in
the Superior Court of the District of Columbia [Ex. B to Dkt. No.
1]. On May 12, 2010, Defendants removed the action to this Court
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Plaintiff alleges,
in Counts I and II of her Complaint, that Defendants invaded her
privacy by portraying her in a false light and by disclosing
private facts about her without her consent. Id. at ¶¶ 23-34. In
Count III, she alleges that Defendants intentionally caused her
emotional distress by airing the episodes and outtakes and by
continuing to disseminate the footage after she notified Defendants
that the footage had caused her severe emotional distress. Id. at
¶¶ 35-39. Lastly, in Count IV, Plaintiff claims that Defendants
negligently caused her emotional distress by airing the footage.
Id. at ¶¶ 40-44. With regards to Counts III and IV, Plaintiff
emphasizes that Defendants knew or should have known that she was
6 particularly susceptible to emotional distress because she stated
in part of the footage that she suffers from anxiety. Id. ¶¶ 36,
41. Plaintiff seeks compensatory damages in excess of $5 million
and punitive damages. Id. ¶ 45.
On June 18, 2010, Defendants filed an Answer denying
Plaintiff’s claims [Dkt. No. 10]. On July 6, 2010, Defendants filed
a Motion to Compel Arbitration or, in the Alternative, to Stay the
Litigation. In their Motion, Defendants argue that Plaintiff waived
her right to file a lawsuit for any claims “arising out of or
relating to” the Arbitration Agreement when she signed it, and must
instead submit her claims in Counts I-IV to arbitration. Defs.’
Mot. at 12-15 (quoting Ex. A to Defs.’ Mot. at ¶ 11).
On August 10, 2010, Plaintiff filed an Opposition to
Defendants’ Motion. Plaintiff responds that she lacked the mental
capacity to sign the Arbitration Agreement the night of September
11, 2009, because she was heavily intoxicated. Thus, Plaintiff
argues, the Court must deny Defendants’ Motion under § 4 of the
Federal Arbitration Act, which prohibits a court from granting a
petition to compel arbitration when “the making of the agreement
for arbitration” is in dispute. See Pl.’s Opp’n at 9; 9 U.S.C. § 4.
Plaintiff further argues that, because there is a genuine dispute
as to whether she had the capacity to enter into the Arbitration
Agreement in light of her intoxicated state, summary judgment on
the issue is not appropriate. Id. at 10-12.
7 Finally, on August 20, 2010, Defendants filed a Reply to
Plaintiff’s Opposition. In their Reply, Defendants contend that
Plaintiff cannot meet her burden of proof on intoxication and that
Plaintiff’s alleged intoxication is an issue for the arbitrator to
decide in the first instance. Defs.’ Reply at 2, 6.
II. Standard of Review
Defendants have styled their Motion as a Motion to Compel
Arbitration, or, in the Alternative, to Stay the Litigation. Such
motions are properly reviewed under the summary judgment standard
of Rule 56(c) of the Federal Rules of Civil Procedure. Aliron
Intern., Inc. v. Cherokee Nation Industries, Inc., 531 F.3d 863,
865 (D.C. Cir. 2008); Hughes v. CACI, Inc., 384 F.Supp.2d 89, 92-93
(D.D.C. 2005) (“‘[I]nasmuch as the district court’s order to
arbitrate is in effect a summary disposition of the issue of
whether or not there has been a meeting of the minds on the
agreement to arbitrate[,]’ consideration of the motion according to
the ‘standard used by district courts in resolving summary judgment
motions pursuant to Fed. R. Civ. P. 56(c) . . . is appropriate.’”)
(quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d
51, 54 n.9 (3d Cir. 1980)).
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits or declarations, show that there is no
genuine issue as to any material fact and that the moving party is
8 entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
A fact is “material” if it might affect the outcome of the action
under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). The nonmoving party then must “go beyond the
pleadings and by [its] own affidavits, or by depositions, answers
to interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.” Id. at 324
(internal quotations omitted); see Laningham v. U.S. Navy, 813 F.2d
1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty
“to provide evidence that would permit a reasonable jury to find”
in its favor).
In deciding a motion for summary judgment or, in this case, a
motion to compel arbitration, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000). Ultimately, the Court must determine
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-
9 52, 106 S.Ct. 2505.
III. Analysis
A. Relevant Provisions of the Federal Arbitration Act
By enacting the FAA, 9 U.S.C. §§ 1 et seq., Congress
“manifest[ed] a liberal federal policy favoring arbitration
agreements.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The FAA provides that
“[a] written provision in any . . . contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract ... or the
refusal to perform the whole or any part thereof, or an agreement
in writing to submit to arbitration an existing controversy arising
out of such a contract . . . 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.
Under the FAA, “[t]here is a presumption of arbitrability in
the sense that ‘an order to arbitrate the particular grievance
should not be denied unless it may be said with positive assurance
that the arbitration clause is not susceptible of an interpretation
that covers the asserted disputes. Doubts should be resolved in
favor of coverage.’” Jung v. Ass’n of Am. Med. Colls., 300
F.Supp.2d 119, 144-45 (D.D.C. 2004) (quoting AT&T Tech., Inc. v.
Commc’ns Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89
L.Ed.2d 648 (1986)); see also Moses H. Cone Mem’l Hosp. v. Mercury
10 Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765
(1983) (“[A]s a matter of federal law, any doubts concerning the
scope of arbitrable issues should be resolved in favor of
arbitration.”); Volt Info. Sciences, 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) (stating that “ambiguities as to the scope of
the arbitration clause itself [must be] resolved in favor of
arbitration”).
However, the FAA also dictates that certain issues must be
decided by the courts. Section 4 of the FAA, which is at issue in
this case, provides that “[i]f the making of the arbitration
agreement or the failure, neglect, or refusal to perform the same
be in issue, the court shall proceed summarily to the trial
thereof.” 9 U.S.C. § 4. Plaintiff argues that her intoxication
defense places the “making of the arbitration agreement” at issue
and therefore her defense must be resolved by a court. Pl.’s Opp’n
at 9. Defendants argue, on the other hand, that the case law
compels the conclusion that the intoxication challenge should be
decided by the arbitrator in the first instance. Defs.’ Reply at 2,
6.
11 B. Arbitrability of the Parties’ Dispute
The Court will thus consider whether, under the FAA and other
governing law,2 the parties’ dispute must be submitted to the
arbitrator to determine whether Plaintiff’s alleged intoxication
prevented the formation of an agreement. The Supreme Court has
offered some guidance on the interpretation of § 4 of the FAA. In
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87
S.Ct. 1801, 18 L.Ed.2d 1270 (1967), the Supreme Court dealt with
the plaintiff’s claim that an agreement containing an arbitration
provision was fraudulently induced. The Court held that “claims of
fraud in the inducement of the contract generally” do not place the
“making of the agreement for arbitration” at issue and must
therefore be submitted for arbitration under § 4. Id. at 404, 87
S.Ct. 1801. In contrast, “claims of fraud in the inducement of the
2 The Agreement states that California law shall govern “any dispute arising from or in connection with this agreement.” Ex. A ¶ 12. However, in cases such as this where one party is alleging that no contract was formed, it would be premature to enforce the choice of law provision before deciding whether an agreement exists. See Green v. Charter One Bank, 640 F.Supp.2d 998, 1004 n.6 (N.D. Ill. 2009) (“Given that [one party] is arguing that no contract was formed, no assumption regarding the parties’ choice of law can be made at this stage.”); Bd. of Educ. of the Twp. of Cherry Hill, Camden County v. Human Res. Microsys., Inc., No. 09- 5766 (JBS/JS), 2010 WL 3882498, at *3 (D.N.J. Sept. 28, 2010) (“Since this Court has not yet determined [the issue of whether the contract is void], it is premature to decide to enforce the contract’s choice-of-law provision.”). In any event, the Court’s analysis of § 4 of the FAA would not differ if California law were to apply instead of District of Columbia law. See Defs.’ Mot. at 7 n.6 (noting that “the result under the FAA would be no different in this case” whether District of Columbia or California law were to apply).
12 arbitration clause itself” must be decided by the court. Id. Thus,
the Court drew a distinction between challenges to an agreement
which contains an arbitration provision, which must first go to the
arbitrator, and challenges to the specific arbitration provision of
an agreement, which must be decided first by the court.
Only two Circuits--the Fifth Circuit and the Tenth Circuit--
have addressed the issue of mental capacity defenses in light of
Prima Paint’s distinction between specific challenges to the
arbitration provision and general challenges to an entire contract.
See Primerica Life Ins. Co. v. Brown, 304 F.3d 469 (5th Cir. 2002);
Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003). The Fifth and Tenth
Circuits disagree on whether, under § 4 of the FAA, mental capacity
defenses should be submitted to the court or the arbitrator in the
first instance.
In Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 472 (5th
Cir. 2002), the Fifth Circuit held that a mental capacity defense
of mental retardation to an Agreement containing an arbitration
clause must be submitted to an arbitrator in the first instance.3
The Court reasoned that, pursuant to Prima Paint, only mental
3 Plaintiff suggests that the Fifth Circuit retreated from its holding in Primerica when it decided that a challenge based on one party’s alleged failure to sign a contract went to the making of the agreement, and therefore was not controlled by Prima Paint. See Pl.’s Opp’n at 11 n.3 (discussing Banc One Acceptance Corp. v. Hill, 367 F.2d 426, 430 (5th Cir. 2004)). Because Banc One Acceptance Corp. does not address a mental capacity defense, this Court does not agree that it affects the Fifth Circuit’s holding in Primerica.
13 capacity challenges that specifically challenge the arbitration
provision of an Agreement could be decided by the court, but that
mental capacity defenses to a whole contract must be submitted for
arbitration. Id. at 471-72.
The Tenth Circuit disagreed with the reasoning of Primerica
and came to the opposite conclusion. In Spahr v. Secco, 330 F.3d
1266, 1273 (10th Cir. 2003), the Tenth Circuit held that a mental
capacity defense of dementia and Alzheimer’s Disease should be
heard by the court for decision in the first instance. The court
reasoned that mental capacity challenges, by their very nature,
cannot be specifically aimed at a contract’s arbitration provision
but are directed at the agreement in whole. In other words, it
would be illogical for a party to claim that a lack of mental
capacity affected his or her ability to enter into a particular
provision of a contract concerning arbitration, but not others.
Consequently, the Court reasoned that the general
challenge/specific challenge distinction drawn in Prima Paint is
inapplicable to mental capacity defenses. Id.
After Primerica and Spahr were decided, the Supreme Court
revisited Prima Paint in Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 445-46, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and
held that “unless the challenge is to the arbitration clause itself
[as opposed to the contract as a whole], the issue of the
contract’s validity is considered by the arbitrator in the first
14 instance.” By the same token, if the challenge is to the
arbitration clause itself, the issue is to be considered by the
court in the first instance. Id. Although the Court found Prima
Paint to be controlling, it specifically noted that it was not
presented with the issue of whether mental capacity defenses, which
raise the question of whether any agreement to arbitrate was ever
concluded, should be decided by the arbitrator or the court under
the FAA. Id. at 444 n.1, 126 S.Ct. 1204. Thus, Buckeye made clear
that Prima Paint’s holding does not control cases such as this one,
where one party to the arbitration agreement is relying upon a
mental capacity defense. Id.
Since neither Prima Paint nor Buckeye is controlling in this
case, this Court joins the other courts which have found the Tenth
Circuit’s reasoning in Spahr to be persuasive. See Moran v. Svete,
366 Fed. Appx. 624, 632 (6th Cir. 2010) (distinguishing between
cases in which it is alleged the signer lacked the mental capacity
to assent, which go to the existence of the agreement, and cases
where the signer acted “ultra vires,” which go to the validity of
the agreement and are therefore properly submitted to the
arbitrator); Reynolds v. Credit Solutions, Inc., 541 F.Supp.2d
1248, 1263 (N.D. Ala. 2008) (explaining that district courts, in
aftermath of Buckeye, recognize that challenges to signatory power,
including mental capacity defenses, are decided by the court);
Washburn v. Beverly Enterprises-Georgia, Inc., No. 106-cv-051, 2006
15 WL 3404804, at *1 (S.D. Ga. 2006) (unpublished opinion)
(concluding, on the basis of Spahr, that mental capacity defense to
entire agreement was for court to decide); In re Morgan Stanley &
Co., Inc., 293 S.W.3d 182, 185-87 (Tex. 2009) (same). In doing so,
the Court also notes that this Circuit has “long treated ‘disputes
over the formation of an agreement to arbitrate--i.e., whether the
parties ever agreed to submit anything to arbitration in the first
place’--as properly before the district court.” Toledano v.
O’Connor, 501 F.Supp.2d 127, 139-40 (D.D.C. 2007) (citing Nat’l
R.R. Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 761
(D.C. Cir. 1988)).
In this case, Plaintiff challenges the making of the
Arbitration Agreement on the grounds of intoxication. Neither
Primerica nor Spahr addresses the specific defense of voluntary
intoxication. However, under both District of Columbia and
California law, voluntary intoxication is a type of mental capacity
defense that permits an individual to avoid a contract if she was
so intoxicated at the time of formation that she could not
understand the terms and conditions of the agreement. See Harmon v.
Johnston, 8 D.C. 139, 1 MacArth. 139, at *3-4 (1873); Phelan v.
Gardner, 43 Cal. 306 (1872). Because this mental capacity defense
goes to the formation, or the “making” of the Arbitration
Agreement, under § 4 of the FAA it must be decided by this Court.
Consequently, Defendants’ Motion to Compel Arbitration is denied.
16 C. Summary Judgment on Plaintiff’s Voluntary Intoxication Defense Is Not Appropriate
Defendants also seek summary judgment on Plaintiff’s
intoxication defense, arguing that Plaintiff cannot bear her burden
of proof. Defs.’ Mot. at 18. Plaintiff disagrees and offers
evidence suggesting that she was inebriated when she signed the
Agreement. See Pl.’s Opp’n at 13. Whether Plaintiff was so
intoxicated on the night of September 11, 2009, that she was
incapable of understanding the terms of the Arbitration Agreement
is thus a genuine issue of material fact which is in dispute.
Consequently, the Court concludes that summary judgment is not
appropriate. Reeves, 530 U.S. at 150, 120 S.Ct. 2097 (explaining
that a court deciding a motion for summary judgment “may not make
credibility determinations or weigh the evidence”). Defendants’
Motion to Compel Arbitration is therefore denied.
IV. Conclusion
For the reasons set forth above, Defendants’ Motion to Compel
Arbitration, or, in the Alternative, to Stay the Litigation, is
denied. An Order shall accompany this Memorandum Opinion.
/s/ March 9, 2011 Gladys Kessler United States District Judge
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