United States District Court, D. New Jersey
JOSHUA SAUBERMAN, individually and on behalf of all others similarly situated, Plaintiff,
AVIS RENT A CAR SYSTEM, L.L.C., Defendant.
WILLIAM J. MARTINI, U.S.D.J.
Joshua Sauberman brings this putative class action against
Defendant Avis Rent a Car System, L.L.C., alleging that
Defendant violated the Telephone Consumer Protection Act
matter comes before the Court upon Defendant's motion to
compel arbitration. For the reasons set forth below, the
motion is DENIED WITHOUT PREJUDICE. The parties are ordered
to engage in limited discovery as to whether Plaintiff made
the rental car reservation at issue through Defendant's
Preferred Member program, or signed any other rental
agreement with Defendant containing an arbitration clause.
Following discovery, Defendant may renew its motion, which
this Court will assess under a Rule 56 summary judgment
on behalf of himself and all others similarly situated, has
filed a putative class action Complaint against Defendant,
asserting violations of the TCPA. ECF No. 1 (Compl).
Plaintiff alleges that, when renting a car via Avis's
website, a customer is “presented with a checkbox
asking whether the consumer consents to receiving alerts via
text message.” Id. ¶¶ 12-13.
However, according to Plaintiff, even if a customer does not
consent to receiving text messages, Avis automatically text
messages that customer anyway, in violation of the TCPA.
Id. ¶ 14.
response to the Complaint, Defendant has filed the instant
motion to compel arbitration. ECF No. 6 (Mot.). Defendant
states that arbitration is required because, “as an
Avis Preferred member, Plaintiff agreed to Avis's
Preferred Rental Transaction Terms and Conditions . . . which
include a conspicuous, broad, and unambiguous arbitration
provision and a class action waiver.” Specifically,
Defendant asserts that, in 2011, Plaintiff enrolled in the
Avis preferred program (also called the “Wizard”
program), and by doing so, he agreed to resolve any claim
against Avis in arbitration.
opposes the motion to compel arbitration, asserting that he
did not enter his Avis Preferred Member information when
making the instant reservation. ECF No. 10 (Opp.). Plaintiff
contends that this fact is fatal to Defendant's present
motion, because the Preferred program agreement states:
“You understand that these Terms and Conditions will
apply to each rental of a car to you by us using Avis
Preferred, as fully as if contained in a separate
agreement signed by you.” Id. at 14 (emphasis
added). The agreement also states it “covers the rental
of each car by us to you under Avis
Preferred.” Opp, Ex. B (Agreement) (emphasis
reply, Defendant declares, inter alia, that,
“Plaintiff did use his Wizard number when making the
rental at issue, and limited discovery on this point will
quickly bear that out.” ECF No. 11 (Reply) at 2.
Therefore, Defendant “requests that this Court direct
the Parties to engage in limited discovery to discern whether
Plaintiff in fact used his Wizard number to place the
reservation at issue.” Id. at 3.
compelling arbitration pursuant to the FAA, a court must
determine that: “(1) a valid agreement to arbitrate
exists, and (2) the particular dispute falls within the scope
of the agreement.” Kirleis v. Dickie, McCarney
& Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009).
Here, the parties disagree as to whether a valid agreement to
arbitrate exists: Defendant contends that Plaintiff entered
his Wizard number when booking the car rental at issue and,
therefore, the arbitration agreement governing the Avis
Preferred program applies to this dispute. Plaintiff, on the
other hand, maintains that he did not enter his Wizard number
and further states that Defendant has not demonstrated that
he used his Wizard number to make this reservation, rendering
arbitration of this action inappropriate.
Guidotti v. Legal Helpers Debt Resolution, L.L.C.,
the Third Circuit explains which standard to apply when a
question arises as to whether a valid arbitration agreement
exists. 716 F.3d 764 (3d Cir.2013). Where arbitrability is
apparent on the face of the complaint, a Rule 12(b)(6)
standard of review should be applied to the motion to compel
arbitration. Id. at 774. However, where the
complaint does not establish on its face that the parties
have agreed to arbitrate, or when the party opposing
arbitration has come forward with reliable evidence that it
did not intend to be bound by an arbitration agreement, the
non-movant must be given a limited opportunity to conduct
discovery on the narrow issue of whether an arbitration
agreement exists. Id.
case, Plaintiff's Complaint makes no reference to the
Avis Preferred program agreement: Plaintiff neither mentions
the Preferred program in the Complaint, nor does he attach
the agreement as an exhibit. Because the Complaint does not
establish on its face that the parties agreed to arbitrate,
the Court cannot decide the present motion without first
ordering limited discovery as to the question of
arbitrability. Id. (“Under the first scenario,
arbitrability not being apparent on the face of the
complaint, the motion to compel arbitration must be denied
pending further development of the factual record.”).
This conclusion is further bolstered by Defendant's
request to conduct limited discovery as to whether Plaintiff
entered his Wizard number in making the current reservation.
Once the factual record is developed, the issue must be
decided under the Rule 56 summary judgment standard. Id;
see also Laudano v. Credit One Bank, No. 15-7668, 2016
WL 3450817, at *5 (D.N.J. June 22, 2016) (ordering discovery
under Guidotti where Plaintiff's complaint did
not mention or attach as an exhibit the alleged agreement
containing the arbitration provision); Ross v. CACH,
LLC, No. 2:14-6321, 2015 WL 1499282, at *1 (D.N.J. Apr.
1, 2015) (same).
stage, the Court need not reach step two of the
Guidotti inquiry, i.e., it need not decide
whether Plaintiff has put forth credible evidence that he is
not bound by the arbitration agreement. See
Guidotti, 716 F.3d at 774 (“The second scenario
will come into play when the complaint and incorporated
documents facially establish arbitrability but the non-movant
has come forward with enough evidence in response to the
motion to compel arbitration to place the question in
issue.”). Because an agreement to arbitrate cannot be
gathered from the face of the Complaint, the Court will deny
the motion without prejudice, order limited discovery on
whether an agreement to arbitrate exists with respect to this
rental, and if necessary, entertain a future motion to compel
arbitration under a summary judgment standard.