Case 4:20-cv-06700-JSW Document 50 Filed 04/14/21 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`ERIN NORMAN,
`Plaintiff,
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`v.
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`UBER TECHNOLOGIES, INC., et al.,
`Defendants.
`
`Case No. 20-cv-06700-JSW
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`
`ORDER GRANTING DEFENDANT'S
`MOTION TO COMPEL
`ARBITRATION AND REQUIRING
`JOINT STATUS REPORTS
`Re: Dkt. No. 37
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`Now before the Court for consideration is the motion to compel arbitration filed by
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`Defendant Uber Technologies, Inc. (“Uber”). The Court has considered the parties’ papers,
`relevant legal authority, and the record in this case, and it HEREBY COMPELS arbitration
`between Uber and Plaintiff Erin Norman (“Norman”).
`BACKGROUND
`Norman filed this putative class action against Uber, Neutron Holdings, Inc., Segway, Inc.,
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`and Xioami USA LLC on September 24, 2020. Norman alleges that on October 29, 2019, she lost
`control of one of Uber’s Jump electric scooters while attempting to use her hand to signal that she
`was turning.
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`On March 9, 2021, Uber filed a motion to compel arbitration. Uber alleges that on August
`27, 2019, Norman accepted the terms of a Rental Agreement (the “Arbitration Agreement” or
`“Agreement”) within Uber’s Jump application. (Dkt. Nos. 37-3 (Declaration of Todd Gaddis), ¶
`6; 37-4 (Ex. A (Arbitration Agreement)).) According to Uber, Norman would not have been able
`to rent a Jump scooter without first agreeing to the Arbitration Agreement’s terms. The
`Agreement provides, in part, as follows:
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`Northern District of California
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`Case 4:20-cv-06700-JSW Document 50 Filed 04/14/21 Page 2 of 6
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`By agreeing to the Agreement, you agree that you are required to
`resolve any claim that you may have against JUMP, its parents,
`subsidiaries, and affiliates (including, without limitation, [Uber] and
`its subsidiaries and affiliates), on an individual basis in arbitration,
`as set forth in this Arbitration Agreement.
`. . .
`The arbitration will be administered by the American Arbitration
`Association (“AAA”) in accordance with the AAA’s Consumer
`Arbitration Rules and the Supplementary Procedures for Consumer
`Related Disputes (the “AAA Rules”) then in effect, except as
`modified by this Arbitration Agreement.
`. . .
`The parties agree that the arbitrator (“Arbitrator”), and not any
`federal, state, or local court or agency, shall have exclusive authority
`to resolve any disputes relating to the interpretation, applicability,
`enforceability or formation of this Arbitration Agreement, including
`any claim that all or any part of this Arbitration Agreement is void
`or voidable. The Arbitrator shall also be responsible for determining
`all threshold arbitrability issues, including issues relating to whether
`the Terms are unconscionable or illusory and any defense to
`arbitration, including waiver, delay, laches, or estoppel.
`(Arbitration Agreement §§ 8(a), (b).)
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`Norman does not dispute that she accepted the Arbitration Agreement’s terms. However,
`she argues that the Agreement does not “clearly and unmistakably” delegate arbitrability to the
`arbitrator and contends that the Agreement is unenforceable under McGill v. Citibank, N.A., 2 Cal.
`5th 945 (2017).
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`The Court will address additional facts as necessary in its analysis.
`ANALYSIS
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`A.
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`Applicable Legal Standard.
`A party may petition a district court to compel the enforcement of an arbitration
`agreement. 9 U.S.C. § 4. Under the Federal Arbitration Act (“FAA”), arbitration agreements
`“shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity
`for the revocation of any contract.” Id. § 2. The “central purpose of the [FAA is] to ensure that
`private agreements to arbitrate are enforced according to their terms.” Mastrobuono v. Shearson
`Lehman Hutton Inc., 514 U.S. 52, 53-54 (1995). The FAA represents a “liberal federal policy
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`Case 4:20-cv-06700-JSW Document 50 Filed 04/14/21 Page 3 of 6
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`favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
`U.S. 1, 24-25 (1983). Accordingly, courts resolve any doubts concerning the scope of arbitrable
`issues in favor of arbitration. Id. Notwithstanding the “liberal policy” favoring arbitration,
`agreeing to arbitrate “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’ns
`Workers of Am., 475 U.S. 643, 648 (1986). Therefore, courts must enforce arbitration agreements
`according to their terms. Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489
`U.S. 468, 479 (1989).
`Under the FAA, the Court must order arbitration if it concludes that (1) an arbitration
`agreement exists and (2) the dispute at hand falls within the scope of the arbitration agreement.
`Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (citing Howsam v. Dean Witter
`Reynolds, Inc., 537 U.S. 79, 84 (2002)). The parties can delegate to arbitration these so-called
`“gateway issues” if the parties do so “clearly and unmistakably.” Id. (citing AT&T Techs., Inc.,
`475 U.S. at 649).
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`B.
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`The Parties Have Delegated Arbitrability to the Arbitrator.
`Uber argues that the Arbitration Agreement clearly and unmistakably delegates questions
`of arbitrability to the arbitrator, both by including a delegation clause and by incorporating the
`American Arbitration Association’s (“AAA”) rules. Norman contends that because she is an
`unsophisticated consumer, the Court should conclude the parties did not clearly and unmistakably
`delegate threshold issues to the arbitrator. The Court agrees with Uber.
`A delegation clause, which is “an agreement to arbitrate threshold issues concerning the
`arbitration agreement,” constitutes clear and unmistakable evidence of an intent to delegate.
`Momot v. Mastro, 652 F.3d 982, 988 (9th Cir. 2011) (quoting Rent-A-Center, West, Inc. v.
`Jackson, 561 U.S. 63, 68 (2010)). Using delegation clauses, parties can “agree to arbitrate
`gateway questions of arbitrability,” including whether the parties’ agreement to arbitrate “covers a
`particular controversy.” Rent-A-Center, 561 U.S. at 68-69. “When the parties’ contract delegates
`the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied
`in the contract.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).
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`Northern District of California
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`In Mohamed v. Uber Techs., Inc., the Ninth Circuit considered an arbitration provision that
`authorized the arbitrator to “decide issues relating to the enforceability, revocability, or validity of
`the Arbitration Provision” and concluded the provision “clearly and unmistakably” indicated the
`parties intended the arbitrator “to decide the threshold question of arbitrability.” 848 F.3d 1201,
`1209 (9th Cir. 2016) (emphasis added). The Ninth Circuit has also concluded that assigning issues
`of “validity or application” to the arbitrator constitutes clear and unmistakable evidence of an
`intent to delegate. See Momot, 652 F.3d at 988. Other courts within this circuit have determined
`that Uber delegation provisions like the one at issue here are clear and unmistakable. See, e.g.,
`Greder v. Uber Techs., Inc., No. 18-CV-3171-PSG-GJS, 2018 WL 10017490, at *4 (C.D. Cal.
`Sept. 5, 2018) (concluding that assignment of “all threshold arbitrability issues” to arbitrator was a
`clear and unmistakable delegation of arbitrability issues to the arbitrator).
`Here, the Arbitration Agreement provides that “the arbitrator . . . shall have exclusive
`authority to resolve any disputes relating to the interpretation, applicability, enforceability or
`formation of [the] Arbitration Agreement, including any claim that all or any part of [the] . . .
`Agreement is void or voidable.” It also states that the “[a]rbitrator shall also be responsible for
`determining all threshold arbitrability issues, including issues relating to . . . any defense to
`arbitration.” This language is even more explicit than that which the Ninth Circuit deemed clear
`and unmistakable in Mohamed and Momot. Even if this language were not sufficiently clear, the
`Agreement’s incorporation of the AAA rules further indicates that the parties intended to arbitrate
`arbitrability. See Adams v. Postmates, Inc., 414 F. Supp. 3d 1246, 1252 n.3 (N.D. Cal. 2019)
`(noting that incorporation of arbitral rules “further support[ed] the conclusion that the arbitrator
`determines arbitrability”). Therefore, the Court holds that the Arbitration Agreement clearly and
`unmistakably delegates issues of arbitrability to the arbitrator.
`Norman is correct that some courts in this circuit have factored the parties’ relative levels
`of sophistication into their delegation analyses. Many of those cases have examined the
`sophistication of the parties when the contract incorporates arbitral rules but lacks a clear
`delegation clause. See, e.g., Money Mailer, LLC v. Brewer, No. C15-1215RSL, 2016 WL
`1393492, at *2 (W.D. Wash. Apr. 8, 2016) (determining that incorporation of AAA rules was not
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`clear and unmistakable because one party was unsophisticated and the contract suggested one still
`had a right to jury trial); Ingalls v. Spotify USA, Inc., No. C 16-03533 WHA, 2016 WL 6679561,
`at *4 (N.D. Cal. Nov. 14, 2016) (concluding that incorporation of AAA rules in a contract without
`a delegation provision was not clear and unmistakable because parties were “ordinary consumers
`who could not be expected to appreciate the significance of” the rules’ incorporation). Because
`the Arbitration Agreement here includes a clear delegation clause and does not suggest that there
`are issues reserved for judicial determination, the Court finds this case is distinguishable from
`Money Mailer and Ingalls.
`Further, the Court is unpersuaded by Norman’s argument that this case involves an
`ambiguous severability clause and therefore is comparable to Vargas v. Delivery Outsourcing,
`LLC, No. 15-cv-03408-JST, 2016 WL 946112, at *1 (N.D. Cal. Mar. 14, 2016). In Vargas, the
`arbitration agreement expressly delegated issues of arbitrability to the arbitrator; however, it also
`stated that “[if] any provision . . . [was] held to be unenforceable by a court of law or equity,” it
`would be severable. Id. at *2. Noting that this “language [was] necessary only if questions
`concerning arbitrability [were] not resolved by the arbitrator,” the court concluded that the
`severability clause rendered the otherwise-clear delegation provision ambiguous. Id. at *6.
`Although the agreement also incorporated the AAA rules by reference, the court concluded that
`this, alone, was not clear and unmistakable evidence of delegation because one of the parties was
`unsophisticated. Id. at *8.
`Unlike the severability clause in Vargas, the severability provision here does not contradict
`the delegation provision. See id. at *2. Instead, it provides that “[i]f any portion of [the]
`Arbitration Agreement is found to be unenforceable or unlawful,” that portion will be severable
`from the remainder of the Agreement. (Arbitration Agreement § 8(f).) While it does contemplate
`claims being brought “in a civil court of competent jurisdiction,” it only does so in the event that
`the Arbitration Agreement is “found to be unenforceable.” (Id.) At no point does the Arbitration
`Agreement suggest that anyone other than the arbitrator has the authority to determine “threshold
`issues” such as the agreement’s enforceability or questions of arbitrability. Therefore, Vargas
`does not change this Court’s conclusion that the parties clearly and unmistakably delegated
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`Case 4:20-cv-06700-JSW Document 50 Filed 04/14/21 Page 6 of 6
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`threshold issues to the arbitrator.
`Accordingly, the Court GRANTS Uber’s motion to compel arbitration.
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`C.
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`The Question of McGill’s Applicability is Reserved for the Arbitrator.
`Norman also argues that the Arbitration Agreement is unenforceable because, in
`contravention of McGill, it “waiv[es] public injunctive relief . . . in all fora.” (Opp. at 1.). In
`McGill, the California Supreme Court held that an arbitration provision waiving one’s ability to
`seek public injunctive relief in any forum is unenforceable. 2 Cal. 5th at 961.
`The Court has determined that all threshold issues—including questions of the
`Agreement’s “interpretation, applicability, enforceability or formation”—are delegated to the
`arbitrator. The Court concludes the McGill issue relates to the enforceability of the Arbitration
`Agreement and, therefore, does not reach this argument. See, e.g., Marselian v. Wells Fargo &
`Co., -- F. Supp. 3d --, 2021 WL 198833, at *6-7 (N.D. Cal. Jan. 20, 2021) (citing cases and
`declining to address McGill argument where the plaintiff did not challenge the delegation
`provision’s validity and the arbitrator had authority to resolve issues of the agreement’s
`“existence, scope, or validity”). Whether McGill precludes enforcement of the Arbitration
`Agreement is a question for the arbitrator.
`CONLUSION
`For the foregoing reasons, the Court GRANTS Uber’s motion to compel arbitration and
`STAYS all further litigation between Norman and Uber pending completion of the parties’
`arbitration. The parties shall file joint status reports every 180 days apprising the Court of the
`status of the arbitration proceedings, including when the stay may be lifted. The parties’ first joint
`status report shall be due on October 12, 2021.
`IT IS SO ORDERED.
`Dated: April 14, 2021
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`______________________________________
`JEFFREY S. WHITE
`United States District Judge
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