Flores v. Point Pickup Techs.

1

JEAN FLORES, on behalf of the Class and Class Members Plaintiff, v. POINT PICKUP TECHNOLOGIES, INC., Defendant.

No. 1:22-cv-00193-JLT-SKO

United States District Court, E.D. California

December 1, 2023

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO REPLY BRIEF AND HOLDING IN ABEYANCE DEFENDANT'S MOTION TO COMPEL ARBITRATION PENDING A BENCH TRIAL. (DOCS. 9 16.)

Jean Flores brings this class action lawsuit alleging various California labor law violations against Point Pickup Technologies, Inc.,^[1] arising out of her working relationship with Point Pickup as a “Pickup Partner.” Pending is Defendant's Motion to Compel Arbitration, where Point Pickup moves to compel Plaintiff to individual arbitration dismiss the class allegations in Plaintiff's Complaint and stay this case pending the completion of the arbitration. (Doc. 9.) The parties dispute whether they entered into Point Pickup's Arbitration Agreement, and if so, whether the Arbitration Agreement is unconscionable. Additionally Plaintiff has launched several procedural and evidentiary objections to Defendant's Reply exhibits. (Doc. 12.)

The Court finds the matter suitable for decision without oral argument pursuant to Local Rule 230(g). For the reasons set forth below, Plaintiff's Objections to Defendant's Reply Evidence (Doc. 12) are OVERRULED and Defendant's Motion to Compel Arbitration (Doc. 9) is HELD IN ABEYANCE.

I. Factual and Procedural Background

Point Pickup is an online, mobile delivery service, with a network of approximately 250,000 Delivery Providers nationwide. (Doc. 1 at ¶ 14.) According to Point Pickup, it is “a technology platform,” which provides delivery services for items customers order online from “brick and mortar” retailers. (Doc. 9 at 9.) Since approximately August 2020, Plaintiff has worked as a delivery provider-known as a “Pickup Partner”-for Point Pickup in Sanger and Dinuba, California. (Doc. 1 at ¶ 6.) In this role, “Plaintiff's duties include, without limitations, picking up delivery orders from [Point Pickup's] business partners and delivering those orders to [ ] patrons.” (Id. at ¶ 15.)

As a Pickup Partner, Plaintiff receives “a piece rate for each delivery.” (Id. at ¶ 21.) Throughout her tenure, Plaintiff alleges that: she “works approximately ninety-eight (98) or more hours per week,” (id. at ¶ 15); Point Pickup does not remit customer gratuities to the Pickup Partner (id. at ¶¶ 29, 30); she is denied “rest and recovery periods” and “performs work not incidental to the piece rate” (id. at ¶¶ 32, 39); she is denied minimum wage, overtime, and double time (id. at ¶ 33); she is not afforded a “compliant meal period[]” (id. at ¶¶ 35-38) and does not receive premium payments for missed, interrupted, or untimely meal and rest periods. (Id. at ¶ 44.)

Plaintiff filed the instant action on behalf of herself and a class of Pickup Partners. She alleges thirteen California labor law, tort, and contract theories of liability. (Id. at 13-33.) The crux of Plaintiff's Complaint centers on Point Pickup “misclassifying Plaintiff and Class Members as independent contractors instead of employees[.]” (Id. at ¶ 2; see also id. at ¶¶ 25 (alleging misclassification as independent contractors), 27, 35, 39, 52(a), (g), 60, 151, 158.)

II. Legal Standard

Under the plain language of the FAA, in response to a motion to compel arbitration, the district court must apply the summary judgment standard outlined in Federal Rule of Civil Procedure 56. See Knapke v. People Connect, Inc., 38 F.4th 824, 831 (9th Cir. 2022); Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021). “The summary judgment standard is appropriate because the district court's order compelling arbitration is in effect a summary disposition of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate.” Hansen, 1 F.4th at 670 (internal quotation marks and citation omitted).

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. “An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Airlines for Am. v. City and Cnty. of San Francisco, 78 F.4th 1146, 1152 (9th Cir. 2023) (internal quotation marks and citation omitted). Thus, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted). Once the movant satisfies its initial burden, the burden then shifts to the non-movant to establish that a genuine issue as to any material fact does exist. Id. (citation omitted). “The non-moving party must do more than show there is some ‘metaphysical doubt' as to the material facts at issue.” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

III. Discussion

Central to the parties' briefs is whether Plaintiff signed-electronically or otherwise- Point Pickup's MDRA. (See Docs. 9, 12, 15.) Before the Court addresses this question, and the merits of Defendant's motion, the Court first turns to threshold procedural and evidentiary objections raised by both parties.

A. Threshold Issues

In Defendant's Motion to Compel, it argues that “the MDRA is an enforceable agreement to arbitrate Plaintiff's claims,” it “is a valid agreement to arbitrate,” and that the parties agreed to arbitrate these issues before a neutral arbitrator. (Doc. 9 at 12-15 (emphases omitted). Plaintiff's Opposition rests on its contention that Point Pickup “did not present Plaintiff with an arbitration agreement to review or sign,” and that she never consented to the arbitration agreement. (Doc. 12 at 7-16.)

Defendant contends that Plaintiff's did in fact electronically agree to the MDRA. (Doc. 15 at 6.)^[2] Dauvin Peterson, the Chief Analytics Officer for Point Pickup, affirms that to activate her Point Pickup account and become a Pickup Partner, the cell phone application required her to sign the MDRA. (See Ex. 1, Doc. 15-1 at ¶ 5 (“Before the Pickup Partner can activate an account and access delivery orders, the Pickup Partner is presented with and must agree to [Point Pickup's] Terms & Conditions of use and its Privacy Policy.”); id. at ¶ 6 (“The Pickup Partner must scroll through and agree to each [request] in order to proceed.”), ¶ 7 (“[T]he Pickup Partner is presented with a complete copy of the Delivery Provider Agreement (‘DPA') for consideration,” which includes the terms of Point Pickup's End User License Agreement), ¶ 24 (“The MDRA was presented to all California Pickup Partners through the Driver App.”), ¶ 29 (“Flores applied her electronic consent to the MDRA by tapping ‘Agree' on June 5, 2021.”).)

Plaintiff filed Objections and Motion to Strike and Amended Objections. (Doc. 16; Doc. 17 at 2 n.1.) Defendant argues that Plaintiff's objection violated Local Rule 230(m)(1) because she continued to argue the merits of her Opposition in her Objections, essentially converting her Objections into an improper sur-reply. (Doc. 18 at 2-3.)

1. Defendant's Response to Plaintiff's Objections (Doc. 18)

Plaintiff objects to Defendant's Reply on two grounds^[3]: (1) that Defendant's Reply introduces “new evidence, facts, and different arguments” that were not included in its Motion to Compel, and therefore these arguments are waived because Plaintiff lacked an opportunity to respond; and (2) Defendant's Supplemental Declaration violates the Best Evidence Rule, as “[t]his evidence is being introduced in place of the Arbitration Agreement itself.” (Doc. 16 at 25.)

Though Plaintiff argues about Defendant's burden of proof in seeking to compel arbitration, these arguments are tangential to Plaintiff's primary objections. Indeed, Defendant's response to the Objections contains arguments relating to the parties' respective burdens. (See Doc. 18 at 3.) The Court is unconvinced that Plaintiff's Objections amount to an improper sur- reply. Considered holistically, Plaintiff's Objections do “not include further argument on the motion.” E.D. Cal. L.R. 230(m)(1). Thus, to this extent, Defendant's objection is OVERRULED.

2. Plaintiff's Objections

a. Best Evidence Objection

At this stage, courts do not “focus on the admissibility of the evidence's form,” but rather “on the admissibility of its contents.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666 (9th Cir. 2021) (citations omitted). Therefore, evidentiary objections are limited to when “the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). “[Objections based on a failure to comply with the technicalities of authentication requirements or the best evidence rule are inappropriate.” Pierre v. IEC Corp., No. 8:22-cv-01280-FWS-JDE, 2023 WL 3551962, at *4 n.1 (C.D. Cal. Mar. 14, 2023) (citation omitted) (emphasis added) (motion to compel arbitration context); Alkutkar v. Bumble Inc., No. 22-CV-0422-PJH, 2022 WL 16973253, at *3 (N.D. Cal. Nov. 16, 2022) (same). Accordingly, the objection is OVERRULED.

b. Motion to Strike & Waiver

Though Plaintiff has correctly recited the rule regarding waiver when a party fails to raise an argument until the reply brief, waiver does not occur when the evidence presented in the reply is not new. Evidence is not new when it “addresse[s] the same set of facts supplied in [the plainitff's] opposition to the motion but provides the full context to [the plaintiff's] selected recitation of facts.” Terrell v. Contra Costa Cnty., 232 Fed.Appx. 626, 629 n.2 (9th Cir. 2007); see also Applied Materials, Inc. v. Demaray LLC, No. 5:20-cv-05676-EJD 2020 WL...