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Mumin v. Uber Technologies, Inc.

United States District Court, E.D. New York

March 7, 2017

MANZOOR MUMIN and VICTOR MALLH, individually and on behalf of all others similarly situated, Plaintiffs,
v.
UBER TECHNOLOGIES, INC., RASIER, LLC, and JOHN DOES 1-10, Defendants. JOSE ORTEGA and JOCE MARTINEZ, on their own behalf, and on behalf of those similarly situated, Plaintiffs,
v.
UBER TECHNOLOGIES INC., RASIER, LLC, UBER USA LLC, UBER NEW YORK LLC, UBER TRANSPORTATION LLC, and JOHN DOE "UBER AFFILIATES, " Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiffs in these two related putative class actions assert claims under New York Labor Law ("NYLL") and other New York statutory and common law against Uber Technologies, Inc. and a number of related or affiliated entities (collectively, "Uber").- In the first action (the "Mumin Action"), Plaintiffs Manzoor Mumin and Victor Mallh (the "Mumin Plaintiffs") bring their action against Defendants Uber Technologies, Inc., Rasier, LLC, and John Does 1-10. (Mumin 3d Am. Compl. ("Mumin Compl.") (Dkt. 22 in No. 15-CV-6143).) In the second action (the "Ortega Action"), Plaintiffs Jose Ortega and Joce Martinez (the "Ortega Plaintiffs, " and together with the Mumin Plaintiffs, "Plaintiffs") have filed suit against Defendants Uber Technologies, Inc., Rasier, LLC, Uber USA LLC, Uber Transportation LLC, and John Doe "Uber Affiliates." (Ortega Am. Compl. ("Ortega Compl.") (Dkt. 16 in No. 15-CV-7387).)

         Before the court are Uber's motions to (1) compel arbitration as to Plaintiff Victor Mallh in the Mumin Action and Plaintiff Joce Martinez in the Ortega Action; and (2) dismiss the operative complaints in both actions pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). (See Mumin Defs.' Mot. to Compel Arbitration (Dkt. 28 in No. 15-CV-6143); Ortega Defs.' Mot. to Compel Arbitration (Dkt. 19 in No. 15-CV-7387); Mumin Defs.' Mot. to Dismiss (Dkt. 26 in No. 15-CV-6143); Ortega Defs.' Mot. to Dismiss (Dkt. 22 in No. 15-CV-7387).) Because of the substantial similarity in facts and the legal issues raised, the court will address these motions together in this Memorandum and Order.

         For the following reasons, the court GRANTS Uber's motions to compel Plaintiffs Mallh and Martinez to arbitrate their claims. The court also GRANTS IN PART and DENIES IN PART Uber's motions to dismiss Plaintiffs' operative complaints.

         I. BACKGROUND

         A. Facts as Alleged in the Operative Complaints

         1. General Allegations

         Uber is a ride-sharing service that uses a mobile application to connect its drivers to potential passengers. (Mumin Compl. ¶¶ 3, 16; Ortega Compl. ¶ 25.) Uber's mobile application allows a rider to request a ride by inputting a pick-up location and a destination. (Ortega Compl. ¶ 25.) The application matches the rider with one of Uber's available drivers in the vicinity and then provides the rider with an estimated fare. (Id.) If the rider accepts the estimated fare, then the available Uber driver is dispatched to pick up the rider. (Id.) At the end of the ride, the passenger completes the transaction by paying Uber through the mobile application. (See id.; see also Murnin Compl. ¶ 46.) Uber pays drivers, on a weekly basis, their share of the fares earned for their rides. (See Mumin Compl. ¶ 46; Ortega Compl. ¶¶ 25, 27.)

         Plaintiffs allege that Uber misclassifies its drivers as independent contractors rather than employees in order to avoid New York Labor Law requirements, such as minimum wage, overtime pay, and expense reimbursement. (Mumin Compl. ¶¶ 4, 41; Ortega Compl. ¶ 57.) They assert that Uber "exercised control over their wages, their hours, and their working conditions, " and "regulate[d] every aspect of Uber Drivers' job performance." (Mumin Compl. ¶¶ 25-26; see also Ortega Compl. ¶ 58.) Uber controls the qualifications of the drivers it chooses to hire, requiring prospective drivers to submit to background checks and to complete an in depth training process. (Mumin Compl. ¶¶ 27, 43-44; Ortega Compl. ¶¶ 28, 59-68.) For example, potential drivers must watch an instructional video detailing Uber's rules for how drivers are to interact with riders. (Mumin Compl. ¶ 44; Ortega Compl. ¶¶ 62-65.) The video allegedly directs drivers "to stock their cars with water, snacks, and phone chargers for use by the customer, " and "to dress in a certain way that would convey the message that the driver is the rider's personal chauffeur." (Ortega Compl. ¶ 65.) Uber also allegedly requires its drivers to pass a "City Competency Test" before they can begin working. (Id. ¶¶ 66-67.) In addition, Uber drivers must register their vehicles with Uber, which bars the use of vehicles over ten years old. (Mumin Compl. ¶ 28.)

         Once a driver begins working for Uber, his or her performance is monitored through a five-star rating system whereby riders are asked to rate the driver at the end of each trip. (See Mumin Compl. ¶ 45; Ortega Compl. ¶ 69.) Drivers must maintain an average customer rating of 4.5 stars out of 5. (See Mumin Compl. ¶ 45; Ortega Compl. ¶ 69.) If drivers' customer rating falls below the minimum threshold, they have 30 days to improve their rating. (See Mumin Compl. ¶ 45; see also Ortega Compl. ¶¶ 69-72.) Failure to increase the rating to the required 4.5 stars will result in the deactivation of a driver in Uber's mobile application, effectively terminating the parties' working relationship. (Mumin Compl. ¶ 45; Ortega Compl. ¶ 72.)

         Plaintiffs allege that they incurred weekly expenses such as fuel, insurance, finance payments for their vehicles, as well as cleaning, tolls, and car maintenance costs, while driving for Uber. (Mumin Compl. ¶¶ 10, 15; Ortega Compl. ¶ 28.) Uber did not reimburse Plaintiffs for their expenses. (Mumin Compl. ¶ 11; Ortega Compl. ¶ 28.) Plaintiffs additionally allege that Uber shifts the burden of its own expenses onto the drivers through its $1 per ride "safe ride" fee. (Mumin Compl. ¶ 33; Ortega Compl. ¶¶ 27-28.) Uber supposedly uses this fee to pay for background checks, driver safety education, and the development of safety features in its mobile application. (Mumin Compl. ¶ 33; Ortega Compl. ¶ 28.)

         Plaintiffs also take issue with Uber's policy on gratuities. Uber directs its drivers to decline any tips offered by their riders. (Mumin Compl. ¶ 38; Ortega Compl. ¶¶ 75-76 (noting that Uber permits drivers to accept gratuity only after a rider offers it three times).) Uber allegedly represents to riders that gratuity is included in the cost of the fares. (Mumin Compl. ¶ 37; Ortega Compl. ¶ 77.) Uber's website advises riders that "there's no need to tip." (Mumin Compl. ¶ 69; Ortega Compl. ¶ 77.)

         Plaintiffs further allege that Uber misled them in marketing materials designed to recruit prospective drivers. (Mumin Compl. ¶¶ 34-35; Ortega Compl. ¶¶ 98-99.) The details of the deceptive advertisements vary between the two Complaints, and are described in greater detail below.

         2. Allegations Specific to the Mumin Action

         Plaintiff Manzoor Mumin allegedly drove for Uber from November 2011 to July 2013, while Plaintiff Victor Mallh began driving for Uber in June 2015 and continues to do so. (Mumin Compl.¶¶ 8, 13.) Mumin worked an estimated 55 hours per week as an Uber driver, and Mallh works 70 hours per week. (Id. ¶¶ 9, 14.) Mumin alleges that he earned approximately $1, 100 a week before taking into account weekly expenses of about $766, and Mallh states that he earns $1, 400 each week while incurring $900 in weekly expenses. (Id. ¶¶ 10, 15.) After deducting his weekly expenses, Mumin calculates that his effective hourly wage was $6.07. (Id. ¶ 10.) Mallh similarly estimates his effective wage to be $7.14. (Id. 15.) During Mumin's time with Uber, the minimum wage in New York was $7.25 and later $8.00 per hour. (Id. ¶ 10.) The minimum wage is $9.00 an hour for the time that Mallh drove for Uber. (Id¶15.)

         The Mumin Plaintiffs further allege that Uber's drivers are required to log a certain number of hours driving or they risk deactivation. (Id. ¶ 45.) Relatedly, drivers who accept less than 90% of the ride requests sent to them through the Uber mobile application risk temporary deactivation. Qd. ¶ 61 (including screenshots of the Uber application in which a driver was deactivated for 24 hours for accepting less than 90% of the ride requests and, separately, an Uber recommendation to its drivers that they should accept at least 80% of trip requests).) Drivers are also prohibited from soliciting or accepting requests for future rides from their Uber passengers outside of the Uber mobile application. ¶ 47.)

         As to gratuity, the Mumin Complaint includes specific allegations that up until the end of 2012, Uber's website contained statements such as "There's no need to hand your driver any payment and the tip is included, " and "Please thank your driver, but tip is already included." (Id. ¶ 69.) Although Uber revised its website in 2013 to state only that "there's no need to tip, " Uber has on occasion continued to represent to passengers that "tip [is] included" as late as April 2015. Qd. ¶¶ 69-70.) The Mumin Plaintiffs assert that Uber's "there's no need to tip" statement harmed its drivers by depriving them of tips that they otherwise would have received. 0cjL¶ 40.)

         Finally, the Mumin Plaintiffs assert that Uber misled its drivers by claiming that "drivers can earn $2, 000 a week by driving for Uber." ¶ 34 (including a screenshot of an Uber advertisement which states: "Depending on your market, it is easy to make $2, 000 a week driving for uber").) The Mumin Plaintiffs argue that they did not earn this "guaranteed ... pay, " despite working over 40 hours a week. (Id.) They further assert that, even if $2, 000 a week in gross income is possible, the advertisement is deceptive because it does not account for expenses, which in their case reduce their hourly wage below New York's minimum wage. Oil 35.)

         3. Allegations Specific to the Ortega Action

         The Ortega Plaintiffs are current Uber drivers. (Ortega Compl. ¶¶ 34, 50.) Plaintiff Jose Ortega became an Uber driver around August 2014, after seeing Uber advertisements that contained claims that its drivers would make certain guaranteed income. (Id. ¶¶ 32-33.) Ortega alleges that he works 6 days a week on average, for 10 to 12 hours per day, or approximately 60 to 72 hours per week. (Id. ¶ 36.) He receives gross weekly wages that range from $600 to $1, 000 a week, and incurs "hundreds of dollars each week" in work-related expenses. (Id. ¶¶ 40, 42-43.) Plaintiff Joce Martinez similarly applied to be an Uber driver around August 2014. (Id. ¶ 49.) Martinez was allegedly induced to join Uber after seeing advertisements that claimed drivers would earn $60, 000 in their first year. (Id. ¶¶ 48-49.) Martinez alleges that he works an average of 5 to 6 days a week for 5 to 10 hours per day, or approximately 25 to 60 hours per week. (Id. ¶ 50.) He receives gross weekly wages that range from $700 to $1, 000 a week, and incurs "hundreds of dollars each week" in expenses related to driving for Uber. (Id. ¶¶ 52, 54-55.)

         The Ortega Plaintiffs allege that Uber not only penalizes drivers who receive poor customer ratings, but also provides certain benefits to drivers with high customer ratings, such as discounts to certain retailers and premier driving assignments, including long-distance rides and the ability the work in exclusive locations. (Id. ¶¶ 72-73.)

         On the issue of gratuities, the Ortega Plaintiffs assert that the custom in New York City is to tip taxi drivers 18-22% of the full fare. (Id. ¶ 79.) They point to Uber's alleged representation that tip is included in the fare and argue that a portion of the fare charged to a rider is a gratuity, which Uber withholds from its drivers in violation of New York law. (Id. ¶¶ 80-82.)

         Finally, the Ortega Plaintiffs claim that Uber's marketing prominently states that drivers can make "$5, 000 Guaranteed." (Id. ¶ 98.) Their Complaint includes one example of these allegedly misleading advertisements, which states "Drive & Make $5, 000 Guaranteed, during your first month. Go to uber.com/5000." (Id. ¶ 147.) The Ortega Plaintiffs contend that Uber used this and similar offers of guaranteed compensation to induce them to work for Uber. (Id. ¶ 146.)

         B. Additional Factual Allegations

         In support of its motions to compel arbitration against Plaintiffs Mallh and Martinez, Uber submitted declarations by one of its operation specialists, who reviewed Uber's business records and was familiar with the process an individual must go through to become an Uber driver. (Decl. of Michael Colman ("Mumin Colman Decl.") (Dkt. 30 in No. 15-CV-6143); Decl. of Michael Colman ("Ortega Colman Decl") (Dkt. 21 in No. 15-CV-7387).)

         The operation specialist represented that a prospective driver cannot begin using Uber's mobile application to connect to potential riders until the driver agrees to a service agreement with Uber. (Mumin Colman Decl. ¶ 7; Ortega Colman Decl. ¶ 7.) A hyperlink to an electronic version of the operative agreement is available when the driver first opens Uber's mobile application. (Miimin Colman Decl. ¶ 8; Ortega Colman Decl. ¶ 8.) This initial screen is titled "TERMS AND CONDITIONS, " and states near the top "TO GO ONLINE, YOU MUST REVIEW ALL THE DOCUMENTS BELOW AND AGREE TO THE CONTRACTS BELOW." (Ex. A to Mumin Colman Decl.; Ex. A to Ortega Colman Decl.) At the bottom of the screen, below hyperlinks to the operative agreement and other addenda, there is a button labeled "YES, I AGREE." (Ex. A to Mumin Colman Decl.; Ex. A to Ortega Colman Decl.) Above this button is the statement "By clicking below, you represent that you have reviewed all the documents above and that you agree to all the contracts above." (Ex. A to Mumin Colman Decl.; Ex. A to Ortega Colman Decl.) A potential driver cannot advance past this initial screen unless he or she selects the "YES, I AGREE" button. (Mumin Colman Decl. ¶ 8; Ortega Colman Decl. ¶ 8.) Once this button is selected, a new screen pops up on the mobile application that asks the user to "PLEASE CONFIRM THAT YOU HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW CONTRACTS." (Ex. B to Mumin Colman Decl.; Ex. B to Ortega Colman Decl.) The driver may select either "NO" or "YES, I AGREE." (Ex. B to Mumin Colman Decl.; Ex. B to Ortega Colman Decl.) Only after a driver confirms acceptance of the terms and conditions will the driver be granted access to the rest of the mobile application, allowing the driver to begin connecting with riders. (Mumin Colman Decl. ¶ 8; Ortega Colman Decl. ¶ 8.) The agreement that the driver accepted is available for review at any time through the Driver Portal of the mobile application. (Mumin Colman Decl. ¶ 8; Ortega Colman Decl. ¶ 8.) Uber periodically revises its agreements and, when it does, drivers must repeat these same steps to accept the new agreement. (Mumin Colman Decl. ¶ 9; Ortega Colman Decl. ¶ 9.) A driver is prompted to review the revised documents and must accept and then confirm their acceptance of the new agreement in order to receive continued access to Uber's mobile application. (Mumin Colman Decl. ¶ 9; Ortega Colman Decl. ¶ 9.)

         At the time Plaintiff Victor Mallh initiated the process to become an Uber driver, the operative service agreement was the April 3, 2015, Transportation Company Agreement (the "April 2015 Agreement"). (Mumin Colman Decl. ¶ 11; see also April 2015 Agreement (id., Ex. C).) Mallh accepted the April 2015 Agreement on June 9, 2015, and began driving for Uber. (Mumin Colman Decl. ¶ 11.) On December 14, 2015, Uber presented Mallh with a revised agreement, the December 11, 2015, Technology Services Agreement (the "December 2015 Agreement"), through the mobile application. Qd. ¶ 12; see also December 2015 Agreement (id., Ex. D).) Mallh accepted the December 2015 Agreement. (Mumin Colman Decl. ¶ 12.)

         Plaintiff Joce Martinez began the process to become an Uber driver in August 2014, when the operative agreement was the June 21, 2014, Software License Agreement (the "June 2014 Agreement"). (Ortega Colman Decl. ¶ 11; see also June 2014 Agreement (id., Ex. C).) Martinez accepted the June 2014 Agreement on August 6, 2014. (Ortega Colman Decl. ¶ 11.) Uber presented Martinez with a revised agreement, the November 10, 2014 Transportation Company Agreement (the "November 2014 Agreement"), which Martinez accepted on February 28, 2015. (Id. ¶ 12; see also November 2014 Agreement (id., Ex. D).) Uber later provided Martinez with another revision, the April 2015 Agreement, and Martinez accepted its terms on October 17, 2015. (Ortega Colman Decl. ¶ 12.) The last revised agreement with which Martinez was presented was the December 2015 Agreement. (Id. ¶ 13.) He accepted the agreement on December 12, 2015. (Id.)

         Each of the Uber agreements Plaintiffs Mallh and Martinez agreed to contained a substantially similar arbitration clause. (See, e.g., December 2015 Agreement § 15.3.) Arbitration is not mandatory: a driver may opt out of arbitration within 30 days of accepting the underlying agreement. (See, e.g.. Id. § 15.3(viii).) A driver opts out of arbitration by notifying Uber in writing of his or her intent to do so by email, a nationally-recognized delivery service such as U.P.S., or hand delivery. (See, e.g., id.)

         Plaintiff Mallh did not opt out of the arbitration provision of either the April 2015 Agreement or the December 2015 Agreement. (Mumin Colman Decl. ¶ 14.)

         Plaintiff Martinez did not opt out of arbitration for the June 2014 Agreement or the November 2014 Agreement. (Ortega Colman Decl. ¶ 16.) He did attempt to opt out of arbitration a week after his receipt of the April 2015 Agreement by a letter drafted by Martinez's counsel and delivered to Uber via email and U.P.S. delivery. (Decl. of Joce Martinez (Dkt. 26 in No. 15-CV-7387) ¶¶ 7-11.) Uber claims that this attempted opt-out was invalid because a provision of the November 2014 Agreement stated that "[u]nless changes are made to the arbitration provisions herein, [Martinez] agrees that modification of this Agreement does not create a renewed opportunity to opt out of arbitration." (November 2014 Agreement § 14.1.) The arbitration provision did not change between the November 2014 Agreement and the April 2015 Agreement. (Ortega Colman Decl. ¶ 16.) Martinez disputes this contention, and states that his opt-out was "retroactive and prospective." (Decl. of Joce Martinez ¶ 12.) After the April 2015 Agreement, Martinez agreed to one additional revised contract with Uber, the December 2015 Agreement. (Ortega Colman Decl. ¶ 16.) The arbitration provision in the December 2015 Agreement was modified, [1] and thus Uber agrees Martinez could have opted out of arbitration within 30 days of agreeing to this revised contract. (See id.) However, Martinez did not opt out of the arbitration provision in the December 2015 Agreement. (Id.)

         The arbitration clause in each of the aforementioned agreements contained similar language regarding its scope. The operative provision (the "Arbitration Provision") in the December 2015 Agreement, the latest agreement agreed to by Mallh and Martinez, provides that:

Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only bv an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative (non-PAGA)[2] action.
Except as provided in Section 15.3(v), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocabilitv 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 all disputes between You and Uber, ... including but not limited to any 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....

(December 2015 Agreement § 15.3(f) (underlining added, bold in original).) This agreement also includes a "Class Action Waiver, " which states:

You and Uber agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class or collective action basis ("Class Action Waiver")* The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreement, the Arbitration Provision or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only bv a civil court of competent jurisdiction and not bv an arbitrator.

(Id. § 15.3(v) (underlining added, bold in original).)

         II. PROCEDURAL HISTORY

         The Mumin Plaintiffs originally filed their action in the Supreme Court of New York, Kings County, but it was removed by Uber on October 26, 2015, on the basis of diversity of citizenship and under the Class Action Fairness Act. (See Not. of Removal (Dkt. 1 in No. 15-CV-6143).) The operative complaint in this action is the Third Amended Class Action Complaint, filed on March 18, 2016. CMumin Compl.) The Mumin Plaintiffs assert the following claims, all under New York law: (1) violations under the New York Labor Law, including (a) unlawfully retaining gratuities, (b) failure to keep required payroll records, and (c) failure to pay minimum wages; (2) tortious interference with a contract and business relations; (3) breach of contract; (4) unjust enrichment; (5) conversion; (6) fraud and misrepresentation; and (7) promissory estoppel. (Id. ¶¶ 59-105.)

         The Ortega Plaintiffs filed their action in this court on December 29, 2015. The operative complaint is the First Amended Class Action Complaint, filed on April 25, 2016. (Ortega Compl.) This action was initially before Judge I. Leo Glasser of this court but, on March 9, 2016, the case was reassigned to the undersigned as related to the Mumin Action. (Mar. 9, 2016, Order in No. 15-CV-7387.) The Ortega Plaintiffs assert the following claims, all under New York law: (1) violations under the New York Labor Law, including (a) unlawfully retaining gratuities, (b) failure to pay spread-of-hour wages, (c) illegal deductions of gratuities and wages, (d) failure to keep required payroll records and provide necessary wage statements and other notices, (e) failure to provide meal and rest periods, (f) failure to pay rninimum wages, (g) failure to pay overtime wages, and (h) unlawful deductions and kickbacks; (2) tortious interference with business relations; (3) breach of contract; (4) conversion; and (5) false advertising. (Id. ¶¶ 101-53.)

         III. DISCUSSION

         Pending before the court are Uber's motions to compel individual arbitration as to two of the plaintiffs: Victor Mallh in the Mumin Action, and Joce Martinez in the Ortega Action.[3] (See Mumin Defs.' Mot. to Compel Arbitration; Ortega Defs.' Mot. to Compel Arbitration.) Uber concedes that Plaintiffs Manzoor Mumin and Jose Ortega properly opted out of arbitration, and thus does not seek to compel individual arbitrations against them. Also before the court are Uber's motions to dismiss the operative complaints in both actions pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. (See Mumin Defs.' Mot. to Dismiss; Ortega Defs.' Mot. to Dismiss.)

         A. Motion to Compel Arbitration

         Plaintiffs Mallh and Martinez contest Uber's motions to compel arbitration on a number of grounds. The court finds that the Arbitration Provision provides clear and unmistakable evidence that the parties intended to delegate the issue of arbitrability to an arbitrator, and further finds that the Provision is not unconscionable. The court also holds that the Class Action Waiver is valid and enforceable. Accordingly, Plaintiffs Mallh and Martinez are both compelled to arbitrate their claims on an individual basis.

         1. Legal Standard

         The Federal Arbitration Act ("FAA") establishes a "federal policy favoring arbitration, " requiring federal courts to "rigorously enforce agreements to arbitrate." Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (1987). A written agreement to arbitrate "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Under the FAA, a party may move the district court for an order directing that arbitration proceed pursuant to the parties' written agreement. Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016). In deciding such motions to compel arbitration, "courts apply a 'standard similar to that applicable for a motion for summary judgment.'" Id. (quoting Bensadounv. Jobe-Riat 316 F.3d 171, 175 (2d Cir. 2003)). Therefore, courts must "consider all relevant, admissible evidence submitted by the parties and contained in 'pleadings, depositions, answers to interrogatories, and admissions on file, together with... affidavits.'" Chambers v. Time Warner. Inc., 282 F.3d 147, 155 (2d Cir. 2002) (quoting Fed.R.Civ.P. 56(c)). All reasonable inferences must be drawn in favor of the non-moving party. Nicosia, 834 F.3d at 229.

         Questions of arbitrability are generally reserved for judicial determination, including "whether the parties are bound by a given arbitration clause, " or "whether an arbitration clause in a concededly binding contract applies to a particular type of controversy." Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84 (2002). However, determinations of arbitrability may be delegated to an arbitrator "if there is clear and unmistakable evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator." Shaw Grp. Inc. v. Triplefine Intern. Corp., 322 F.3d 115, 121 (2d Cir. 2003) (internal quotation marks omitted) (quoting Bell v. Cendant Corp.. 293 F.3d 563, 566 (2d Cir. 2002)). "This principle 'flow[s] inexorably from the fact that arbitration is simply a matter of contract between the parties."' Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (quoting First Options, 514 U.S. at 943).

         2. Choice of Law

         Plaintiff Mallh argues that California law applies to the interpretation of the parties' agreement to arbitrate because the December 2015 Agreement contains a California choice of law provision. (PL's Mem. of Law in Opp'n to Defs.' Mot. to Compel ("Mumin Arb. Opp'n") (Dkt. 34 in No. 15-CV-6143) at 6-8.)[4] By its own terms, however, the choice of law provision of the December 2015 Agreement "do[es] not apply to the arbitration clause ..., ...


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