Cheng v. PayPal, Inc.

• Court: District Court, N.D. California
• Decided: January 13, 2022
• Docket: 5:21-cv-03608
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 TINGYU CHENG, Case No. 21-cv-03608-BLF

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. COMPEL ARBITRATION; GRANTING IN PART REQUEST FOR COSTS 10 PAYPAL, INC., [Re: ECF No. 14] 11 Defendant.

12 13 This case involves a dispute over Plaintiff Tingyu Cheng’s account held with Defendant 14 PayPal, Inc. Cheng alleges that he held an account with PayPal to receive compensation from 15 college students to whom he offered tutoring services. PayPal allegedly accused Cheng of 16 receiving payments to his account in violation of PayPal’s Acceptable Use Policy, terminated 17 Cheng’s account, and confiscated the $76,994.40 balance of the account as liquidated damages. 18 PayPal has brought a motion to compel arbitration, arguing that Cheng agreed to a binding 19 arbitration provision in PayPal’s User Agreement, and seeks the fees and costs it incurred in 20 prosecuting an identical state court case brought by Cheng. See ECF No. 14 (“MTC”); see also 21 ECF No. 20 (“Reply”). Cheng admits the existence of the provision but opposes the motion on the 22 grounds that the arbitration provision is unconscionable and therefore unenforceable. See ECF 23 No. 18 (“Opp.”). The Court previously found this motion suitable for disposition without oral 24 argument. See ECF No. 25; Civil L.R. 7-1(b). For the following reasons, the motion to compel 25 arbitration is GRANTED and PayPal’s request and costs is GRANTED IN PART. 26 I. BACKGROUND 27 As alleged in the Complaint, Chen created a PayPal account around May 11, 2009 to 1 1 (“Compl.”) ¶ 11. When he signed up for the PayPal account, Cheng agreed to the PayPal User 2 Agreement (“UA”). The second paragraph of the UA states that its “terms include an agreement 3 to resolve disputes by arbitration on an individual basis.” ECF No. 14 at 39 (“UA” at 1).1 When 4 clicked, the blue text takes a user directly to the “Agreement to Arbitrate” section within the UA. 5 In relevant part, that section reads:

6 You and PayPal each agree that any and all disputes or claims that have arisen or may arise between you and PayPal, including without 7 limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other 8 legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in 9 small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, 10 non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the 11 interpretation and enforcement of this Agreement to Arbitrate. 12 UA at 37. The UA also specifies certain “Restricted Activities” that users of PayPal agree not to 13 do, including activities that violate PayPal’s separate “Acceptable Use Policy” (“AUP”). See UA 14 at 25. PayPal states, and Cheng does not dispute, that he assented to the UA by (1) checking a box 15 next to language stating that he had “read and agree[d] to the User Agreement;” and then (2) 16 clicking a large blue button labeled “Agree and Create Account.” Simons Decl., ECF No. 14 at 17 32, ¶ 6. 18 On or around June 16, 2020, Cheng received an email from PayPal alleging that two of his 19 transactions violated the AUP.2 Compl. ¶ 12. PayPal requested that Cheng log in to its Resolution 20 21 1 The Court finds that the UA is incorporated into the Complaint by reference, see Compl. ¶ 11, 22 and is properly considered for this motion. See Trudeau v. Google, 349 F. Supp. 3d 869, 876 23 (N.D. Cal. 2018) (finding that Google’s Terms of Service was incorporated by reference into the 24 complaint). Cheng has not disputed that the UA attached to PayPal’s motion is the one to which 25 he agreed when he opened his account. References to the UA will use the page numbers on that 26 document rather than pagination generated by ECF. 27 2 PayPal has since alleged that the transactions violated its AUP because Cheng was accepting 1 Center to resolve the issue. Id. Cheng allegedly did so and submitted information to PayPal. Id. 2 Notwithstanding that action, on July 13, 2020, PayPal notified Cheng that his PayPal account was 3 permanently restricted. Id. ¶ 13. PayPal informed Cheng that the entire balance of his PayPal 4 account was frozen for 180 days and that PayPal would inform Cheng via email how to retrieve 5 the balance. Id. PayPal allegedly did not do so and instead confiscated the entire balance of his 6 account—$76,994.40—on November 9–10, 2020. Id. ¶ 14. Cheng’s efforts to get PayPal to 7 return the money—through its customer service department, a demand letter, and a complaint with 8 the California Consumer Protection Bureau—have been unsuccessful. Id. ¶¶ 15–17. 9 Cheng originally filed a lawsuit in the Santa Clara County Superior Court, asserting claims 10 for breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, 11 conversion, and common count over the same allegations as asserted in this case. Cheng v. 12 PayPal, Inc., No. 21CV3755684 (Santa Clara Cty. Super. Ct., filed Jan. 4, 2021). In response to 13 the state court complaint, PayPal filed a motion to compel arbitration. See Notice of Motion and 14 Motion to Compel Arbitration, id. (filed Apr. 1, 2021). Instead of responding to the motion, 15 Cheng dismissed the case. See Request for Dismissal, id. (filed Apr. 30, 2021). 16 Less than two weeks later, on May 13, 2021, Cheng filed this lawsuit. See Compl. Cheng 17 alleges the same causes of action as he did his state court action. See id. ¶¶ 18–39. Cheng seeks 18 $76,994.40 in damages, interest, costs of suit, punitive damages, restitution, and reasonable 19 attorneys’ fees. Id. at 7. PayPal filed this motion on June 17, 2021 and noticed a hearing for 20 January 13, 2022. See MTC. The Court submitted the motion without argument on January 7, 21 2022. ECF No. 25. 22 II. LEGAL STANDARD 23 Under the Federal Arbitration Act, arbitration agreements “shall be valid, irrevocable, and 24 enforceable, save upon such grounds as exist at law or in equity for the revocation of any 25 contract.” 9 U.S.C. § 2. “[A]s a matter of federal law, any doubts concerning the scope of 26 arbitrable issues should be resolved in favor of arbitration.” Benson v. Casa de Capri Enters., 27 1 LLC, 980 F.3d 1328, 1330 (9th Cir. 2020); see also Parfi Holding AB v. Mirror Image Internet, 2 Inc., 817 A.2d 149, 156 (Del. 2002) (same under Delaware law). Under the FAA, a court must 3 determine two issues in deciding a motion to compel arbitration: “(1) whether there is an 4 agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute.” 5 Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015); Doe v. Massage Envy Franchising, 6 LLC, 2020 WL 7624620, at *2 (Del. Super. Ct. Dec. 21, 2020). 7 Delaware law governs the interpretation of the UA. See UA at 42 (“You agree that . . . the 8 laws of the State of Delaware, without regard to principles of conflicts of laws, will govern this 9 user agreement and any claim or dispute that has arisen or may arise between you and PayPal.”). 10 The Court will thus apply Delaware substantive law in answering the two questions above. Ebner 11 v. Financial Architects, Inc., 763 F. Supp. 2d 697, 700 (D. Del. 2011) (“When an agreement 12 contains both a choice-of-law clause and an arbitration clause, the reviewing court will apply the 13 substantive law of the state named in the choice of law clause.”) (citing Mastrobuono v. Shearson 14 Lehman Hutton, Inc., 514 U.S. 52, 63–64 (1995)). 15 III. DISCUSSION 16 Because the second question under FAA is easily answered, the Court will take the two 17 questions in reverse order. 18 A. The Agreement to Arbitrate Covers this Dispute 19 The Court has no trouble concluding that the answer to the second question—“whether the 20 [arbitration] agreement covers the dispute”—is yes. Brennan, 796 F.3d at 1130. The arbitration 21 agreement states that “any and all disputes or claims that have arisen or may arise” between Cheng 22 and PayPal, “including without limitation federal and state statutory claims, common law claims, 23 and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be 24 resolved exclusively through final and binding arbitration, rather than in court.” UA at 37. This 25 lawsuit is a dispute that has arisen between Cheng and PayPal, and it includes “common law 26 claims” based in contract and tort. See Compl. ¶¶ 18–39. Cheng does not dispute this point. 27 Accordingly, the arbitration agreement covers this dispute if the agreement is valid. 1 B. The Agreement to Arbitrate is Valid and Enforceable 2 The dispute raised by Cheng’s opposition is whether the arbitration agreement is valid and 3 enforceable. Cheng argues that the arbitration agreement is unconscionable under Delaware law 4 and therefore unenforceable. Opp. at 4–6. Cheng complains that PayPal, the entity with superior 5 bargaining power, unilaterally drafted the UA and the arbitration agreement. Id. at 4. Cheng says 6 that the arbitration agreement “contains many unfair practices,” such as (1) a limited 30-day opt- 7 out period via physical mail only; (2) a limited promise from PayPal to pay for arbitration fees if a 8 claim is made for less than $10,000, with the claimant paying arbitration costs otherwise; and (3) 9 the location of the arbitration agreement deep in a “54 page[]” document with “multiple sections 10 and subsections.” Id. at 5–6. PayPal responds by defending the enforceability of the arbitration 11 provision. Reply at 1–6. PayPal says that its UA is an enforceable clickwrap agreement under 12 Delaware law. Id. at 1–3. PayPal contends that the individual provisions as not unconscionable, 13 pointing to Delaware case law rejecting Cheng’s arguments that similar provisions in other 14 contracts are unconscionable. Id. at 3–6. 15 The Court agrees with PayPal that the arbitration agreement is valid and enforceable. First, 16 the arbitration agreement is part of a valid clickwrap agreement under Delaware law. “A 17 clickwrap agreement is an online agreement that requires a ‘webpage user [to] manifest assent to 18 the terms of a contract by clicking an ‘accept’ button in order to proceed.’” Massage Envy 19 Franchising, 2020 WL 7624620, at *2 (quoting Newell Rubbermaid Inc. v. Storm, 2014 WL 20 1266827, at *1 (Del. Ch. Mar. 27, 2014)). “Clickwrap agreements are routinely recognized by 21 courts and are enforceable under Delaware law.” Id. (citing Newell Rubbermaid, 2014 WL 22 1266827, at *1). The agreement here is a clickwrap agreement. To proceed with creating a 23 PayPal account, Cheng needed to (1) check a box indicating that he had “read and agree[d] to the 24 User Agreement,” and then (2) click a large blue button labeled “Agree and Create Account.” 25 Simons Decl., ECF No. 14 at 32, ¶ 6. Cheng was required to click two items indicating his assent 26 to the UA. The UA was thus a presumptively valid clickwrap agreement containing an arbitration 27 clause. 1 and not under delusion would make [it] on the one hand, and as no honest or fair man would 2 accept [it], on the other.” Tulowitzki v. Atlantic Richfield Co., 396 A.2d 956, 960 (Del. 1978). 3 Ignoring the outdated language of the Delaware test, this formulation has been divided into 4 procedural unconscionability—the lack of a meaningful choice—and substantive 5 unconscionability—unreasonably favorable terms to one party. Progressive Int’l Corp. v. E.I. Du 6 Pont de Nemours & Co., 2002 WL 1558382, at *11 n.46 (Del. Ch. Jul. 9, 2002). It is Cheng’s 7 burden to prove unconscionability. Harris v. Green Tree Fin. Corp., 183 F.3d 173, 181 (3d Cir. 8 1999). Cheng’s arguments that the arbitration agreement is unconscionable fit in both categories, 9 but none of them pass muster. 10 i. Procedural Unconscionability 11 Three of Cheng’s arguments involve alleged procedural unconscionability. Cheng first 12 complains that PayPal unilaterally drafted the UA and has superior bargaining power to him. Opp. 13 at 4. But “[u]nequal bargaining power, without more, is insufficient to hold an arbitration 14 agreement unconscionable.” Wells v. Merit Life Ins. Co., 671 F. Supp. 2d 570, 574 (D. Del. 15 2009); see also Mikkilineni v. PayPal, Inc., 2021 WL 2763903, at *12 (Del. Super. Ct. Jul. 1, 2021 16 (“An otherwise clear intent to arbitrate will not be invalidated merely because a party did not 17 negotiate the arbitration provision or participate in its drafting.”). One of the cases Cheng cites in 18 support—In re Ritz Camera Image, L.L.C., 2014 WL 432192, at *4 (Bank. D. Del. Feb. 4, 19 2014)—is one in which the court found no procedural unconscionability, and other finds 20 procedural unconscionability in far more drastic circumstances than are present here. See Ryan v. 21 Weiner, 610 A.2d 1377 (Del. Ch. 1992) (contract transferring deed unconscionable where bank 22 lawyer took plaintiff, a 69-year-old man with ninth-grade education, without notice to lawyer’s 23 office, where he made plaintiff sign several documents transferring the deed without telling 24 plaintiff about the content of the documents or of his right to seek independent legal advice). 25 Second, Cheng argues that the arbitration agreement was buried in a “54 page[]” document 26 with “multiple sections and subsections.” Opp. at 5–6. But under Delaware law, “a party may 27 assent to an agreement on the internet without reading its terms and still be bound by it if []he is 1 contract.” Newell Rubbermaid, 2014 WL 1266827, at *7. Cheng was on notice that he was 2 modifying his legal rights. He checked a box recognizing that he was agreeing to the UA and then 3 clicked a separate button saying “Agree and Create Account.” ECF No. 14 at 32, ¶ 6. Because he 4 was clearly on notice that his legal rights were being modified, whether he did or did not read the 5 UA is irrelevant. Even so, if he had opened the UA, its second paragraph indicated that the UA 6 contained “an agreement to resolve disputes by arbitration on an individual basis” and provided a 7 link directly to the arbitration agreement. UA at 1. The location of the arbitration agreement in 8 the UA does not make the arbitration agreement unconscionable. 9 Third and finally, Cheng complains about the requirement of physically mailing a notice to 10 PayPal in California within 30 days of agreeing to the UA to opt-out of the arbitration provision. 11 Opp. at 5–6. Cheng says this particularly places a burden on him because he is an international 12 resident. Id. But the very existence of the opt-out option forecloses the necessary finding under 13 procedural unconscionability that Cheng “lacked a meaningful choice” about agreeing to the 14 arbitration provision. Mikkilineni, 2021 WL 2763903, at *11 (Del. Super. Ct. Jul. 1, 2021) 15 (compelling arbitration where plaintiff “could have opted-out” but “did not opt-out” because the 16 opt-out made the arbitration provision “neither compulsory nor a mandatory condition to 17 contracting with [defendant]”). The Court declines to find that the minimal steps necessary here— 18 mailing a notice to PayPal within 30 days of agreeing to the UA—amounted to a true lack of a 19 meaningful choice for Cheng, notwithstanding his international residence. 20 The arbitration clause is accordingly not procedurally unconscionable. 21 ii. Substantive Unconscionability 22 Cheng’s final argument against enforcing the arbitration agreement fits in the category of 23 substantive unconscionability. Cheng points out that PayPal only promises to pay arbitration fees 24 if the claimant is seeking less than $10,000. Opp. at 5. As PayPal states, its offer to pay litigation 25 costs is not so limited. PayPal in fact offers to pay additional arbitration costs, upon a showing of 26 need by the claimant, “as the arbitrator(s) deem necessary to prevent the cost of accessing the 27 arbitration from being prohibitive.” UA at 39. Regardless, PayPal’s promise to advance 1 it does not amount to a use of superior bargaining power “to take unfair advantage of another” 2 party. Fleck, 1999 WL 1847435, at *3 (Del. Com. Pl. Jan. 29, 1999); see also Graham v. State 3 Farm Mut. Auto Ins. Co., 565 A.3d 908, 912 (Del. 1989) (substantive unconscionability requires 4 terms to “be so one-sided as to be oppressive”). PayPal’s offer to advance certain fees helps, not 5 harms, claimants. The arbitration clause is not substantively unconscionable. 6 Because Cheng has not met his burden to show that the arbitration agreement is 7 unconscionable, the agreement to arbitrate is valid and enforceable. Because PayPal has shown 8 that the claims asserted in this lawsuit are within the scope of the arbitration provision, the Court 9 will DISMISS this action WITHOUT PREJUDICE to filing a later action to confirm or vacate any 10 arbitration award. See Trudeau v. Google, 349 F. Supp. 3d 869, 881 (N.D. Cal. 2018). 11 C. PayPal is Entitled to Some of the Costs It Requests for Litigating the State Court Action 12 13 PayPal also asks the Court to award it costs that it incurred in defending the identical state 14 court action, which Cheng dismissed and refiled here upon receiving PayPal’s state court motion 15 to compel arbitration. MTC at 8–9. PayPal points to Cheng’s lack of explanation for dismissing 16 his state court case without warning and refiling it here. Id. Cheng says that the Court should 17 deny the request for costs, arguing that PayPal was able to reuse much of its research from its state 18 court motion to compel in the instant motion and that the relevant rule of civil procedure does not 19 allow for an award of attorneys’ fees. Opp. at 6–7. 20 “If a plaintiff who previously dismissed an action in any court files an action based on or 21 including the same claim against the same defendant, the court (1) may order the plaintiff to pay 22 all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff 23 has complied.” Fed. R. Civ. P. 41(d). The rule is intended to “discourage indiscriminate and 24 vexatious litigation and unnecessary expenditures” and reduce incentives to forum shop. Esquivel 25 v. Arau, 913 F. Supp. 1382, 1391 (C.D. Cal. 1996). Costs should be reduced or not awarded if the 26 work performed in the first case “will still be useful to defendants in the instant litigation.” Id.; cf. 27 Koch v. Hankins, 8 F.3d 650, 652 (9th Cir. 1993) (plaintiff seeking Rule 41(a)(2) voluntary 1 of work product rendered useless by the dismissal of [the previous action]”). 2 i. Costs Will Be Awarded Under Rule 41(d) 3 The Court finds that a partial award of costs is warranted here. Cheng has provided no 4 justification—even in opposition, in response to PayPal’s accusations of questionable litigation 5 conduct—for dismissing his state court action while a motion to compel arbitration was pending 6 and refiling an identical case in this court. Without any explanation from Cheng, the Court can 7 only infer that Cheng was seeking to delay being sent to arbitration. This resulted in some 8 “unnecessary expenditures” for PayPal which should be compensated. Esquivel, 913 F. Supp. at 9 1391. 10 Cheng’s arguments against the award of costs are grounds for reducing the award, not 11 awarding nothing. First, the Court recognizes the split in authority over whether the word “costs” 12 in Rule 41(d) includes attorneys’ fees. Opp. at 6; compare, e.g., Esquivel, 913 F. Supp. at 1388– 13 92 (extensively analyzing competing cases and concluding that the purpose of Rule 41(d) provides 14 a basis for awarding attorneys’ fees as part of “costs”), with Rogers v. Wal-Mart Stores, Inc., 230 15 F.3d 868, 874–75 (6th Cir. 2000) (finding that “costs” under Rule 41(d) does not include 16 attorneys’ fees). The Court finds the extensive discussion and analysis in Esquivel more 17 persuasive. The rule’s purpose of “discourag[ing] indiscriminate and vexatious litigation and 18 unnecessary expenditures by defending parties” would not be fulfilled if reimbursement was 19 limited strictly to costs like filing fees. Esquivel, 913 F. Supp. at 1391; see also Nielson v. Union 20 Bank of California, N.A., 2003 WL 27374136, at *6 (C.D. Cal. Mar. 31, 2003) (“majority rule” of 21 awarding attorneys’ fees within costs “more accurately reflects the intent of Rule 41(d)”). The 22 Court will include an award of attorneys’ fees here. 23 Cheng also contends that any fee award should be reduced because PayPal was able to 24 reuse its work in responding to the motion to compel in the instant case. Opp. at 6–7. PayPal 25 responds that the bulk of the fees it incurred were for “efforts to merely start the arbitration 26 process” and that “more than half of” its state court motion research was not reused in its federal 27 motion. Reply at 8–9. The Court finds that some of PayPal’s work from its state motion was 1 some of the research discussing the standards applicable under the FAA and Delaware law are 2 reused. Compare ECF No. 14 at 2–6, with ECF No. 18-2, Ex. 3 at 6–8, 9–12. PayPal did, 3 however, have to conduct additional research on the California Arbitration Act that was not useful 4 in this Court. See ECF No. 18-2, Ex. 3 at 8–9. It also incurred costs in the state court and in 5 beginning the arbitration process that were lost when it had to start over in this Court. Exercising 6 its discretion under Rule 41(d), the Court will reduce PayPal’s request to account for reused work. 7 ii. PayPal’s Request for Costs Is Reasonable With a Reduction for Reused Work 8 9 The Court finds that the data underlying the cost request itself supports an award of fees to 10 PayPal. Courts in this district follow the lodestar method to determine the reasonableness of a fee 11 request. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar 12 method, the most useful starting point “is the number of hours reasonably expended on the 13 litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 14 (1983), abrogated on other grounds by Tex. State Teachers Ass'n. v. Garland Indep. Sch. Dist., 15 489 U.S. 782 (1989). The party seeking an award of fees should submit evidence supporting the 16 hours worked and rates claimed. Id. “In determining a reasonable hourly rate, the district court 17 should be guided by the rate prevailing in the community for similar work performed by attorneys 18 of comparable skill, experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 19 1210–11 (9th Cir. 1986). “Generally, the relevant community is the forum in which the district 20 court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th. Cir. 1997). Cheng does not address the data 21 underlying PayPal’s costs request. On an independent examination, the Court finds it reasonable 22 with reductions for reused work. 23 First, the Court finds that the billing rates for the four attorneys for whom PayPal requests 24 fees—which range from $360 per hour to $530 per hour—are well within the range of reasonable 25 rates approved in this district. See, e.g., Cataphora, Inc. v. Parker, 848 F. Supp. 2d 1064, 1069 26 (N.D. Cal. 2012) (approving hourly rate of $500 per hour in contract case nearly one decade ago). 27 Second, the Court will reduce the number of hours that PayPal seeks to account for work 1 work across the four attorneys for drafting its motion to compel arbitration, performing other work 2 in the state court proceedings (such as drafting its case management statement), and readying the 3 case for arbitration. Park Decl., ECF No. 14 at 98 ¶¶ 15–18. The Court finds that the work was 4 distributed among the attorneys appropriately. For example, Ms. Bohme spent the greatest 5 number of hours on the case, and she also has the lowest billing rate. Compare Carpenter’s 6 Pension Trust Fund for N. Calif. v. Walker, 2015 WL 1050479, at *2 (N.D. Cal. Mar. 9, 2015) 7 (reducing fees because work on a motion for summary judgment was not properly delegated to 8 attorneys with lower billing rates). 9 Looking to the individual entries, the Court finds reductions appropriate to account for 10 work that could be reused in this Court. The Court recognizes that PayPal has already reduced its 11 request to eliminate work performed by paralegals and some work performed by the four 12 attorneys. See Park Decl. Ex. C, ECF No. 14 at 130–34 (highlighted entries not included in costs 13 request). But as the Court has already found, some of the work incurred in preparing the state 14 court motion to compel arbitration could be reused in this Court. For example, the Court will 15 reduce Ms. Bohme’s hours on March 31, 2021 spent “[d]raft[ing] motion to compel arbitration 16 and declaration under California law” from 4.2 hours to 2.5 hours to account for research reused in 17 the federal motion. Id. at 133. Similarly, the Court will reduce hours spent on initial strategy 18 discussions after which PayPal decided to move to compel arbitration. See, e.g., id. at 131 (entries 19 in late February 2021 involving strategy communications between counsel and PayPal). That 20 strategy was partially reexecuted when PayPal filed its motion to compel in this Court. The Court 21 will, in contrast, award PayPal its full request for the hours it spent on work solely useful in the 22 state court case, such as PayPal’s preparation of its case management conference statement. This 23 includes entries such as those by both Mr. Park and Ms. Bohme from April 28–30, 2021. See id. 24 at 134. After applying these principles to PayPal’s billing records, the Court has calculated the 25 following table of costs: 26 / / / 27 / / / ! 2 ||| irs. Remested | 69 | sa | ot [tirsawaraed | os

6 7 The Court will also grant PayPal the $5.72 in filing fees it requests. See Park Decl. | 19. Adding 8 this to the subtotals above, the Court will award PayPal $5,485.72 in total costs under Rule 41(d). 9 IV. ORDER 10 For the foregoing reasons, IT IS HEREBY ORDERED that PayPal’s motion to compel 11 arbitration is GRANTED. This case is DISMISSED WITHOUT PREJUDICE to filing a later 12 action to confirm or vacate the arbitration award. PayPal is AWARDED $5,485.72 in costs 13 pursuant to Federal Rule of Civil Procedure 41(d). 14 3 15 |] Dated: January 13, 2022 hon en 16 / Co f l flr Me BETH LABSON FREEMAN 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28