United States District Court, E.D. New York
MANZOOR MUMIN and VICTOR MALLH, individually and on behalf of all others similarly situated, Plaintiffs,
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,
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.
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).)
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.
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
Facts as Alleged in the Operative Complaints
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.)
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. ¶
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.)
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.)
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.)
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.
Allegations Specific to the Mumin Action
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.)
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.
Q± ¶ 47.)
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.)
the Mumin Plaintiffs assert that Uber misled its
drivers by claiming that "drivers can earn $2, 000 a
week by driving for Uber." Q± ¶ 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.)
Allegations Specific to the Ortega Action
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.)
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.
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.)
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.)
Additional Factual Allegations
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.
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.)
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.)
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.)
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.)
Mallh did not opt out of the arbitration provision of either
the April 2015 Agreement or the December 2015 Agreement.
(Mumin Colman Decl. ¶ 14.)
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,
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.
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) 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
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.)
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. ¶¶
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. (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.)
Motion to Compel Arbitration
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.
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
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).
Choice of Law
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.) By its own terms, however, the choice of
law provision of the December 2015 Agreement "do[es] not
apply to the arbitration clause ..., ...