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Leusch v. Uber Technologies, Inc.

United States District Court, S.D. California

October 29, 2019

RYAN LEUSCH, Plaintiff,


          Hon. M. James Lorenz, United States District Judge.

         Plaintiff Ryan Leusch (“Leusch”) brings an individual action against Defendant Uber Technologies, Inc. (“Uber”) for violations of the Telephone Consumer Protection Act (“TCPA”). Pending before the Court is Uber's motion to compel arbitration and stay the action pending arbitration [doc. 14]. Leusch opposed the pending motion and Uber replied. Docs. 17, 18. Pursuant to Civil Local Rule 7.1.d.1, the Court decides this matter on the briefs as the issues were suitable for disposition without oral argument. For the reasons set forth below, the Court GRANTS Uber's motion and STAYS this action. The Court also DENIES AS MOOT Plaintiff's motion for preliminary injunction.

         I. Background

         Uber offers transportation services through a smartphone application called the “Uber App.” Uber also provides meal delivery services through a different smartphone application called the “Uber Eats App.” Prior to receiving the calls at issue in this case, Leusch used the Uber App for transportation. Despite not using the Uber Eats App, Leusch was called numerous times with the following prerecorded message:

“Hi. This call is from Uber Eats. Your restaurant is receiving an order request, but it hasn't been accepted. The order can be accepted by clicking the blinking section on the ipad [sic]. If you are not ready to accept orders right now, please change the status from accepting orders to pause orders. For any issues, please contact our support team. Thank you.”

See Doc. 8-3 at ¶¶ 4-6, 17. Leusch contacted Uber at least three times requesting that Uber stop the calls as Leusch (1) does not own or operate any restaurant and (2) has no interest in receiving the above notification. Uber responded that it would look into it, but the calls persisted. Leusch attempted to block the numbers from which the calls were coming, but Uber kept changing the numbers it used to place these calls.

         On April 26, 2019, Leusch filed his Complaint alleging TCPA violations against Uber. On May 16, 2019, Leusch filed a motion for a preliminary injunction because he was still receiving the above-mentioned calls from Uber after the lawsuit was filed. One June 7, 2019, Uber filed the instant motion in reliance on its “Terms and Conditions.” See Docs. 14, 14-2.

         II. Legal Standard

         It is undisputed that the Federal Arbitration Act (“FAA”) governs here. Under the FAA, a Court must consider two threshold questions to determine whether to compel arbitration: (1) is there a valid agreement to arbitrate? If so, (2) does the agreement cover the matter in dispute? Chiron Corp. v. Ortho Diagnostic Systems, Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). “If the response is affirmative on both counts, then the [Federal Arbitration] Act requires the court to enforce the arbitration agreement in accordance with its terms.” Id.

         The party resisting arbitration bears the burden of proving that the claims at issue are not suitable for arbitration. Green Tree Fin. Corp.-Ala. V. Randolph, 531 U.S. 79, 91 (2000). An arbitration clause can be challenged on “generally applicable contract defenses, such as fraud, duress, or unconscionability.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68 (2010) (internal quotation marks omitted).

         The party attempting to compel arbitration must demonstrate “(1) the existence of a valid, written agreement to arbitrate; and, if it exists, (2) that the agreement to arbitrate encompasses the dispute at issue.” Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir. 2015) (citation omitted). “However, these gateway issues can be expressly delegated to the arbitrator where ‘the parties clearly and unmistakably provide otherwise.'” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (citing AT&T Techs., Inc. v. Commc'ns Workers of America, 475 U.S. 643, 649 (1986)); see Rent-A-Center, 561 U.S. at 78 (“ ‘[Q]uestion[s] of arbitrability' thus include questions regarding the existence of a legally binding and valid arbitration agreement[.]”).

         III. Discussion

         The key issue presented by the parties concerns whether Leusch agreed to arbitrate the arbitrability of his claims under the Arbitration Agreement. Upon review of the Arbitration Agreement, the Court finds that this question has been delegated to the arbitrator through the following clauses:

“By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration, as set forth in this Arbitration ...

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