1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 KEVIN JEROME HARRIS, Case No. 21-cv-09445-JSC

6 Plaintiff, ORDER RE: MOTION TO COMPEL 7 v. ARBITRATION

8 DOOR DASH, INC., Re: Dkt. No. 21 Defendant. 9

10 11 Kevin Harris, who is proceeding without representation by a lawyer, sued DoorDash for 12 violations of the Fair Labor Standards Act. Defendant seeks to compel arbitration. Because the 13 briefing exposed some ambiguity regarding contract formation, the Court requested additional 14 briefing and evidence. Defendant submitted additional evidence and briefing. Plaintiff did not. 15 After carefully considering the arguments and briefing submitted, the Court concludes oral 16 argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Defendant’s motion to compel 17 arbitration. The parties agreed to arbitrate the claims at issue here. The matter is stayed pending 18 the completion of arbitration. 19 BACKGROUND 20 I. Complaint Allegations 21 Plaintiff alleges he worked as a “dasher” for DoorDash between November 23, 2020, and 22 November 29, 2021. (Dkt. No. 7 ¶ 6.)1 Plaintiff details a week in which he worked 70.5 hours in 23 Maine, New Jersey, and Connecticut; and another week in which he worked 60 hours in Oregon 24 and Washington. (Id. ¶ 3.) He never received overtime payments. (Id.) He also claims that on 25 one day, in October 2021, he received payment ($5.50 per hour) that was under the minimum 26 wage. (Id. ¶ 4.) 27 1 II. The Arbitration Agreement 2 With its motion to compel arbitration, DoorDash submits a declaration from Trevor 3 Reader, the Head of Dasher Growth for DoorDash. Reader avers Plaintiff “first signed up to create 4 a Dasher account with DoorDash on November 23, 2020.” (Dkt. No. 21-2 at 2 ¶ 5.) He also 5 attaches a record showing a user account with the Dasher ID “11085281” accepted the “Terms of 6 Service” on November 23, 2020 and December 16, 2020. (Id. at 7.) And he attaches a version of 7 DoorDash’s Independent Contractor Agreement as of December 16, 2020. 8 On the first page, the agreement states in bold: 9 IMPORTANT: PLEASE REVIEW THIS AGREEMENT 10 CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS 11 IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO 12 RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH 13 FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU 14 HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME 15 AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING 16 THIS AGREEMENT. 17 (Id. at 8.) Section XI, titled MUTUAL ARBITRATION PROVISION, provides, in part, the scope 18 of disputes covered under the agreement:

19 CONTRACTOR and DOORDASH mutually agree to this Mutual Arbitration Provision, which is governed by the Federal Arbitration 20 Act (

) (“FAA”) and shall apply to any and all disputes arising out of or relating to this Agreement, 21 CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Contracted Services to consumers, 22 restaurants, or other businesses, the payments received by CONTRACTOR for providing services to consumers, restaurants, or 23 other businesses, the termination of this Agreement, and all other aspects of CONTRACTOR's relationship with DOORDASH, past, 24 present or future, whether arising under federal, state or local statutory and/or common law[.] 25 26 (Id. at 11.) The contract explicitly includes the Fair Labor Standards Act in its terms. (Id.) It also 27 includes an opt out provision, which is noted in bold typeface. (Id. at 12.) 1 Plaintiff would have been required to agree to the Independent Contractor Agreement to create his 2 DoorDash account. (Id. at 3 ¶ 7.) DoorDash also provides a screenshot of the sign-up process as 3 of that date. (Id. at 17.) The sign-up page has a blank field for users to input an email address and 4 a large red button titled “Get Started.” (Id.) Between the email-field and the button reads “By 5 clicking ‘Get Started’ below, I agree to the Independent Contractor Agreement and have read the 6 Dasher Privacy Policy.” (Id.) Below, the “Get Started” button, there is another link titled 7 “Already started signing up?” (Id.) 8 III. Additional Evidence 9 Plaintiff argued he never signed such an agreement because he used an account created in 10 2019 when making the relevant deliveries. (Dkt. No. 25 at 3.) DoorDash agreed Plaintiff had 11 created a 2019 account, but argued Plaintiff used the 2020 account (after signing the arbitration 12 agreement) to make the relevant deliveries. (Dkt. No. 26 at 4 n.2.) Because DoorDash provided 13 no evidence to support this assertion, the Court requested additional briefing to resolve the 14 ambiguity. (Dkt. No. 27 at 4-5.) In response, DoorDash provided delivery records associating all 15 deliveries in the relevant time period with the 2020 account. (Dkt. No. 28-1 ¶ 13.) 16 DISCUSSION 17 I. Motion to Compel Arbitration 18 The agreement specifies the Federal Arbitration Act (“FAA”) governs the arbitration 19 agreement. (Dkt. No. 21-2 at 11.) The FAA provides such agreements “shall be valid, 20 irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation 21 of any contract.”

. In resolving a motion to compel arbitration under the FAA, a 22 court’s inquiry is limited to two “gateway” issues: “(1) whether a valid agreement to arbitrate 23 exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If both 24 conditions are met, the [FAA] requires the court to enforce the arbitration agreement in 25 accordance with its terms.” Lim v. TForce Logistics, LLC,

, 999 (9th Cir. 2021). 26 A. A Valid Agreement to Arbitrate Exists. 27 When, as here, “the making of the arbitration agreement” is at issue, the summary 1 (quoting

). To prevail under the summary judgment standard, Defendant must show 2 || there is no genuine issue as to any material fact regarding formation of the arbitration contract.

3 See also Celotex Corp. v. Catrett,

(1986). 4 Defendant has done so. Based on the additional evidence submitted, no genuine dispute 5 || exists regarding contract formation. Plaintiff created an account in 2019. (Dkt. No. 28-1 48.) No 6 || deliveries are listed under the 2019 account. (/d. 10.) Plaintiff created a second account in 7 2020. Ud. § 11.) Over 400 deliveries are associated with the 2020 account. (Ud. 4] 13.) Those 8 || 2020-account deliveries encompass the period relevant to Plaintiff's allegations. (7d.) And to 9 || create the 2020 account, Plaintiff was required to agree to the arbitration agreement. Ud. § 12.) 10 || Thus, no genuine dispute exists as to whether Plaintiff agreed to the arbitration agreement before 11 engaging in the deliveries relevant to this lawsuit. 12 B. The Agreement Encompasses the Dispute at Issue. 5 13 Plaintiff invokes the Fair Labor Standards Act in his amended complaint. (Dkt No. 7.) The S 14 arbitration agreement explicitly covers Fair Labor Standards Act claims. (Dkt. No. 21-2 at 11.) 3 15 So, the parties agreed to arbitrate the claims in this action. E.E.0O.C. v. Waffle House, Inc., 534 16 || US. 279, 289 (2002) (“Absent some ambiguity in the agreement, however, it is the language of 5 17 the contract that defines the scope of disputes subject to arbitration.”’) 5 18 CONCLUSION 19 Because the parties agreed to arbitrate the claims in the amended complaint, the Court 29 || GRANTS Defendant’s motion to compel arbitration. The claims against Defendant in this Court 21 are therefore STAYED pending resolution of the arbitration. On or before November 16, 2023, 29 || Defendant shall file a status update on the status of the arbitration, if any. 3 IT IS SO ORDERED. 24 This Order resolves Docket No. 21. 25 Dated: May 9, 2023

JA(QQUELINE SCOTT CORL 27 United States District Judge 28