UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DANIEL O. HARTENSTINE,

Petitioner, v. Civil Action No. 24-1838 (JEB)

UBER TECHNOLOGIES, INC.,

Respondent.

MEMORANDUM OPINION

Petitioner Daniel O. Hartenstine suffered serious injuries when he was dragged 20 feet by

an Uber while on vacation in Mexico. He now brings this suit to compel Uber to arbitrate this

case under the agreement contained in its U.S. Terms of Use and requests that the Court appoint

JAMS in Washington, D.C., as the arbitrator. Uber counters that the ride was summoned on

Petitioner’s father’s Uber account, which is governed by the Mexican Terms of Use mandating

arbitration in the Netherlands. As Respondent is correct that the Mexican Terms control, the

Court will deny Hartenstine’s Petition. This is a preliminary decision, however, because the

Dutch arbitrator must ultimately determine which country’s terms apply and, if Mexico’s, the

merits of the suit.

I. Background

During a family vacation in Mexico City in 2021, Hartenstine’s father downloaded the

Uber application and consented to the Mexican Terms. See ECF No. 1 (Compl.), ¶¶ 13–15; ECF

No. 7 (Response) at 2. When he called an Uber two days later, however, disaster ensued. See

Compl., ¶¶ 13–15; Response at 2. Petitioner’s parents got into the car first, but as he tried to

1 follow them, the driver sped off before he could fully enter the vehicle. See Compl., ¶¶ 14–15.

Hartenstine was then dragged approximately 20 feet by the Uber with one of his legs wedged

under the driver’s seat and the other trailing behind him on the street. Id., ¶ 15. The incident

caused severe injuries for which Petitioner has had to obtain medical care. Id., ¶ 16.

Seeking compensation almost two years later, Hartenstine commenced a 60-day informal

dispute-resolution process with Respondent, which failed to produce an agreement. Id., ¶¶ 20–

21. In January 2024, he subsequently sent Uber a demand to initiate arbitration and to confer

regarding the selection of an arbitration provider. Id., ¶ 21. After firing off another letter to

Respondent four days later and having waited just 13 days in total from the date of his initial

demand, Petitioner sent yet a third letter — this time proposing JAMS here in Washington as the

arbitration provider. Id. He noted that if he did not hear from Respondent within two weeks, he

would assume that the company had agreed to his proposal. Id. Uber remained silent. Id.

Wasting no time, on February 20, Hartenstine filed a demand for arbitration with JAMS. Id.,

¶ 22; see also ECF No. 1-2 (Stephanie A. Casey Decl.), ¶ 12.

Finally appearing on the scene, Uber objected to JAMS’s appointment, arguing that the

Mexican Terms of Hartenstine’s father’s agreement governed this dispute, meaning that the

arbitration should take place in the Netherlands. See Compl., ¶ 23; Casey Decl., ¶ 13. JAMS

subsequently closed the case “in light of [Uber’s] objection and absent a court order or express

agreement of the parties.” Compl., ¶ 23. Petitioner has now filed the instant matter asking the

Court to compel arbitration led by JAMS. Uber has opposed.

2 II. Analysis

In his Petition, Hartenstine contends that the U.S. Terms apply to this case and that, even

if they do not, Uber has waived its right to compel arbitration in another jurisdiction. The Court

considers both issues in turn.

A. Controlling Terms

Petitioner downloaded the Uber application in the U.S. in 2010 and agreed to the U.S.

Terms. See ECF No. 1-1 (Daniel O. Hartenstine Decl.), ¶ 3; Compl. at 2. Since this is his only

contract with Uber, he asserts that those terms require that any dispute he has with the company

must be assessed by an American arbitrator. See Compl. at 2; ECF No. 10 (Reply) at 2–3.

Petitioner further contends that regardless of whether the U.S. Terms ultimately apply, those

terms state that an American arbitrator must preliminarily decide which terms govern. See

Compl. at 13–14; see also Casey Decl., Exh. 1 (U.S. Terms of Use § 2(a)(4)) (“An arbitrator

shall also have exclusive authority to resolve all threshold arbitrability issues, including issues

relating to whether these Terms are applicable[.]”). As a result, he argues that this Court should

send the matter to JAMS for decision. See Compl. at 13–14.

Uber responds that Hartenstine’s contract is not implicated in this case, so the fact that he

agreed to the U.S. Terms is irrelevant. See Response at 5–6. Instead, Uber maintains, the

contract that made the ride possible — i.e., Hartenstine’s father’s contract — governs. Id.

Bolstering this point, Respondent cites myriad cases where courts have held that when Passenger

A calls an Uber for himself and a guest (Passenger B), Passenger B must bring any resulting

dispute with Uber under Passenger A’s contract with the company. See id.; see, e.g., Hughes v.

Uber Techs., Inc., No. 23-1775, ECF No. 69 (Order) at 21–22 (E.D. La. Feb. 21, 2024) (finding

dispute between Uber and woman who rode in her daughter’s Uber governed by daughter’s Uber

3 contract); Snow v. Uber Techs., Inc.,

, at *7–8 (Cal. Super. Ct.

Oct. 10, 2023) (“[T]he contract containing the agreement . . . cover[s] both Ferguson, the

application user, and Plaintiff, another passenger who also benefitted from use of the Uber

application.”).

Resisting the inferences of this precedent, Petitioner states that in each of those cases

Passenger A had agreed to the U.S. Terms, which expressly cover passengers. See Reply at 5;

ECF No. 1-2 at 9 (U.S. Terms of Use) (“This Arbitration Agreement shall be binding upon, and

shall include any claims brought by or against any third parties, including but not limited to your

spouse, domestic partner, heirs, estate, third-party beneficiaries and assigns, where their

underlying claims arise out of or relate to your use of the Services. To the extent that any third-

party beneficiary to this agreement brings claims against the Parties, those claims shall also be

subject to this Arbitration Agreement.”). The Mexican Terms, conversely, recognize only a

“limited class of third-party beneficiaries” and conspicuously do not include guests in that class.

See Reply at 3–6; ECF No. 7-3 (Mexican Terms) at 3 (“Apple Inc, Google, Inc, Microsoft

Corporation or BlackBerry Limited and/or their corresponding subsidiaries or international

affiliates will be third party beneficiaries to this agreement.”). Hartenstine thus concludes that

because his claims may not be covered under his father’s contract, he may pursue his dispute

under the U.S. Terms. See Reply at 3–6.

This results-based interpretation is an odd way of approaching a contract dispute. Indeed,

there are several problematic implications of construing the Mexican Terms in the way that

Petitioner recommends. It cannot be the case, for example, that if Passenger B has a U.S. Uber

account and is injured in Passenger A’s Uber in Mexico, she can arbitrate in the U.S., but if

Passenger B does not have a U.S. Uber account, she must arbitrate in the Netherlands. Similarly,

4 if there are passengers from three different countries in an Uber accident, the outcome cannot be

that they can force Uber to arbitrate in three separate jurisdictions. This would risk inconsistent

results arising from a single accident. Sensible precedent thus dictates that Passenger B — i.e.,

Petitioner — must arbitrate his case under Passenger A’s Uber contract — i.e., the Mexican

Terms his father accepted.

Turning next to Petitioner’s argument that an American arbitrator should decide which

terms apply in the first place, the Court notes that the Mexican Terms contain a similar clause, so

this issue is a wash. See Response, Exh. 3 (Mexican Terms of Use) at 10 (“Any dispute,

controversy, claim or dispute of any kind whatsoever arising out of or relating in any material

respect to these Terms and Conditions, including those relating to their validity, interpretation

and enforceability . . . , shall necessarily be submitted to mediation proceedings.”).

Shifting to the defensive, Hartenstine also asserts that he did not consent to the Mexican

Terms, so he cannot be forced to arbitrate his dispute under them. See Compl. at 12–13; Reply

at 2–3. Uber counters that the case “unequivocally stems from” Petitioner’s reaping the benefits

of his father’s contract, so he can be forced to arbitrate under the provisions in that contract

regardless of his acceptance. See Response at 6.

Generally, a party must sign an arbitration agreement to be subject to arbitral jurisdiction.

See EEOC v. Waffle House, Inc.,

(2002) (“The FAA directs courts to place

arbitration agreements on equal footing with other contracts, but it ‘does not require parties to

arbitrate when they have not agreed to do so.’”) (quoting Volt Info. Sciences, Inc. v. Bd. of

Trustees of Leland Stanford Jr. Univ.,

(1989)). A non-signatory to an

arbitration agreement may be bound by that agreement, however, if it follows general principles

of state contract law. See Arthur Andersen LLP v. Carlisle,

(2009) (While the

5 FAA “creates substantive federal law regarding the enforceability of arbitration

agreements, . . . background principles of state contract law” control the interpretation of the

scope of such agreements, “including the question of who is bound by them.”); see also Oehme,

Van Swed. & Assocs., Inc. v. Maypaul Trading & Servs. Ltd.,

(D.D.C.

2012); Signature Tech. Solutions v. Incapsulate, LLC,

(D.D.C. 2014). Under

local principles of estoppel, “a party with full knowledge of the facts, wh[o] accepts the benefits

of a . . . contract . . . may not subsequently take an inconsistent position to avoid the

corresponding obligations or effects.” Fairman v. District of Columbia,

(D.C.

2007) (quoting Thoubboron v. Ford Motor Co.,

(D.C. 2002)).

Here, Petitioner accepted the benefits of his father’s contract with Respondent by

entering (or at least attempting to enter) the Uber that his father ordered, regardless of whether he

physically clicked “accept” on the Mexican Terms. Hartenstine’s contractual contentions

therefore do not sway the Court from its conclusion that this arbitration is governed by his

father’s Uber terms and must take place in the Netherlands.

B. Waiver

Our next stop is Petitioner’s waiver argument, which also runs into a dead end.

Hartenstine asserts that even if the Mexican Terms govern the case, Uber waived its right to

compel arbitration under any other terms by participating in the informal dispute-resolution

process specified in the U.S. Terms. See Reply at 6–7.

The Court must determine whether Uber acted inconsistently with its right to compel

arbitration in the Netherlands through its behavior in the informal dispute-resolution process.

See Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc.,

(D.C. Cir.

1987) (“The essential question is whether, under the totality of the circumstances, the defaulting

6 party has acted inconsistently with the arbitration right.”). In determining this question, the

Court looks to caselaw in which courts assess whether a party waives its right to compel

arbitration by participating extensively in litigation. In that context, “[c]ourts assess, among

other things, whether a party timely sought arbitration; [and] whether the party now moving for

arbitration engaged in litigation activity that induced the other party . . . ‘to expend time and

effort on disputes, the resolution of which would not’ move the dispute toward arbitration.”

Partridge v. Am. Hosp. Mgmt. Co., LLC,

(D.D.C. 2017) (quoting

Zuckerman Spaeder, LLP v. Auffenberg,

, 922–24 (D.C. Cir. 2011)).

In Khan v. Parsons Global Services, Ltd.,

(D.C. Cir. 2008), for example,

the Circuit found that the defendants had waived their right to compel arbitration when they filed

a motion for summary judgment.

; see also Nat’l Found for Cancer Rsch.,

(granting waiver when party filed answer asserting fifteen affirmative defenses and

instigated extensive discovery); U.S. for Use & Benefit of DMI, Inc. v. Darwin Const. Co.,

, 538–39 (D.D.C. 1990) (granting waiver when plaintiff “filed eight

motions . . . requesting preliminary relief and attempting to manipulate discovery

boundaries . . . [,] argued a motion for a preliminary injunction and filed a motion to compel

discovery . . . [,] conducted fairly extensive discovery, . . . [and] moved to change the trial date”).

Waiver has not been found, however, when a party takes the minimal actions required to keep

the case live while waiting to assert a right to compel arbitration. See Davis Corp. v. Interior

Steel Equip. Co.,

(D.D.C. 1987) (finding defendant did not waive right to

compel arbitration by filing action to protect against statute of limitations or by participating in

minimal discovery). The caselaw thus clarifies that parties must take significant steps in another

proceeding in order to be deemed to have waived their right to compel arbitration.

7 Applying such standard to this case, in which both parties seek arbitration but disagree on

the appropriate forum, the Court finds that Uber sought to compel arbitration in the Netherlands

in a reasonable timeframe, alerting Petitioner of its stance and refusing to begin arbitration in the

U.S. directly after the informal dispute-resolution process. Uber also did not take such

significant steps in the American arbitration forum that it induced Petitioner to expend resources

here. More specifically, regardless of what Respondent did in the informal dispute-resolution

process — which Petitioner does not elaborate on — its participation was akin to taking minimal

actions to keep the case alive. The Court therefore concludes that Uber’s actions do not amount

to the type of activity that would constitute a waiver of its right to compel arbitration in the

Netherlands.

***

The only remaining issue is whether this case should now be dismissed. Courts in this

district have held that when there are no issues left for the court to resolve, dismissal is

appropriate. See Mobile Now, Inc. v. Sprint Corp.,

, 72 (D.D.C. 2019); Dist.

No. 1, Pac. Coast Dist., Marine Eng’rs’ Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp.,

, at *6 (D.D.C. Jan. 15, 2019); Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc.,

, at *3 (D.D.C. June 28, 2006). Because there are no further disputes in this

case, the Court will take that approach here.

III. Conclusion

For these reasons, the Court will issue a contemporaneous Order denying the Petition to

Compel Arbitration and dismissing the case.

8 /s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: October 3, 2024

9