“[A] district court may either stay the action or dismiss it outright when, as here, the court determines that all of the claims raised in the action are subject to arbitration.”
How later courts described this case
- “[A] district court may either stay the action or dismiss it outright when, as here, the court determines that all of the claims raised in the action are subject to arbitration.”
- “Virtually every circuit to have considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
KRISTA KAHL, et al., Case No. 23-cv-00985-AGT
Plaintiffs,
ORDER ON MOTION TO COMPEL
v. ARBITRATION
PLENTYOFFISH MEDIA, ULC, Re: Dkt. No. 13
Defendant.
Plentyoffish Media ULC has moved to compel the plaintiffs to arbitrate their claims. The
plaintiffs allege that Plentyoffish Media violated California law by “restrict[ing] the age range
for potential matches” on the Plenty of Fish dating app. FAC ¶ 20.
The plaintiffs all agreed to Plentyoffish Media’s terms of use when they created accounts
on the dating app. See Dkt. 13-1, Gradin Decl. ¶¶ 2–8. Those terms included an arbitration
agreement, but the plaintiffs contend that the arbitration agreement is unconscionable and
shouldn’t be enforced. See Opp’n, Dkt. 14 at 6–11.
Unconscionability is a “gateway” issue, which is traditionally resolved in court before
arbitration commences. Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (quoting
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)). But the parties to an arbitration
agreement can agree “to arbitrate a gateway issue.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S.
63, 70 (2010). The parties here did just that.
Rent-A-Center is a helpful comparison case. There, the parties included in their arbitra-
tion agreement a provision that assigned to the arbitrator “exclusive authority to resolve any
dispute relating to the enforceability of this Agreement.” Id. at 71 (simplified). The Supreme
Court held that this “delegation provision” was valid and enforceable, and that pursuant to it,
the respondent’s argument that the arbitration agreement was unconscionable—and thus unen-
forceable—was for an arbitrator, not a court, to decide. See id. at 68–75.
Provisions similar to the one at issue in Rent-A-Center were agreed to here. Plentyoffish
Media has amended its terms of use several times, but all four plaintiffs agreed to a version of
the terms that incorporated either the JAMS Streamlined Arbitration Rules and Procedures or
the NAM Comprehensive Dispute Resolution Rules and Procedures. See Gradin Decl., Ex. 7,
Terms of Use § 15(a)(1); Exs. 8 & 9, Terms of Use § 15(c), (d). Those incorporated rules specify
that challenges to the validity of the arbitration agreement are for the arbitrator, not the Court,
to decide. See Dkt. 13-2, Brown Decl., Ex. 2, JAMS Rule 8(b) (“[D]isputes over the formation,
existence, validity, interpretation or scope of the agreement under which Arbitration is sought
. . . shall be submitted to and ruled on by the Arbitrator.”); Id., Ex. 1, NAM Rule 17(B) (“The
Arbitrator(s) shall have the authority to determine . . . any issue regarding the validity, existence,
formation or scope of the agreement under which Arbitration is being sought . . . .”).
The plaintiffs haven’t asserted that these delegation clauses are unenforceable. And be-
cause they haven’t “challenged the delegation provision[s] specifically, . . . any challenge to
the validity of the [arbitration agreement] as a whole [is] for the arbitrator.” Rent-A-Center, 561
U.S. at 72; see also Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069, 1074 (9th Cir. 2013)
(“Virtually every circuit to have considered the issue has determined that incorporation of the
[AAA] arbitration rules constitutes clear and unmistakable evidence that the parties agreed to
arbitrate arbitrability.”). The Court will therefore leave for the arbitrator the question of whether
the arbitration agreement as a whole is unconscionable.
Two of the plaintiffs make an additional argument in opposition to Plentyoffish Media’s
motion to compel. They note that certain arbitration terms are not included in Plentyoffish’s
April 17, 2019, terms of use, and are available only through a hyperlink that appears in the
terms. See Gradin Decl., Ex. 7, Terms of Use § 15(a)(1). The plaintiffs contend that this struc-
ture resulted in the omission of material terms from the arbitration agreement, which meant that
there was “no meeting of the minds.” Opp’n, Dkt. 14 at 11.
This argument, too, relates to the formation and validity of the arbitration agreement. It
is thus another argument for the arbitrator, not the Court. See Brown Decl., Ex. 2, JAMS Rule
8(b) (“[D]isputes over the formation, existence, validity, interpretation or scope of the agree-
ment under which Arbitration is sought . . . shall be submitted to and ruled on by the Arbitra-
tor.”); accord id., Ex. 1, NAM Rule 17(B).
Plentyoffish Media’s motion to compel is granted. The plaintiffs are compelled to arbi-
trate their claims pursuant to Plentyoffish Media’s terms of use. The case is dismissed without
prejudice. See Forrest v. Spizzirri, 62 F.4th 1201, 1204-05 (9th Cir. 2023) (“[A] district court
may either stay the action or dismiss it outright when, as here, the court determines that all of
the claims raised in the action are subject to arbitration.”) (simplified). The plaintiffs can “file
a new action to confirm or vacate any arbitration award,” if necessary. Jd. at 1206.
IT IS SO ORDERED.
Dated: June 13, 2023
Alex G. Tse
United States Magistrate Judge