Mohammed v. Uber Techs., Inc.

237 F.Supp.3d 719

Abdul MOHAMMED, Plaintiff,

v.UBER TECHNOLOGIES, INC., Rasier, LLC, Travis Kalanick, Garrett Camp, and Ryan Graves, Defendants.

16 C 2537

United States District Court, N.D. Illinois, Eastern Division.

Signed February 14, 2017

Michael Paul Persoon, Despres Schwartz & Geoghegan, Chicago, IL, for Plaintiff.

Michael Giuseppe Congiu, Littler Mendelson, P.C., Minneapolis, MN, Reid J. Schar, Daniel Walden Bobier, Megan B. Poetzel, Jenner & Block LLP, David Loren Christlieb, Littler Mendelson, P.C., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

Plaintiff Abdul Mohammed ("Mohammed"), formerly a driver for Uber Technologies, Inc. ("Uber"), filed a twenty-one count pro se complaint [1] against Uber, Uber's wholly owned subsidiary Rasier, LLC ("Rasier"), as well as individuals Travis Kalanick, Garrett Camp, and Ryan Graves (collectively, "Defendants"). The various counts allege violations of various state and federal laws and the United States Constitution. Defendants have moved to compel arbitration of Mohammed's claims [14, 17] pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 3 – 4. Additionally, Defendant Camp has moved to dismiss all claims against him [17] for lack of personal jurisdiction under Federal Rule of Civil Procedure ("Rule") 12(b)(2).

Because the applicability of the arbitration provision implicates factual questions that go to the agreement's initial formation, the Court denies the first motion [14]. Defendant Camp's motion to dismiss for lack of personal jurisdiction [17], however, is granted.

Background

Mohammed began driving for Uber on or about August 3, 2014. Compl. Jury Demand 2:10, ECF No. 1. Uber is a company that utilizes a smartphone application, or "app," to pair individuals seeking car transportation with Uber drivers. Mem. Supp. Defs. Uber & Rasier Mot. Dismiss 2, ECF No. 16. Customers use the app to hail a ride, and drivers use the app to locate and interact with customers. Id.

When Mohammed began driving for Uber, he used a phone supplied by Uber, on which the app was pre-installed. See Pl.'s Resp. Defs.' Mot. Compel Arb. ¶ 14, ECF No. 20; Hr'g Tr. of May 12, 2016, at 5:3–13, ECF No. 22. Later, Mohammed was able to install the app on his own phone. On October 1, 2014, in an effort to download the app onto his phone, Mohammed sought help from a Driver Services Representative (DSR) at Uber's office in Chicago. Pl.'s Resp. Mot. Compel Arb. ¶ 6; Hr'g Tr. at 3:11–18.

According to Mohammed, when he arrived at the office, the DSR asked him for a username and password, explaining they were needed to log in to the Uber app. Hr'g Tr. at 3:24–25; see Pl.'s Resp. Mot. Compel Arb. ¶ 6. Mohammed supplied his e-mail as a username, wrote a password on a note, and handed the note to the DSR.¹ Hr'g Tr. at 3:24–4:1.

According to Defendants, once a potential user inputs his or her log-in credentials, the app prompts the individual on two separate occasions to review and accept an agreement known as the "Rasier Agreement," a service and licensing agreement described in greater detail below. Mem. Supp. Defs. Uber & Rasier Mot. Dismiss at 3. Mohammed claims that he never saw these prompts. Rather, according to Mohammed, the DSR entered Mohammed's credentials, saw the prompts, and accepted the Rasier Agreement without showing Mohammed the prompts or the agreement. Hr'g Tr. at 4:1–2, 4:18–25. The DSR then returned the phone to Mohammed with the app downloaded and ready for use. Id. at 5:1–3.

Mohammed proceeded to use the app as a driver for Uber for a period of approximately eight months. Defs.' Reply 9, ECF No. 25; see also Compl. Emp't Discrim. 2, ECF No. 1 (alleging that Defendants' misconduct began in June 2015, or nearly eight months after Mohammed began using the app). During this period, Defendants assert that the Rasier Agreement was available for Mohammed to review through the app at any time. Mem. Supp. Defs. Uber & Rasier Mot. Dismiss at 3.

The Rasier Agreement, formally titled the "Rasier Software Sublicense & Online Services Agreement," contains an "Arbitration Provision" that applies to disputes "arising out of or related to [drivers'] relationship[s]" with Uber. Id. , Ex. D, at 12. In pertinent part, the Arbitration Provision provides:

This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.... This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates.

...

Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.

Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with [Uber], including termination of the relationship.

Id.

On February 24, 2016, Mohammed filed suit against Uber and Rasier, as well as Travis Kalanick, Garrett Camp, and Ryan Graves in their roles as agents, servants, and employees of Uber.² He alleges twenty-one different counts asserting violations of various state and federal laws and the United States Constitution.³ On May 3, 2016, Defendants moved to dismiss Mohammed's complaint and compel arbitration under the Arbitration Provision. Additionally, Defendant Camp moved to dismiss all claims against him for lack of personal jurisdiction.

I. Motion to Compel Arbitration

A. Legal Standard

The Federal Arbitration Act (FAA) mandates that courts enforce valid, written arbitration agreements. Tinder v. Pinkerton Sec. , 305 F.3d 728, 733 (7th Cir. 2002) (citing 9 U.S.C. § 2 ). This mandate reflects a federal policy that favors arbitration and places arbitration agreements on equal footing with all other contracts. Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).

Once a court is satisfied that an agreement to arbitrate exists, the FAA instructs the court to stay proceedings on issues subject to arbitration and provides a mechanism for parties to request that the court compel arbitration pursuant to the agreement. 9 U.S.C. §§ 3 – 4 ; see also Tinder , 305 F.3d at 733.

A party opposing a motion to compel arbitration bears the burden of identifying a triable issue of fact as to the existence of the purported arbitration agreement. Tinder , 305 F.3d at 735. The opponent's evidentiary burden is akin to that of a party opposing summary judgment under Rule 56. Id. "[A] party cannot avoid compelled arbitration by generally denying the facts upon which the right to arbitration rests; the party must identify specific evidence in the record demonstrating a material factual dispute for trial." Id. The Court must believe the evidence of the party opposing arbitration and draw all justifiable inferences in its favor. Id.

B. Analysis

In the present case, Defendants have moved the Court to compel arbitration of Mohammed's claims. As a threshold matter, Defendants assert that the Rasier Agreement's Arbitration Provision delegates any questions as to its "enforceability" and "validity" to an arbitrator, thereby depriving the Court of the ability to consider these questions. In the alternative, Defendants raise two arguments as to why the Court should enforce the Arbitration Provision. First, Defendants claim that under Illinois's Electronic Commerce Security Act, Mohammed's provision of a username and password was sufficient to bind him to the arbitration agreement. Second, Defendants argue that Mohammed accepted the arbitration agreement by his course of conduct, by equitable estoppel, or through agency principles.⁴ For the reasons that follow, the Court concludes that none of these arguments have merit.

1. Impact of the Delegation Clause

The Arbitration Provision states, in part, that it applies to "disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision." Mem. Supp. Defs. Uber & Rasier Mot. Dismiss, Ex. D, at 12. Defendants rely on this language—commonly referred to as the "delegation clause"—to argue that the validity of the provision as to Mohammed (and, consequently, the applicability of the Arbitration Provision to this dispute) should be decided by the arbitrator and not this Court.

Determining the impact of the delegation clause upon the Court's ability to resolve this threshold question requires the Court to wade into a doctrinal thicket. As the Seventh Circuit has observed, "The division of labor between courts and arbitrators is a perennial question in cases involving arbitration clauses." Janiga v. Questar Capital Corp. , 615 F.3d 735, 741 (7th Cir. 2010).

First up is the Supreme Court's decision in Prima Paint Corp. v. Flood & Conklin Manufacturing Co. , 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). In Prima Paint , the party opposing arbitration argued that it was fraudulently induced to enter into the contract, which contained the arbitration provision in question. Id. at 396–97, 87 S.Ct. 1801. The Supreme Court interpreted § 4 of the FAA to provide that "if the claim is fraud in the inducement of the arbitration clause itself—an issue which goes to the ‘making’ of the agreement to arbitrate—the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally," which must go to the arbitrator. Id. at 403–04, 87 S.Ct. 1801 (footnote omitted).

The Supreme Court provided further elaboration on what appeared to be a rather...