# Brown v. Bob Moore Auto Group LLC

> District Court, W.D. Oklahoma · August 22, 2019

URL: https://www.frixlaw.com/law-library/cases/10387736

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** August 22, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387736

## How later opinions describe it (automated extraction)

- concluding that “the question of classwide arbitration is a gateway issue”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) LESLIE BROWN, individually; )
(2) LESLIE BROWN, parent and next friend )
of H.B., a minor child; and )
(3) LESLIE BROWN, on behalf of all )
other putative plaintiffs, similarly situated, )
)
Plaintiffs, )
)
v. ) Case No. CIV-19-409-R
)
(1) BOB MOORE AUTO GROUP, L.L.C., )
a domestic limited liability company; )
(2) BMAG LUXURY 1, L.L.C., a domestic )
limited liability company; )
(3) JOZEF DAREN DABROWSKI; )
(4) TONY G. GRISSOM, individually and )
acting in his official capacity as an agent of )
Bob Moore Auto Group, L.L.C. and BMAG )
Luxury 1, L.L.C.; )
(5) JOHN DOE TOWING SERVICES; )
(6) JOHN DOE TOW TRUCK )
DRIVER #1; and )
(7) JOHN DOE TOW TRUCK )
DRIVER #2, )
)
Defendants. )

ORDER
Before this Court is the Motion to Stay and Compel Arbitration filed by Defendants
Bob Moore Auto Group, L.L.C. (“BMAG”); BMAG Luxury 1, L.L.C. (“BMAG Luxury”);
and Jozef Daren Dabrowski (collectively, “Defendants” or “Bob Moore Defendants”). See
Doc. 7. Defendants move to stay this action and compel all claims asserted by Plaintiffs1
against them to bilateral arbitration. See id. at 1–2. The matter is fully briefed and at issue.
See Docs. 7, 9–10. Having considered the parties’ filings, the Court finds as follows.

I. Background
This dispute began with a car sale. Plaintiff Leslie Brown alleges that she purchased
a 2010 Audi Q5 SUV for her minor daughter, H.B., from a Bob Moore auto dealership on
or about September 27, 2018. See Doc. 1, at 4; Doc. 7, at 2, 4. According to Ms. Brown,
she signed paperwork effectuating the vehicle’s purchase; left $7,000 in cash as a down

payment with Defendant Dabrowski, a dealership employee; and drove the vehicle home
to give to her daughter. See Doc. 1, at 4. The Bob Moore Defendants recall events
differently: in their telling, Ms. Brown feigned forgetting her checkbook, assured Mr.
Dabrowski that she would return the next morning with down payment money, and left
with the vehicle. See Doc. 7, at 2–3. The next day, a back-and-forth between Ms. Brown

and the dealership ensued over whether she had, in fact, paid the down payment. See Doc.
1, at 4–5; Doc. 7, at 2–3. Eventually, on November 1, 2018, Ms. Brown returned the vehicle
to the dealership—though not before Defendants unsuccessfully attempted to repossess it.
See Doc. 1, at 6–7; see also Doc. 7, at 3 & n.2. Based on these events, Plaintiffs filed this
suit on May 3, 2019, asserting claims for conversion, embezzlement, fraud, conspiracy to

commit fraud, theft, breach of the peace, false imprisonment, intentional infliction of

1 Leslie Brown asserts claims against the Bob Moore Defendants in three capacities: (1) individually; (2)
as parent and next friend of H.B., her minor daughter; and (3) on behalf of all other putative plaintiffs,
similarly situated.
emotional distress, and violations of the Fair Debt Collection Practices Act and the
Oklahoma Consumer Protection Act. See id. at 7–18.
At issue now is whether this Court is the appropriate forum in which to adjudicate

Plaintiffs’ claims. Defendants argue that, as part of the vehicle sale, Leslie Brown signed
an Agreement to Arbitrate. See Doc. 7, at 4–5; see also Docs. 7-1, 7-2.2 This arbitration
agreement states, in relevant part:
By entering into this Agreement to Arbitrate . . ., Customer(s) and
Dealership, including any Assignee (collectively referred to as “The Parties”)
agree, except as otherwise provided in this Agreement, to settle by binding
arbitration any dispute between them regarding: (1) the purchase/lease by
Customer(s) of the above-referenced Vehicle; (2) any products and services
purchased in conjunction with the Vehicle; (3) any financing obtained in
connection with the transaction; and/or (4) any dispute with respect to the
existence, scope or validity of this Agreement. Matters that the Parties agree
to arbitrate include, but are not limited to, disputes related to the Retail
Purchase/Retail Lease Agreement and any documents incorporated therein
by reference (whether such reference is made in the Agreement or in the
document itself), the application for and terms of financing for the
transaction, the Finance/Lease Contract, any alleged promises,
representations and/or warranties made to or relied upon by the Parties, and
any alleged unfair, deceptive, or unconscionable acts or practices.

Doc. 7-2, at 1. The agreement also states that “the Parties agree that by entering into this
Agreement, they are waiving their right to a jury trial and their right to bring or participate
in any class action or multi-plaintiff action in court or through arbitration.” Id. Based on
this agreement, Defendants contend that all of Plaintiffs’ claims are subject to arbitration.
See generally Docs. 7, 10. Ms. Brown, unsurprisingly, disagrees, launching myriad attacks
on the arbitration agreement and Defendants’ power to enforce it. See generally Doc. 9.

2 The Agreement to Arbitrate, by its own terms, is “incorporated by reference into the Retail Purchase/Retail
Lease Agreement.” Doc. 7-2, at 1 (capitalization omitted).
II. Standard of Review
The parties agree, and the contract evinces, that this dispute is governed by the
Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16. “The FAA applies to all arbitration

agreements ‘involving commerce,’ and creates a body of federal substantive law of
arbitrability, applicable to any arbitration agreement within coverage of the Act.”
Comanche Indian Tribe of Okla. v. 49, L.L.C., 391 F.3d 1129, 1131 (10th Cir. 2004)
(internal quotation marks, citations, and brackets omitted). “[E]stablish[ing] a liberal
federal policy favoring arbitration agreements,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1621 (2018), the FAA “reflects the fundamental principle that arbitration is a matter of
contract,” “places arbitration agreements on an equal footing with other contacts,” and
“requires courts to enforce [such agreements] according to their terms.” Rent-A-Center,
West, Inc. v. Jackson, 561 U.S. 63, 67–68 (2010) (citations omitted). Under the FAA,
“[d]isputes are subject to arbitration when a valid and enforceable arbitration agreement

exists, and when the dispute falls within the scope of . . . the arbitration agreement.” Frazier
v. W. Union Co., 377 F. Supp. 3d. 1248, 1257 (D. Colo. 2019).
Section 2, “the primary substantive provision” of the FAA, Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), provides in pertinent part that
[a] written provision in any . . . contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such
contract or transaction . . . 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. To “implement § 2’s substantive rule . . . ., a party may apply to a federal
court for a stay of the trial of an action ‘upon any issue referable to arbitration under an
agreement in writing for such arbitration,’” and “a party ‘aggrieved’ by the failure of
another party ‘to arbitrate under a written agreement for arbitration’ may petition a federal
court ‘for an order directing that such arbitration proceed in the manner provided for in

such agreement.’” Rent-A-Center, 561 U.S. at 68 (quoting 9 U.S.C. §§ 3–4); see also
Belnap v. Iasis Healthcare, 844 F.3d 1272, 1280 (10th Cir. 2017). Once the Court is
“satisfied that the making of the agreement for arbitration or the failure to comply therewith
is not in issue,” it “shall . . . order . . . the parties to proceed to arbitration in accordance
with the terms of the agreement.” 9 U.S.C. § 4.

While “the presence of an arbitration [agreement] generally creates a presumption
in favor of arbitration, this presumption disappears when the parties dispute the existence
of a valid arbitration agreement.” Bellman v. i3Carbon, LLC, 563 F. App’x 608, 613 (10th
Cir. 2014) (internal quotation marks and citations omitted); see also Riley Mfg. Co. v.
Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998) (“[W]hen the dispute

is whether there is a valid and enforceable arbitration agreement in the first place, the
presumption of arbitrability falls away.”). Thus, before a court may consider an arbitration
agreement’s terms, “a threshold matter . . . must be established”: the “existence of an
agreement to arbitrate.” Avedon Eng’g, Inc. v. Seatex, 126 F.3d 1279, 1287 (10th Cir.1997).
After all, if a party has not agreed to arbitrate a dispute, she cannot be forced to do so. See

Dish Network, L.L.C. v. Ray, 900 F.3d 1240, 1243 (10th Cir. 2018). Section 4 of the FAA
“requires judicial resolution of issues that go to the ‘making’ of an agreement for
arbitration,” and the Court may “compel arbitration of a particular dispute” only when it is
“satisfied that the ‘making’ of the agreement to arbitrate is not at issue” Spahr v. Secco,
330 F.3d 1266, 1269–70 (10th Cir. 2003) (quoting Prima Paint Corp. v. Flood & Conklin
Mfg., 388 U.S. 395, 403–04 (1967)). The Court looks to state law principles of contract
formation to determine whether an agreement to arbitrate exists in the first place. See

Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 979 (10th Cir. 2014).
Once the Court finds that an arbitration agreement exists, it ordinarily must address
the question of arbitrability, that is, “whether the parties have submitted a particular dispute
to arbitration.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). But just as
parties may agree to arbitrate the merits of disputes, so too can they agree to delegate this

arbitrability question. See Belnap, 844 F.3d at 1280 (citing First Options of Chi., Inc. v.
Kaplan, 512 U.S. 938, 943 (1995)). Delegation clauses in arbitration agreements reflect the
parties’ agreement to “arbitrate threshold issues concerning the arbitration agreement” and
“‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate
or whether their agreement covers a particular controversy.” Rent-A-Center, 561 U.S. at

68–69; see also Belnap, 844 F.3d at 1280 (“[W]hen parties agree that an arbitrator should
decide arbitrability, they delegate to an arbitrator all threshold questions concerning
arbitrability . . . .”). Such clauses are “simply . . . additional, antecedent agreement[s] the
party seeking arbitration asks the federal court to enforce, and the FAA operates on th[ese]
additional arbitration agreement[s] just as it does on any other.” Rent-A-Center, 561 U.S.

at 70.
Arbitrability questions “encompass two types of disputes: (1) disputes about
‘whether a particular merits-related dispute is arbitrable because it is within the scope of a
valid arbitration agreement’; and (2) threshold disputes about ‘who should have the
primary power to decide’ whether a dispute is arbitrable.’” Belnap, 844 F.3d at 1280
(emphasis original) (quoting Kaplan, 514 U.S. at 942, 944–45). In resolving the first type
of dispute, “any doubts concerning the scope of arbitrable issues should be resolved in

favor of arbitration.” Moses H. Cone Mem’l Hosp., 460 U.S. at 24–25. But in resolving the
second type, “courts should not assume that the parties agreed to arbitrate arbitrability
unless there is clear and unmistakable evidence that they did so.” Belnap, 844 F.3d at 1281
(brackets, internal quotation marks, and citations omitted). “[C]ourts must address the
second type of dispute first.” Id.; see also id. at 1287 (“[W]e have repeatedly stated that

courts reviewing arbitrability claims must first ask who should decide arbitrability, and
suggested that only if the parties did not delegate questions of arbitrability to an arbitrator
may courts reach the merits of arbitrability questions themselves.”).
Here, Plaintiffs challenge, among other things, the existence of an agreement to
arbitrate. Conversely, the Bob Moore Defendants argue that an arbitration agreement exists

and that it contains a broad delegation clause. When faced with such competing arguments,
the Fifth Circuit has neatly summarized a court’s analytical process:
Enforcement of an arbitration agreement involves two analytical steps. The
first is contract formation—whether the parties entered into any arbitration
agreement at all. The second involves contract interpretation to determine
whether this claim is covered by the arbitration agreement. Ordinarily both
steps are questions for the court. But where the arbitration agreement
contains a delegation clause giving the arbitrator the primary power to rule
on the arbitrability of a specific claim, the analysis changes. . . . [A] valid
delegation clause requires the court to refer a claim to arbitration to allow the
arbitrator to decide gateway arbitrability issues. Thus, if the party seeking
arbitration points to a purported delegation clause, the court’s analysis is
limited. It performs the first step—an analysis of contract formation—as it
always does. But the only question, after finding that there is in fact a valid
agreement, is whether the purported delegation clause is in fact a delegation
clause—that is, if it evinces an intent to have the arbitrator decide whether a
given claim must be arbitrated. If there is a delegation clause, the motion to
compel arbitration should be granted in almost all cases.

Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201–02 (5th Cir. 2016) (emphasis
original) (citations and paragraph breaks omitted). Thus, “[i]f there is an agreement to
arbitrate with a delegation clause,” the Court “will consider that clause to be valid and
compel arbitration” unless Plaintiffs “challenge . . . the delegation clause itself.” Edwards
v. Doordash, Inc., 888 F.3d 738, 744 (5th Cir. 2018); see also Frazier, 377 F. Supp. 3d at
1257 (“In ruling on a motion to stay pending arbitration, a federal court may consider ‘only
issues relating to the making and performance of an agreement to arbitrate.’” (quoting
Prima Paint Corp., 388 U.S. at 404).
With these principles in mind, the Court now turns to its analysis.
III. Discussion
Plaintiffs argue, broadly, that (1) no arbitration agreement exists; (2) BMAG and

BMAG Luxury 1 are not parties to the contract and, therefore, cannot enforce it; (3) H.B.
is not a party to the contract and, therefore, cannot be compelled to arbitrate her claims;
and (4) the arbitration agreement is unenforceable for a host of reasons. See generally Doc.
9.3 Defendants, on the other hand, argue that Plaintiffs’ claims are subject to arbitration
and that Leslie Brown has waived her right to bring claims on behalf of a putative class.

3 It bears mentioning that Plaintiffs’ objections to Defendants’ motion, while legion, are frustratingly—and
veering towards unacceptably—underdeveloped. Over thirty-eight numbered paragraphs, Plaintiffs dart
between conclusory (and, at times, contradictory) arguments, sprinkling in case citations of varying utility.
Such cursory briefing makes it difficult for the Court to fully consider Plaintiffs’ contentions.
See generally Docs. 7, 10. The Court begins with Plaintiffs’ first three arguments, which
question contract formation.
(A) The Arbitration Agreement’s Existence and Signatories

The Court starts with Plaintiffs’ challenge to the making and existence of the
arbitration agreement itself. When parties dispute the making of an agreement to arbitrate,
a jury trial on the existence of the agreement is warranted unless there are no genuine issues
of material fact regarding the parties’ agreement. Avedon Eng’g, 126 F.3d at 1283. But
“[w]hen it is apparent from a quick look at the case that no material disputes of fact exist,”

Howard, 748 F.3d at 978, the Court “may decide the arbitration question as a matter of law
through motions practice,” “viewing the facts in the light most favorable to the party
opposing arbitration,” and “giv[ing] the party opposing arbitration the benefit of all
reasonable doubts and inferences that may arise.” BOSC, Inc. v. Bd. of Cty. Comm’rs of
Cty. of Bernalillo, 853 F.3d 1165, 1177 (10th Cir. 2017) (internal quotation marks and

citations omitted). In these circumstances, the Court’s analytical framework “look[s] a lot
like summary judgment.” Howard, 748 F.3d at 978; see also Bellman, 563 F. App’x at 612
(“[W]hen it’s clear no material disputes of fact exist and only legal questions remain . . . a
court [may] resolve the arbitration question by ruling on a motion to compel, rather than
conducting a summary trial.” (internal quotation marks and citation omitted)). Thus, “the

party moving to compel arbitration bears the initial burden of presenting evidence
sufficient to demonstrate the existence of an enforceable agreement and the opposing
party’s failure, neglect, or refusal to arbitrate; if it does so, the burden shifts to the
nonmoving party to raise a genuine dispute of material fact regarding the existence of an
agreement or the failure to comply therewith.” BOSC, Inc., 853 F.3d at 1177.
As noted above, questions about the making of arbitration agreements turn on state

law contract formation principles. Under Oklahoma law,4 a contract is simply “an
agreement to do or not to do” something, requiring (1) parties capable of contracting; (2)
those parties’ consent; (3) a “lawful object”; and (4) sufficient consideration. 15 O.S. §§
1–2; see also Jacks v. CMH Homes, Inc., 856 F.3d 1301, 1304 (10th Cir. 2017) (noting that
contract formation under Oklahoma law requires a meeting of the minds). These principles

apply with equal force to arbitration agreements. See Jacks, 856 F.3d at 1305 (quoting Voss
v. City of Okla. City, 1980 OK 148, ¶ 5, 618 P.2d 925, 928) (“An agreement for the
submission of an issue to arbitrators is a prerequisite to the commencement of a valid
arbitration agreement.”); Shaffer v. Jeffery, 1996 OK 47, ¶ 23, 915 P.2d 910, 917 (“A court
must determine the existence of an arbitration agreement in the first instance.”); see also

Boler v. Sec. Health Care, L.L.C., 2014 OK 80, ¶ 25, 336 P.3d 468, 477 (“Consent to
arbitrate is an essential component of an enforceable arbitration agreement.”).
In support of their motion to compel, Defendants have submitted the Retail Purchase
Agreement, which Leslie Brown signed on the day she purchased the vehicle. See Doc. 7-
1. Attached to this is the Agreement to Arbitrate, which also bears Ms. Brown’s signature.

4 The parties do not address the question of which state’s law applies to the arbitration agreement. Courts
typically do not raise choice of law issues sua sponte where the parties have acquiesced to the application
of a particular state’s laws. See Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 831 n. 4 (10th Cir.
2005). Given the parties’ reliance on Oklahoma law in their briefs, Plaintiffs’ assertion of Oklahoma state
law claims, and the fact that the vehicle sale and this lawsuit’s events transpired in Oklahoma, the Court
applies Oklahoma law in determining whether a contract existed.
See Doc. 7-2. A “Bob Moore Auto Group” logo appears in the top left corner of these
documents; under “Dealership Name” on the Agreement to Arbitrate, “BMAG Luxury 1,
LLC” is listed. See Docs. 7-1, 7-2.5 Defendant Dabrowski also signed both agreements as

the “Authorized Dealership Representative.” Id. Thus, Defendants have produced
sufficient evidence that they and Ms. Brown entered into an arbitration agreement.
In response, Plaintiffs argue that no arbitration agreement existed. See Doc. 9, at 2–
3, 6, 8. Specifically, they contend that, while BMAG Luxury’s name appears on the
Agreement to Arbitrate, it does not appear on the Retail Purchase Agreement. Id. at 2–3.

And, say Plaintiffs, because the underlying Retail Purchase Agreement was between
BMAG and Ms. Brown, the Agreement to Arbitrate—between BMAG Luxury and Ms.
Brown—is invalid. See id. at 2–3. This argument is unconvincing. Both agreements are
signed by Defendant Dabrowski, an agent of “Bob Moore.” Id. at 3; see also Doc. 1, at 2.
Moreover, Ms. Brown specifically alleges that she “entered into a contract with the

Dealerships to purchase” the vehicle in question. Doc. 1, at 4 (emphasis added). Faced
with the Bob Moore Defendants’ evidence of an arbitration agreement, Ms. Brown, as a
nonmovant, must raise a genuine issue of material fact regarding the arbitration
agreement’s existence. Her assertions about which Defendants are listed on which
documents do not call into question the existence or making of the arbitration agreement

5 The Bob Moore Defendants also include a Retail Installment Sale Contract, which includes an Arbitration
Provision. See Doc. 7-3. Leslie Brown signed this contract and its arbitration provision when she purchased
the vehicle. Id. BMAG Luxury 1, LLC, is listed as the seller on these documents. Id.
overall. Thus, the Court finds that Ms. Brown entered into an arbitration agreement when
she purchased the vehicle.6
Plaintiffs also deploy these same arguments, and others, to question whether BMAG

and BMAG Luxury may enforce the arbitration agreement, and whether claims Leslie
Brown brings on behalf of H.B. are subject to arbitration. See Doc. 9, at 2–5, 8. While the
existence of the arbitration agreement is straightforward, the issue of non-signatories’
rights and liabilities is more involved. First, Ms. Brown argues that BMAG and BMAG
Luxury lack standing to compel arbitration because they are not signatories to the

arbitration agreement. See Doc. 9, at 3. As noted above, Ms. Brown explicitly alleges that
she contracted with “the Dealerships”—BMAG and BMAG Luxury—and that the Retail
Purchase and Arbitration Agreements were both signed by Defendant Dabrowski, an
“employee and agent” of the Dealerships. See Doc. 1, at 2, 4; Doc. 9, at 3. Moreover, even
crediting Plaintiffs’ contention that BMAG and BMAG Luxury are both non-signatories to

the agreements, they are still able to compel Ms. Brown, a signatory, to arbitrate. While
the “general rule is that a non-signatory to an arbitration agreement cannot compel a
signatory to that agreement,” an “exception to this rule . . . is where a ‘signatory to the
contract containing an arbitration clause raises allegations of substantially interdependent
and concerted misconduct by both the nonsignatory and one or more of the signatories to

the contract.’” Optimum Lab. Servs. LLC v. East El Paso Physicians’ Med. Ctr., LLC, No.

6 Ms. Brown, in Plaintiffs’ response brief, objects that she was “coerced to agree to the Arbitration
Agreement” and that “Defendants have committed fraud against the Plaintiffs.” Doc. 9, at 2, 5. In certain
circumstances, such allegations might speak to contract formation issues. Here, though, these contentions
about coercion and fraud are too vague and conclusory to be treated as arguments questioning whether an
arbitration agreement was, in fact, made.
CIV-17-411-R, 2017 WL 2656264, at *5 (W.D. Okla. June 20, 2017) (quoting Grigson v.
Creative Artists Agency L.L.C., 210 F.3d 524, 526–27 (5th Cir. 2000)); see also Jacks, 856
F.3d at 1305 (describing this exception as the “integrally-related claims” or “intertwined

claims” theory and noting that, “[i]n some jurisdictions, this theory permits a nonsignatory
to estop a signatory from eschewing arbitration when the claims are integrally related to a
contract that contains an arbitration agreement”); Lenox MacLaren Surgical Corp. v.
Medtronic, Inc., 449 F. App’x 704, 708 (10th Cir. 2011) (“A signatory plaintiff cannot, on
the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the

agreement, which contains an arbitration provision, but, on the other hand, deny
arbitration’s applicability because the defendant is a non-signatory.” (internal quotation
marks and citation omitted)); Carter v. Schuster, 2009 OK 94, ¶ 25, 227 P.3d 149, 156
(“[C]ircuits ha[ve] been willing to estop a signatory from avoiding arbitration with a
nonsignatory where the nonsignatory was seeking to resolve issues in arbitration that were

intertwined with the agreement the estopped party had signed . . . . Under such facts, the
nonsignatory is agreeing to arbitrate. The signatory is merely being held to his previous
agreement to arbitrate.”). Plaintiffs’ complaint alleges that the “causes of action arise out
of a RETAIL PURCHASE AGREEMENT . . . dated . . . September 27, 2018,” and that
“[a]ll of the Defendants have engaged in a pattern and practice and used deceit, unlawful

conduct, breach of the peace, fraud, misrepresentation[,] and conversion against the
Plaintiffs . . . .” Doc. 1, at 3 (emphasis original). As Plaintiffs “group[] ‘Defendants’
together in [their] allegations,” see Optimum Lab. Servs. LLC, 2017 WL 2656264, at *5,
BMAG and BMAG Luxury, even treated as non-signatories, may compel arbitration here.7
Regarding H.B., Leslie Brown’s minor daughter, however, the Court agrees with

Ms. Brown: H.B.’s claims are not subject to arbitration because H.B. is not a party to the
arbitration agreement. The Tenth Circuit recently decided a case similar to this one,
involving children who were non-signatories to an arbitration agreement signed by their
parent-plaintiff. In Jacks v. CMH Homes, Inc., Ms. Jacks brought claims individually and
on behalf of her children regarding a manufactured home she purchased from defendant

CMH. Jacks, 856 F.3d at 1303–04. CMH moved to compel arbitration; the district court
granted the motion as to Ms. Jacks, but denied it as to her children because they were non-
signatories to the agreement. Id. Affirming the district court, the Tenth Circuit held that
CMH had failed to carry its burden of establishing that the non-signatory children could be
held to the arbitration agreement. Id. at 1305.

Like CMH, Defendants here fail to establish that claims brought on behalf of H.B.
by Ms. Brown are subject to arbitration. First, Defendants argue that H.B.’s claims are
subject to arbitration because they arise out of the vehicle purchase agreement. See Doc.
10, at 5. But this argument—similar to the “intertwined claims” theory discussed above—
does not govern situations, such as this one, “where . . . signatory-defendant[s] seek[] to

7 Mr. Dabrowski’s signature on the Retail Purchase Agreement and Agreement to Arbitrate arguably
resolves these non-signatory issues as well under basic agency principles. As the Oklahoma Supreme Court
has recognized, ,”traditional principles of agency law may bind a nonsignatory to an arbitration agreement.”
Carter v. Schuster, 2009 OK 94, ¶ 14, 227 P.3d 149, 153. But, as the parties do not address this potential
theory, the Court need not delve into it, as the issue of non-signatory enforcement is resolved here under
estoppel principles.
compel arbitration with a non-signatory-plaintiff.” Jacks, 856 F.3d at 1305 (emphasis
added) (internal quotation marks and citation omitted); see also Carter, 2009 OK 94, ¶ 25,
227 P.3d at 156. Second, Defendants’ reliance on a “direct benefits estoppel” theory, see

Doc. 10 at 6 n.4, under which “a non-signatory plaintiff seeking the benefits of a contract
is estopped from simultaneously attempting to avoid the contract’s burdens, such as the
obligation to arbitrate disputes,” Jacks, 856 F.3d at 1306 (internal quotation marks and
citation omitted), is unavailing. As the Jacks court made clear, Oklahoma has not adopted
the direct benefits estoppel theory. Id. And, like the Jacks defendants, Defendants here “fail

to cite Oklahoma law supporting their direct-benefits-estoppel theory.” Id.8 As federal
courts are “‘generally reticent to expand state law without clear guidance from its highest
court,’” id. (quoting Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013)), the
Court declines to apply this theory to the case at bar.
More to the point, Defendants’ arguments miss what is the “fundamental principle”

of the FAA: arbitration is a matter of contract. See Rent-A-Center, 561 U.S. at 67. H.B.
neither signed these agreements nor participated in the actual vehicle purchase. Defendants
have simply not shown that the parties to the Agreement to Arbitrate may compel H.B., a
non-signatory, to arbitrate her claims. See Jacks, 856 F.3d at 1304 (“Defendants, as the
parties seeking to compel arbitration, have the burden to show that the arbitration

agreement applies to the nonsignatory plaintiffs.”). Thus, because H.B. is not a party to the

8 In explicating their direct benefits estoppel theory, Defendants cite Belnap v. Iasis Healthcare, a Tenth
Circuit decision. See Doc. 10, at 6 n.4 (citing Belnap, 844 F.3d at 1294 n.17). However, Belnap’s analysis
turns on Utah state law, not Oklahoma state law, and is, therefore, of limited value here.
arbitration agreement—and “a party cannot be required to submit to arbitration any dispute
which [s]he has not agreed so to submit,” AT&T Techs., Inc. v. Commc’ns Workers of Am.,
475 U.S. 643, 648 (1986) (internal quotation marks and citation omitted)—the Court will

not compel claims brought on her behalf to arbitration.9
(B) Remaining Arguments by the Parties
Having found an existing arbitration agreement that the Bob Moore Defendants may
enforce against claims brought by Ms. Brown in her individual capacity, but not against
claims brought by Ms. Brown on behalf of H.B., the next step is to determine whether the

Agreement to Arbitrate contains a delegation provision. If it does, then the Court will
compel arbitration and stay proceedings unless Plaintiffs specifically challenge the
enforceability of the delegation provision. See Frazier, 377 F. Supp. 3d at 1269 (citing
Rent-A-Center, 561 U.S. at 72) (“When a delegation clause is present in an arbitration
agreement, the party opposing arbitration must specifically dispute the validity of the

delegation clause. Otherwise, the delegation clause can be severed from the arbitration
provision as a whole and the arbitrator must decide arbitrability disputes.”). Courts “should
not assume that the parties agreed to arbitrate arbitrability unless there is clear and
unmistakable evidence that they did so.” Kaplan, 514 U.S. at 944 (brackets, internal
quotation marks, and citations omitted).

9 In Jacks, questions about the rights and liabilities of third-party beneficiaries also factor into the Tenth
Circuit’s analysis. See Jacks, 856 F.3d at 1305 (“Defendants have not cited authority, and we are not aware
of any, that says a contract (here, the arbitration agreement) can be enforced against an intended third-party
beneficiary who has not accepted the benefit (here, the right to compel arbitration) or otherwise sought to
enforce the terms of the contract.”). As the parties here do not broach the topic of third-party beneficiaries
in their briefing, the Court will not do so for them.
The Agreement to Arbitrate contains the following language: “By entering into this
Agreement to Arbitrate (“Agreement”), Customer(s) and Dealership . . . agree . . . to settle
by binding arbitration . . . (4) any dispute with respect to the existence, scope or validity of

this Agreement.” Doc. 7-2, at 1 (emphasis added). The Court holds that this language,
especially in comparison with similar provisions held to constitute delegation clauses, is
clear and unmistakable evidence that the parties agreed to arbitrate arbitrability. See, e.g.,
Dish Network, L.L.C., 900 F.3d at 1245 (concluding that the following “broad language . .
. clearly and unmistakably shows the parties intended for the arbitrator to decide all issues

of arbitrability”: “any claim, controversy, and/or dispute . . . shall be resolved by
arbitration” and “the arbitrator shall have the power to rule on his or her own jurisdiction,
including any objections with respect to the existence, scope or validity of the arbitration
agreement” (brackets, internal quotation marks, and citations omitted)); Belnap, 844 F.3d
at 1281 (holding that the parties “clearly and unmistakably agreed to arbitrate arbitrability”

by incorporating the following language: “[j]urisdictional and arbitrability disputes,
including disputes over the formation, existence, validity, interpretation or scope of the
agreement . . . shall be submitted and ruled on by the Arbitrator” (emphasis, internal
quotation marks, and citation omitted)); Optimum Lab. Servs. LLC, 2017 WL 2656264, at
*3 (finding “clear and unmistakable evidence that the parties agreed to arbitrate issues of

arbitrability” where the arbitration agreement contained the following language: “Any
issue concerning whether or the extent to which the Dispute is subject to arbitration . . .,
including issues relating to the validity or enforceability of these arbitration provisions,
shall be decided by the arbitrators” (emphasis, internal quotation marks, and citation
omitted)).
Given that the parties have agreed to arbitrate arbitrability, the Court will compel

arbitration unless Plaintiffs specifically attack the delegation clause. See Rent-A-Center,
561 U.S. at 72. Plaintiffs challenge the arbitration agreement on the following grounds: (1)
the agreement is oppressive, one-sided, and discriminatory; (2) the agreement is coercive;
(3) the agreement is unenforceable; (4) Plaintiffs’ claims do not fall within the agreement’s
scope; and (5) “Defendants have committed fraud against the Plaintiffs.” See generally

Doc. 9. None of these arguments are specifically leveled against the delegation clause.
Indeed, Plaintiffs never even mention “delegation.” These arguments, rather, go to the
Agreement to Arbitrate or the Retail Purchase Agreement generally. But “when the parties
clearly and unmistakably agreed to arbitrate arbitrability”—as they have here—“all
questions of arbitrability,” such as questions about the agreement’s scope, validity, or

enforceability, “ha[ve] to be resolved by an arbitrator.” Belnap, 844 F.3d at 1284; see also
Frazier, 377 F. Supp. 3d at 1254–56. Thus, in light of the unchallenged delegation clause
in the parties’ arbitration agreement, the Court must stay proceedings and compel
arbitration of Leslie Brown’s individual claims. See Rent-A-Center, 561 U.S. at 70–72.
Finally, Defendants argue that, pursuant to the Agreement to Arbitrate, Ms. Brown

has waived her right to pursue claims on behalf of a putative class. Doc. 7, at 8; see also
Doc. 7-2, at 1 (“[T]he Parties agree that by entering into this Agreement, they are waiving
. . . their right to bring or participate in any class action or multi-plaintiff action in court or
through arbitration.”). This argument is not addressed in Plaintiffs’ response brief.
However, Ms. Brown does purport to bring claims “on behalf of other putative plaintiffs,
similarly situated.” Doc. 1, at 1–2 (capitalization omitted). In light of the delegation clause,
the Court shall not address Defendants’ argument. As the parties have delegated gateway

matters of arbitrability, the arbitrator, rather than the Court, must decide the question of
whether classwide arbitration is permitted. See Dish Network L.L.C., 900 F.3d at 1245
(“Because we conclude below that the parties showed clear and unmistakable evidence of
their intention to delegate questions of arbitrability to the arbitrator, we assume without
deciding that one of these gateway matters is whether an arbitration clause authorizes class

arbitration.” (internal quotation marks and citation omitted)); cf. Tiffany v. KO Huts, Inc.,
178 F. Supp. 3d 1140, 1148 (W.D. Okla. 2016) (concluding that “the question of classwide
arbitration is a gateway issue”).
IV. Conclusion
Accordingly, Defendants’ Motion to Compel Arbitration (Doc. 7) is hereby

GRANTED IN PART and DENIED IN PART. Those claims against the Bob Moore
Defendants brought by Ms. Brown on behalf of herself are subject to arbitration and are,
therefore, stayed. Claims against Defendants brought by Ms. Brown on behalf of a putative
class are also stayed, as the question of whether Ms. Brown waived her right to bring such
claims must be determined by the arbitrator. Finally, those claims brought by Ms. Brown

on behalf of her daughter, H.B., are not subject to arbitration. Therefore, these claims, along
with claims against the remaining, non-moving Defendants, shall proceed in this Court.
IT IS SO ORDERED this 22"! day of August, 2019.

DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387736. Public record. Not legal advice.