UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JESUS M. CHRISTIAN, et al.,
Plaintiffs,
v. Civil Action No. 24-00304 (EGS) UBER TECHNOLOGIES, INC., et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Jesus M. Christian (“Mr. Christan”), in his
individual capacity and as the personal representative of the
estate of his son, Carlos Enrique Christian Rey (“Mr. Rey”), and
Camila Alexia Selman Troncoso (“Ms. Troncoso”), bring this
action against Defendants seeking damages for personal injuries
stemming from a car collision during an Uber ride. Compl., ECF
No. 1 at 1–2. 1 Uber Technologies, Inc. and Rasier, LLC, a wholly
owned subsidiary of Uber Technologies, Inc. (together, “Uber”),
seek to compel arbitration pursuant to Uber’s Terms of Use. See
Uber’s Mot. to Compel Arbitration and Dismiss, ECF No. 18.
1 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document.
1 Pending before the Court is Uber’s Motion to Compel
Arbitration and Dismiss. See id. 2 Upon careful consideration of
the motion, the responses and replies thereto, applicable law,
the entire record, and for the reasons explained below, the
Court GRANTS Uber’s Motion to Compel Arbitration, ECF No. 18;
DENIES Uber’s Motion to Dismiss, ECF No. 18; and STAYS
proceedings pending the outcome of arbitration.
I. Background
Uber “develops proprietary technology to develop and
maintain digital multi-sided platforms.” Uber’s Mem. in Support
of Mot. to Compel Arbitration and Dismiss (“Uber’s Mot.”), ECF
No. 18-1 at 2. Relevant here, Uber’s ride-sharing platform
allows individuals needing a ride (“Riders”) to connect with
individuals willing to provide transportation services
(“Drivers”) through the respective Uber Apps. Id. at 2–3.
Mr. Christian, Ms. Troncoso, and Mr. Rey each created
separate Uber Rider accounts between January and October of
2016. See Uber Rep. for Carlos Christian, ECF No. 18-5; Uber
2 Also pending before the Court is Plaintiffs’ Motion for Leave to File a Surreply. See Pls.’ Mot. for Leave to File Surreply, ECF No. 24; Pls.’ Mem. in Support of Mot. for Leave to File Surreply, ECF No. 24-1. The authorities cited by Plaintiffs, and allegedly raised by Uber for the first time in its Reply, have no bearing on the Court’s conclusions that a contract formed between Plaintiffs and Uber and that the Arbitration Agreement contains a valid Delegation Clause. Accordingly, the Court DENIES Plaintiffs’ Motion for a Surreply.
2 Rep. for Camila Selman, ECF No. 18-7; Uber Rep. for Jesus
Christian, ECF No. 18-8. In February and March 2022, upon
opening their Uber Apps, Mr. Christian, Mr. Rey, and Ms.
Troncoso were presented with an in-app blocking pop-up screen
with the header “We’ve updated our terms.” Aff. of Alejandra
O’Connor (“O’Connor Aff.”), ECF No. 18-3 ¶¶ 9, 13. The pop-up
encouraged users to read the updated, linked terms dated
December 16, 2021, and required the user to check a box and
click “confirm” before using the Uber app. Id. ¶ 10; see also
Updated Terms Pop-Up Screen (“Pop-Up Screen”), ECF No. 18-4. The
notice confirmed the user was eighteen years of age and stated:
“By checking the box, I have reviewed and agreed to the Terms of
Use and acknowledge the Privacy Notice.” O’Connor Aff., ECF No.
18-3 ¶ 11. Mr. Rey, Ms. Troncoso, and Mr. Christian each checked
the box and clicked “confirm” on February 12, 2022; February 15,
2022; and March 31, 2022, respectively. Id. ¶¶ 13, 15, 21.
The December 16, 2021 Terms included an arbitration
agreement (the “Arbitration Agreement”), which stated:
[Y]ou and Uber agree that any dispute, claim, or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof; (ii) your access to or use of the Services at any time; (iii) incidents or accidents resulting in personal injury to you or anyone else that you allege occurred in connection with your use of the Services (including, but not limited to,
3 your use of the Uber Marketplace Platform or the driver version of the Uber App), regardless whether the dispute, claim, or controversy occurred or accrued before or after the date you agreed to the Terms, and regardless whether you allege that the personal injury was experienced by you or anyone else; and (iv) your relationship with Uber, will be settled by binding individual arbitration between you and Uber, and not in a court of law. This Arbitration Agreement survives after your relationship with Uber ends.
Ubers Terms of Use Modified on Dec. 16, 2021 (“Dec. 2021 Terms
of Use”), ECF No. 18-6 at 3–4.
The Terms also included a Delegation Clause, which stated,
in part:
Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel.
Id. at 6.
On January 15, 2023, Mr. Rey requested a ride through his
Uber App to take him and his long-term girlfriend, Ms. Troncoso,
to Georgetown for an art exhibit. See Compl., ECF No. 1 ¶ 53.
4 Through Uber’s Driver App, Defendant Khalinmandakh Ichinkhorol
(“Mr. Ichinkhorol”) was connected with Mr. Rey to complete his
ride request. Id. ¶ 54. During the trip, Mr. Rey and Ms.
Troncoso sat in the back seat wearing their seatbelts. Id. Mr.
Ichinkhorol’s route required him to make a left turn at the
intersection of 15th Street, N.W. and Massachusetts Avenue, N.W.
Id. ¶ 60. As Mr. Ichinkhorol moved into the intersection to make
the left turn, Defendant Reinald Roland Johnson’s (“Mr.
Johnson”) car approached the intersection, where he had a green
light, requiring individuals making a left turn to yield to him
and other oncoming traffic. Id. ¶¶ 62–66. Mr. Johnson’s vehicle
struck the Uber broadside, colliding directly with the passenger
side of the car. See id. ¶ 66; Photographs of Ichinkhorol’s
vehicle, January 15, 2023 (“Pls.’ Ex. D-6”), ECF No. 21-5 at 27–
33. After being extracted from the vehicle and transported to
George Washington University Hospital, Mr. Rey died from the
injuries he sustained in the collision. Compl., ECF No. 1 ¶ 75.
Ms. Troncoso suffered series physical injuries, “including four
pelvic fractures, a displaced lumbar vertebra, a lung contusion,
splenic hematoma, and concussion.” Id. ¶ 77. 3
3 On June 30, 2023, Mr. Johnson pled guilty to involuntary manslaughter after his blood alcohol level was found to be above the legal limit at the time of the collision. See Compl., ECF No. 1 ¶ 68.
5 Plaintiffs now bring negligence claims along with claims
under the Wrongful Death Act and Survival Act against Uber, Mr.
Johnson, and Mr. Ichinkhorol. Id. at 19–23.
I. Legal Standard
A motion to compel arbitration is examined under the
summary judgment standard of Federal Rule of Civil Procedure
56(c), as if it were “a request for summary disposition of the
issue of whether or not there had been a meeting of the minds on
the agreement to arbitrate.” Mercadante v. XE Servs., LLC, 78 F.
Supp. 3d 131, 136 (D.D.C. 2015) (quoting Aliron Int’l, Inc. v.
Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir.
2008)) (internal quotation marks omitted). Under Rule 56(c),
summary judgment is appropriate only if “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Id. (quoting Aliron
Int’l, 531 F.3d at 865) (internal quotation marks omitted). “The
party seeking to compel arbitration must present evidence
sufficient to demonstrate an enforceable agreement to
arbitrate.” Id. (quoting Haire v. Smith, Currie & Hancock LLP,
925 F. Supp. 2d 126, 129 (D.D.C. 2013)) (internal quotation
marks omitted). “The burden then shifts to plaintiffs to show
that there is a genuine issue of material fact as to the making
of the agreement.” Id. (internal quotation marks omitted). “The
Court will compel arbitration if the pleadings and the evidence
6 show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” Id. (internal quotation marks omitted).
Under the Federal Arbitration Act (“FAA”), a contractual
provision requiring arbitration is “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. Thus, the FAA
“places arbitration agreements on equal footing with other
contracts . . . and requires courts to enforce them according to
their terms[.]” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63,
67 (2019) (internal citations omitted). In addition to agreeing
to arbitrate, parties may also “agree to have an arbitrator
decide . . . ‘gateway’ questions of ‘arbitrability,’ such as
whether the parties have agreed to arbitrate or whether their
agreement covers a particular controversy.” Henry Schein v.
Archer, 586 U.S. 63, 68 (2019) (quoting Rent-A-Center, 561 U.S.
at 68–69) (internal quotation marks omitted).
II. Analysis
Uber seeks to compel arbitration pursuant to the FAA and
the Arbitration Agreement contained in its Terms of Use. See
Uber’s Mot., ECF No. 18-1 at 9–11. Plaintiffs do not dispute
that they checked the box indicating their review of, and
agreement to, the Terms of Use containing the Arbitration
Agreement and Delegation Clause, or that they further clicked
7 “Confirm.” See generally Pls.’ Opp., ECF No. 21. Rather,
Plaintiffs challenge the Arbitration Agreement, including the
Delegation Clause, in three ways. First, Plaintiffs contend the
pop-up with Uber’s updated terms did not put Plaintiffs on
notice that clicking “Confirm” would “manifest assent to an
agreement,” and therefore, no contract was formed. See id. at
31–34. In the alternative, Plaintiffs argue that both the
Arbitration Agreement and Delegation Clause are unenforceable
because they are unconscionable and against public policy. 4 Id.
at 27–31. Finally, Plaintiffs argue that even if there is an
enforceable arbitration agreement, their claims are not
arbitrable. Id. at 13–17. Before turning to the enforceability
of the Arbitration Agreement or the question of arbitrability—
including whether the Court is the proper forum to resolve those
issues—the Court examines whether the in-app blocking pop-up
screen formed a contract.
4 Challenges to a contract’s formation are distinguishable from challenges to the “validity” of a contract. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006). “While the former category concerns nonarbitral questions about whether an arbitration agreement was ‘ever concluded,’ the latter category encompasses questions about the revocation of contracts because of illegality, such as for fraud, duress, unconscionability or mutual mistake, which may be the subject of arbitration.” RDP Techs., Inc. v. Cambi AS, 800 F. Supp. 2d 127, 139 (D.D.C. 2011) (citing Buckeye, 546 U.S. at 443, 444 n.1) (internal citations omitted).
8 A. The Parties Formed an Agreement to Arbitrate
“[A]rbitration is a matter of contract[,] and a party
cannot be required to submit to arbitration any dispute which he
has not agreed so to submit.” AT & T Techs., Inc. v. Commc’n
Workers of Am., 475 U.S. 643, 648 (1986). Accordingly, “the
first task of a court asked to compel arbitration of a dispute
is to determine whether the parties agreed to arbitrate that
dispute.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 626 (1985). Matters of contract formation
are for the court to decide. See Granite Rock Co. v. Int’l
Brotherhood of Teamsters, 561 U.S. 287, 288 (2010) (“It is [ ]
well settled that where the dispute at issue concerns contract
formation, the dispute is generally for courts to decide.”)
(collecting cases). 5 The parties do not dispute that District of
Columbia (“D.C.”) law governs the contract formation inquiry.
See Dec. 2021 Terms of Use, ECF No. 18-6 (stating that the law
of the state where an accident occurred governs disputes arising
from the accident); First Options of Chi., Inc. v. Kaplan, 514
U.S. 938, 944 (1995) (noting that courts apply ordinary state-
law principles to formation questions). Under D.C. common law, a
5 As the Court addresses later in this Opinion, the Delegation Clause within the Arbitration Agreement provides that an arbitrator shall resolve disputes regarding formation of a contract. See Dec. 2021 Terms of Use, ECF No. 18-6 at 6. However, the law is clear that formation issues are for the Court to decide.
9 contract forms when the parties “express[ ] an intent to be
bound, agree[ ] to all material terms, and assume[ ] mutual
obligations sufficient to create an enforceable contract.”
Eastbanc, Inc. v. Georgetown Park Ass’ns II, L.P., 940 A.2d 996,
1004 (D.C. 2008).
Uber has met its initial burden of establishing that a
contract formed between the parties with respect to the
arbitration provision. See, e.g., Gambo v. Lyft, 642 F. Supp. 3d
46, 54–55 (D.D.C. 2022) (holding plaintiff had reasonable notice
of the contract where he was presented with a clickwrap
agreement providing a hyperlink to the relevant terms).
Plaintiffs do not dispute that they agreed to and clicked
“Confirm” on Uber’s in-app Pop-Up Screen with the updated Terms
of Use. See generally Pls.’ Opp., ECF No. 21. Instead,
Plaintiffs argue that the Pop-Up Screen is insufficient to
establish mutual assent because it would not have put a
reasonable person on notice that she was entering into a
contract. See id. at 31–33. In response, Defendants present the
Court with a plethora of cases where other courts have upheld
“clickwrap” agreements such as the one at issue here. 6 See Uber’s
6 A clickwrap agreement is “an agreement ‘in which an internet user accepts a website’s terms of use by clicking an ‘I agree’ or ‘I accept’ button, with a link to the agreement readily available[.]’” Gambo, 642 F. Supp. 2d at 49–50 (quoting Seldon v. Airbnb, Inc., No. 16-cv-00933, 2016 WL 6476934, at *4 (D.D.C. Nov. 1, 2016), aff’d, 4 F.4th 148 (D.C. Cir. 2021)).
10 Reply in Support of Mot. to Compel Arbitration (“Uber’s Reply”),
ECF No. 23 at 19 n.4.
Following in the footsteps of many other courts in this
Circuit, the Court agrees that Uber’s pop-up screen provided a
reasonable person with notice that he was entering into a
contract. In Selden v. Airbnb, Inc., the Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”) held that
Airbnb’s sign-up page put the plaintiff on inquiry notice that
by signing up for Airbnb he agreed to its terms of service. 4
F.4th at 156. 7 Examining the sign-up screen’s design, the court
concluded that the red text against the white background “drew a
user’s attention to the hyperlinked terms” and any reasonable
user would understand that he was agreeing to the terms by
signing up. Id. at 156–57. Going steps further than the notice
in Selden, Uber’s pop-up screen makes it abundantly clear that
checking the box and clicking “Confirm” would manifest assent to
an agreement. Against a white backdrop, the page immediately
draws a user’s eye to the statement: “We encourage you to read
our Updated Terms in full.” See Pop-Up Screen, ECF No. 18-4.
Underneath, in a bright blue font, the pop-up includes
hyperlinks to the relevant documents. Id. Further, before users
7 While the D.C. Circuit applied California state contract law, D.C.’s common law on contracts does not differ in any material way. Gambo, 642 F. Supp. 3d at 54. In Gambo this court applied the D.C. Circuit’s reasoning in Seldon to D.C. law. Id.
11 could access the app’s features, they had to check a box next to
a statement notifying the user: “By checking the box, I have
reviewed and agree to the Terms of Use and acknowledge the
Privacy Notice.” Id.; O’Connor Aff., ECF No. 18-3 ¶¶ 9, 15, 21.
Any reasonable user would understand that by checking the box
and clicking “Confirm,” he was agreeing to those terms.
Plaintiffs attempt to distinguish their case by arguing
that Uber failed to establish that Plaintiffs signed any
agreements with Uber when they first created their accounts. See
Pls.’ Opp., ECF No. 21 at 28–30. Thus, having no prior dealings
with Uber, the Court should consider “whether users not already
in agreements with Uber ‘would have known the terms and the
conduct that would be required to assent to them.’” Id. at 30
(emphasis in original) (quoting Selden, 4 F.4th at 156). The
Court finds this argument unpersuasive. Even using the standard
articulated by Plaintiffs for users not already in agreements
with Uber, the pop-up screen’s design and links are more than
sufficient to provide a reasonable user with notice that he was
entering into an agreement.
Finally, Plaintiffs argue that the pop-up screen is
“confusing” to users, asserting that Uber’s intent of the pop-up
is unclear and “[t]he supposed contractual nature of the Terms
is hardly the most prominent information on the pop-up page.”
Id. at 31–32. Plaintiffs contend that the fact that users could
12 click confirm without clicking on the terms “might lead some
reasonable users to discount any weight they might have placed
on this page,” and therefore, would be unaware they were
agreeing to arbitration. Id. at 32–33. The Court concludes that
these characterizations of the pop-up are inaccurate, illogical,
and unpersuasive. It is well established that “absent fraud or
mistake, one who signs a contract is bound by a contract which
he has an opportunity to read whether he does so or not.”
Forrest v. Verizon Commc’ns, Inc., 805 A.2d 1007, 1010 (D.C.
2002). Here, regardless of whether Plaintiffs read the Terms of
Use, they were on inquiry notice of the terms, including the
Arbitration Agreement.
Accordingly, Plaintiffs have failed to establish any
genuine dispute of material fact as to the formation of the
Arbitration Agreement, and the Court concludes that a contract
formed between the Plaintiffs and Uber when Plaintiffs checked
the box on the pop-up and clicked confirm.
B. The FAA Applies to Uber’s Motion to Compel
Next, Plaintiffs argue that the FAA does not apply here for
two related reasons. First, Plaintiffs’ specific claims do not
‘arise out of’ Uber’s Terms of Use, and section 2 of the FAA
“expressly limit[s] [the FAA] to disputes ‘arising from’ the
underlying contract.” Pls.’ Opp., ECF No. 21 at 17. Second, and
more general, Plaintiffs contend that Uber’s Arbitration
13 Agreement is an unenforceable “infinite arbitration clause,”
“plac[ing] the Agreement outside the scope of § 2.” Id. at 35. 8
Both arguments posit that there is a limit to the Supreme
Court’s pro-arbitration canon of construction where the claims
at issue do not arise out of the underlying contract. In
response, Uber argues that this characterization conflates the
issues of scope and validity, which is an important distinction
because “the policy in favor of arbitration [ ] attaches once
there is a finding of a valid agreement.” Uber’s Reply, ECF No.
23 at 5.
There is very little case law—and Plaintiffs point to none
from the D.C. Circuit—on the FAA’s “arising out of” requirement.
See Calderon v. Sixt Rent a Car, LLC, 5 F.4th 1204, 1213 (11th
Cir. 2021); David Horton, Infinite Arbitration Clauses, 168 U.
Pa. L. Rev. 633 (2020) (opining on the legal landscape of
infinite arbitration clauses and the recent push back from lower
courts). Focused on the statutory language of § 2, some courts
have applied a state’s arbitration rules rather than the FAA
where the dispute did not have a sufficient “nexus” to the
underlying contract. See, e.g., Calderon, 5 F.4th at 1213;
Revitch v. DIRECTV, LLC, 977 F.3d 713, 723–24 (9th Cir. 2020)
8 Given the Court’s conclusion that the parties agreed to delegate questions of contract validity to an arbitrator, the Court does not address here whether the Arbitration Agreement is an unconscionable infinite arbitration clause.
14 (O’Scannlain, J., concurring) (“Functionally, the ‘arising out
of’ language in § 2 appears to serve as a boundary to the types
of controversies that are covered by the FAA . . . when the
dispute is wholly unrelated to the contract, the FAA is silent;
federal courts have no power to compel arbitration.”). 9 For
example, in Calderon, the Eleventh Circuit refused to apply the
FAA—and the Moses H. Cone pro-arbitration canon—where the
defendant, a rental car company, invoked an arbitration
agreement between the plaintiff and a third-party website that
plaintiff used to reserve a car. Calderon, 5 F.4th at 1207.
Emphasizing that the lawsuit did not name the third-party as a
defendant or identify any wrongdoing by the third-party, the
court concluded that the lawsuit against the defendant was not
“an immediate, foreseeable result of” accepting the third-
party’s terms of use. Id. at 1208.
First, while the Court agrees that the plaint text of § 2
seems to limits the FAA to “controversies that actually stem
from the contract containing the arbitration clause,” Revitch,
977 F.3d at 723–24 (O’Scannlain, J., concurring); the Supreme
Court rejected a similar exception to the FAA for cases where
9 Notably, this inquiry becomes muddled where, as here, there is a delegation clause requiring an arbitrator to determine arbitrability, which may include the question of whether a claim “arises out of” the underlying contract.
15 the defendant’s argument for arbitration was “wholly groundless”
because the claims were so far attenuated from the underlying
contract. See Henry Schein, 586 U.S. at 68. Particularly
relevant here, the Supreme Court held: “When the parties’
contract delegates the arbitrability question to an arbitrator,
a court may not override the contract . . . That is true even if
the court thinks that the argument that the arbitration
agreement applies to a particular dispute is wholly groundless.”
Id. Henry makes it clear that the Court has no power to
determine whether a claim is arbitrable, or “arises out of” the
underlying contract, where, as here, there is a delegation
clause. Id.
Additionally, without opining on the arbitrability of
Plaintiffs’ specific claims at this stage, the Court disagrees
with Plaintiffs that their claims are so far attenuated from
Uber’s Terms of Use that the Court should not apply the FAA and
the pro-arbitration canons of construction. Unlike in Calderon
where the defendant was not a party to the arbitration
agreement, each Plaintiff here entered into an Arbitration
Agreement with Uber. See O’Connor Aff., ECF No. 18-3 ¶¶ 9, 15,
21. Additionally, the Terms of Use govern the relationship
between a Rider and Uber and what should occur if Riders bring a
lawsuit against Uber. See Dec. 2021 Terms of Use, ECF No. 18-6.
The dispute here is against Uber, for a car accident that
16 occurred during an Uber trip. See generally Compl., ECF No. 1.
The instant lawsuit is exactly the type of lawsuit that a
reasonable Rider would expect to have to arbitrate after
accepting the Terms of Use.
Moreover, even if the Court did not apply the strong pro-
arbitration canon that accompanies application of the FAA,
Plaintiffs have not pointed to any authority suggesting that
application of D.C.’s contract or arbitration law would yield a
different result. In fact, D.C.’s case law also “express[es] a
strong preference favoring arbitration when a contract contains
an arbitration clause.” TRG Customer Sols., Inc. v. Smith, 226
A.3d 751, 755 (D.C. 2020); see D.C. Code § 16-4406, 4407; Carter
v. Cathedral Ave. Coop., Inc., 566 A.2d 716, 717 (D.C. 1989).
C. The Remaining Issues Shall be Determined by the Arbitrator, Not the Court
Given the Court’s conclusion that an agreement was formed
between the parties to arbitrate disputes, the Court turns to
Plaintiffs’ remaining arguments. First, Plaintiffs argue that
their claims are not arbitrable because they do not “arise out
of” Uber’s Terms of Use as required by the Arbitration
Agreement. Pls.’ Opp., ECF No. 21 at 21–25. Second, Plaintiffs
contend that the agreement is an unconscionable, unenforceable
“infinite arbitration clause.” Id. at 27–31. Uber points the
Court to the Delegation Clause contained within the agreed upon
17 Terms of Use, arguing that an arbitrator, not the Court, must
resolve these remaining issues. See Uber’s Mot., ECF No. 18-1 at
15–16. The Delegation Clause requires an arbitrator rather than
the Court to resolve threshold issues, including the scope of
the Arbitration Agreement and contract validity. See Dec. 2021
Terms of Use, ECF No. 18-6 at 6. Since enforcing the Delegation
Clause would send Plaintiffs remaining challenges to an
arbitrator, the Court examines any challenges to the Delegation
Clause first. See Rent-A-Center, 561 U.S. at 71–75.
1. The Delegation Clause is Enforceable
“The delegation provision is an agreement to arbitrate
threshold issues concerning the arbitration agreement.” Id. at
68, 70. Here, the parties do not dispute, and the Court agrees,
that they “clearly and unmistakably” agreed to delegate a host
of threshold issues to an arbitrator. See AT&T Techs., Inc., 475
U.S. at 649; see Mercandante, 78 F. Supp. 3d at 138–39
(concluding the parties “clearly and unmistakably” provided for
an arbitrator to determine threshold questions even where
agreement merely outlined that the American Arbitration
Association rules governed). The Delegation Clause states, in
part:
Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability,
18 enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable.
Dec. 2021 Terms of Use, ECF No. 18-6 at 6. The clause goes on to
include that an arbitrator shall resolve “all threshold
arbitrability issues relating to whether the Terms are
applicable, unconscionable, or illusory and any defense to
arbitration . . . .” Id.
However, before the Court sends any issues to the
arbitrator, the Court must consider any challenges to the
Delegation Clause. See Rent-A-Center, 561 U.S. at 71 (“If a
party challenges the validity under § 2 of the precise agreement
to arbitrate at issue, the federal court must consider the
challenge before ordering compliance with that agreement under §
4.”). “Such challenges, pursuant to the applicable state law,
include contract defenses such as fraud in the inducement,
duress, and unconscionability.” Mercadante, 78 F. Supp. 3d at
137. Here, Plaintiffs assert that the Delegation Clause is
unconscionable and against public policy. See Pls.’ Opp., ECF
No. 21 at 34–35. While Uber’s response does not address the
validity of the Delegation Clause itself, see generally Uber’s
Reply, ECF No. 23 at 7–9 (focusing on the question of
arbitrability once a court determines there is a delegation
clause); Uber argues that the Arbitration Agreement as a whole
19 “contains significant safeguards for users such as Plaintiffs.”
Id. at 11.
The Court concludes that Plaintiffs have failed to
establish any genuine dispute of material fact as to the
validity and enforceability of the Delegation Clause. 10
Plaintiffs’ assertions that the Delegation Clause is
unconscionable and against public policy are unsupported by any
authority or evidence separate from their arguments that the
Arbitration Agreement as a whole is unconscionable. See
generally Pls.’ Opp., ECF No. 21 at 34–35; Rent-A-Center, 561
U.S. at 71–75. Plaintiffs offer no evidence, nor arguments even,
that the Delegation Clause itself is “unreasonably favorable to
the other party” or that they had no “meaningful choice” when
entering into the agreement to delegate. See Doucette v. Neutron
Holdings, Inc., 288 A.3d 339, 342 (D.C. 2023). Without more, the
Court concludes that the Delegation Clause is valid and
enforceable.
Given that the parties have agreed to delegate threshold
questions to an arbitrator, the Court concludes that arbitration
is proper at this stage in the litigation. See Henry Schein, 586
10While the Court must consider whether the Delegation Clause is unconscionable, the question of whether the Arbitration Agreement as a whole is unconscionable or otherwise unenforceable is not a question for the Court at this stage of the proceeding.
20 U.S. at 68–69; Rent-A-Center, 561 U.S. at 71–75. Accordingly,
the Court GRANTS Uber’s Motion to Compel Arbitration and stays
the proceedings against all Defendants. 11
III. Conclusion
For the foregoing reasons the Court GRANTS Uber’s Motion to
Compel Arbitration, ECF No. 18; DENIES Uber’s Motion to Dismiss,
ECF No. 18; DENIES Plaintiffs’ Motion for a Surreply, ECF No.
24; and STAYS proceedings pending the outcome of arbitration. An
appropriate order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan United States District Judge March 17, 2025
11While Uber requests dismissal of the claims against it and Rasier, LLC, and a stay of proceedings against the remaining Defendants, the Court concludes that a stay is appropriate for all Defendants. See 9 U.S.C. § 3; Smith v. Spizzirri, 601 U.S. 472, 478–79 (2024).