Plaintiff, ORDER RE MOTION TO COMPEL v. ARBITRATION, MOTION TO STRIKE, AND PLAINTIFFS’ OBJECTIONS TO WILLIAM JOSEPH STRAFACH, et al., EVIDENCE Defendants. Re: Dkt. Nos. 45, 61, 64
Errata sheets are designed to correct errors and can’t be used as a do-it-over tool especially after-the-fact. Defendants presented no error to Plaintiff or to the Court. Defendants did not reveal who is the initiator of the correction/modification. Plaintiff has never agreed to the “correction” and is not going to. Defendants specify no reason for the “correction.” MTS at 3. The correction made is precisely the type of oversight for which an errata is appropriate, and the reason for the correction is stated on the errata, identifying the page and line number corrected. See Kaplan, 2017 WL 3478801, at *9 n.8. This is not an inappropriate do- over, it does not require identification of who initiated it, and while parties should be able to resolve these types of issues by stipulation, consent is not required to make the correction at issue here. See id. (stating that “[u]nless a party refuses to provide a properly sworn declaration, the Court expects this sort of oversight to be resolved through communication and stipulation, not through evidentiary objections.”) (emphasis in original). Emelyanenko’s argument that the errata violates Civil Local Rule 7-3(d) also lacks merit. MTS at 3. With limited exceptions not applicable here, the rule prohibits the filing of “additional memoranda, papers, or letters” once a reply is filed unless the filing party first obtains court approval. See Civil L.R. 7-3(d). An errata making the limited correction at issue here is not the type of additional memoranda, paper, or letter prohibited by Civil Local Rule 7-3(d). See Bias v. Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (stating that “[n]otices of errata to clarify clerical errors are substantively different from attempts to file supplemental briefs unauthorized by local rules.”). Emelyanenko’s remaining arguments fare no better. He argues that he is prejudiced by the errata because Defendants waited “to try to introduce something that’s both inadmissible and pretty arguable for the sake of delaying the prosecution of this case,” Defendants did not confer with him or try to obtain his consent, and Defendants should have raised the factual contentions in the Schodt declaration in their opening brief. MTS at 3. Emelyanenko’s claims of prejudice are not persuasive. As a preliminary matter, other than the argument concerning consent, which the by the errata. They attack the substance of the Schodt declaration itself. Emelyanenko’s arguments are thus unpersuasive for this reason alone.6 But even if Emelyanenko’s challenges to the substance of the Schodt declaration were proper, Defendants may, as here, properly respond to arguments raised in an opposition to a motion on reply. See Applied Materials, Inc. v. Demaray LLC, No. 5:20-CV-05676-EJD, 2020 WL 8515132, at *1 (N.D. Cal. Dec. 16, 2020) (explaining that “evidence submitted with a reply brief is not new evidence when it is submitted to rebut arguments raised in the opposition brief”). For this reason, Emelyanenko is not entitled to prevail on his motion to strike based on the timing of the Schodt declaration or the errata. Indeed, had that timing somehow prejudiced his ability to oppose the motion to compel arbitration as he contends, he could have sought leave of Court to file a sur-reply, as he did in connection with the prior motion. See ECF 35. Accordingly, the Court DENIES the motion to strike and now turns to the objections Emelyanenko raises to Defendants’ reply evidence. B. Objections to Evidence Emelyanenko objects to the declarations Defendants submitted with their reply in support of the motion to compel arbitration. ECF 61 (“Objs.”). The Court addresses each objection in the sequence presented by Emelyanenko. First, Emelyanenko objects that Schodt’s declaration is not made under penalty of perjury in compliance with 28 U.S.C. § 1746.7 This objection is OVERRULED because, as discussed above, the errata to the Schodt declaration cures the deficiency in the original declaration. See Kaplan, 2017 WL 3478801, at *9 n.8. Second, Emelyanenko objects that Schodt “doesn’t offer his availability to the Court or 6 The Court does not reach Emelyanenko’s argument about Sudo’s lack of corporate powers, see MTS at 4-5, because it is wholly unrelated to the subject of the motion to strike, i.e., whether the errata to the Schodt declaration is improper. The Court discusses Emelyanenko’s attack on the admissibility of the Schodt declaration and challenges to the factual assertions contained in it together with the duplicative evidentiary objections he has raised.
7 The statute requires that declarations executed in the United States contain an attestation the declarant’s statements are true and correct under penalty of perjury. See 28 U.S.C. § 1746. Plaintiff.” Objs. at 2. The Court construes this objection as a challenge to the admissibility of Schodt’s declaration. So construed, it is OVERRULED because at this stage, the Court “does not focus on the admissibility of the evidence’s form so long as the contents are capable of presentation in an admissible form at trial.” See Lomeli, 2019 WL 4695279, at *7 (internal quotations and citations omitted). Third, Emelyanenko objects to the timing of the declaration, arguing that Defendants “elected to submit their largest by volume ‘declaration’ as part of their [r]eply so that Plaintiff couldn’t respond to that.” Objs. at 2. This objection is OVERRULED because, as explained above, Emelyanenko had the option to seek leave of Court to file a sur-reply, as he did in connection with the prior motion to compel arbitration, or object to improper reply evidence, as he has done here. Fourth, Emelyanenko objects that the Schodt declaration “doesn’t shed a light on the relevant issues.” Id. This objection is OVERRULED because the factual assertions contained in the declaration bear on whether an arbitration agreement exists. Fifth, Emelyanenko objects that “Schodt’s ‘testimony’ doesn’t establish how the signature records are maintained/perpetuated or other relevant business practices.” Id. The Court construes Emelyanenko’s objection as a challenge to Schodt’s qualifications to lay foundation for the business records attached to his declaration. So construed, it is OVERRULED. Schodt declares that he has “personal knowledge regarding . . . the online operating platform for . . . clients and former clients, such as Defendant, that provides, among other things, newly hired employees their onboarding documents and maintains employment records . . . .” Schodt Decl. ¶ 2. He also declares that he is familiar with his company’s “processes for collecting, obtaining agreement with respect to, and storing employee personnel records.” Id. This is sufficient. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 514 (9th Cir. 1989) (explaining that “[t]he foundation requirement for Rule 803(6) may be satisfied by the testimony of anyone who is familiar with the manner in which the document was prepared, even if he lacks firsthand knowledge of the matter reported, and even if he did not himself either prepare the record or even observe its preparation.”) Sixth, Emelyanenko objects that Schodt does not support certain assertions in his declaration with business records, citing Civil Local Rule 7-5. That rule provides: (a) Affidavit or Declaration Required. Factual contentions made in support of or in opposition to any motion must be supported by an affidavit or declaration and by appropriate references to the record. Extracts from depositions, interrogatory answers, requests for admission and other evidentiary matters must be appropriately authenticated by an affidavit or declaration.
(b) Form. An affidavit or declaration may contain only facts, must conform as much as possible to the requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument. Any statement made upon information or belief must specify the basis therefor. An affidavit or declaration not in compliance with this rule may be stricken in whole or in part. Civil L.R. 7-5. The Court OVERRULES Emelyanenko’s objection because Schodt’s declaration does not violate the local rule. Emelyanenko also objects to the electronic DocuSign signature on the Schodt declaration. Objs. at 3. The objection is OVERRULED. See Newton v. Am. Debt Servs., Inc., 854 F. Supp. 2d 712, 731 (N.D. Cal. 2012), aff’d, 549 F. App’x 692 (9th Cir. 2013) (explaining that DocuSign is “a company that is used to electronically sign documents in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN)” and that “[u]nder ESIGN, electronic records and signatures that are in compliance with ESIGN are legally binding.”). Emelyanenko’s remaining objections, which are not limited to the Schodt declaration, are OVERRULED because Emelyanenko uses the purported objections as a vehicle to dispute certain factual assertions rather than present a basis upon which the Court may properly sustain an evidentiary objection. For example, Emelyanenko contends that his experience with the onboarding process is different from what Schodt describes in his declaration. Id. at 3. He contends that he has no record of the email prompting him to begin the onboarding process that Schodt describes in his declaration. Id. He accuses Defendants of having failed to disclose or destroyed facts and evidence that support his position. Id. at 4-5. He also raises a number of factual contentions about “undue duress, threats and other forms of oppression” he suffered, about executed the arbitration agreement, about when Defendants had notice of his claims before this lawsuit, and about Strafach “publicly representing himself as [a] ‘hacker.’ ” Id. These are not proper objections, and as such, are OVERRULED. Having resolved these objections and the motion to strike as set forth above, the Court now turns to the motion to compel arbitration. C. Motion to Compel Arbitration If “there are genuine disputes of material fact as to whether the parties formed an arbitration agreement, the court must proceed without delay to a trial on arbitrability and hold any motion to compel arbitration in abeyance until the factual issues have been resolved.” Hansen, 1 F.4th at 672. “[A] court is not authorized to dispose of a motion to compel arbitration until after factual disputes have been resolved . . . .” Id. at 671. As discussed below, material factual disputes exist as to whether Defendants waived their right to compel arbitration or breached the agreement such that further proceedings are necessary to resolve the question of arbitrability. Emelyanenko declares that he delivered an arbitration demand on June 18, 2022. ECF 52 (“Emelyanenko Decl.”) ¶ 26. He provided a copy to Patel when he “appeared” at Emelyanenko’s residence demanding that he sign “what appeared to be signature pages releasing Sudo and Strafach from liability, as well as giving up [his] equity in Sudo.” Id. ¶ 39. Emelyanenko declined to sign despite Patel’s representations that “those signatures were needed to initiate an arbitration process.” Id. Patel kept the demand letter, took pictures of every page, and sent them to Strafach. Id. Strafach acknowledged receipt. Id. Defendants ignore this evidence, claiming that Emelyanenko does not “provide any documentary evidence to support this claim . . . []or offer any details in the way of times, dates, or the content of such an effort . . . or any evidence showing the demand was shared with Defendants.” ECF 60 (“Reply”) at 9. Nonetheless, they dispute it. Strafach declares that he “reviewed the arbitration demand that [Emelyanenko] attached to his Opposition[,]” “do[es] not recall ever receiving this arbitration demand,” and does not “have any records that show [he] received it prior to [Emelyanenko] initiating this lawsuit.” ECF 60-2 (“Supp. Strafach Decl.”) ¶ 5. /// Patel declares the same:
[Emelyanenko] states that I received his arbitration demand. I reviewed the arbitration demand that he attached to his Opposition. I do not recall ever receiving this arbitration demand, nor do I have any records that show I received it prior to [Emelyanenko] initiating this lawsuit. See ECF 60-1 (“Supp. Patel Decl.”) ¶ 5. Defendants argue that “[e]ven if [Emelyanenko] had shared the arbitration demand with Defendants[,]” they had no obligation to initiate the arbitration on Plaintiff’s behalf. Reply at 10; see also MTC at 21. The two cases on which Defendants rely for this proposition, however, are inapposite. In Shorts v. Parsons Transportation Group, the agreement at issue provided that “[a]ny party to an employment dispute may initiate mediation by filing Mediation/Arbitration Request Form with the Parsons Dispute Resolution Specialist.” 679 F. Supp. 2d 63, 68 (D.D.C. 2010). Unlike the agreement in Shorts, the Dispute Resolution Agreement at issue here provides:
Employee understands that to bring a claim under this Agreement, Employee must provide, by mail or in-person delivery, a written statement of their claim to the Party against whom the claim is being made. Employee also understands that they have the right to be represented by an attorney in the arbitration of any claim under this Agreement, but Employee is not required to have an attorney. Employee further understands that Employee must present any claim in arbitration before the statute of limitations expires for that type of claim.
At the beginning of any arbitration process under this Agreement, Employee and the Company or PEO will need to select an arbitrator by mutual agreement. Such an arbitrator shall be a retired California Superior Court Judge, or another qualified and impartial person that Employee and the Company or PEO decide upon. In the event Employee and the Company or PEO cannot agree on the selection of an arbitrator, they will select an alternative dispute resolution provider and request from that provider a list of an odd number of potential arbitrators. From that list Employee and the Company or PEO will alternatively strike arbitrators, with the Company or PEO going first, until one arbitrator is left. That arbitrator shall be the arbitrator who will hear our case. Dispute Resolution Agreement at 2. At a minimum, then, assuming Emelyanenko in fact delivered written notice to Defendants as he declares, that would have triggered Defendants’ obligation to engage in the selection of a mutually agreeable arbitrator, even if they had no 1 Ohio Plumbing v. Fiorilli Construction is also of little help to Defendants. In that case, the 2 issue before the Court was whether “a defendant must initiate arbitration proceedings before it can 3 seek a stay of litigation pending arbitration.” 111 N.E.3d 763, 770 (Ohio Ct. App. 2018). That 4 issue is distinct from the one Emelyanenko raises here, 1.e., whether Defendants ignored his 5 written arbitration demand. 6 Because the record evidence discussed above presents a genuine dispute of material fact as 7 to whether Defendants waived their arbitration rights or breached the agreement they now seek to 8 || enforce, further proceedings are necessary. See Hansen, | F.Ath at 672. For this reason, the Court 9 does not reach the remaining arguments in the briefing on the motion to compel arbitration at this 10 time. 12 For the reasons set forth above, the Court DEFERS RULING on the motion to compel 13 arbitration pending further proceedings. Emelyanenko’s objections to evidence are 14 OVERRULED, and his motion to strike is DENIED. The parties shall file a joint case 15 management conference statement by no later than noon on October 3, 2024. In addition to 16 complying with the Standing Order for all Judges of the Northern District of California and this 3 17 Court’s Standing Order for Civil Cases, the parties shall include their respective positions on S 18 whether a jury or bench trial, or some other proceeding, is appropriate to resolve the motion to 19 compel arbitration. The Court will hold a case management conference on October 10, 2024 at 20 10:00 a.m. If the parties intend to proceed to trial, they shall be prepared to address the anticipated 21 length of trial, the number of witnesses, and scheduling. 23 Dated: September 27, 2024 24 □ □ 7 25 : ARACELI MARTINEZ-OLGUIN 26 United States District Judge 27 28
Emelyanenko v. Strafach, (N.D. Cal. 2024).
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