BREWER v. DOMINO'S PIZZA LLC

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SAMUEL BREWER, individually and on

behalf of other similarly situated,

Plaintiff, Civil Action No. 24-10486 (RK) (IBD)

Vv, OPINION

DOMINO’S PIZZA LLC,

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court upon a “Motion to Compel Arbitration and

Dismiss this Litigation and for Sanctions” (the “Motion”) (ECF No. 18) filed by Defendant

Domino’s Pizza LLC (“Domino’s” or “Defendant”). Plaintiff Samuel Brewer (“Plaintiff’)

opposed the Motion in toto. (ECF No. 19; “Pl. Opp.”.) Defendant replied. (ECF No. 20; “Def.

Reply”.)

The Court has considered the parties’ submissions and resolves the matter without oral

argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons

set forth below, Defendant’s Motion is GRANTED to Compel Arbitration, GRANTED to

Dismiss, and DENIED for Sanctions.

I. BACKGROUND

Plaintiff Samuel Brewer, a commercial truck driver who worked for Domino’s from

approximately October 2022 to July 2024, brought a putative class action against his former

employer under New Jersey state employment law, originally in New Jersey state court. (See

generally ECF No. 1-1.) Plaintiff, and those similarly situated to him, were truck drivers hired by

Domino’s to transport pizza products from various supply chain centers to pizza stores around the

country. (ECF No. 1-1 21, 23.) Although Domino’s operates its supply chain centers across the

United States, Plaintiff worked exclusively out of the Edison, New Jersey location. Ud. JJ 21-28.)

Plaintiff alleges that, in violation of the New Jersey Wage and Hour Law (““NJWHL”), Domino’s

failed to pay its truck drivers the required overtime pay, i.e., one-and-a-half times the regular

hourly rate for each hour worked over 40 hours during a given week. Ud. J] 37-42.)

This action was initially filed in the Superior Court of New Jersey, Law Division,

Monmouth County on October 9, 2024. (ECF No. 1 § 1.) Following service of the summons and

complaint, Defendant, a global pizza company, removed this case to federal court pursuant to the

Class Action Fairness Act of 2005 (“CAFA”). (d. J 2, 5.) Defendant thereafter sought to compel

arbitration under Michigan law. (ECF Nos. 18, 18-5; “Def. Mot.” at 10.)

According to Defendant, Plaintiff signed an arbitration agreement (ECF No. 18-4; the

“Agreement” or the “Arbitration Agreement’) that refers all disputes between the parties to

binding arbitration subject to limited exceptions. Defendant attached the Agreement to its Motion.

(See id.) As provided, the Agreement consists of six pages and includes: (i) a cover letter from

Molly Gellerman (“Gellerman”), Domino’s Vice President of Human Resources (id. at 2; the

“Cover Letter”); (1) a flyer highlighting the “significant features of the Domino’s Arbitration

Program” (id. at 3); (iii) three pages of Arbitration Agreement terms in English (id. at 4—6;

“Asreement Terms”); and (iv) the Arbitration Agreement Acknowledgment (id. at 17; the

‘“Acknowledgment”).!

' The Agreement Terms are also reproduced in Spanish (id. at 7-11), and Italian (id. at 12-16).

The Cover Letter, among other things, indicates that new hires must sign the Arbitration

Agreement in order to commence or continue their employment. (/d. at 2.) However, employees

have the option to opt out of arbitration within 30 days of signing the Agreement without any risk

to their employment. (/d.) There is no argument or evidence in the record indicating that Plaintiff

ever opted out of arbitration.

The first paragraph of the Agreement Terms provides that arbitration shall be governed by

the Federal Arbitration Act (“FAA”) or tf the FAA does not apply, then Michigan arbitration law.

Ud. at 4.) The Agreement Terms also include, inter alia, an overview of claims excluded from

binding arbitration, the form of arbitration, the rules of arbitration, procedures for opting out of

arbitration, and severability. (/d. at 4-6.) At the bottom of the final page of the Agreement Terms

is the following paragraph, conspicuously written in all capitals and bold language:

MY SIGNATURE ATTESTS TO THE FACT THAT I HAVE

READ, UNDERSTAND, AND AGREE TO BE LEGALLY

BOUND TO ALL OF THE ABOVE TERMS. I UNDERSTAND

THAT, UNLESS I TIMELY SEND THE OPT-OUT EMAIL

OR LETTER REFERENCED ABOVE TO THE PROPER

ADDRESSEE, I WILL BE REQUIRED TO ARBITRATE ALL

DISPUTES WITH THE COMPANY THAT ARE COVERED

BY THIS ARBITRATION AGREEMENT.

(id. at 6) (bold and capitals in original). Gellerman’s signature appears below the paragraph, □□□□□

The following page, and the final page of the entire Agreement, is the Acknowledgment entitled

“New Jersey Arbitration Agreement.” (/d. at 17.) It states, “[flollowing is the electronic signature

of the team member acknowledging the receipt and reading of the New Jersey Arbitration

Agreement.” (ECF No. 18-4 at 17.) At the bottom of the page is a table entitled “Team Member

eSignature.” (/d.) The table and its contents are reproduced here:

IP Address

[Brewer,Samuel| =| samuel brewer _| 4388 2022-11-15-11.43.32.000000

Submitted with Defendant’s Motion and the Agreement is a Declaration of Kashmiere

Apollon (“Apollon”), Director of Human Resources Operations for Domino’s. (ECF No. 18-3;

“Apollon Decl.” or “Declaration”.) In the Declaration, Apollon attested to the following facts

regarding Defendant’s routine business practices including its employee onboarding.? (Apollon

Decl. {J 5, 6.) As part of onboarding, new employees are required to complete certain online forms

utilizing Domino’s self-service Team Member Service Center (“TMSC”). (7d. {9 5-7.) Among the

required forms is the Agreement which includes the Acknowledgment. (/d. Jf 8, 11.)

Upon selecting the “Arbitration Agreement” link among other “To Do List items” in the

TMSC, the employee is instructed to read the Agreement Terms in a language of their choosing.

(id. JJ 10-12.) Then, the new employee is provided with instructions and the Agreement Terms,

as well as the Cover Letter and a flyer highlighting features of Domino’s arbitration program. (Id.

{ 13.) Following that, the employee is brought to the Agreement Terms for review and the

Acknowledgment for signature. (/d.) Employees sign by entering their name and the last four digits

of their Social Security number and then clicking a button to accept. (/d. {| 18.) After the Agreement

* In a telephone conference on May 21, 2025, the parties confirmed on the record that the operable

arbitration agreement for the purposes of this case and the subject Motion is the Agreement, dated

November 15, 2022 at 11:43AM, attached as Exhibit A to the Apollon Declaration. (See ECF No. 18-4.)

To the extent there are other purported arbitration agreements, the parties agree they are not relevant to this

case or the Motion,

3 As discussed infra note 20, Plaintiff objects to paragraph 14 of the Apollon Declaration based on various

evidentiary bases. (Pl. Opp. at 11-14.) However, the Court is not relying on paragraph 14 in its decision

herein and thus need not resolve the evidentiary disputes regarding it. Therefore, for the purposes of this

Opinion, including this background section, the Court omits any reference to paragraph 14 of the Apollon

Declaration.

is signed, it is available for review throughout their employment in the “To Do List” of the TMSC.

(id. ¥ 15.)

Defendant moves to compel arbitration based on the purportedly signed Agreement,

supported by the Apollon Declaration. Plaintiff opposes the Motion arguing that (i) the Court does

not have jurisdiction or authority to enforce the Agreement under the Michigan Uniform

Arbitration Act (““MUAA”), Michigan Compiled Laws (“MCL”) § 691.1681 ef seg., and (ii)

Defendant cannot prove that Plaintiff unambiguously manifested assent to the terms of the

Agreement.

Il. LEGAL STANDARD

The Federal Arbitration Act (the “FAA”) “reflects the ‘national policy favoring arbitration

and places arbitration agreements on equal footing with all other contracts.’” In re Remicade

(Direct Purchaser) Antitrust Litig., 938 F.3d 515, 519 (3d Cir. 2019) (quoting Buckeye Check

Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006)). “And when the parties have done so,

arbitration agreements must be enforced according to their terms like any other contract would

be.” Robert D. Mabe, Inc. v. OptumRX, 43 F.4th 307, 325 (3d Cir. 2022) (citing Rent-A-Ctr., W.,

Inc. v. Jackson, 561 U.S. 63, 67 (2010)).

Section 2 of the FAA serves to preempt state law where it would otherwise conflict with

the FAA. Jd. (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (011)). The Erie

doctrine counsels “federal courts [to] enforce both federal and state arbitration law” but to favor

federal law where they conflict. Adler v. Gruma Corp., 135 F.4th 55, 64 (d Cir. 2025) (first citing

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); then citing Bernhardt v. Polygraphic Co. of Am.,

350 U.S. 198, 202-03 (1956); and then citing Volt Info. Scis., Inc. v. Bd. of Trustees of Leland

Stanford Junior Univ., 489 U.S. 468, 477 (1989)).

Nevertheless, the FAA is subject to exemptions. Section 1 of the FAA exempts “‘‘contracts

of employment of seamen, railroad employees, or any other class of workers engaged in foreign

or interstate commerce.’” Harper v. Amazon.com Servs., Inc., 12 F.4th 287, 292 Gd Cir. 2021)

(quoting 9 U.S.C. § 1). Whether or not the § 1 exemption brings the contract outside of the FAA,

there may be independent grounds to compel arbitration under state law. Harper, 12 F.4th at 294.

No matter the FAA’s applicability to a certain case, the “general policy goals of the FAA favoring

arbitration” are still considered. See Palcko v. Airborne Express, Inc., 372 F.3d 588, 596 (3d Cir.

2004).

When outside the FAA and considering what state law to apply, courts generally start with

the choice-of-law rules of the forum state. Harper, 12 F.4th at 295 (citations omitted). Even when

there is a governing law clause within the contract at issue, a court must engage in a choice-of-law

analysis when parties dispute what law is appropriate. Jd. (citing Collins v. Mary Kay, Inc., 874

F.3d 176, 183 (3d Cir. 2017)). On the other hand, where the governing law is not in dispute, a

court need not undertake the choice-of-law analysis. See, e.g., Redmond v. ACE Am. Ins. Co., 614

F. App’x 77, 79 n.2 (3d Cir. 2015) (“As the parties agree that New York law applies, we need not

undertake a choice-of-law analysis.” (citing Williams v. BASF Catalysts LLC, 765 F.3d 306, 316-

17 (3d Cir. 2014))). Once the applicable law is determined—either through a choice-of-law

analysis or consent—the Court considers the pertinent questions at issue, such as whether an

arbitration agreement is valid and enforceable. The existence of a valid agreement to arbitrate is a

question of general contract law determined by “ordinary state-law principles that govern the

formation of contracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

Importantly, as with any contract dispute in federal court, the use of state law is confined to

substantive interpretation of the agreement. See infra § I.B. Even where the validity of an

arbitration agreement is determined by state law, a court must apply federal procedural rules. See

Chamberlain v. Giampapa, 210 F.3d 154, 158 Gd Cir. 2000) (citing Erie, 304 U.S. at 78).

Depending on the circumstances, a motion to compel arbitration is decided under the

motion to dismiss standard pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) or the

summary judgment standard pursuant to Rule 56. Singh v. Uber Techs. Inc., 939 F.3d 210, 218 (3d

Cir. 2019). If a motion to compel arbitration can be resolved on the face of the complaint without

considering extrinsic evidence, then the court employs a motion to dismiss standard in considering

whether to compel arbitration. Adler, 135 F.4th at 63 (“If the motion can be decided “based on the

face of a complaint, and documents relied upon in the complaint,’ a motion-to-dismiss standard

should be used; otherwise, the summary judgment standard should be applied.” (quoting Guidotti

v. Legal Helpers Debt Resol., LLC, 716 F.3d 764, 776 (3d Cir. 2013))). However, in circumstances

like the one before the Court, where it must consider materials outside of the complaint and

documents relied upon in the complaint, the Court applies the summary judgment standard. See

In applying the Rule 56 standard, the Court employs “a burden-shifting framework.”

Guidotti, 716 F.3d at 773 (citation omitted). First, the Court “ask{s] whether Defendant, as the

4 For the avoidance of doubt, Plaintiff was unquestionably on notice that the summary judgment standard

applies here, yet he neither introduced his own summary judgment evidence nor sought discovery. See

Cornelius v. CVS Pharmacy Inc., 133 F.4th 240, 249 n.10 (3d Cir. 2025) (indicating that a party may be

entitled to discovery on natrow factual disputes, even where it was not requested, if the party was not on

notice that a summary judgment standard was being applied to a motion to compel arbitration). First,

Plaintiff himself argues that the summary judgment standard is necessary, albeit putting forth the Michigan

version of the standard under Michigan Court Rule 2.116(C)(7). (Pl. Opp. at 11.) The Sixth Circuit has

explained that this Michigan standard is “identical” to the federal standard under Rule 56. Hughes v. Gen.

Motors Corp., 212 F. App’x 497, 501 (6th Cir. 2007). Second, binding Third Circuit precedent in Guidotti

and again in Adler has made clear that a summary judgment standard must be applied when a motion to

compel arbitration requires consideration of documents outside of the complaint that were not relied upon

within the complaint. Therefore, because the Motion necessarily hinges on documents that fall outside of

the complaint and thus beyond what may be considered on a motion to dismiss standard, there is no question

that the Court must apply the summary judgment standard.

moving party, has ‘show[n] that there is no genuine dispute as to any material fact and [Defendant]

is entitled to’ an order compelling arbitration ‘as a matter of law.’” Adler, 135 F.4th at 63 (quoting

Guidotti, 716 F.3d at 772). Second, once the movant meets this initial burden, the non-moving

party must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a genuine

issue for trial.” Guidotti, 716 F.3d at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)) Gnternal quotation marks omitted).

iI. DISCUSSION

A. WHAT LAW APPLIES?

Before the Court can commence any analysis, it must first consider what law to apply—

the FAA or applicable state law. The inquiry begins with the text of the Agreement. The subject

Agreement Terms provide that “[a]ny arbitration hereunder shall be governed by the Federal

Arbitration Act (“FAA’), 9 U.S.C. Sections 1-16; provided, however, that if the FAA does not

apply, arbitration shall be governed by the arbitration law of the State of Michigan, subject to the

terms of this Arbitration Agreement.” (ECF No. 18-4 at 4.)

1. Transportation Worker Exemption Under Section 1 of the FAA

In Harper, the Third Circuit laid out a three-part inquiry to resolve whether the FAA or

alternatively, state law, governs the enforceability of an arbitration agreement. Harper, 12 F.4th at

296. While the parties do not dispute the applicability of the transportation worker exemption

under § | of the FAA and agree that arbitration is being sought here under Michigan law, the Court

will briefly discuss the Harper three-step framework for the purposes of completeness. In that

inquiry, courts must first consider whether the § 1 exemption applies; second, if that analysis is

“murky” then courts are to assume the exemption applies and consider whether arbitration is

°

required under applicable state law; third, if arbitration is unenforceable under state law, then

courts must return to Step 1 and finally determine whether § 1 applies. Jd.

At Step 1, “a court must consider whether the agreement applies to a class of transportation

workers who ‘engaged directly in commerce’ or ‘work so closely related thereto as to be in

practical effect part of it.’” /d. (citation omitted). The Third Circuit construes this as distinguishing

between two types of workers under the exemption: (a) those engaged in the classic movement of

goods across state lines, e.g., interstate truck drivers, and (b) those who might not themselves cross

borders but whose work is a critical part of the interstate movement of goods. See Singh v. Uber

Techs., Inc., 67 F.4th 550, 558 (3d Cir. 2023), as amended (May 4, 2023), cert. denied, 144 S. Ct.

566 (2024) (internal quotation marks and citation omitted).

At least two courts have already determined that Domino’s commercial truck drivers

qualify for the § 1 exemption. See, e.g., Carmona Mendoza v. Domino's Pizza, LLC, 73 F.Ath

1135, 1136-37 (9th Cir. 2023) (finding truck drivers were exempt under § | even if they

themselves did not cross actual borders because “the entire [interstate] journey represented one

continuous stream of commerce”), cert. denied sub nom. Domino’s Pizza, LLC y. Carmona, 144

S. Ct. 1391 (2024); Oakley v. Domino’s Pizza LLC, 516 P.3d 1237, 1243 (Wash. Ct. App. 2022)

(exempting workers under § 1 because they are “directly involved in transporting goods across

state or international borders.” (quoting Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457 (2022))).°

While the Court finds these cases persuasive in determining whether the transportation worker

the context of Domino’s, it is important to emphasize the difference between pizza delivery drivers—

who generally do not fall under the § | exemption—and the plaintiffs in Carmona Mendoza, Oakley, and

likely this case—who fall under the § 1 exemption. See, e.g., Bryant v. Domino’s Pizza Inc., No, 22-11319,

2023 WL 5486104, at *4 (B.D. Mich, Aug. 24, 2023), In Bryant, the court contrasted those who were

exempted because they delivered out-of-state ingredients (even if they themselves did not travel across state

lines with the out-of-state ingredients) with those who were not exempted because they delivered pizza and

other prepared foods from local Domino’s stores to individual customers. Id.

ao

exception would apply to the instant matter, the issue nonetheless was not briefed here. The Court

need not adopt the holdings of these cases; whether it concludes that the exemption applies, or it

finds the determination “murky,” the result is the same—the Court proceeds to Harper Step 2 and

examines whether enforcing arbitration is proper under state law. Harper, 12 F.4th at 294.

2. Applicable State Law

Ordinarily, on a motion to compel arbitration, a court must invoke the forum state’s choice-

of-law rules to determine the correct state law to apply. Adler, 135 F.4th at 64 (citing Harper, 12

F.4th at 295). Had the parties in this case contested the applicable state law (even if the contract

specified a particular law), the Court would be bound to conduct a choice-of-law analysis under

New Jersey law. Here, however, the parties do not contest what law arbitration is being sought

under—they agree it is Michigan state law. (Compare Def. Mot. at 11 (Defendant seeking to

compel arbitration under the MUAA), with Pl. Opp. at 7 (Plaintiff relying on Michigan law

throughout their briefing and acknowledging Defendant “relies entirely on the [MUAA]’)). As

such, the Court need not—and will not—engage in a choice-of-law analysis.° Michigan arbitration

law governs the enforcement of the Agreement. See USA Mach. Corp. v. CSC, Ltd., 184 F.3d 257,

263 (3d Cir. 1999) (“Because the parties appear to be in agreement on [the choice-of-law] issue,

we will assume, without deciding, that [the agreed-upon] law supplies the appropriate substantive

rules.”’),

There is extensive authority supporting the proposition that a choice-of-law analysis is not required when

the governing law is not contested. See, e.g, Marino v. Brighton Gardens of Mountainside, 697 F.Supp.3d

224, 229 (D.N.J. 2023) (“[W]here parties’ briefs assume that a particular forum’s law controls, such implied

consent is sufficient to establish choice of law.” Ginternal quotation marks and citations omitted)) (collecting

cases); UBI Telecom Inc. vy. KDDI Am., Inc., No. 13-1643, 2014 WL 2965705, at *9 (D.N.J. June 30, 2014)

(“When the parties agree upon which state’s law applies . . . the Court need not conduct [a] choice-of-law

inquiry.” (collecting cases)); see also Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 180 (3d Cir. 1995)

(en banc) (“[C]hoice of law issues may be waived.”).

ny

B. ‘THRESHOLD INQUIRIES

Relying on misinterpretations of the text of the MUAA, Plaintiff argues that there are

threshold jurisdictional, venue, and procedural barriers precluding both (i) Defendant from moving

to compel arbitration in this Court, and (ii) this Court from subsequently enforcing the Arbitration

Agreement under the MUAA. (PI. Opp. at 7-10.) First, Plaintiff asserts that this Court “can never

have subject-matter jurisdiction over a motion to enforce an arbitration agreement under the

MUAA.” (id. at 9.) Second, Plaintiff posits that no Michigan state court can enforce the agreement

“because Defendant cannot prove that any Michigan circuit court has personal jurisdiction over

him.” (/d.) Third, Plaintiff argues that Defendant has violated “mandated procedural requirements”

of the MUAA by “requesting judicial relief under the MUAA from a court that is not a state circuit

court in Michigan” and failing to “file the motion in a county in Michigan.” (/d. at 10.) Since

“threshold disputes over venue and jurisdiction should be resolved before merits disputes,” the

Court addresses Plaintiff’s arguments now. See Reading Health Sys. v. Bear Stearns & Co., 900

F.3d 87, 95 (3d Cir. 2018). Plaintiffs attempt to ground jurisdiction and venue in Michigan law is

unavailing. By both nonsensically asserting that arbitration can only be compelled in a Michigan

state court and that there is no personal jurisdiction over him in same, Plaintiff's arguments are a

transparent and circuitous attempt to evade arbitration at all costs.

1. Subject Matter Jurisdiction

It is black-letter law that a federal court derives its jurisdiction from relevant federal law:

28 U.S.C. §§ 1331 (federal question jurisdiction) and 1332 (diversity jurisdiction). Hoboken Yacht

Club LLC v. Marinetek N. Am. Inc., No. 19-12199, 2019 WL 7207486, at *2 n.3 (D.N.J. Dec. 26,

14

2019).’ Subject matter jurisdiction is never waivable. See Fed. R. Civ. P. 12(h)(1). As such, a

district court is required to assess its subject matter jurisdiction before deciding a motion to compel

arbitration. Edmondson vy. Lilliston Ford, Inc., 593 F. App’x 108, 112 (3d Cir. 2014) (per curiam),

If a federal court has subject matter jurisdiction, then it may properly consider a motion to compel

arbitration even under state law. /d. Subject matter jurisdiction is not a creature of contract and can

never be revoked or consented to. Travelers Indem. Co. of Am. v. Ebner Industrieoffenbau Gmbh,

No. 22-6175, 2023 WL 3615241, at *2 (D.N.J. May 24, 2023) (collecting cases).

Plaintiff does not appear to be arguing that this Court lacks subject matter jurisdiction to

hear this case overall.’ To reiterate, this Court, like all federal courts, derives subject matter

jurisdiction exclusively from federal statute, and no state law—including the MUAA—has the

power to strip this Court of its jurisdiction. See Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431

n.5 (3d Cir. 2017) (“[S]tate substantive law cannot deprive a federal court of its diversity

jurisdiction.”). The Supreme Court has held that “[j]urisdiction is determined “by the law of the

court’s creation and cannot be defeated by the extraterritorial operation of a state statute.’”

Marshall vy. Marshall, 547 U.S. 293, 314 (2006) (quoting Tennessee Coal, fron & R. Co. v. George,

233 U.S. 354, 360 (1914)); id. [T]he jurisdiction of the federal courts, having existed from the

beginning of the Federal government, cannot be impaired by subsequent state legislation.” (citing

McClellan vy. Carland, 217 U.S. 268, 281 (1910)) (internal quotation marks omitted); see also New

Jersey v. Merrill Lynch & Co., 640 F.3d 545, 549 (3d Cir. 2011) C'[W]e had recognized that

’ The FAA does not confer federal jurisdiction; instead, an independent jurisdictional basis is always

required. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552. U.S. 576, 581 (2008) (citation omitted),

To be sure, it is difficult to pin down exactly what Plaintiff is disputing—whether that be this Court’s

overall subject matter jurisdiction, this Court’s subject matter jurisdiction to hear a discrete motion to

compel arbitration, or this Court’s authority to enforce an arbitration agreement under the MUAA. The

Court addresses each of these concerns herein, finding them all to be baseless.

19

interpreting [a] [state] statute in a way that denied parties access to federal courts might well run

afoul of the Supremacy Clause.” (citing Allstate Ins. Co. v. Gammon, 838 F.2d 73, 77 n.7 Gd Cir.

1988)) (internal quotation marks omitted). Consistent with Defendant’s Notice of Removal, the

Court concludes that it has subject matter jurisdiction over this case pursuant to CAPA, 28 U.S.C.

§ 1332(d)(2).? (See ECF No. 1.)

Instead of attacking our subject matter jurisdiction over this case, Plaintiff seems to be

arguing that under Michigan law, this federal Court does not have subject matter jurisdiction

specifically to hear a motion to compel arbitration and subsequently enforce an arbitration

agreement under the MUAA. (PI. Opp. at 9.) Plaintiffs assertion relies on a provision of the

MUAA entitled “Turisdiction,” which provides that “[a] court of this state that has jurisdiction over

the controversy and the parties may enforce an agreement to arbitrate.” Mich. Comp. Laws

§ 691.1706(1) (emphasis added). Overreading the language of this provision, Plaintiff essentially

argues that this provision exclusively vests jurisdiction over arbitration disputes under Michigan

law only to Michigan state courts. This argument misapprehends how federal courts derive their -

subject matter jurisdiction and sets forth a textual reading of the MUAA so narrow as to lead to an

absurd result. Indeed, a Wisconsin federal court rejected a similar reading of the jurisdictional

A federal district court has subject matter jurisdiction under CAFA if the case (a) is a putative class action;

(b) involves a class of more than 100 members; (c) satisfies minimal diversity requirements; and (d) the

agerepate claims of the proposed class members exceed $5,000,000. Kaufman v. Allstate New Jersey Ins.

Co., 561 F.3d 144, 149 Gd Cir. 2009) (citations omitted). In considering whether jurisdiction is proper in

removal cases, a court considers both the complaint and the notice of removal. Kaufman, 561 F.3d at 151

(citing Frederico v. Home Depot, 507 F.3d 188, 197 (3d Cir. 2007); see also Rowland v. Bissell Homecare,

Inc., 73 F.4th 177, 180 (Gd Cir. 2023). The requirements of CAFA are met here. First, Plaintiff brings the

complaint on behalf of a class pursuant to 28 U.S.C. § 1332(d)(1)(B). (ECF No. 1-1 | 8; ECF No. 1 JJ 8—

10.) Second, Plaintiff meets the class size requirements under 28 U.S.C. § 1332(d)(5) because, as laid out

in the Notice of Removal, the class could be up to 178 individuals. (ECF No. | ff 11-14.) Third, minimal

diversity under 28 U.S.C. § 1332(d)(2)(A) is satisfied because Plaintiff is a resident of New Jersey and

Defendant is a citizen of Michigan and Delaware. (ECF No. 1 {J 15-20; ECF No. 1-1 9§ 4, 5.) Fourth,

requirements for the amount in controversy under 28 U.S.C. § 1332(d)(6) are satisfied based on Defendant’s

calculation of “total potential damages” of $15,585,523.20. (ECF No. 1 ¥ 27.) Subject matter jurisdiction

under CAFA is established.

19

provision of the Nevada Uniform Arbitration Act, which purported to only allow Nevada courts

the power to compel arbitration under the law. Johnson v. Schneider Nat’l, Inc., 592 P. Supp. 3d

768, 775 (E.D. Wis. 2022), vacated by settlement, No. 21-836, 2022 WL 22412939 (E.D. Wis.

June 22, 2022). The court stated that, notwithstanding the text of the NUAA, “the Nevada

legislature can only enact statutes that govern its tribunals .. . [and] [cannot] prevent courts of

other jurisdictions from applying Nevada’s state law to cases where that law controls.” Jd. It opined

that in that case, as here, “[e]xclusive jurisdiction [by a specific state court] would create an end-

run around an otherwise valid arbitration agreement under state law by allowing a plaintiff to

simply avoid the contracted-for arbitration by suing in a state court other than the one identified in

the arbitration agreement.” Jd.

Unsurprisingly, the Eastern District of Michigan has determined that the MUAA does not

confer “exclusive jurisdiction” to Michigan circuit courts to enter a judgment on an arbitrator’s

award. Wizie Com LLC v. Webjet Mktg. N. Am., LLC, No, 17-11920, 2017 WL 4707487, at *2-3

(E.D. Mich. Oct. 20, 2017). That case involved the same jurisdictional and venue provisions of the

MUAA as raised by Plaintiff here. The court declined to read those provisions as inapplicable in

federal court and stated that “to the extent the Michigan statute might be interpreted as requiring

exclusive enforcement in Michigan circuit courts ..., the statute cannot be enforced.” Jd. at *3;

see also Smith vy. Allstate Power Vac, Inc., 482 F, Supp. 3d 40, 48 (E.D.N.Y. 2020) (applying

Michigan arbitration law to arbitration waiver analysis after finding the FAA inapplicable).

The Michigan state court decisions—interpreting state procedural rules—that Plaintiff

relies upon to support his arguments here have “little relevance to interpretation of federal

procedural rules” in federal court cases. See Palcko, 372 F.3d at 597. And indeed, the cases

Plaintiff cites merely stand for the proposition that a Michigan court should determine it has subject

matter jurisdiction before compelling arbitration, a legal principle that no party could or does

dispute. (See Pl. Opp. at 7.) The authority cited by Plaintiff does not and cannot strip a federal

court of its subject matter jurisdiction, nor does it support Plaintiffs erroneous conclusion that this

Court does not have the authority to both hear a motion to compel arbitration and subsequently

enforce an arbitration agreement under Michigan law (ie., the MUAA). The Court rejects

Plaintiff’s arguments as to this Court’s subject matter jurisdiction and its authority to hear the

subject Motion as to the enforceability of the arbitration agreement.

2. Personal Jurisdiction

Because the Court has dismissed Plaintiff's arguments regarding the need for a Michigan

state court to exclusively hear Defendant’s Motion, his arguments regarding Michigan’s purported

lack of personal jurisdiction over him are irrelevant. However, these arguments do paint an

illustration of the “end-run around” referenced by the Eastern District of Wisconsin hereinabove—

Plaintiff is attempting “to simply avoid the contracted-for arbitration by suing in a [] court other

than the one identified in the arbitration agreement.” Johnson, 592 F. Supp. 3d at 775,

For the avoidance of doubt, to the extent Plaintiff is trying to argue this Court does not

have personal jurisdiction over him, it is axiomatic that a plaintiff has no ability to contest a court’s

personal jurisdiction over him. See Apostolou v. Mann Bracken, LLC, No. 07-4950, 2009 WL

1312927, at *3 (D.N.J. May 1, 2009) (‘Courts have consistently held that a court always has

personal jurisdiction over a named plaintiff because that party, by choosing the forum, has

consented to the personal jurisdiction of that court.” (quoting Moore v. Rohm & Haas Co., 446

F.3d 643, 646 (6th Cir. 2006))); see also Turner v. Boyle, No. 12-7224, 2013 WL 1409903, at *2

(D.N.J. Apr. 8, 2013) (“The concept of ‘personal jurisdiction,’ or ‘in personam jurisdiction,’ refers

to a court’s power over a particular defendant.” (emphasis added) (citing Int’! Shoe Co. v. Wash.,

326 U.S. 310, 316 (1945))). Thus, by choosing to bring this case in New Jersey, Plaintiff cannot

contest personal jurisdiction over him.

3. Venue and Procedure

Plaintiff's remaining arguments are simply a repackaging of his jurisdictional arguments

rejected above, but the Court nonetheless will construe these remaining arguments as either

procedure- or venue-related. (See Pl. Opp. at 10.) Plaintiff argues that Defendant has violated both

MCL § 691.1685(1) and MCL § 691.1707 by “requesting judicial relief under the MUAA from a

court that is not a state circuit court in Michigan” and failing to “file the motion in a county mn

Michigan.” Ud.) MCL § 691.1685 provides that “a request for judicial relief under this act must

be made by motion to the court and heard in the manner provided by court rule for making and

hearing motions.” Mich. Comp. Laws § 691.1685(1) (emphasis added). The MUAA defines a

“court” as a Michigan circuit court. Mich. Comp. Laws § 691.1681(c). Further, MCL § 691.1707

provides that a request for judicial relief under section 691.1685 shall be made in one of four

Michigan “courts.” '° See Mich. Comp. Laws § 691.1707.

To the extent these arguments can be construed as Plaintiff disputing proper venue, a

federal court’s venue is “determined exclusively by federal venue laws.” Howmedica Osteonics

Corp. v. DJO Glob., Inc., No. 16-2330, 2017 WL 1136671, at *3 (D.N.J. Mar. 27, 2017) (citing

Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 54 (2013)). State rules

governing venue ate undoubtedly procedural, and such rules are supplanted by applicable federal

procedural rules in federal court. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995)

10 Specifically, the statute allows a motion to be made (1) “in the court of the county in which the agreement

to arbitrate specifies the arbitration hearing is to be held”; (2) “if the hearing has been held, in the court of

the county in which it was held”; (3) “in the court of any county in which an adverse party resides or has a

place of business”; or (4) “if no adverse party has a residence or place of business in [Michigan], in the

court of any county in [Michigan]. Mich. Comp. Laws § 691.1707.

ws

(“[Q]uestions of venue .. . are essentially procedural, rather than substantive, in nature.” (citation

omitted)). Thus, any of the provisions of the MUAA purporting to set the proper venue for a motion

to compel arbitration under it are procedural and not applicable to this federal court sitting in

diversity.!!

Because this case was removed to federal court, the federal removal statute, 28 U.S.C.

§ 1441, rather than the general venue statute, 28 U.S.C. § 1391, governs. Halpern v. Centroid Sys.,

Inc., No. 24-07037, 2024 WL 4533370, at *8 (D.N.J. Oct. 21, 2024) (citing Polizzi v. Cowles

Mags., Inc., 345 U.S. 663, 665 (1953)). Section 1441 provides in pertinent part that:

any civil action brought in a State court of which district courts of

the United States have original jurisdiction ... may be removed by

the defendant .. . to the district court of the United States for the

district and division embracing the place where such action is

pending.

28 U.S.C. § 1441(a). This action was originally filed by Plaintiff in the Superior Court of New

Jersey, Law Division, Monmouth County and thus removal to the District of New Jersey was

proper. See 28 U.S.C. § 118(a).

Even if it were hypothetically true that the parties contractually agreed to a Michigan

judicial forum, Plaintiff waived enforcement of any rights under such a hypothetical provision by

4 The Seventh Circuit’s recent decision in Rodgers-Rouzier v. American Queen Steamboat Operating, Co,

LLC, while dealing with the Indiana Uniform Arbitration Act (“ITUAA”), is factually similar, and thus

persuasive to the Court. 104 F.4th 978, 988 (7th Cir. 2024). The plaintiff in Rodgers-Rouzier argued the

IUAA is only enforceable in state courts and thus the federal district court had no authority to compel

arbitration under the IUAA. See id. at 983, 85. The IUAA, which, simular to the MUAA, defines “court” as

only an Indiana state court, was purported to grant only an Indiana state court the authority to compel

arbitration. [d. at 988. The Seventh Circuit disagreed. The Circuit stated that if “the TUAA renders this

agreement ‘valid and enforceable’ as a matter of substantive Indiana law, then, under Erie, a federal court

must give that clause the same effect an Indiana court would, even if neither the TUAA nor the FAA

authorizes the federal court to do so in their texts.” Zd.; id. at 990 (“The Court conceptualized the right to

compel arbitration as a substantive right that should have received equal treatment in state and federal

courts.” (citing Bernhardt, 350 U.S. at 202-04)). Thus, a district court has the authority to compel

arbitration under state law ‘‘to the extent and by means substantially equivalent to those that [state] law

grants to the [] state court system.” Jd. at 990.

try

filing his suit in New Jersey. See, e.g., The Indian Express Priv. Ltd. v. Hali, No. 20-2741, 2022

WL 154354, at *6 (D.N.J. Jan. 18, 2022) (finding that filing a suit in an unauthorized forum in

contravention of a contractual clause specifying another forum impliedly waives plaintiffs rights

under the contract’s forum provision); see also MTR Gaming Grp., Inc. v, Arneault, 899 F, Supp.

2d 367, 375 (W.D. Pa. 2012) (collecting cases); see also Nat’! Iranian Oil Co. y. Ashland Oil, Inc.,

817 F.2d 326, 331 (Sth Cir. 1987) (“By bringing suit in a district other than the districts designated

in the forum selection clause, the plaintiff in Dupuy-Busching in effect had waived the right to its

bargain.” (citation omitted)). Thus, venue is appropriate here.

Further, to the extent Plaintiff is simply making an improper procedure-based argument,

Plaintiffs position reflects an underlying assumption that state procedural law governs, rather than

federal procedural law. But since there is no “clear intent” to be bound by state procedural rules,

the Court is limited to applying only substantive Michigan law; Plaintiff's contentions to the

contrary are rejected. See Adler, 135 F.4th at 71 (A “provision selecting a particular state’s law

should be read as . .. replacing the [federal] procedures with state procedures” only where there is

“clear intent” to do so (citing Oberwager v. McKechnie Ltd., 351 F. App’x 708, 710 (3d Cu.

2009))). The “generic choice-of-law provision, standing alone, is not sufficient evidence of such

[clear] intent.” Oberwager, 351 F. App’x at 710 (citing Roadway Package, 257 F.3d at 293,

abrogated on other grounds by Halil St., 552 U.S. 576). Plaintiff makes no averments that there is

“clear intent” in the Agreement to be bound by Michigan procedural rules, and the Court, on its

own, finds no sign of clear intent by the parties to be bound by state procedural rules in the

Agreement. Therefore, Plaintiff's argument that this federal court must enforce—and Defendant

must follow—the procedural requirements of the MUAA is unavailing.

Having determined that the Motion is properly before this Court, the Court now turns to

the Agreement itself. See Edmondson, 593 F. App’x at 113 (“If the District Court determines it

has subject matter jurisdiction, it should then proceed with a determination on the motion to compel

arbitration.’’).

C. THE DELEGATION CLAUSE

The parties disagree as to who should determine whether the parties entered into a valid

arbitration agreement. Defendant contends that the arbitrator should make this determination

because the Agreement contains a clause delegating all gateway questions, including scope,

validity, and enforceability questions, to the arbitrator. (Def. Mot. at 11-13.) Plaintiff, on the other

hand, urges that it is the Court—not an arbitrator—-who always decides the validity of an

arbitration agreement. (Pl. Opp. at 10-11.) Plaintiff is correct.

“(Notwithstanding the presence of a delegation clause, a court still may not send a dispute

to arbitration without first determining that there is an agreement to arbitrate that is enforceable

under applicable law.” Adler, 135 F.4th at 66 (citing New Prime, 586 U.S. at 111). Importantly

here, the threshold dispute is not an arbitrability issue that can be delegated to the arbitrator, such

as “whether [the] arbitration agreement applies to the particular dispute,” Henry Schein, Inc. v.

Archer & White Sales, Inc., 586 U.S. 63, 65 (2019); rather, it involves an antecedent question of

whether there is an arbitration agreement in the first place. Even where an arbitration agreement

delegates certain issues to the arbitrator, whether a valid arbitration agreement exists is “‘always’

for courts to decide at the outset.” In re StockX Customer Data Sec. Breach Litig., 19 F Ath 873,

879 (6th Cir. 2021) (applying Michigan law) (“[C]ourts must decide challenges to the formation

or ‘existence of an agreement in the first instance.’” (quoting In re Auto. Parts Antitrust Litig., 951

F.3d 377, 385 (6th Cir. 2020))); Fromm v. Meemic Ins. Co., 690 N.W.2d 528, 530-31 (Mich. Ct.

App. 2004) (“The existence of an arbitration agreement . . . [is] [a] judicial question[] for the court,

not the arbitrators.” (citation omitted)); Adler, 135 F.4th at 66 (same). Accordingly, regardless of

any Agreement Terms that arguably delegate questions as to the Agreement’s validity to an

arbitrator, the Court must decide whether there is an arbitration agreement in the first instance. See

Henry Schein, Inc., 586 U.S. at 69 (“[BJefore referring a dispute to an arbitrator, the court

determines whether a valid arbitration agreement exists.” (citation omitted)).

D. ASSENT TO ARBITRATION

Assent to an arbitration agreement is a question of contract law determined by “ordinary

state-law principles that govern the formation of contracts.” First Options, 514 U.S. at 944. Here,

as established previously, the parties do not dispute that Michigan contract law applies. (See Pl.

Opp. at 14-18 (Plaintiff citing cases applying Michigan contract law), Def. Reply at 10-14

(Defendant citing same).) Accordingly, the Court applies Michigan contract law in determining

whether Plaintiff assented to the Agreement.

Michigan law, like the FAA, has a public policy favoring arbitration. Lichon v. Morse, 968

N.W.2d 461, 467 (Mich. 2021) (citation omitted). Traditional legal principles governing contract

interpretation are applied to arbitration agreements. Jd. (citation omitted). “[A] valid agreement

must exist for arbitration to be binding.” Ferndale v Florence Cement Co, 712 N.W.2d 522, 527

(Mich. App. Ct. 2006) (citation omitted). A valid contract under Michigan law has five

components: “‘‘(1) parties competent to contract, (2) a proper subject matter, (3) legal

consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” McMillon v. City of

Kalamazoo, 983 N.W.2d 79, 81 (Mich. 2023) (quoting Bank of America, NA v First American

Title Ins. Co., 878 N.W.2d 816 (Mich. 2016)).

Only the mutuality of agreement, which requires “a meeting of the minds,” is at issue here.

See In re StockX, 19 F.4th at 881 (citing Huntington Nat’l Bank v. Daniel J. Aronoff Living Trust,

853 N.W.2d 481, 488 (Mich. Ct. App. 2014)) Ginternal quotation marks omitted). “Whether there

an

was a ‘meeting of the minds is judged by an objective standard, looking to the express words of

the parties and their visible acts, not their subjective states of mind.’” /d. (quoting Kloian □□□

Domino’s Pizza, L.L.C., 733 N.W.2d 766, 771 (Mich. Ct. App. 2006)). This “objective theory of

assent|] focus[es] on how a reasonable person in the position of the promisee would have

interpreted the promisor’s statements or conduct.” Rood v. Gen. Dynamics Corp., 507 N.W.2d

591, 598 (Mich. 1993).

“In Michigan, one who signs a contract will not be heard to say, when enforcement is

sought, that he did not read it, or that he supposed it was different in its terms.” Gavette v. United

Wholesale Mortg., LLC, No. 24-1557, 2025 WL 318224, at *3 (6th Cir. Jan. 28, 2025) (citing

Farm Bureau Mut. Ins. Co. of Mich. v. Nikkel, 596 N.W.2d 915, 920 (Mich. 1999)) (internal

quotation marks omitted); Stout v. J.D. Byrider, 228 F.3d 709, 715 (6th Cir. 2000) ““[O]ne who

signs a contract which he has had an opportunity to read and understand, is bound by its

provisions.”) It is a plaintiff's duty to read a contract and seek an explanation if they do not

understand its terms. /n re StockX, 19 F.4th at 882 (citing Nikkel, 596 N.W.2d at 920); Sutton v.

U.S. Small Bus, Admin., 92 F. App’x 112, 125-26 (6th Cir. 2003) (“Michigan law ‘presumes that

one who signs a written agreement knows the nature of the instrument so executed and understands

its contents.’” (quoting McKinstry v. Valley Obstetrics-Gynecology Clinic, 405 N.W.2d 88, 96

(Mich. 1987))). A plaintiff failing to remember that he signed an arbitration agreement or failing

to remember that he received information about arbitration does not nullify a signed arbitration

agreement. Boykin v. Fam. Dollar Stores of Michigan, LLC, 3 F.4th 832, 840 (6th Cir. 2021).

1. Defendant’s Burden

As explained earlier, Defendant’s Motion is considered under the summary judgment

standard under Rule 56. See supra § This summary judgment standard employs a burden-

a4

shifting framework where Defendant, as the moving party, has the initial burden to show there is

no genuine dispute of material fact as to the challenged element of the Agreement: Plaintiff's

assent. Guidotti, 716 F.3d at 772-73 (citing Fed. R. Civ. P. 56(a)); Tucker v. United Wholesale

Mortg., Inc., No. 24-1595, 2025 WL 1082316, at *1 (6th Cir. Apr. 10, 2025) (applying Michigan

contract law and Rule 56) (citing Boykin, 3 F.4th at 838). If Defendant meets its burden, the burden

then shifts to Plaintiff to show there is a genuine dispute of material fact. /d. Plaintiff, as the

nonmovant, must support their assertion of a genuine dispute of material fact by looking beyond

the pleadings and “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56; see also Guidotti, 716 F.3d at 773 (citing Celotex, 477 U.S. at 324).

Defendant satisfies its burden of establishing the existence of an agreement to arbitrate

through the Agreement itself. As background, Defendant also relies on the uncontested facts set

forth in the Apollon Declaration to provide context to support the existence of a valid agreement

to arbitrate. Plaintiff argues that paragraph 14” of the Apollon Declaration should be disregarded

Paragraph 14 of the Apollon Declaration states the following:

Once the employee has reviewed the Arbitration Agreement documents,

they are prompted by a message stating that an electronic signature is

required, and there are boxes to enter their name and the last four digits of

their Social Security Number before clicking a button to accept. A

message immediately above the accept button reads, “Arbitration

Agreement” “Following is the electronic signature of the team member

acknowledging that the team member has read, understands, and agrees to

be legally bound to all of the above terms of the Arbitration Agreement.”

The last four digits of the employee’s Social Security Number is verified

by Domino’s Human Resources Information Services team against the

employee’s human resources data to ensure its accuracy.

(Apollon Decl. { 14 (bold in original).)

nny

as hearsay and not based wholly on personal knowledge." (Pl. Opp. at 11-14.) Plaintiff does not

contest any other portion of the Apollon Declaration, and thus the remainder of the Declaration is

properly considered here. See Est. of Fajge v. Dick Greenfield Dodge, Inc., No. 11-04527, 2012

WL 2339723, at *12 (D.N.J. June 18, 2012) (material introduced on a summary judgment may be

considered by the court if not challenged); see also Dandy v. Ethicon Women’s Health & Urology,

No. 20-00431, 2022 WL 1284735, at *2 n.2 (D.N.J. Apr. 29, 2022) (relying on facts in record in

summary judgment decision where opposing party does not object to its consideration). While

“supplement[ing] signed contracts with evidence of their presentation” is not required under

Michigan law, the Court finds the remaining unobjected-to portions of the Apollon Declaration

helpful in providing background facts regarding the circumstances in which Plaintiff entered into

the Agreement. See, e.g. Gavette, 2025 WL 318224, at *3 (finding “sworn testimony from a

human-resources director explaining how and why [plaintiffs] signature appeared on the

Agreement” was not necessary under Michigan law).

5 The Court need not resolve these objections because, as discussed infra, there is a valid assented-to

arbitration agreement based on the underlying Agreement alone. In other words, paragraph 14 of the

Apollon Declaration is not material to the Court’s decision. However, the Court notes that the disputed

portion of the Apollon Declaration might fall under an exception to hearsay, such as the business records

exception under Federal Rule of Evidence 803(6), or as non-hearsay offered not for the truth of the matter.

Lastly, at this summary judgment posture, a fact need not be in admissible form at the current moment,

rather a court can consider facts “capable of being presented in a form that would be admissible in

evidence.” Bacon v. Avis Budget Grp., Inc., 959 F.3d 590, 603 (3d Cir. 2020) (emphasis added) (citing Fed.

R. Civ. P. 56(c)(2)) (internal quotation marks omitted).

Plaintiff also argues that Apollon does not have personal knowledge about the matters contained in

paragraph 14 of the Apollon Declaration. (Pl. Opp. at 12-13.) “Under Rule 56, a “declaration used to support

or oppose a motion must be made on personal knowledge .. .”” Beenick v. LeFebvre, 684 F. App’x 200,

206 (3d Cir. 2017) (emphasis added) (citing Fed. R. Civ. P. 56(c)(4)). Courts in this Circuit regularly

consider declarations regarding business processes based, in part, on a review of records in the ordinary

course as within the declarant’s personal knowledge. See, e.g., Serfess v. Equifax Credit Info. Servs., LLC,

No. 13-0406, 2015 WL 5123735, at *2 (D.N.J. Sept. 1, 2015) (denying motion to strike declaration of

employee who attested to the facts “based on [her] personal knowledge gained through [her] employment

with Equifax and/or [her] review of Equifax’s business records”); Envel. IT, Inc. v. Chest Twp., 2007 WL

3146745, at *1 (W.D. Pa. Oct. 26, 2007) (“‘[P]ersonal knowledge of a matter included in an affidavit under

Rule 56(e) may be based not only upon knowledge gained through one’s sensory perceptions, but through

a review of records of the matter in question.”).

As explained in the Apollon Declaration, new employees, including Plaintiff, are required

to review and complete certain forms, as a condition of their employment. (Apollon Decl. {§ 7, 8.)

The employees access the forms, such as the Agreement and Acknowledgment, through Domino’ □

TMSC self-service website. (/d. JY 5, 8, 11, 16.) In accessing the Agreement from the “To Do

List” of the TMSC, employees are first instructed to read the Agreement. (Id. J 11.) Next, they are

brought to instructions and the Cover Letter, and then finally to the Agreement Terms and the

Acknowledgment to sign. Ud. {| 12-13.) Signing is effectuated when the employee enters their

name and the last four digits of their Social Security number and then clicks a button to accept as

Plaintiff did on November 15, 2022. Ud. ¥ 18.) After the Agreement is signed, the executed

Agreement is available for review throughout their employment in the “To Do List” of the TMSC.,

Ud. 15.)

Regardless of the Apollon Declaration, however, the Agreement itself sufficiently shows,

on its own, that Plaintiff unambiguously manifested assent for the following two reasons, First, it

. 1s undisputed that Plaintiff signed the Acknowledgment at the end of the Agreement, and, indeed,

Plaintiff does not argue otherwise. Second, the language of the Agreement makes clear the signing

of the Acknowledgment binds Plaintiff to arbitrate his claims.

Plaintiff electronically signed the Acknowledgment on November 15, 2022 by entering the

last four digits of his Social Security number.'!* The Acknowledgment is entitled “New Jersey

Arbitration Agreement” and states: “Following is the electronic signature of the team member

acknowledging the receipt and reading of the New Jersey Arbitration Agreement.” (ECF No. 18-

Under Michigan law and federal law, “electronic signatures have the same legal effect as handwritten

ones.” Richardson v. Wal-Mart Stores, Inc., 836 F.3d 698, 705 (6th Cir. 2016) (citing Mich. Comp. Laws

§ 450.837); Hardaway v. Aveanna Healthcare, LLC, No. 23-12246, 2024 WL 2271826, at *3 (B.D. Mich.

May 20, 2024) (citing 15 U.S.C. § 7001; Mich. Comp. Laws § 450.837).

aA

4 at 17.) At the bottom of the page is a table entitled “Team Member eSignature.” (/d.) The table

and its contents are reproduced here:

Full Name IP Address

|Brewer,Samuel| | samuel brewer _| 4388 2022-11-15-11.43.32.000000

The Acknowledgment followed (i) a one-page Cover Letter from Gellerman, Defendant’s

Vice President of Human Resources (id. at 2); (11) a one-page flyer highlighting the “significant

features of the Domino’s Arbitration Program” (id. at 3); and Gii) three pages of Agreement Terms

in English (id. at 4-6).

Plaintiff does not contest that he signed the Acknowledgment, rather he contends that the

signing of the Acknowledgment did not explicitly bind him to the Agreement. (Pl. Opp. at 15.) He

concedes in his Opposition that he “execute[d] the signature page,” (id. at 4), but nevertheless

asserts “it is an objective fact that Plaintiff did not sign [the Agreement].” (/d. at 15.) His position

is that the Acknowledgment did not provide him with sufficient “warning” or “textual notice” to

prove he assented to the Agreement. (/d. at 17-18.) These assertions are belied by the text of the

Agreement itself, which made clear the purpose and effect of signing the Acknowledgment. The

Cover Letter states:

Enclosed is the Arbitration Agreement which, after you carefully

review, you must sign in order to commence or continue your

employment. You have 30 calendar days from the date you sign the

Arbitration Agreement to opt out of the duty to arbitrate through the

procedures described in the Agreement. Electing to opt out will have

no impact on your employment status with the Company. By

signing the Arbitration Agreement and not opting out, both you

and the Company are giving up various rights, including the

right to a trial by jury as well as any right to arbitrate as a class

representative, as a class member, or in a collective action.

(ECF No. 18-4 at 2) (bold in original). The final paragraph in the Agreement Terms states:

MY SIGNATURE ATTESTS TO THE FACT THAT I HAVE

READ, UNDERSTAND, AND AGREE TO BE LEGALLY

BOUND TO ALL OF THE ABOVE TERMS. I UNDERSTAND

yl

THAT, UNLESS I TIMELY SEND THE OPT-OUT EMAIL

OR LETTER REFERENCED ABOVE TO THE PROPER

ADDRESSEE, I WILL BE REQUIRED TO ARBITRATE ALL

DISPUTES WITH THE COMPANY THAT ARE COVERED

BY THIS ARBITRATION AGREEMENT.

(ECF No. 18-4 at 6) (bold and capitals in original).

These provisions of the Agreement put any reasonable person on notice that the signing of

the Acknowledgment—the only place Plaintiff signs in the Agreement—signifies, inter alia, that

he is legally bound by the terms of the Agreement. (/d.) First, the Cover Letter explicitly states

that Plaintiff “must sign [the Agreement] in order to commence or continue your employment.”

(ECF No. 18-4 at 2.) This further clarifies that Plaintiff’ s employment—which lasted from October

2022 to July 2024—was contingent on signing the Agreement.

Second, although he must sign the Agreement, Plaintiff is provided an opportunity to opt

out, as explained therein. (See, e.g., id. at 2, 4, 5, 6.) Indeed, the option to opt out was offered

repeatedly throughout the arbitration materials.'° (See generally id.) Yet Plaintiff never submitted

a request to opt out of the Agreement. (Apollon Decl. { 18.) The Sixth Circuit applying Michigan

law found that a party showed objective manifestation of assent to an arbitration agreement “by

continuing her employment without returning an opt-out form.” Tillman y. Macy’s, Inc., 735 F.3d

453, 460 (6th Cir. 2013) (collecting cases). It is not disputed that such is the case here.

Third, the Agreement contains a critical final clause in the Agreement Terms, just prior to

the Acknowledgment. (ECF No. 18-4 at 6.) This “Conspicuous Clause,” which is in bold and

'S (ECF No. 18-4 at 2 (“You have 30 calendar days from the date you sign the Arbitration Agreement to

opt out of the duty to arbitrate.”); 4 (Agreement indicating the parties agree that all disputes will be

submitted to binding arbitration “except to the extent that Employee exercises Employee’s opt out right”);

5 (“Employee has the right to opt out of the obligation set forth herein to submit to binding arbitration.”),

(“Absent the proper and timely exercise of this opt-out right, Employee will be required to arbitrate all

disputes encompassed by this Arbitration Agreement.”); 6 (“I understand that, unless I timely send the opt-

out email or letter... , I will be required to arbitrate all disputes with the company that are covered by this

arbitration agreement.” (emphasis omitted)).

yf

capital letters, provides that Plaintiff’s signature attests that he “read, understand|[s], and agree[s]

to be legally bound to all of the above terms.” (/d. at 6.) Also, a sentence in the same bolded and

capitalized paragraph explicitly advises Plaintiff that if he does not opt out of arbitration, he “will

be required to arbitrate all disputes with the company.” (/d.) The clear, plain meaning of the written

Agreement and Plaintiff’s signature on the Acknowledgment establishes a legally binding contract

under Michigan law.

Despite the parties producing to the Court the actual Agreement at-issue, as well as the

Apollon Declaration, Plaintiff argues Defendant did not follow a “standard practice” of submitting

evidence that details the process under which an arbitration agreement was executed. (Pl. Opp. at

16-18.) In support of this premise, Plaintiff cites to a number of cases that are factually

distinguishable. Shirley v. Rocket Mortgage, No. 21-13007, 2022 WL 2541123 (E.D. Mich. July

7, 2022) (granting a motion to compel arbitration relating to consumer hybrid browsewrap‘®

agreement); Lee v. Panera Bread Co., No. 22-11958, 2023 WL 2606611 (E.D. Mich. Mar. 6,

2023), report and recommendation adopted, No. 22-11958, 2023 WL 2603934 (E.D. Mich. Mar.

22, 2023) (granting motion to compel arbitration relating to consumer modified clickwrap

agreement!’); Johnson v. Best Buy Co., No. 363807, 2024 WL 1228760 (Mich. Ct. App. Mar. 21,

2024) (granting a motion to compel arbitration relating to employment agreement, even where the

arbitration policy lacked its own signature block).

16 A “browsewrap” agreement “discloses terms on a website that offers a product or service to the user, and

the user assents by visiting the website to purchase the product or enroll in the service.” See Traton News,

LLC y. Traton Corp., 528 F, App’x 525, 526 (6th Cir. 2013).

'T A “modified clickwrap agreement,” which is one where “the terms being accepted do not appear on the

same screen as the accept button, but are available with the use of hyperlink.” Lee, 2023 WL 2606611 at

*3,

nA

Regardless of these inapposite cases, a recent Sixth Circuit decision rejected the notion that

such a “standard practice” is required under Michigan law. Gavette, 2025 WL 318224, at *3. The

facts in Gavette mirror the facts here: a company defendant sought to compel arbitration under an

arbitration agreement following a suit filed by its ex-employee. /d. at *1. The company then put

forth testimony or a declaration in the record from an HR director explaining the process that the

plaintiff underwent to sign the arbitration agreement. /d. at *4. While crediting the testimony as

reflecting assent to the arbitration agreement, the Court found the signed agreement itself was

sufficient to establish assent to the agreement. /d. Thus, as here, a signed Agreement, bolstered by

the Apollon Declaration (sans paragraph 14), is clearly sufficient to establish a valid arbitration

agreement because Michigan law does not require parties to “affirmatively supplement signed

contracts with evidence of their presentation.” Jd.

At bottom, “if'a signed agreement exists, only some kinds of denials raise a genuine dispute

of material fact.”'® Tucker, 2025 WL 1082316, at *2 (applying Michigan contract law and federal

summary judgment standard). As referenced previously, a plaintiff not remembering that he signed

an arbitration agreement or that he received information about arbitration is an insufficient

'8 Indeed, Plaintiff’s counsel, Brook S. Lane, filed a declaration indicating that he received “26 different

documents consisting of 234 pages” that Plaintiff allegedly executed on November 15, 2022 as part of his

employment with Defendant. (ECF No. 19-1 {f 3-4.) Further, in his Opposition, Plaintiff argues that the

timestamp on the Agreement indicates Plaintiff “took no more than 22 seconds to read the 16-page

Agreement and then execute the signature page.” (Pl. Opp. at 4.) Neither of these assertions creates a

genuine dispute of material fact regarding Plaintiff’ s manifestation of assent, particularly given that Plaintiff

has not put forth evidence to show that Domino’s either constrained or limited the time Plaintiff had to

review and execute the Agreement. See Tucker, 2025 WL 1082316, at *3 (finding employee’s “‘naked

statement that he lacked adequate time, clothed with no details about how much time he did have to sign

his contract” did not create a genuine dispute regarding the circumstances of his signing of the contract);

Gavette, 2025 WL 318224, at *3 (“[Employee] alleges that [company] asked him to return all onboarding

documents ‘as soon as possible’ so that he could start orientation. But even accepting [employee’s] assertion

as true, this expression at most merely conveys a sentiment of urgency for commencing [employee’s]

employment—not that he risked losing his job if he did not immediately sign the documents, unaware of

their contents. Nor does [employee] state that the company affirmatively rushed him to sign the Agreement

by, say, refusing a request for additional time.”)

nyo

argument to rebut a signed arbitration agreement. Boykin, 3 F.Ath at 840, By signing the

Acknowledgment—confirming Plaintiff read the arbitration materials—and continuing his

employment with Domino’s without returning an opt-out form, Plaintiffs clear assent to the

Agreement is firmly established. Therefore, Defendant has met its burden to show that there is no

genuine dispute of material fact that Plaintiff unambiguously manifested assent to the Agreement.

2. Plaintiff’s Burden

The burden now shifts to Plaintiff to point to particular materials in the record showing

there is a genuine dispute of material fact as to the existence of a contract between the parties. Jn

re StockX, 19 F.Ath at 882 (first citing Fed. R. Civ. P. 56(c); then citing Scott v. Harris, 550 U.S.

372, 380 (2007)); Guidotti, 716 F.3d at 773 (“Once the movant meets their burden, the non-moving

party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is a genuine

issue for trial.” (quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted)). The

nonmoyant “must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see

also Nitkin v. Main Line Health, 67 F Ath 565, 571 (3d Cir. 2023) (requiring nonmovant to “point

to concrete evidence in the record” (Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995))).

Plaintiff has failed to take any action that would support his burden to establish a genuine

of material fact: (i) he has failed to put forth any evidence, such as a sworn declaration”;

(ii) he has failed to provide reasons he cannot, at this juncture, present facts essential to his

'9 One of the cases relied on by Plaintiff, Nyachira v. New Prime, Inc., No. 21-03211, 2022 WL 19239772

(W.D. Mo. May 5, 2022), involved a Missouri federal court’s denial of a motion to compel arbitration under

the Missouri Unform Arbitration Act. In that case, the plaintiff employee filed a declaration under the

penalty of perjury in which he described his experience signing the arbitration agreement. No. 21-3211,

ECF No. 13-2 (W.D. Mo. November 2, 2021). Here, Plaintiff failed to file a declaration or otherwise attest

to any facts purporting to controvert the evidence put forth by Defendant.

An

opposition under Federal Rule of Civil Procedure 56(d); and (iii) he has failed to request discovery

on pertinent issues.”° In other words, without “specific facts showing there is a genuine issue for

trial,” “the factual record will be taken as presented by the moving party and judgment will be

entered as a matter of law.” Grayer v. Twp. of Edison, No. 02-2969, 2007 WL 2595530, at *2

(D.N.J. Sept. 5, 2007) (citing Matsushita, 475 U.S. at 587). Because Plaintiff cannot rely on his

Opposition alone for rebuttal evidence, see Dawley v. Erie Indem. Co., 100 F. App’x 877, 882 (3d

Cir. 2004), and he has put forth no admissible evidence to show there is a genuine dispute of

material fact, Plaintiff has not met his rebuttal burden. Therefore, the Court concludes that Plaintiff

assented to the Agreement under Michigan law and that there is a valid agreement to arbitrate

between the parties. For the avoidance of doubt, the enforcement of the Agreement here is

“inherent in the agreement’s validity under the relevant substantive law, whatever its source.”

Rodgers-Rouzier, 104 F.4th at 990. As a matter of federal law, federal courts have abandoned any

distinction between the validity of an arbitration clause as a substantive matter and its

enforceability as a procedural matter. Id. at 988 (citing Southland Corp. v. Keating, 465 U.S. 1,

15-16 (1984) (Stevens, J. concurring in part and dissenting in part)). In other words, “the Supreme

Court has consistently understood the specific enforcement of an arbitration agreement to be

implied by its substantive validity.” Id. This means that the validity of the Agreement under

Michigan contract law, on its own, confers authority on this Court to compel arbitration.

Defendant’s Motion is GRANTED insofar as Defendant moves to compel arbitration and dismiss

this case.

20 Kederal Rule of Civil Procedure 56 allows a nonmovant to “show[] by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). As noted,

Plaintiff did not file an affidavit or declaration indicating that he. See Cornelius v. CVS Pharmacy Inc., 133

F.4th 240, 249 (3d Cir. 2025) (citing Fed. R. Civ. P. 56(d)). Nor has Plaintiff otherwise requested discovery.

IV. SANCTIONS

Defendant’s counsel also moves for sanctions against Plaintiff's counsel arguing that

Plaintiff's counsel’s refusal to litigate this dispute in arbitration consistent with its obligations

under the Agreement warrants the imposition of sanctions. (Def. Open. at 17-19.) Under 28 U.S.C.

§ 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously

may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees

reasonably incurred because of such conduct.” 28 U.S.C. § 1927. A finding of bad faith is a

threshold requirement before § 1927 sanctions can be imposed. See In re Prosser, 777 F.3d 154,

162 (3d Cir. 2015). The decision whether to impose sanctions is within the discretion of the Court.

See LaSalle Nat. Bank y. First Conn. Holding Grp., LLC., 287 F.3d 279, 288 (3d Cir. 2002).

While the Court believes that much of the judicial and party resources expended to date

were avoidable had the parties expeditiously moved this dispute to an arbitral forum, and giving

Plaintiff the benefit of the doubt, the Court declines to make a finding that Plaintiffs counsel’s

conduct rises to the requisite level of bad faith. Even though Plaintiff electronically signed an

Acknowledgment of the Agreement, the Third Circuit has acknowledged there are some thorny

legal principles governing motions to compel arbitration. See, e.g., Adler, 135 F.4th at 64 (stating

“whether the parties had an enforceable agreement to arbitrate” might be a “straightforward

question,” but “the answer to that question lies in the sometimes not so straightforward principles

of federalism, choice of law, and contract interpretation” (citing Harper, 12 F.4th at 294)). Given

Plaintiff the benefit of the doubt in this case, the Court declines to find this case fits under one of

the “narrow[]” situations where sanctions under § 1927 is appropriate. See LaSalle Nat. Bank, 287

F.3d at 289 (citations omitted). Defendant’s Motion insofar as it requests sanctions against

Plaintiff's counsel is DENIED.

CONCLUSION

For the foregoing reasons, Defendant’s Motion is GRANTED to Compel Arbitration,

GRANTED to Dismiss, and DENIED for Sanctions. An appropriate Order accompanies this

Opinion.

ROBERT KIRSCH

UNITED STATES DISTRICT JUDGE

Dated: May 27, 2025

QU