Opinion
23-cv-05317-DMR
07-29-2024
CHRISTOPHER FOMBY, Plaintiff, v. CSC SERVICEWORKS, INC., Defendant.
ORDER ON MOTION TO COMPEL ARBITRATION
RE: DKT. NO. 33
Donna M. Ryu Chief Magistrate Judge
Plaintiff Christopher Fomby brings this employment discrimination case against Defendant CSC ServiceWorks, Inc. Defendant now moves to compel this matter to arbitration. [Docket No. 33 (Mot.).] Plaintiff opposes. [Docket No. 36 (Opp'n).] This matter is suitable for determination without oral argument. Civ. L.R. 7-1(b). For the following reasons, Defendant's motion is granted.
The pending joint discovery letter is denied without prejudice as moot. [Docket No. 41.]
I. BACKGROUND
A. Allegations and Procedural History
Plaintiff was employed by Defendant from May 2019 to May 2022. [Docket No. 1-2, Ex. A (Compl.) at ¶ 26.] He began as an “Installer I” and was a “Delivery Driver/Appliance Installer” at the time of his termination. Id. at ¶¶ 26, 28. He alleges that the branch manager wrongfully terminated him based on racial discrimination because he is African American and the branch manager showed a preference for Hispanic employees. Id. at ¶¶ 15, 44-45.
Plaintiff filed a complaint in state court on July 12, 2023, alleging seven claims: (1) Discrimination; (2) Harassment based on Race, Cal. Gov. Code § 12940(j); (3) Discrimination, Cal. Gov. Code §§ 12900, et seq.; (4) Wrongful termination; (5) Unfair Business Practices; (6) Intentional Infliction of Emotional Distress; and (7) Waiting Time Penalties. Compl. Defendant filed an answer, then removed the case to federal court based on diversity jurisdiction on October 18, 2023. [Docket No. 1 (Notice of Removal) ¶ 5.] On December 27, 2023, the parties filed a stipulation to participate in mediation with a June 1, 2024 mediation deadline. [Docket No. 13.] The parties completed their Rule 26(f) conference, exchanged initial disclosures, and filed a joint case management statement. [Docket No. 36-1 (Tiega-Noel Varlack Decl., May 31, 2024) ¶¶ 1214.] On January 17, 2024, they appeared before the court for an initial case management conference. Id. at ¶ 13.
Defense counsel then stopped communicating with Plaintiff for several months. Id. at ¶ 16. On April 10, 2024, former defense counsel Michael Guasco abruptly resigned from his law firm, and the case was reassigned to the current defense counsel, Joshua Cliffe. [Docket No. 33-1 (Joshua Cliffe Decl., May 17, 2024) ¶ 2.] According to Leanne Mehrman, Defendant's organizational representative in this case, Guasco had not informed Mehrman of the stipulation to participate in mediation, and Mehrman would not have agreed to mediation if she had been consulted. [Docket No. 33-5 (Leanne Mehrman Decl., May 7, 2024) ¶¶ 2, 4-7.] Immediately after Cliffe substituted in as counsel, he reached out to Plaintiff's counsel to request that Plaintiff stipulate to submit the matter to arbitration pursuant to an arbitration agreement signed by Plaintiff. Cliff Decl. ¶ 5. The parties were unable to resolve the issue informally. Id. at ¶¶ 5-8. On May 17, 2024, Defendant filed this motion to compel arbitration and to stay proceedings.
B. The Arbitration Agreement
On May 10, 2019, as part of Plaintiff's new hire paperwork, Defendant provided Plaintiff with an employee handbook which contained a Mutual Dispute Resolution Policy and Agreement (“Agreement”). [Docket Nos. 33-6 (Katie Coyle Decl., May 10, 2024) ¶¶ 6-7; 33-7 (Agreement).] The Agreement includes these arbitration terms:
Any controversy, dispute, or claim between a team member and the Company (including its officers, directors, employees, agents, parents, subsidiaries, affiliated companies, or successors) arising out of the employment relationship shall be settled exclusively by binding arbitration. Covered claims include, but are not limited to, claims for wages and other compensation, breach of contract (express or implied), misappropriation of trade secrets or unfair competition,
violation of public policy, wrongful termination; tort claims; claims for unlawful retaliation, discrimination, and/or harassment; and claims for violation of any federal, state, or other government law, statute, regulation, or ordinance, such as, for example, claims under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, Section1981 through 1988 of Title 42 of the United States Code, the Equal Pay Act of 1963, the Pregnancy Discrimination Act, the Worker Adjustment and Retraining Notification Act, the New Jersey Law Against Discrimination, and the New Jersey Conscientious Employee Protection Act.
Plaintiff does not dispute that these terms, if valid, cover his claims against Defendant in this case.
Also on May 10, 2019, Plaintiff signed the Arbitration Agreement Acknowledgment (“Acknowledgment”). Coyle Decl. ¶ 8, [Docket No. 33-8 (Acknowledgment)]. The Acknowledgment provides:
I acknowledge that I have received and read or have had the opportunity to read CSC ServiceWorks, Inc.'s (the company) Mutual Dispute Resolution Policy and Agreement (Agreement). I acknowledge and affirm that I understand the Agreement's terms and have consulted with or have had sufficient opportunity to consult with legal counsel of my choosing regarding the meaning and effect of its terms. I understand and affirm that by accepting or continuing employment with the company, I knowingly and freely enter into this Agreement and will be bound by it. I also understand that I may opt out of Section II of the Agreement by following the procedures outlined in Section II. I understand that this agreement requires that disputes that involve the matters subject to the agreement be submitted to arbitration pursuant to the agreement rather than to a judge and jury in court.
In 2020, Defendant transitioned its employee data and records to a portal called UKG
Platform. Coyle Dec. ¶ 9. Defendant distributed the Agreement to Plaintiff two more times via UKG Platform, once on February 19, 2020 and once on April 27, 2022. Id. at ¶ 16. Both times, Plaintiff downloaded the Agreement from UKG Platform and clicked “Yes” on the confirmation pop-up to acknowledge receipt and understanding of the agreement. Id. at ¶¶ 10-16.
The Agreement was effective April 1, 2018, and none of the provisions were modified or updated in the subsequent years relevant to this dispute. Id. at ¶ 6.
II. LEGAL STANDARD
The Federal Arbitration Act (“FAA”) governs written arbitration agreements affecting interstate commerce. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111-12 (2001). Enacted for the purpose of enforcing written arbitration agreements according to their own terms, the FAA embodies “the basic precept that arbitration ‘is a matter of consent, not coercion.'” Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 681 (2010) (quoting Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989)). Section 4 of the FAA ensures that “private agreements to arbitrate are enforced according to their terms,” Stolt-Nielsen, 559 U.S. at 682 (quoting Volt, 489 U.S. at 479), by expressly authorizing a party to an arbitration agreement to petition a United States district court for an order directing that “arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4.
The FAA provides that an arbitration agreement “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. “The final clause of § 2, generally referred to as the savings clause, permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation marks omitted)). “By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original) (citing 9 U.S.C. §§ 3, 4).
“In deciding whether to compel arbitration under the FAA, a court's inquiry is limited to two ‘gateway' issues: ‘(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.'” Lim v. TForce Logistics, LLC, 8 F.4th 992, 999 (9th Cir. 2021) (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). “If both conditions are met, ‘the [FAA] requires the court to enforce the arbitration agreement in accordance with its terms.'” Id. (quoting Chiron, 207 F.3d at 1130). “[S]tate law . . . is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Perry v. Thomas, 482 U.S. 483, 492, fn. 9 (1987) (emphasis omitted). Parties may delegate gateway issues of arbitrability to the arbitrator if they “clearly and unmistakably” agree to do so. Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., 862 F.3d 981, 985 (9th Cir. 2017).
III. EVIDENTIARY OBJECTIONS
“A district court ruling on a motion to compel arbitration applies a standard similar to the summary judgment standard of Rule 56.” Navarro v. SmileDirectClub, Inc., No. 22-CV-00095-WHO, 2022 WL 1786582, at *5 (N.D. Cal. June 1, 2022). Under Rule 56, “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e).
A. Objections to Defendant's Evidence
Plaintiff argues that the court should strike all of Defendant's evidence based on lack of foundation, lack of personal knowledge, hearsay, improper expert opinion, the best evidence rule, and cumulative or irrelevant evidence. Opp'n 1-3. Plaintiff objects to Defendant's declarations as well as its exhibits such as the Agreement from the employee handbook and the Acknowledgment that was signed by Plaintiff. However, Plaintiff does not dispute that he actually saw the Agreement and signed the Acknowledgment.
“Before documentary evidence may be considered, Federal Rule of Evidence 901(a) requires a proper foundation be laid to authenticate the item by ‘evidence sufficient to support a finding that the item is what the proponent claims it is.'” Lomeli v. Midland Funding, LLC, No. 19-CV-01141-LHK, 2019 WL 4695279, at *5 (N.D. Cal. Sept. 26, 2019) (citing Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)). “Such a foundation may be laid by testimony of a witness who has personal knowledge.” Id. (citing Fed.R.Evid. 901(b)(1)). Here, Katie Coyle, Director of Human Resources for Defendant, submitted a sworn declaration stating that she is familiar with Defendant's system of record for employee data, and that she personally reviewed Plaintiff's personnel records and the policies and practices in place during the time Plaintiff was employed by Defendant. Coyle Decl. ¶¶ 1, 3-4. She declares under penalty of perjury that the copies of the Agreement and signed Acknowledgment are true and correct. Id. at ¶¶ 6, 8. Contrary to Plaintiff's objection, Coyle is not offering an improper expert opinion; it is a factual statement based on Coyle's personal knowledge as Director of Human Resources as well as her review of the records. Fed.R.Evid. 602; 702. This is sufficient evidence to support a finding that the documents are what Defendant claims they are-an agreement to arbitrate between Defendant and Plaintiff. See Ortiz v. Hobby Lobby Stores, Inc., 52 F.Supp.3d 1070, 1078 (E.D. Cal. 2014) (finding that arbitration agreement was properly authenticated where the district manager submitted a sworn declaration that the agreement was true and correct based on his personal knowledge as district manager and his review of the plaintiff's employment files). Plaintiff's objections based on lack of foundation, lack of personal knowledge, and improper expert opinion are overruled.
To the extent Plaintiff objects that the declarations and documents constitute hearsay and violate the best evidence rule, these challenges are inappropriate at this stage. See Navarro, 2022 WL 1786582, at *5. “On a motion to compel arbitration . . . the Court ‘does not focus on the admissibility of the evidence's form,' so long as the contents are capable of presentation in an admissible form at trial.” Lomeli, 2019 WL 4695279, at *7 (quoting McKee v. Audible, Inc., No. 17-cv-1941, 2017 WL 7388530, at *4 (C.D. Cal. Oct. 26, 2017)). “Objections on the basis of a failure to comply with the technicalities of authentication requirements or the best evidence rule are, therefore, inappropriate.” McKee, 2017 WL 7388530, at *4. Plaintiff offers no reason to believe that Defendant would not be able to present the evidence in an admissible form at trial; for example, Plaintiff's hearsay objections to the declarations can be resolved simply by having the declarants testify at trial. See Lomeli, 2019 WL 4695279, at *7. To the extent Plaintiff argues the Mehrman Declaration includes hearsay statements about Guasco's resignation, the court will admit these statements not for the truth of the matter asserted (i.e. that Guasco resigned), but rather for the effect the assertions had on Mehrman and to explain her conduct and state of mind. Reply 20; see Fed.R.Evid. 801(c).
Finally, Plaintiff argues that statements in the declarations regarding Guasco's resignation and Cliffe's efforts to engage with Plaintiff about the arbitration agreement are irrelevant or cumulative. Opp'n 1-2. The court does not rely on these statements to reach its ruling. Plaintiff's objections are denied as moot.
B. Objections to Plaintiff's Evidence
Defendant objects to sections of the Varlack Declaration at paragraphs 20, 21, 23, 24, and Exhibit A, based on lack of foundation, speculation, and improper legal conclusion. Reply 18-19. Defendant also argues that they violate Civil Local Rule 7-5(b), which requires that affidavits or declarations “contain only facts, must conform as much as possible to the requirements of Fed.R.Civ.P. 56(e), and must avoid conclusions and argument. Any statement made upon information or belief must specify the basis therefor.” Reply 9 fn. 2; Civ. L.R. 7-5(b).
Defendant also argues these sections of the declaration are “self-serving” and should therefore be stricken. Reply 18-19 (citing Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1263 (9th Cir. 2017)). The court will not disregard a piece of evidence “solely based on its self-serving nature.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015). “However, a self-serving declaration does not always create a genuine issue of material fact for summary judgment: The district court can disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence.” Id. The court therefore focuses on whether the Varlack Declaration states facts that can be considered.
Varlack is Plaintiff's counsel in this matter. Varlack Decl. ¶ 1. She states in her declaration:
20. Interstate Commerce Engagement: Despite the localized nature of the delivery routes, Plaintiff is engaged in interstate commerce. The goods delivered by Plaintiff, air systems and laundry systems often originate from other states and are part of the continuous flow of interstate commerce. Plaintiff's role in delivering these goods to their final destination is an integral part of the interstate commercial process.
21. Delivery drivers, such as plaintiff, are directly involved in the interstate transportation of goods.
22. Integral Role in Interstate Commerce:
23. Plaintiff's employment as a delivery driver is critical to the completion of the interstate commercial process. The delivery of goods from warehouses to end consumers, even within a localized area, is a necessary component of interstate commerce. Plaintiff's role ensures that goods that have traveled across state lines reach their final destination, thereby completing the interstate commercial transaction.
24. Attached hereto as Exhibits A is a true and correct copies of Plaintiff's job description showing the interstate nature of the goods delivered, which support Plaintiff's Opposition to Defendant's Motion to Compel Arbitration.Varlack Decl. at ¶¶ 20-24. Exhibit A is a job description for “Appliance Delivery Installer” for Union City, California, taken from what appears to be Defendant's website. Id. at Ex. A (Job Post). The bottom of the webpage says, “© 2024 CSC ServiceWorks”. Id.
“[A]n attorney's declaration must be made upon personal knowledge.” Clark v. Cnty. of Tulare, 755 F.Supp.2d 1075, 1084 (E.D. Cal. 2010). Varlack has not established personal knowledge of Plaintiff's job or, more generally, about how delivery drivers perform their work. The only “factual” support for her statement that Defendant is engaged in interstate commerce is her unsupported assertion that “air systems and laundry systems often originate from other states.” Varlack Decl. at ¶ 20. Varlack's statements that “Plaintiff is engaged in interstate commerce” and that “Plaintiff's employment as a delivery driver is critical to the completion of the interstate commercial process” are conclusory, and they also amount to improper legal opinions. See Lopez v. HMS Host, Inc., No. C 09-04930 SI, 2010 WL 199716, at *2 (N.D. Cal. Jan. 13, 2010) (striking a declaration for consisting mostly of “conclusory and argumentative” statements); Dytch v. Lazy Dog Restaurants, LLC, No. 16-CV-03358-EDL, 2019 WL 3928752, at *8 (N.D. Cal. Aug. 16, 2019) (striking a declaration “because it functions as a legal opinion that improperly instructs the fact-finder as to how to decide certain issues”).
Varlack also has not properly authenticated the Job Post. She does not provide any evidence that the Job Post is what she claims it is. See Lomeli, 2019 WL 4695279, at *5 (requiring evidence sufficient to support a finding that the item is what the proponent claims it is before considering documentary evidence). Varlack does not explain how she found the Job Post or her basis for believing that the description for “Appliance Delivery Installer” is an accurate description of Plaintiff's job at the time he performed it. The lack of foundation is particularly evident given that the Job Post appears to be dated from 2024, even though Plaintiff was employed by Defendant from 2019 to 2022. Compl. at ¶ 26.
Plaintiff stated that his job title was “Installer I,” and later stated that his job title was “Delivery Driver/Appliance Installer.” Compl. ¶¶ 26, 28. It is unclear if these titles refer to the same position or if Plaintiff's position changed in the three years of his employment.
The court sustains Defendant's objections to the portions of the Varlack Declaration listed in the reply, as well as the Job Post.
IV. DISCUSSION
The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence that an agreement to arbitrate exists. Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir.), cert. denied, 138 S.Ct. 203 (2017). The party raising a defense to enforcement of an arbitration agreement bears the burden of proving by a preponderance of the evidence “any fact necessary to the defense.” Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal.4th 394, 413 (1996).
“With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court.” Baker v. Italian Maple Holdings, LLC, 13 Cal.App. 5th 1152, 1160 (2017). As stated above, Defendant has presented a copy of the Agreement and Acknowledgment signed by Plaintiff.
Plaintiff raises three defenses to enforcement: that Plaintiff is exempted from the FAA because he is a transportation worker engaged in interstate commerce under 9 U.S.C. § 1; that the arbitration agreement is unconscionable; and that Defendant has waived its right to arbitrate. The court first considers Plaintiff's argument that he is an exempted transportation worker because it is a “necessarily antecedent statutory inquiry” to determine if any part of the arbitration agreement can be enforced, including a delegation clause. See New Prime Inc. v. Oliveira, 586 U.S. 105, 112 (2019).
A. Transportation Worker Exemption
Transportation workers are exempted from arbitration under the FAA. See 9 U.S.C. § 1. “A plaintiff opposing arbitration under the FAA has ‘the burden of demonstrating the exemption.'” Vargas v. Delivery Outsourcing, LLC, No. 15-CV-03408-JST, 2016 WL 946112, at *3 (N.D. Cal. Mar. 14, 2016) (quoting Cilluffo v. Cent. Refrigerated Servs., Inc., No. EDCV 1200886 VAP, 2012 WL 8523507, at *3 (C.D. Cal. Sept. 24, 2012)).
The Supreme Court has defined “transportation worker” as “one who is ‘actively [] engaged in transportation' of . . . goods across borders via the channels of foreign or interstate commerce,” and who “play[s] a direct and ‘necessary role in the free flow of goods' across borders.” Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 256 (2024) (quoting Sw. Airlines Co. v. Saxon, 596 U.S. 450, 458 (2022)). The transportation worker does not have to cross state borders herself. For example, “one who loads cargo on a plane bound for interstate transit” is a transportation worker under the statute. Saxon, 596 U.S. at 458. Likewise, a fuel technician who places fuel in a plane used for foreign and interstate commerce is also a transportation worker. Lopez v. Aircraft Serv. Int'l, Inc., No. 23-55015, 2024 WL 3464425, at *4 (9th Cir. July 19, 2024).
Plaintiff cites Rittmann v. Amazon.com, Inc., in which the Ninth Circuit found that “last mile” delivery drivers are transportation workers even if they do not cross state lines, because the drivers were hired by Amazon to transport Amazon goods for the “last leg of the shipment to their destination.” 971 F.3d 904, 915 (9th Cir. 2020). The goods “remain in the stream of interstate commerce until they are delivered.” Id. The Ninth Circuit distinguished such “last mile” deliver drivers from local food delivery drivers, who are not transportation workers because prepared meals from local restaurants are not “indisputably part of the stream of commerce.” Id. at 917.The deciding issue is whether the delivery drivers “operate in a single, unbroken stream of interstate commerce that renders interstate commerce a central part of their job description.” Carmona Mendoza v. Domino's Pizza, LLC, 73 F.4th 1135, 1138 (9th Cir. 2023), cert. denied sub nom. Domino's Pizza, LLC v. Carmona, 144 S.Ct. 1391 (2024).
Rittmann is in line with authority from other circuits. For example, the First Circuit has held that Amazon delivery drivers “and other last-mile delivery workers who haul goods on the final legs of interstate journeys are transportation workers ‘engaged in . . . interstate commerce,' regardless of whether the workers themselves physically cross state lines.” Waithaka v. Amazon.com, Inc., 966 F.3d 10, 26 (1st Cir. 2020). The Seventh Circuit noted that the definition of a transportation worker is more about “what the worker does” than “where the goods have been.” Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 802 (7th Cir. 2020). “[T]o fall within the exemption, the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders.” Id. For this reason, the Seventh Circuit held that food delivery drivers for Grubhub who delivered takeout from local restaurants were not transportation workers. Id.
Rittmann is distinguishable from this case. Plaintiff presents no evidence that his job was analogous to a “last mile” delivery driver. Plaintiff argues, without factual support, that he engaged in interstate commerce because he was a delivery driver transporting Defendant's equipment in its territories. Opp'n 7. Plaintiff has not presented any evidence that his delivery of Defendant's equipment was the “last leg” of an interstate shipment, or that the equipment was “indisputably part of the stream of commerce.” See Rittmann, 971 F.3d at 915, 917. Plaintiff cites Defendant's website as stating that Defendant has “locations throughout the U.S., Canada, and Europe,” but the fact that Defendant has operations in different geographic locations does not speak to the work performed by Plaintiff.
For its part, Defendant has presented evidence that Plaintiff only delivered goods that had already exited the interstate stream of commerce. [Docket No. 38-1 (George Rubi Decl., June 7, 2024).] According to George Rubi, Branch Manager of the Union City, California branch of Defendant's business, Defendant acquires laundry equipment and stores them in Defendant's warehouses. Id. at ¶ 6. Only after an individual customer subsequently leases the laundry equipment from Defendant would employees such as Plaintiff deliver the equipment to the customer. Id. at ¶ 7. These new transactions take place only within the state. Id. at ¶ 8. Unlike in Carmona Mendoza, this does not involve a “single, unbroken stream of interstate commerce,” and therefore interstate commerce is not a central part of Plaintiff's job description. See Carmona Mendoza, 73 F.4th at 1138.
Plaintiff has the burden to prove by a preponderance of evidence that he is a transportation worker. See Vargas v. Delivery Outsourcing, LLC, No. 15-CV-03408-JST, 2016 WL 946112, at *3 (N.D. Cal. Mar. 14, 2016) (“A plaintiff opposing arbitration under the FAA has ‘the burden of demonstrating the exemption.'”). He has not met his burden. The FAA exemption does not apply.
B. Delegation Clause
Plaintiff's other two defenses to enforcement-unconscionability and waiver-cannot be considered by this court because they have been delegated to the authority of the arbitrator.
The Agreement includes a delegation clause which provides that “the arbitrator shall have the exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement (including all defenses to contract enforcement such as, for example, waiver and unconscionability) or the arbitrability of any claim.” Agreement § 3. This delegation language is clear and unmistakable, and Plaintiff does not argue otherwise. Defendant therefore has met its burden to prove that the parties “clearly and unmistakably” agreed to arbitrate the gateway issue of arbitrability. Portland General Electric, 862 F.3d at 985.
“An agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). Because an arbitration provision is severable from the remainder of the contract, “unless [the plaintiff] challenged the delegation provision specifically, we must treat it as valid under [FAA] § 2, and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator.” Id. at 72. “[T]o sufficiently challenge a delegation provision, the party resisting arbitration must specifically reference the delegation provision and make arguments challenging it.” Bielski v. Coinbase, Inc., 87 F.4th 1003, 1011 (9th Cir. 2023).
Plaintiff does not specifically challenge the delegation provision. Opp'n 8-9. This is exactly the situation discussed in Rent-A-Center, in which the court found that a challenge to the arbitration agreement “as a whole” was an issue for the arbitrator to decide because the challenger failed to specifically address the delegation provision. 561 U.S. at 74-75. Thus, Plaintiff fails to overcome the “relatively low barrier to entry” by ensuring that his challenge to arbitration “mentions and specifically relates to the validity of the delegation provision.” See Bielski, 87 F.4th at 1010. As Plaintiff raises no arguments that relate to the delegation provision in particular, the court cannot consider Plaintiff's second and third defenses (unconscionability and waiver) because they have been delegated to the authority of the arbitrator.
V. CONCLUSION
Plaintiff has failed to meet his burden to establish that he is a transportation worker who is exempt from the FAA. He also has not challenged the delegation provision of the Agreement. That provision clearly and unmistakably gives the arbitrator the exclusive authority to rule on Plaintiff's remaining defenses to enforcement. Defendant's motion to compel arbitration and to stay proceedings is GRANTED.
For case management purposes, the court implements the stay by administratively closing the case. The parties shall file a joint status report within 30 days of a final arbitration order. Filing the status report will lift the stay by reactivating the case.
IT IS SO ORDERED.