Case 4:20-cv-07842-JST Document 33 Filed 06/01/21 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ANTHONY FARMER,
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`Plaintiff,
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`v.
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`AIRBNB, INC., et al.,
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`Defendants.
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`Case No. 20-cv-07842-JST
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`ORDER GRANTING MOTION TO
`COMPEL ARBITRATION AND
`STAYING CASE
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`Re: ECF No. 16
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`Before the Court is a motion to compel arbitration and dismiss the complaint brought by
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`Defendants Airbnb, Inc. and Airbnb Payments, Inc. (collectively, “Airbnb”). ECF No. 16. The
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`Court will grant the motion to compel arbitration but will stay the case, rather than dismiss it.
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`The parties do not dispute that the Court has jurisdiction under 28 U.S.C. § 1332(d)(2).
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`Plaintiff Anthony Farmer does not contest the existence of a valid arbitration agreement,
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`nor does he contest that his individual claims fall withing the scope of the agreement.1 Indeed,
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`Farmer initiated arbitration of his claims with the American Arbitration Association (“AAA”). He
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`subsequently attempted to withdraw from arbitration under California Code of Civil Procedure
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`Section 1281.97, under which Airbnb was required to pay “fees or costs to initiate an arbitration
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`proceeding . . . within 30 days after the due date.” Cal. Code Civ. Proc. § 1281.97(a). The
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`arbitrator ruled that Farmer’s “notice of withdrawal of this matter from arbitration is void and has
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`no effect.” ECF No. 16-2 at 122.
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`In opposing Airbnb’s motion to compel arbitration, Farmer appears to concede that Airbnb
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`1 In arguing for a stay rather than dismissal if this Court were to compel arbitration, Farmer asserts
`that his request for a public injunction is not arbitrable. ECF No. 21 at 21-22. The parties did not
`brief this question, and the Court does not reach it.
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`Case 4:20-cv-07842-JST Document 33 Filed 06/01/21 Page 2 of 3
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`did not violate Section 1281.97. See ECF No. 21 at 17. However, he now argues that Airbnb
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`violated its obligations under California Code of Civil Procedure Section 1281.98, which requires
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`payment of “fees or costs required to continue the arbitration proceeding . . . within 30 days after
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`the due date,” because, according to Farmer, Airbnb did not timely pay the $1,500 arbitrator
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`compensation fee requested by AAA. Cal. Civ. Proc. Code § 1281.98(a).
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`Farmer does not dispute that the arbitration agreement in this case delegated questions of
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`arbitrability, including enforcement of the agreement, to the arbitrator. He nonetheless contends
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`that the Court should consider in the first instance whether Airbnb has complied with the
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`requirements of Section 1281.98. The Court disagrees. As another court in this district has held
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`with respect to payment of initiation fees under Section 1281.97, the parties’ delegation of
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`arbitrability requires that question to be decided by the arbitrator. Mesachi v. Postmates, Inc., No.
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`3:20-cv-07028-WHO, 2021 WL 736270, at *4-5 (N.D. Cal. Jan. 8, 2021). That is because
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`“gateway questions [of arbitrability] typically include ‘whether the parties have a valid arbitration
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`agreement or are bound by a given arbitration clause, and whether an arbitration clause in a
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`concededly binding contract applies to a given controversy,’” and parties may “agree by contract
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`that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as
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`underlying merits disputes.” Id. at *4 (quoting Momot v. Mastro, 652 F.3d 982, 987 (9th Cir.
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`2011)) & *5 (quoting Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 527
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`(2019)).
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`On May 28, 2021, Farmer filed a motion for leave to file a statement of recent decision,
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`Agerkop v. Sisyphian LLC, No. 19-cv-10414-CBM-(JPRx), 2021 WL 1940456 (C.D. Cal. Apr. 13,
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`2021). ECF No. 32. The Court grants the motion, but does not find Agerkop persuasive on this
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`point. The Agerkop court held that “the delegation clause in the parties’ arbitration agreements is
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`not a basis” to deny a motion, based on Sections 1281.97 and 1281.98, to vacate a prior order
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`compelling arbitration. 2021 WL 1940456, at *4. However, it cited no authority for this holding
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`and did not consider Mesachi, and the Court declines to apply it here.
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`Farmer correctly cites 9 U.S.C. § 3 as providing for a stay of proceedings pending
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`arbitration only where “the applicant for the stay is not in default in proceeding with such
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`Northern District of California
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`United States District Court
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`Case 4:20-cv-07842-JST Document 33 Filed 06/01/21 Page 3 of 3
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`arbitration.” But, aside from Agerkop, he cites no authority for the proposition that a court should
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`determine whether a party is in default for failing to timely pay fees where, as here, questions of
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`arbitrability have been delegated to the arbitrator, and the arbitrator has not found the party to be
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`in default or terminated the proceedings for nonpayment. In the other cases relied on by Farmer,
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`either the court did not consider whether the parties delegated such questions, or the arbitrator had
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`already terminated the arbitration, and in one case also found the party in default, for failing to pay
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`fees. E.g., Dekker v. Vivint Solar, Inc., 479 F. Supp. 3d 834 (N.D. Cal. 2020) (vacating order
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`compelling arbitration based on Section 1281.97 but not considering delegation question); Sink v.
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`Aden Enters., Inc., 352 F.3d 1197 (9th Cir. 2003) (affirming denial of motion to compel arbitration
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`where arbitrator had terminated the arbitration and granted motion for an order of default based on
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`nonpayment of fees); Pre-Paid Legal Servs., Inc. v. Cahill, 786 F.3d 1287 (10th Cir. 2015)
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`(affirming lifting of stay order where arbitrator had suspended and then terminated arbitration after
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`nonpayment of fees); Rapaport v. Soffer, No. 2:10-CV-00935-KJD-RJJ, 2011 WL 1827147
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`(D. Nev. May 12, 2011) (denying motions to stay proceedings and compel arbitration where
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`arbitrator had terminated arbitration after nonpayment of fees).
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`The Court grants Airbnb’s motion to compel arbitration and stays these proceedings. The
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`Clerk shall administratively close the file. This order shall not be considered a dismissal or
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`disposition of this action against any party. If further proceedings become necessary, any party
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`may initiate them in the same manner as if this case had not been administratively closed.
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`IT IS SO ORDERED.
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`Dated: June 1, 2021
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`______________________________________
`JON S. TIGAR
`United States District Judge
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