Petition for Writ of Certiorari — Pablo Enrique Rosado Sanchez, Petitioner v. Travis Kalanick, et al.

Case: 24-1535

Document: 00118234508

Page: 1

Date Filed: 01/13/2025

Entry ID: 6692492

United States Court of Appeals

For the First Circuit

No. 24-1535

PABLO ENRIQUE ROSADO SANCHEZ,

Plaintiff - Appellant,

v.

TRAVIS KALANICK; GARRET CAMP; DARA KHOSROWSHAHI; UBER

TECHNOLOGIES, INC.,

Defendants - Appellees.

Before

Gelpi, Kayatta and Rikelman,

Circuit Judges.

JUDGMENT

Entered: January 13, 2025

In the underlying action involving claims of employment discrimination, the district court

granted the motion of Defendants-Appellees Uber Technologies, Inc., and certain of its present or

former executives (collectively, "Uber") to compel arbitration, and then entered a judgment

dismissing the case without prejudice.1 Plaintiff-Appellant Pablo Enrique Rosado Sanchez

("Appellant") proceeded to notice this appeal. In its brief, Uber suggests that the court lacks

statutory appellate jurisdiction, but we assume, in Appellant's favor, that the matter properly is

before the court. See. e.g.„ Restoration Pres. Masonry. Inc, v. Grove Eur. Ltd.. 325 F.3d 54, 58-60

(1st Cir. 2003) (discussing bypass of statutory-jurisdiction issues in favor of affirming on the

merits).

Just one day after the district court entered judgment in this case, the Supreme Court held in

Smith v. Spizzirri that, "[w]hen a district court finds that a lawsuit involves an arbitrable dispute,

and a party requests a stay pending arbitration, § 3 of the [Federal Arbitration Act] compels the

court to stay the proceeding." 601 U.S. 472, 478 (2024). However, in this case, it does not appear

that Appellant requested a stay prior to the district court's judgment of dismissal, and, regardless,

Appellant has failed on appeal to develop any argument based on Spizzirri.

Case: 24-1535

Document: 00118234508

Page: 2

Date Filed: 01/13/2025

Entry ID: 6692492

Having reviewed the record and the parties' arguments, we conclude that summary

affirmance is in order. As the district court observed, Appellant failed to develop any arguments

in opposition to the motion to compel arbitration. "The law in this circuit is crystalline: a litigant's

failure to explicitly raise an issue before the district court forecloses that party from raising the

issue for the first time on appeal." Boston Beer Co. Ltd. P'ship v. Slesar Bros. Brewing Co.. 9 F.3d

175, 180-81 (1st Cir. 1993).

Further, even if the foregoing were not so, Appellant has failed in his appellate briefs to

develop any claim of error legitimately addressed to the reasoning of the district court; as a result,

he has waived any appellate challenge. See United States v. Nishnianidze. 342 F.3d 6, 18 (1st Cir.

2003) (pro se appellants may waive challenges through a failure to develop them on appeal); see

also Sparkle Hill Inc, v. Interstate Mat Corp.. 788 F.3d 25, 29-30 (1st Cir. 2015) (discussing

waiver principles).

Therefore, the judgment of the district court is affirmed. See Local R. 27.0(c).

By the Court:

Anastasia Dubrovsky, Clerk

cc:

Pablo Enrique Rosado Sanchez

Anabel Rodriguez-Alonso

Lady E. Cumpiano

Case 3:22-cv-01500-SCC

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In the United States Court

for the District of Puerto Rico

Pablo Enrique Rosado

Sanchez,

Plaintiff,

Civ. No.: 22-1500 (SCC)

v.

Uber Technologies, Inc.; Travis

Kalanick; Garret Camp; Dara

Khosrowshahi,

Defendants.

OPINION AND ORDER

Pending before the Court is Defendants Uber

Technologies, Inc., Travis Kalanick, Garret Camp and Dara

Khosrowshahi's Motion to Compel Arbitration ("Motion to

Compel") which is brought under the Federal Arbitration Act

("FAA"). See Docket No. 26. The same stands unopposed. See

Docket No. 78. For the reasons set forth below, the Motion to

Compel at Docket No. 26 is GRANTED.

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I. Standard of Review

The Defendants bear the burden of showing that

arbitration must be compelled. Air-Con, Inc. v. Daikin Applied

Latin Am., LLC, 21 F.4th 168,176 (1st Cir. 2021). So, to evaluate

the Defendants' request, the First Circuit directs the Court to

"apply the summary judgment standard to evaluate motions

to compel arbitration under the FAA." See id. at 175.1 This is

so because "the summary-judgment standard, which

evaluates the evidentiary supportability of claims, better

aligns with the FAA's command to evaluate whether the

moving party has met its burden of demonstrating that an

agreement to arbitrate is not in issue[.]" See Rodriguez-Rivera

v. Allscripts Healthcare Solutions, Inc., 43 F.4th 150, 168 (1st Cir.

2022) (internal citations and quotation omitted).

To defeat the Defendants' request, the Plaintiff is

tasked with advancing "materials that create a genuine issue

1 The Court is cognizant of the fact that the summary judgment standard

is not to be applied automatically because "there could be exceptional

cases where the parties have foregone the submission of record materials

and have relied solely on the pleadings to support or oppose the motion."

See Rodriguez-Rivera v. Allscripts Healthcare Solutions, Inc., 43 F.4th 150,168

n. 15 (1st Cir. 2022). In those cases, district courts should apply Fed. R. Civ.

P. 12(b)(6)'s motion to dismiss standard. Id. Here, the Defendants have

advanced materials that fall outside of the pleadings. Accordingly, the

Court has applied the summary judgment standard.

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of fact about a dispute's arbitrability." Air-Con, Inc., 21 F.4th

at 175. The Court, for its part, will review the record "in the

light most favorable to [the Plaintiff] and draw all reasonable

inferences in his favor."2 Gartia-Gartia v. Costco Wholesale

Corp., 878 F.3d 411, 414 (1st Cir. 2017). But in doing so, the

Court will cast aside and ignore all "conclusory allegations,

improbable inferences, and unsupported speculation." See id.

at 417.

II. Analysis

The FAA was enacted by Congress with the goal of

"overcoming] judicial resistance to arbitration." Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440,443 (2006). Section

2 of the FAA constitutes the "primary substantive provision

of the Act." See Moses H. Cone Memorial Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24 (1983). It "provides that written

arbitration agreements 'shall be valid, irrevocable, and

enforceable.'" Immediato v. Postmates, Inc., 54 F.4th 67, 73 (1st

Cir. 2022) (quoting 9 U.S.C. § 2). To that end, Section 2

"embodies the national policy favoring arbitration and places

2 The Court has not overlooked the fact that Plaintiffs filings must be

liberally construed since he filed this suit pro se. See McCants v. Alves, 67

F.4th 47, 53 n. 4 (1st Cir. 2023). So while conducting its analysis, the Court

also kept that principle in mind.

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arbitration agreements on equal footing with all other

contracts." See Buckeye, 546 U.S. at 443.

The general rule when considering a motion to compel

arbitration is that the Court must consider the following four

factors: (1) if a valid arbitration agreement exists; (2) if the

moving party is entitled to invoke the arbitration clause; (3)

whether the non-moving party is bound by the arbitration

clause; and (4) whether the claim is within the scope of the

arbitration clause. See Nat'l Fed'n of the Blind v. The Container

Store, Inc., 904 F.3d 70, 79-80 (1st Cir. 2018). This four-part test

confirms that "a [C]ourt should not compel arbitration unless

and until it determines that the parties entered into a validly

formed and legally enforceable agreement covering the

underlying claim[s]." Escobar-Noble v. Luxury Hotels Int'l of

P.R., Inc., 680 F.3d 118,121-22 (1st Cir. 2012). But general rules

have exceptions and "[w]here there is a clear and

unmistakable delegation of arbitrability issues, the [C]ourt's

proper inquiry before referring a dispute to an arbitrator is

limited to determining (1) whether a valid arbitration

agreement exists but (2) if a valid agreement exists, and if the

agreement delegates the arbitrability issue to an arbitrator, a

[C]ourt may not decide the arbitrability issue." Bosse v. N.Y.

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Life Ins. Co., 992 F.3d 20, 28 (1st Cir. 2021) (cleaned up). Here,

the Defendants argue that the Court must only consider the

first element of the four-part test because the agreement

containing the arbitration provision that they are invoking

contains a delegation clause.3

First thing is first, which is the agreement that

reportedly contains the arbitration provision that the

Defendants are invoking? According to the Defendants, the

agreement in question is the Platform Access Agreement (the

"PAA") entered into by Portier, LLC ("Portier") and the

Plaintiff.4 The Defendants reason that the Plaintiff had to signin to the Uber Driver App to gain access to the Uber Eats

marketplace. And to do so, it had to agree to the PAA, which

3 The First Circuit "referfs] to an agreement to submit issues of arbitrability

to the arbitrator ... as a 'delegation clause/" See Bosse v. N.Y. Life Ins. Co.,

992 F.3d 20, 27 n. 7 (1st Cir. 2021).

4 Specifically, the Defendants contend that the applicable PAA is the PAA

dated January l, 2022 between Portier and the Plaintiff and that the

Plaintiff accepted the same on or around January 8, 2022. See Docket No.

26, pg. 10. In support of that contention, they cite to the Declaration of

Deborah Soh, a paralegal at Uber who is familiar with its business records.

See Docket No. 26-1, pgs. 5-6. Defendants acknowledge that there is also a

similar agreement that was entered into by the Plaintiff and Schleuder

LLC ("Schleuder"). See Docket No. 26, pg. 1-2 n. 2; see also Docket No. 261, pgs. 5-6. Uber is Schleuder's parent company. But since the pertinent

arbitration provisions track the ones in the January 1, 2022, Portier PAA,

the Court will refer to that agreement throughout this Opinion and Order.

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in turn, includes an arbitration provision. Since Plaintiffs

claims are allegations that stem from having accessed the

Uber Eats marketplace, the PA A is at the crux of Plaintiffs

claims.

Defendants claim that the PAA contains a delegation

provision "that clearly and unmistakably delegates any and

all threshold issues related to the scope, enforceability, and

validity of the arbitration agreement to an arbitrator to

decide." Docket No. 26, pg. 2. So the Court will first consider

whether the PAA entails a valid arbitration agreement. Then,

it will consider whether the arbitration provision contains a

delegation clause.

To determine whether the PAA entails a valid

arbitration agreement, the Court turns to state contract law.

See Campbell v. Gen. Dynamics Govt. Sys. Corp., 407 F.3d 546,

552 (1st Cir. 2005). Here, the Defendants argue that Puerto

Rico law applies. That reasoning is supported by the

"Governing Law" section of the PAA which provides, in

pertinent part, that "[e]xcept as specifically provided in this

PAA, this PAA is governed by the applicable law of the state

where you reside (or where your entity is domiciled) when

you accepted this PAA." See Docket No. 26-1, pg. 24.

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Furthermore, in his Complaint, the Plaintiff included his

Puerto Rico address and all notices regarding this case are

sent by the Court to that address. Additionally, the allegations

in the Complaint took place in Puerto Rico. Therefore, the

Court will go ahead and apply Puerto Rico law.

Under Puerto Rico contract law, "consent is shown by

the concurrence of the offer and acceptance of the thing and

the cause which are to constitute the contract." See RiveraColdn v. AT&T Mobility P.R., Inc., 913 F.3d 200, 209 (1st Cir.

2019) (internal quotations and citations omitted). This follows

that "[y]ou need to have a definitive object which may be the

subject of the contract and the cause for the obligation which

may be established." Id. at n. 7 (cleaned up). In their Motion

to Compel, the Defendants detail the process that the Plaintiff

went through to sign-in to the Uber Driver App and access

the Uber Eats marketplace. See Docket No. 26, pgs. 8-13. Since

that process entailed the acceptance of the PAA, the

Defendants provided evidence attesting to the fact that the

Plaintiff agreed to be bound by the PAA. See Docket No. 26-1,

pgs. 5-6 and 138. Furthermore, the PAA clearly stated that the

Plaintiff could have opted out of the arbitration provision of

the PAA. See Docket No. 26-1, pgs. 24-25. However, the

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records show that Plaintiff did not opt out of the arbitration

provision. Id. at pgs. 6-7. And at the end of the day, the

Plaintiff did not advance any evidence that could create a

material issue of fact regarding these issues. So the Court

holds that the Defendants have shown the Plaintiff consented

to be bound by the PAA which contains an arbitration

provision and that he did not opt out of the arbitration

provision. Moving on to the delegation of the arbitrability

issue.

Here, the Defendants claim that the PAA contains a

delegation clause. Specifically, they direct the Court to Section

13.1(b) of the PAA, which states, in pertinent part that:

[t]his Arbitration Provision applies to all claims

whether brought by you or us, except as

provided below. . .[S]uch disputes include

without limitation disputes arising out of or

relating to the interpretation application,

formation, scope, enforceability, waiver,

applicability, revocability or validity of this

Arbitration Provision or any portion of this

Arbitration Provision.

See Docket No. 26-1, pg. 25.

The clear text of the delegation clause shows that the

arbitrability question was delegated to the arbitrator and is

therefore not for the Court to decide. So, considering the

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delegation clause, the Court's inquiry ends here. Arbitration

is to be compelled.

In any event, assuming arguendo that "there were any

ambiguity," see Bosse, 992 F.3d at 23, surrounding the

delegation clause, the Court still finds that arbitration is

warranted because the Defendants satisfied the remaining

three factors of the four-part test outlined above.

The second part of the four-part test calls for the Court

to consider whether the Defendants can invoke the arbitration

clause of the PAA. The Defendants are not the contracting

parties. Per the PAA, the contracting parties are Portier and

the Plaintiff. However, Section 13.1(a) of the PAA states, in

pertinent part,

[ejxcept as it otherwise provides, this

Arbitration Provision applies to any legal

dispute, past, present or future, arising out of or

related to your relationship with us or

relationship with any of our agents, employees,

executives, officers, investors, shareholders,

affiliates, successors, assigns, subsidiaries, or

parent companies (each of which may enforce

this Arbitration Provision as third party

beneficiaries), and termination of that

relationship, and survives after the relationship

terminates.

See Docket No. 26-1, pg. 25.

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This clause confirms that the individual defendants

and Uber are third party beneficiaries to the PAA and can

therefore move to enforce the Arbitration Provision. So the

Court holds that the Defendants have satisfied the second

prong.

Third, the Court considers if the Defendants have

shown that the Plaintiff is bound by the arbitration clause of

the PAA. As previously discussed, the clear text of the PAA

states that the Plaintiff could have opted out of the arbitration

clause. However, the Defendants have advanced evidence

showing that the Plaintiff did not opt out of the arbitration

provision of the PAA, so he is bound by it.

Lastly, the Court must consider if the Defendants have

shown that Plaintiffs claims are covered by the Arbitration

Provision in the PAA. Defendants underscore that in his

Complaint, the Plaintiff is advancing claims pursuant to Title

VII, the ADEA and the ADA. So, in support of their argument,

the Defendants direct the Court to Section 13.1 (c) of the PAA

which states, in pertinent part that:

[e]xcept as it otherwise provides, this

Arbitration Provision also applies, without

limitation, to disputes between you and us, or

between you and any other entity or individual,

arising out of or related to your application for

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and use of an account to use our Platform and

Driver App, the Deliveries that you provide ...

and claims arising under ... Title VII of the Civil

Rights Act of 1964,42 U.S.C. § 1981... American

with Disabilities Act [and] Age Discrimination

in Employment Act[.]

See Docket No. 26-1, pgs. 25-26.

Considering this explicit language, and the fact that the

Plaintiff has not provided any evidence that would create a

material issue of fact regarding this point, the Court finds that

the Defendants have shown that the PAA covers Plaintiffs

claims. Once again, all roads lead to arbitration.

III. Whether to Dismiss or Stay

Having

determined

that

arbitration

must

be

compelled, the following question remains: what should the

Court do with Plaintiffs suit? Well, the First Circuit has

instructed that when arbitration is to be compelled, the

district court may either stay or dismiss the pending action.

See Escobar-Noble, 680 F.3d at 126. Specifically, the First Circuit

has held that when all claims are arbitrable, the district court

may dismiss (instead of stay) the action. See Bercovitch v.

Baldwin Sch., Inc., 133 F.3d 141,156 n.21 (1st Cir. 1998).5 Here,

5 The Court acknowledges that there is a circuit split regarding whether

district courts should dismiss (instead of stay) such actions given the

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the Defendants vote in favor of dismissal. And the Court

agrees since the delegation clause instructs that the

arbitrability issue is to be decided by the arbitrator. Moreover,

in any event, a review of Plaintiffs claims confirms that they

all fall under scope of the PAA's arbitration provision.

Therefore, dismissal is appropriate in this case.

IV. Conclusion

In light of the above, the Defendants' Motion to

Compel at Docket No. 26 is GRANTED and is to be

compelled pursuant to the process delineated in the PAA.

Plaintiff's

suit

is

hereby

DISMISSED

WITHOUT

PREJUDICE.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 15th day of May 2024.

S/ SILVIA CARRENO-COLL

UNITED STATES DISTRICT COURT JUDGE

FAA's text which indicates, in pertinent part, that when arbitration is to

be compelled the district court "shall on application of one of the parties

stay the trial of the action until such arbitration has been had [.]" See 9

U.S.C. § 3. The Court is also aware that the question whether to stay or

dismiss an action pending arbitration will be decided by the Supreme

Court. See Smith v. Spizzirri, No. 22-1218,2024 WL 133822, at *1 (2024). But

until the Supreme Court says otherwise, the Court is bound by what the

First Circuit has decided.

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In the United States Court

for the District of Puerto Rico

Pablo Enrique Rosado

SAnchez,

Plaintiff,

Civ. No.: 22-1500 (SCC)

v.

Uber Technologies, Inc.; Travis

Kalanick; Garret Camp; Dara

Khosrowshahi,

Defendants.

JUDGMENT

In view of the Court's Opinion and Order at Docket

No. 79, this case is hereby DISMISSED WITHOUT

PREJUDICE. Each party shall bear their own costs and

attorneys' fees.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 15th day of May 2024.

S/ SILVIA CARRENO-COLL

UNITED STATES DISTRICT COURT JUDGE

Case: 24-1535

Document: 00118247214

Page: 1

Date Filed: 02/12/2025

Entry ID: 6699995

United States Court of Appeals

For the First Circuit

No. 24-1535

PABLO ENRIQUE ROSADO SANCHEZ,

Plaintiff - Appellant,

v.

TRAVIS KALANICK; GARRET CAMP; DARA KHOSROWSHAHI; UBER

TECHNOLOGIES, INC.,

Defendants - Appellees.

Before

Gelpi, Kayatta and Rikelman,

Circuit Judges.

ORDER OF COURT

Entered: February 12, 2025

Plaintiff-Appellant Pablo Enrique Rosado Sanchez has filed a "Response Against

Judgment Entered: January 13, 2025," which this court has construed as a petition for panel

rehearing. The petition is denied.

By the Court:

Anastasia Dubrovsky, Clerk

cc:

Pablo Enrique Rosado Sanchez

Anabel Rodriguez-Alonso

Lady E. Cumpiano

Additional material

from this filing is

available in the

Clerk's Office.