Case No. 1:18-cv-22505-UU
Avi Robert Kaufman, Kaufman P.A., Andrew John Shamis, Miami, FL, for Plaintiff. Ian M. Ross, Stephanie Peral, Greenberg Traurig, P.A., Miami, FL, Lori Chang, Pro Hac Vice, Greenberg Traurig LLP, Los Angeles, CA, for Defendant.
Avi Robert Kaufman, Kaufman P.A., Andrew John Shamis, Miami, FL, for Plaintiff.
Ian M. Ross, Stephanie Peral, Greenberg Traurig, P.A., Miami, FL, Lori Chang, Pro Hac Vice, Greenberg Traurig LLP, Los Angeles, CA, for Defendant.
URSULA UNGARO, UNITED STATES DISTRICT JUDGE
This cause is before the Court on Defendant Doctor's Associates, Inc.'s Motion to Compel Arbitration and Stay Litigation (the "Motion"). D.E. 13. The Motion is fully briefed. For the reasons stated below, the Motion is GRANTED:
II. Legal Standard
The Federal Arbitration Agreement (the "FAA"), 9 U.S.C. §§ 1 et seq., governs this dispute and "embodies a liberal federal policy favoring arbitration agreements." Caley v. Gulfstream Aerospace Corp. , 428 F.3d 1359, 1367 (11th Cir. 2005) (quotation marks omitted). The Eleventh Circuit has "recognized that the FAA creates a presumption of arbitrability' such that ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’ " Bazemore v. Jefferson Capital Sys., LLC , 827 F.3d 1325, 1329 (11th Cir. 2016) (quoting Dasher v. RBC Bank (USA) , 745 F.3d 1111, 1115–16 (11th Cir. 2014) ). "Under the FAA, a written agreement to arbitrate is ‘valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract ...’ Accordingly, the FAA requires a court to either stay or dismiss a lawsuit and to compel arbitration upon a showing that (a) the plaintiff entered into a written arbitration agreement that is enforceable ‘under ordinary state-law’ contract principles and (b) the claims before the court fall within the scope of that agreement." Lambert v. Austin Ind. , 544 F.3d 1192, 1195 (11th Cir. 2008) (quoting 9 U.S.C. §§ 2 - 4 ). Thus, "[t]he threshold question of whether an arbitration agreement exists at all is ‘simply a matter of contract.’ " Id. (quoting First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ).
Under Florida law, a contract is formed from offer, acceptance and consideration. Med-Star Cent., Inc. v. Psychiatric Hosps. of Hernando Cty., Inc. , 639 So.2d 636, 637 (Fla. Dist. Ct. App. 1994) ( [T]he document had all the elements of a contract: an offer, an acceptance and consideration ...."). Here, Defendant's motion to compel argues that Plaintiff agreed to arbitrate the dispute because Plaintiff agreed to the arbitration agreement in the terms and conditions. D.E. 13. Specifically, Defendant argues that Plaintiff acknowledged that he was presented with an offer for a free 6-inch sub and accepted the terms by opting in to receiving text messages from Subway "after seeing Subway's call to action" by texting "Offers2" to 78929 "to join Subway's text club." D.E 16 at 3. Plaintiff also admits that the Subway offer contained a "disclaimer" stating that Terms and Conditions "would be found at subway.com/subwayroot/TermsOfUse.aspx." id. at 2-3. The "Terms and Conditions" indisputably compel arbitration of Plaintiff's claims. D.E. 13-3 at 9. However, Plaintiff maintains that the arbitration clause is unenforceable because Subway cannot show that he accepted the Terms and Conditions and, in any event, the reference to "Terms and Conditions" was insufficient to notify him of the arbitration clause and ambiguous to the extent it was preceded by a statement suggesting that "Consent" to the "Terms and Conditions" was not required. D.E. 16.
Second, the Court is unpersuaded by Plaintiff's argument that the reference to "Terms and Conditions" was insufficient to put him on notice of the arbitration clause because the arbitration clause was not specifically mentioned. D.E. 16 at 5. Under Florida law, a plaintiff is bound by all of the terms of a contract, including an arbitration clause, regardless of whether he actually read them or understood them at the time he assented. See, e.g., Avatar Props., Inc. v. Greenbaum , 27 So.3d 764, 766-67 (Fla. 2d DCA 2010) (holding there was an agreement to arbitrate where the parties' purchase and sale agreement incorporated by reference a home warranty containing an arbitration clause despite the fact that the warranty was not attached and the purchase agreement did not mention arbitration).
For the foregoing reasons, Defendant's Motion to Compel Arbitration is GRANTED. Accordingly, it is
ORDERED AND ADJUDGED THAT Defendant's Motion to Compel Arbitration, D.E. 13, is GRANTED. The case is hereby STAYED pending resolution of binding arbitration pursuant to the parties' arbitration agreement. It is further
ORDERED AND ADJUDGED THAT the Clerk of Court SHALL administratively close the case. All future hearings are CANCELLED and all pending motions are DENIED AS MOOT.
DONE AND ORDERED this 29th day of August, 2018 at Miami, Florida.