`
`
`Keith A. Custis (#218818)
` kcustis@custislawpc.com
`CUSTIS LAW, P.C.
`1875 Century Park East, Suite 700
`Los Angeles, California 90067
`(213) 863-4276
`
`Ashley Keller (pro hac vice forthcoming)
` ack@kellerlenkner.com
`Travis Lenkner (pro hac vice forthcoming)
` tdl@kellerlenkner.com
`Marquel Reddish (pro hac vice forthcoming)
` mpr@kellerlenkner.com
`KELLER LENKNER LLC
`150 N. Riverside Plaza, Suite 4270
`Chicago, Illinois 60606
`(312) 741-5220
`
`Warren Postman (pro hac vice forthcoming)
` wdp@kellerlenkner.com
`KELLER LENKNER LLC
`1300 I Street, N.W., Suite 400E
`Washington, D.C. 20005
`(202) 749-8334
`
`Attorneys for Petitioners
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`Petitioners,
`
`vs.
`
`
`
`TERRELL ABERNATHY, et al.,
`
`
`
`
`
`
`DOORDASH, INC.,
`
`
`
`
`
`Respondent.
`
`
`
`
`
`Case No. 3:19-cv-07545
`
`
`PETITION FOR ORDER
`COMPELLING ARBITRATION
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 2 of 7
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Petitioners file this Petition for an Order compelling Respondent DoorDash, Inc. to
`
`arbitration as follows:
`
`NATURE OF THE PETITION
`
`1.
`
`Petitioners are 2,236 DoorDash couriers (“Dashers”) who are attempting to arbitrate
`
`individual claims against DoorDash for misclassifying them as independent contractors instead of
`
`employees. Petitioners contend that in misclassifying them, DoorDash has violated the Fair Labor
`
`Standards Act, 29 U.S.C. §§ 206, 207, and related California state and local laws.
`
`2.
`
`In order to begin making deliveries for DoorDash, each Petitioner was required to
`
`sign a contract that contained a sweeping “Mutual Arbitration Provision.” No Petitioner recalls
`
`10
`
`opting out of that arbitration provision.
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`3.
`
`The Mutual Arbitration Provision requires that the parties arbitrate any dispute
`
`regarding a Dasher’s classification as an independent contractor. The provision also requires that
`
`arbitration be administered by the American Arbitration Association (“AAA”) under AAA’s
`
`Commercial Rules. Those Rules, in turn, authorize AAA to require that each party pay filing fees
`
`before AAA will empanel an arbitrator and proceed with the parties’ arbitration. DoorDash’s
`
`arbitration provision expressly requires that DoorDash pay a portion of the fees and costs necessary
`
`17
`
`to commence arbitration.
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`4.
`
`On August 26, 2019, in accordance with the parties’ agreement, counsel for
`
`Petitioners served an individual demand for arbitration on DoorDash and AAA on behalf of each
`
`Petitioner. Each Petitioner promptly satisfied his or her filing-fee obligation.
`
`5.
`
`AAA determined that each Petitioner’s demand for arbitration met the requirements
`
`under AAA’s rules to proceed with arbitration. Thus, pursuant to its rules, AAA imposed succesive
`
`deadlines of October 14, 2019, October 28, 2019, and November 7, 2019 for DoorDash to pay its
`
`share of the filing fees necessary to commence each Petitioner’s arbitration and empanel an
`
`25
`
`arbitrator.
`
`26
`
`6.
`
`DoorDash refused to comply with AAA’s deadlines. It did not pay the filing fees
`
`27
`
`necessary for a single Petitioner to proceed with arbitration.
`
`
`
`28
`
`
`
`7.
`
`On November 8, 2019, AAA terminated Petitioners’ arbitrations due to DoorDash’s
`
`
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 3 of 7
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`refusal to satisfy its filing fee obligations.
`
`8.
`
`Petitioners have filed this Petition to require DoorDash to abide by the arbitration
`
`agreement it drafted.
`
`PARTIES
`
`9.
`
`Petitioners are Dashers who have made deliveries for DoorDash in California.
`
`Details for each Petitioner are listed in Exhibit A.
`
`10.
`
`Respondent DoorDash, Inc. is a Delaware corporation headquartered at 901 Market
`
`Street, Sixth Floor, San Francisco, California 94103.
`
`JURISDICTION AND VENUE
`
`11.
`
`This Court has jurisdiction over this action pursuant to 9 U.S.C. § 4 and 28 U.S.C.
`
`§§ 1331 and 1367 because the underlying controversy involves claims arising under federal law.
`
`12.
`
`This Court has personal jurisdiction over DoorDash because DoorDash has its
`
`13
`
`headquarters and principal place of business in California.
`
`14
`
`15
`
`16
`
`13.
`
`Venue is proper in this district (San Francisco Division) pursuant to 9 U.S.C. § 4
`
`and 28 U.S.C. § 1391(b) because DoorDash is headquartered and conducts business in San
`
`Francisco County, and many of the acts and omissions complained of occurred in San Francisco
`
`17
`
`County.
`
`18
`
`19
`
`20
`
`21
`
`INTRADISTRICT ASSIGNMENT
`
`14.
`
`This action is properly assigned to the San Francisco Division of this District,
`
`pursuant to Civil Local Rule 3-2(c) and (d), because a substantial part of the events or omissions
`
`that give rise to the claim occurred in San Francisco County, which is served by the San Francisco
`
`22
`
`Division.
`
`23
`
`24
`
`25
`
`BACKGROUND
`
`15.
`
`DoorDash is an on-demand delivery service through which customers may order
`
`food and other items from participating merchants for delivery. DoorDash pays Dashers to make
`
`26
`
`those deliveries.
`
`27
`
`28
`
`
`
`16.
`
`Petitioners are Dashers whom DoorDash has misclassified as independent
`
`contractors rather than employees, in violation of federal, state, and local law.
`
`
`2
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 4 of 7
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`17.
`
`DoorDash executed an agreement with each Petioner requiring that DoorDash and
`
`the Petitioner individually arbitrate any claim arising from the agreement, including a claim that
`
`the Petitioner has been misclassified. See, e.g., Ex. B (DoorDash’s 2019 Independent Contractor
`
`Agreement). The agreement further requires that the arbitration be administered by AAA under its
`
`Commercial Arbitration Rules. See id.
`
`18.
`
`Under the Commercial Rules, “[t]he arbitrator shall interpret and apply the[] rules
`
`insofar as they relate to the arbitrator’s powers and duties.” Commercial Rule 8. Where no
`
`arbitrator is yet available, or where a rule does not involve the “arbitrator’s powers and duties,” the
`
`rules “shall be interpreted and applied by the AAA.” Id.1
`
`19.
`
`Commercial Rule 56 further authorizes AAA to “require the parties to deposit in
`
`advance of any hearings such sums of money as it deems necessary to cover the expense of the
`
`12
`
`arbitration, including the arbitrator’s fee.” Commercial Rule 56.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`20.
`
`The Commercial Rules also state that AAA’s Employment Fee Schedule applies
`
`where, as here, workers bring claims asserting that they were misclassified as independent
`
`contractors. Id. at 2 n.*. And the Employment Fee Schedule states that “[t]he employer or
`
`company’s share of filing fees is due as soon as the employee or individual meets his or her filing
`
`requirements.” Employment Fee Schedule at 2.2
`
`21.
`
`DoorDash has enforced its broad arbitration agreement to preclude couriers from
`
`filing misclassification claims against it in court. See, e.g., Magana v. DoorDash, Inc., 343 F. Supp.
`
`3d 891 (N.D. Cal. 2018) (compelling a Dasher to arbitrate misclassification claims); Mckay v.
`
`DoorDash, Inc., No. 19-cv-04289-MMC, 2019 WL 5536199 (N.D. Cal. Oct. 25, 2019) (same).
`
`22.
`
`On August 26, 2019, in accordance with the parties’ agreement, counsel for
`
`Petitioners served an individual demand for arbitration on DoorDash and AAA on behalf of each
`
`Petitioner. Each Petitioner promptly satisfied his or her filing-fee obligation.
`
`23.
`
`AAA then determined that each Petitioner’s arbitration demand satisfied AAA’s
`
`26
`
`filing requirements.
`
`27
`
`28
`
`
`
`
`1 Available at https://www.adr.org/sites/default/files/CommercialRules_Web_FINAL_1.pdf.
`2 Available at https://www.adr.org/sites/default/files/Employment_Fee_Schedule1Nov19.pdf.
`
`
`3
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 5 of 7
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`24.
`
`Applying its Commercial Rules and Employment Fee Schedule, AAA imposed a
`
`deadline of October 14, 2019 for DoorDash to pay the filing fees it owed for AAA to empanel
`
`arbitrators and proceed with Petitioners’ arbitrations.
`
`25.
`
`DoorDash sought an extension of that deadline, which AAA granted, to October 28,
`
`2019.
`
`26.
`
`DoorDash did not pay the filing fees it owed on October 28 because, it argued, each
`
`Petitioner’s demand was “insufficient to launch arbitration under the DoorDash Independent
`
`Contractor Agreement, as well as AAA’s own rules.”
`
`27.
`
`AAA rejected that argument and made “an administrative determination that the
`
`10
`
`minimum filing requirements have been met by [Petitioners].” AAA thus set a final deadline of
`
`11
`
`November 7, 2019 for DoorDash to pay the filing fees it owed.
`
`12
`
`28.
`
`DoorDash refused to comply with that deadline. It did not pay the fees for an
`
`13
`
`arbitrator to be empaneled for a single Petitioner’s arbitration.
`
`14
`
`15
`
`29.
`
`On November 8, 2019, AAA “administratively closed” Petitioners’ files because
`
`DoorDash “failed to submit the previously requested filing fees for [Petitioners’] individual
`
`16
`
`matters.”
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`CONCLUSION
`
`30.
`
`Each Petitioner and DoorDash entered into an agreement requiring them to arbitrate
`
`the issue of whether that Petitioner is an independent contractor or an employee.
`
`31.
`
`DoorDash breached that agreement because it refused to comply with AAA’s
`
`administrative determations regarding the filing fees it must pay under the agreement—fees AAA
`
`requires before it will empanel arbitrators and begin Petitioners’ arbitrations.
`
`32.
`
`Until DoorDash complies with AAA’s administrative determinations, Petitioners’
`
`arbitrations cannot commence. Petitioners are in limbo: Their arbitration agreements prevent them
`
`from bringing their claims in court, but DoorDash refuses to arbitrate their claims under the terms
`
`26
`
`of the arbitration agreement.
`
`27
`
`28
`
`
`
`
`
`33.
`
`Accordingly, this Court should compel DoorDash to arbitrate under 9 U.S.C. § 4.
`
`4
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 6 of 7
`
`
`WHEREFORE, Petitioners respectfully request that this Court:
`
`PRAYER FOR RELIEF
`
`34.
`
`Enter an Order requiring that DoorDash arbitrate each Petitioner’s claims under the
`
`Mutual Arbitration Provision, including by paying the arbitration fees and costs AAA determines
`
`are necessary to empanel arbitrators and proceed with arbitrations.
`
`
`
`
`
`
`
`Dated: November 15, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`/s/ Keith A. Custis
`Keith A. Custis (#218818)
` kcustis@custislawpc.com
`CUSTIS LAW, P.C.
`1875 Century Park East, Suite 700
`Los Angeles, California 90067
`(213) 863-4276
`
`Ashley Keller (pro hac vice forthcoming)
` ack@kellerlenkner.com
`Travis Lenkner (pro hac vice forthcoming)
` tdl@kellerlenkner.com
`Marquel Reddish (pro hac vice forthcoming)
` mpr@kellerlenkner.com
`KELLER LENKNER LLC
`150 N. Riverside Plaza, Suite 4270
`Chicago, Illinois 60606
`(312) 741-5220
`
`Warren Postman (pro hac vice forthcoming)
` wdp@kellerlenkner.com
`KELLER LENKNER LLC
`1300 I Street, N.W., Suite 400E
`Washington, D.C. 20005
`(202) 749-8334
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`Attorneys for Petitioners
`
`5
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`
`
`Case 3:19-cv-07545 Document 1 Filed 11/15/19 Page 7 of 7
`
`
`CERTIFICATE OF SERVICE
`
`I certify that I shall cause the foregoing document to be served on DoorDash, Inc. at its
`
`registered agent for service of process, Registered Agent Solutions, Inc. 1220 S. Street, Suite 150,
`
`Sacramento, CA 95811, on or around November 18, 2019.
`
`
`
`Dated: November 15, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Keith A. Custis
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`PETITION FOR ORDER COMPELLING ARBITRATION
`CASE NO. 3:19-cv-07545
`
`
`
`