UNlTED STATES DISTRICT COURT FOR THE DISTRICT OF C()LUMBIA
GREGORY SELDEN,
Plaintiff,
v. Case No. l6-cv-933 (CRC) AIRBNB, I`NC.,
Defendant.
OPINION AND ORDER
Plaintiff Gregory Seiden brought this suit against Airbnb, alleging unlawqu race discrimination ()n Noveinber l, 2016, the Court issued a Memoranduin Opinion and Ordcr granting Airbnb’s Motion to Compel Arbitration and staying all proceedings in the case. w Selden v. Airbnb, lG-cV-933, 2016 WL 6476934 (D.D.C. Nov. l, 2016). 'l`he Court’s decision to stay the case, rather than to dismiss it, is consistent with recent cases in this district §§§ g at *9 n. 5 (coilecting cases). This decision, however, precludes Selden from immediately appealing the Court’s Order as a matter of right He has thus moved to certify the Order for interlocutory appeal ln the alternative, Selden asks the Court to simply dismiss the case, thus providing a basis for appeal
"I`he Couit may certify an order for interlocutory appeal if it finds there are “controiling question[s] of faw as to Which there is substantial ground for difference ofopinion and that an immediate appeal from the order may materialiy advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). A substantial ground for difference of opinion may be established by “a dearth of precedent Witbin the controliingjurisdiction and conflicting decisions in other circuits.” APCC Servs., lnc. v. AT & T Corp., 297 F. Supp. 2d ]01, 107 (D.D.C. 2003)
(citing City Stores Co. v. Lerner Sbops, 4i0 F.Zd lOlO, lOll (D.C. Cir. 1969)).
’l`his standard is demanding E iudicia| Watch, inc. v. Nat’l Energy Policy Dev. Grp., 233 F. Supp. 2d l6, 19-20 (D.D.C. 2002). “Although courts have discretion to certify an issue for interlocutory appeal, interlocutory appeals are rarely allowed.” Nat’l Clnty. Reinvestment Coal. v. Accredited Hoine Lenders Holdina Co., 597 F. Supp. 2d 120 (D.D.C. 2009) (internai quotations omitted). 'l`he moving party generally bears a heavy burden to show that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judginent.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (l978). And this burden is even more stringent where the Court has compelled arbitration, given the Federal Arbitration Act’s (“FAA”) objective ot`“moving the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 85_86 (2000) (internal quotations omitted); see also Adler v. De|l, lnc., 08-cv-13170, 2009 WL 646885 (l\/iar. i0, 2009} (“Certification [under 28 U.S.C. § l292(b)} is unwarranted where it would frustrate the pro-arbitration tilt of the FAA, with its concomitant policy of avoiding unnecessary delays in prosecuting arbitration in part through the discouragement of immediate appellate review of orders compelling arbitration.”).
The Court reiterates its conclusion that “the applicable law is clean Mutuai arbitration provisions in electronic contracts_so long as their existence is made reasonably known to consun‘lers»mare enforceable, in commerciai disputes and discrimination cases alike.” §meld§g, 20i 6 WL 6476934 at *2 (ernphasis added). Selden argues that appellate guidance is needed on this issue because “the [C]ourt did not . . . cite to any authority from the D.C. Circuit with respect to the nature of electronic bargaining or online adhesion contracts.” Pl.’s l\/Iot. Certify lnterlocutory Appeal (“MCIA”) 5. But the Court did not cite authority from the D.C. Circuit on
this issue because both parties agreed that California law governed the question of contract
formation. See Selden, 20i6 WL 6476934 at *4 n. l. And as the Couit discussed extensively in
its l\/lemorandum Opinion, an electronic adhesion contract must be upheld under California law if its terms are clear and conspicuous ida at *4»»5. Selden also claims that Judge Rakoff’s recent opinion in l\/Ieyer v. Kalanicl<, 2016 WL 4073012 (S.D.N.Y. .luly 29, 2016), finding Uber’S arbitration agreement invalid under California law, constitutes a conflicting decision in another circuit that warrants certification Pl.’s l\/ICIA 4»-5. But .ludge Ral
Nor is there substantial ground for disagreement on the question of whether Selden’s civil rights claims are subject to arbitration Selden argues that “there is no clear authority offered from any higher court indicating that [his civil rights claims are] arbitrable or subject to the FAA.” Pl.’s l\/ICIA 7. l\lot so. 'l`he Supreme Court “has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the polices of congressional enactments giving [individuals] specific protection against discrimination
prohibited by federal law.” Selden, 2016 WL 6476934 at *7 (quoting Circuit City Stores. lnc. v.
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UNlTED STATES DISTRICT COURT FOR THE DISTRICT OF C()LUMBIA
GREGORY SELDEN,
Plaintiff,
v. Case No. l6-cv-933 (CRC) AIRBNB, I`NC.,
Defendant.
OPINION AND ORDER
Plaintiff Gregory Seiden brought this suit against Airbnb, alleging unlawqu race discrimination ()n Noveinber l, 2016, the Court issued a Memoranduin Opinion and Ordcr granting Airbnb’s Motion to Compel Arbitration and staying all proceedings in the case. w Selden v. Airbnb, lG-cV-933, 2016 WL 6476934 (D.D.C. Nov. l, 2016). 'l`he Court’s decision to stay the case, rather than to dismiss it, is consistent with recent cases in this district §§§ g at *9 n. 5 (coilecting cases). This decision, however, precludes Selden from immediately appealing the Court’s Order as a matter of right He has thus moved to certify the Order for interlocutory appeal ln the alternative, Selden asks the Court to simply dismiss the case, thus providing a basis for appeal
"I`he Couit may certify an order for interlocutory appeal if it finds there are “controiling question[s] of faw as to Which there is substantial ground for difference ofopinion and that an immediate appeal from the order may materialiy advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). A substantial ground for difference of opinion may be established by “a dearth of precedent Witbin the controliingjurisdiction and conflicting decisions in other circuits.” APCC Servs., lnc. v. AT & T Corp., 297 F. Supp. 2d ]01, 107 (D.D.C. 2003)
(citing City Stores Co. v. Lerner Sbops, 4i0 F.Zd lOlO, lOll (D.C. Cir. 1969)).
’l`his standard is demanding E iudicia| Watch, inc. v. Nat’l Energy Policy Dev. Grp., 233 F. Supp. 2d l6, 19-20 (D.D.C. 2002). “Although courts have discretion to certify an issue for interlocutory appeal, interlocutory appeals are rarely allowed.” Nat’l Clnty. Reinvestment Coal. v. Accredited Hoine Lenders Holdina Co., 597 F. Supp. 2d 120 (D.D.C. 2009) (internai quotations omitted). 'l`he moving party generally bears a heavy burden to show that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judginent.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (l978). And this burden is even more stringent where the Court has compelled arbitration, given the Federal Arbitration Act’s (“FAA”) objective ot`“moving the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 85_86 (2000) (internal quotations omitted); see also Adler v. De|l, lnc., 08-cv-13170, 2009 WL 646885 (l\/iar. i0, 2009} (“Certification [under 28 U.S.C. § l292(b)} is unwarranted where it would frustrate the pro-arbitration tilt of the FAA, with its concomitant policy of avoiding unnecessary delays in prosecuting arbitration in part through the discouragement of immediate appellate review of orders compelling arbitration.”).
The Court reiterates its conclusion that “the applicable law is clean Mutuai arbitration provisions in electronic contracts_so long as their existence is made reasonably known to consun‘lers»mare enforceable, in commerciai disputes and discrimination cases alike.” §meld§g, 20i 6 WL 6476934 at *2 (ernphasis added). Selden argues that appellate guidance is needed on this issue because “the [C]ourt did not . . . cite to any authority from the D.C. Circuit with respect to the nature of electronic bargaining or online adhesion contracts.” Pl.’s l\/Iot. Certify lnterlocutory Appeal (“MCIA”) 5. But the Court did not cite authority from the D.C. Circuit on
this issue because both parties agreed that California law governed the question of contract
formation. See Selden, 20i6 WL 6476934 at *4 n. l. And as the Couit discussed extensively in
its l\/lemorandum Opinion, an electronic adhesion contract must be upheld under California law if its terms are clear and conspicuous ida at *4»»5. Selden also claims that Judge Rakoff’s recent opinion in l\/Ieyer v. Kalanicl<, 2016 WL 4073012 (S.D.N.Y. .luly 29, 2016), finding Uber’S arbitration agreement invalid under California law, constitutes a conflicting decision in another circuit that warrants certification Pl.’s l\/ICIA 4»-5. But .ludge Ral
Nor is there substantial ground for disagreement on the question of whether Selden’s civil rights claims are subject to arbitration Selden argues that “there is no clear authority offered from any higher court indicating that [his civil rights claims are] arbitrable or subject to the FAA.” Pl.’s l\/ICIA 7. l\lot so. 'l`he Supreme Court “has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the polices of congressional enactments giving [individuals] specific protection against discrimination
prohibited by federal law.” Selden, 2016 WL 6476934 at *7 (quoting Circuit City Stores. lnc. v.
AQM, 532 U.S. 105, l23 (2001))`; see also Bool
of the Order for interlocutory appeal.
Alternatively, Se|den requests that the Court simply “dismiss this action or provide a final order disposing ofall claims to enable Plaintiff [to] proceed with an appeal.” Pl.’s i\/lCIA 9. The Federal Arbitration Act, however, likely precludes the Court from doing so. There is currently a circuit split as to “whethei' district courts must stay proceedings after ali claims have been referred to arbitration and a stay has been requested, or whether they retain the discretion to dismiss such cases outi'ight.” Goodrich v. Adtrav Travel l\/lgnit., 15-cv-899, 2016 WL 4074082 at *4 n. 3 (D.D.C. 2016) (citing Katz v. Cellco Pai'tnership, 794 F.3d 341, 344 (2<;1 Cir. 2015)). ’fhe Courts oprpeals are evenly divided _S@ KLtz, 794 F.3d at 345 (collecting cases). And as far as the Court is aware, the D.C. Circuit has not addressed this issue.
The Court must decline to dismiss the case. Notwithstanding the D.C. Circuit’s siience on the issue, issuing a stay comports with recent practice in this district B, gg, Goodrich, 2016 WL 4074082; Ruiz v. i\/lillennium Square Residentiai Assoc., 156 F. Supp. 3d 176, 184 (D.D.C. 2016); White v. Four Seasons Hotels and Resorts, 999 Ft Supp. 2d 250, 261_62 (D.D.C. 2013), i\/loreover, as the Second Circuit persuasively explained in M, “the FAA’s text, structure, and underlying policy command this resuit.” 794 F.3d at 345. Beginning with the text, Section 3 of the FAA provides that once a district court refers a case to arbitration, it “s!iall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3 (eniphasis added). The Supreme Court has been clear that a statute’s use of the term “shail” will “create[ j an obligation impervious to judicial disci'etion.” K"_aht~z“, 794 F.3d at 345 (quoting Lexecon lnc. v. l\/lilbcrg Weiss Bershad l~iynes & Lerach, 523 U.S. 26, 27 (1998)).
"i`he FAA’s structure and policy objectives support this resuit as well. The Act “permits
immediate appeal of orders hostile to arbitration . . . but bars appeal of interlocutory orders
favorable to arbitration,” Green Tree Financial Corp.»Alabaina v. Randoipli, 531 U.S. 79, 86 (2000), “[:e]xeept as otherwise provided in section l292(b) oftitle 28,” 9 U.S.C. § l6. This structure “is consistent with the FAA’s underlying poiicy to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” guy 794 F.3d at 346
(quoting Moses H. Cone Mem’l l-losp. v l\/lercurv Constr. Corp., 460 U.S. i, 22 (1983)). i`lie
Court therefore finds that the FAA precludes it from granting Selden’s request to dismiss the
CHS€.l
For the foregoing reasons, it is hereby ORDERED that Seiden’s [23} l\/Iotion for Certification of an Interlocutory Order for immediate Appeal is DENIED. The proceedings in this case will remain stayed pending the outcome of arbitration The parties are further ORDERED to submit ajoint status report within 90 days regarding the status of arbitration
proceedings
%~i!¢&,a /Z. H/¢,t~
CH RISTOPHER Ri COOPER United States District Judgc
Date: December 19, 2016
l The Court’s decision today does not preclude Selden from appealing once arbitration proceedings have concluded and the Court issues an order dismissing the case. w 9 U.S.C. § i6(a) (“An appeal may be taken from . . . a final decision with respect to an arbitration that is subject to this title.”).