United States District Court, M.D. Florida, Orlando Division
E. MENDOZA, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Defendant Uber Technologies,
Inc. and Rasier LLC's Motion to Compel Arbitration and
Strike Class Action Allegations (“Motion to Compel,
” Doc. 23). United States Magistrate Judge Karla R.
Spaulding submitted a Report and Recommendation
(“R&R, ” Doc. 61), in which she recommends
that the Motion be granted. Plaintiff filed an Objection
(Doc. 62), to which Defendants filed a Response (Doc. 66).
After an independent de novo review of the record,
the R&R will be adopted and confirmed.
Uber Technologies, Inc. (“Uber”) is a Delaware
corporation with its principal place of business in San
Francisco, California. (Am. Compl., Doc. 7, ¶ 7). Uber
is the creator of a passenger transportation service that
connects riders and drivers through a cellular phone
application (the “App”). (Id.; Colman
Decl., Doc. 23-1, ¶ 3). When a rider uses the App to
request transportation services, the customer's request
is routed to an available Uber driver to pick up and
transport the customer to their desired destination. (Doc. 7
¶ 7; Doc. 23-1 ¶ 3). The customer then pays a fare
through the App, and the Uber driver is paid directly by Uber
for eighty percent of the fare collected from the customer.
(Doc. 7 ¶¶ 14, 29).
Rasier, LLC is a Delaware limited liability company and
Uber's wholly-owned subsidiary. (Id. ¶ 8;
Doc. 23-1 ¶ 2). Rasier contracts with Uber drivers
in Florida using the UberX platform. (Doc. 23-1 ¶ 2).
Any individual who wishes to access the UberX platform must
first enter into the Rasier Software Sublicense & Online
Services Agreement (the “Services Agreement, ”
Ex. C to Coleman Decl., Doc. 23-1). (Id. ¶ 5).
To enter into the Services Agreement and gain access to the
platform, the individual must first login to the App using a
unique username and password. (Id. ¶ 6). After
completing the sign-up process, they are able to review the
Services Agreement by clicking a hyperlink presented on the
screen within the App. (Id. ¶ 7). The
individual is free to spend as much time as they wish
reviewing the Services Agreement. (Id.).
advance past the screen with the hyperlink to the document,
the individual is required to click “YES, I
AGREE” to the Services Agreement. (Id.). After
clicking “YES, I AGREE, ” they are prompted to
confirm acceptance a second time. (Id.). After
clicking “YES, I AGREE” a second time, the
individual can access the App, and the Services Agreement is
automatically and immediately in the individual's Driver
Portal where he or she can access it at any time.
(Id. ¶ 8). When a new version of a Services
Agreement is issued, an Uber driver cannot gain access to the
UberX platform unless he or she affirmatively accepts the new
version of the Services Agreement in the manner discussed
above. (Colman's Supp. Decl., Doc. 49-1, ¶ 2).
Services Agreement contains an arbitration provision
(“Arbitration Provision”) that requires Uber
drivers to arbitrate, on an individual basis, all disputes
arising out of or related to their relationship with Uber.
(Doc. 23-1 at 22). Importantly, the Arbitration Provision
contains a delegation clause (“Delegation
Clause”), which purports to delegate any threshold
arbitrability issues to an arbitrator. (Id.). If an
Uber driver does not wish to arbitrate his or her claim
against Uber, he or she can opt out of the Arbitration
Provision within thirty days of accepting the Services
Agreement. (Id. at 25).
November 2014, Plaintiff Robert Rimel, a citizen of Orange
County, Florida, became an UberX driver. (Doc. 7 ¶¶
6, 16; Doc. 23-1 ¶ 10). He alleges that Uber exploits
“hard-working drivers” like him who “are
the lifeblood of the company” by: (1) deceiving drivers
regarding the amount of money they can earn, (2)
misappropriating tips that customers allocate to the drivers,
and (3) misclassifying drivers as independent contractors
rather than employees. (Doc. 7 ¶¶ 1-4, 14-43).
Therefore, Plaintiff filed a putative class action against
Uber asserting state law claims for: tortious interference
with prospective business relations (Count I), breach of
contract (Count II), unjust enrichment (Count III),
conversion (Count IV), unfair competition (Count V),
fraudulent misrepresentation (Count VI), and violations of
the Florida Minimum Wage Act, Fla. Stat. § 448.110
(Count VII). (Id. ¶¶ 54-91).
contends that Plaintiff's claims are subject to the
Arbitration Provision contained in Uber's November 2014
Services Agreement. Therefore, Uber moves for the entry of an
order dismissing this action, or alternatively, staying all
proceedings unless and until Plaintiff fulfills his
contractual obligation to arbitrate his individual claims.
(Doc. 62 at 7-12). Additionally, Uber moves to strike
Plaintiff's class action allegations from the Complaint.
(Id. at 12-14). Plaintiff mounts several arguments
in opposition to Uber's Motion to Compel.
does not dispute that he initially entered into Uber's
November 2014 Services Agreement and that he failed to opt
out of the Arbitration Provision within thirty days. Instead,
Plaintiff argues that he entered into Uber's superseding
Services Agreement on December 11, 2015, and that he
exercised his right to opt out of the Arbitration Provision
within thirty days. (Resp. to Mot. to Compel, Doc. 28, at
4-5). Plaintiff further argues that the Arbitration Provision
is governed by California law and that: (1) the Delegation
Clause is not clear and unmistakable; (2) the Arbitration
Provision and Delegation Clause are procedurally and
substantively unconscionable; and (3) the Arbitration
Provision is unenforceable because the prohibition against
private attorney general actions violates California public
policy. (Id. at 6-22).
review of the record, the Magistrate Judge concluded that
Plaintiff had accepted only the June 2014 Services Agreement
and failed to opt out of the Arbitration Provision within
thirty days. (R&R at 6-9). The Magistrate Judge further
concluded that: (1) Florida law, not California law, applies
to the Arbitration Provision (id. at 9-10); (2) the
Arbitration Provision and the Delegation Clause are not
unconscionable (id. at 10-14); (3) the terms of the
Delegations Clause are clear and unmistakable (id.
at 14-15); and (4) the class action waiver in the Arbitration
Provision should be enforced (id. at 16). As such,
the Magistrate Judge recommends that the Court grant
Uber's Motion. (R&R at 16-17). Plaintiff objects to
the Magistrate Judge's recommendation.
Objections to a Report and Recommendation
to 28 U.S.C. § 636(b)(1), when a party makes a timely
objection, the Court shall review de novo any
portions of a magistrate judge's report and
recommendation concerning specific proposed findings or
recommendations to which an objection is made. See
also Fed. R. Civ. P. 72(b)(3). De novo review
“require[s] independent consideration of factual issues
based on the record.” Jeffrey S. v. State Bd. of
Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir.
1990). The district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. §
Motion to Compel Arbitration
general, the Federal Arbitration Act (“FAA”), 9
U.S.C. § 1 et seq., governs the enforceability
of arbitration provisions in contracts involving transactions
in interstate commerce. Hill v. Rent-A-Center, Inc.,
398 F.3d 1286, 1288 (11th Cir. 2005). Under the FAA,
“courts must rigorously enforce arbitration agreements
according to their terms.” Am. Express Co. v.
Italian Colors Rest., 133 S.Ct. 2304, 2309 (2013)
(quotation omitted). Arbitration agreements are presumptively
valid and enforceable. See 9 U.S.C. § 2.
However, arbitration under the FAA is ultimately “a
matter of consent, not coercion, ” Volt Info.
Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior
Univ., 489 U.S. 468, 479 (1989), and parties opposing
arbitration can challenge the formation and validity of a
contract containing an arbitration clause. It is
well-settled, however, that “arbitration 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) (quotation
omitted). Therefore, in determining whether to compel
arbitration, courts engage in a limited review to determine
whether the dispute is arbitrable. Senti v. Sanger Works
Factory, Inc., No. 6:06-cv-1903-Orl-22DAB, 2007 WL
1174076, at *4-5 (M.D. Fla. Apr. 18, 2007).
“parties are generally free to structure their
arbitration agreements as they see fit.” Volt,
489 U.S. at 479. Parties may decide, for instance, to
delegate “threshold determinations to an arbitrator,
such as whether an arbitration agreement is
enforceable.” Parnell v. CashCall, Inc., 804
F.3d 1142, 1146 (11th Cir. 2015). “The Supreme Court
has upheld these so-called delegation provisions as valid,
and explained that they are severable from the underlying
agreement to arbitrate.” Id. (internal
quotations and citation omitted). “When an arbitration
agreement contains a delegation provision and the plaintiff
raises a challenge to the contract as a whole, the
federal courts may not review his claim because it has been
committed to the power of the arbitrator.” Id.
“[A]bsent a challenge to the delegation provision
itself, the federal courts must treat the delegation
provision as valid . . . and must enforce it . . ., leaving
any challenge to the validity of the [a]greement as a whole
for the arbitrator.” Id. at 1146-47 (quotation
omitted). Courts should not, however, “assume that the
parties agreed to arbitrate arbitrability unless there is
clear and unmistakable evidence that they did so.”
Id. at 1147 (quotation omitted).
Objection, Plaintiff does not challenge the Magistrate
Judge's finding that the Arbitration Provision and
Delegation Clause are enforceable under Florida
Instead, Plaintiff contends that the Delegation Clause and
the Arbitration Provision are unenforceable under California
law and that the Magistrate Judge erred ...