UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JESUS M. CHRISTIAN, et al.,

Plaintiffs,

v. Civil Action No. 24-00304 (EGS) UBER TECHNOLOGIES, INC., et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Jesus M. Christian (“Mr. Christan”), in his

individual capacity and as the personal representative of the

estate of his son, Carlos Enrique Christian Rey (“Mr. Rey”), and

Camila Alexia Selman Troncoso (“Ms. Troncoso”), bring this

action against Defendants seeking damages for personal injuries

stemming from a car collision during an Uber ride. Compl., ECF

No. 1 at 1–2. 1 Uber Technologies, Inc. and Rasier, LLC, a wholly

owned subsidiary of Uber Technologies, Inc. (together, “Uber”),

seek to compel arbitration pursuant to Uber’s Terms of Use. See

Uber’s Mot. to Compel Arbitration and Dismiss, ECF No. 18.

1 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

1 Pending before the Court is Uber’s Motion to Compel

Arbitration and Dismiss. See id. 2 Upon careful consideration of

the motion, the responses and replies thereto, applicable law,

the entire record, and for the reasons explained below, the

Court GRANTS Uber’s Motion to Compel Arbitration, ECF No. 18;

DENIES Uber’s Motion to Dismiss, ECF No. 18; and STAYS

proceedings pending the outcome of arbitration.

I. Background

Uber “develops proprietary technology to develop and

maintain digital multi-sided platforms.” Uber’s Mem. in Support

of Mot. to Compel Arbitration and Dismiss (“Uber’s Mot.”), ECF

No. 18-1 at 2. Relevant here, Uber’s ride-sharing platform

allows individuals needing a ride (“Riders”) to connect with

individuals willing to provide transportation services

(“Drivers”) through the respective Uber Apps. Id. at 2–3.

Mr. Christian, Ms. Troncoso, and Mr. Rey each created

separate Uber Rider accounts between January and October of

2016. See Uber Rep. for Carlos Christian, ECF No. 18-5; Uber

2 Also pending before the Court is Plaintiffs’ Motion for Leave to File a Surreply. See Pls.’ Mot. for Leave to File Surreply, ECF No. 24; Pls.’ Mem. in Support of Mot. for Leave to File Surreply, ECF No. 24-1. The authorities cited by Plaintiffs, and allegedly raised by Uber for the first time in its Reply, have no bearing on the Court’s conclusions that a contract formed between Plaintiffs and Uber and that the Arbitration Agreement contains a valid Delegation Clause. Accordingly, the Court DENIES Plaintiffs’ Motion for a Surreply.

2 Rep. for Camila Selman, ECF No. 18-7; Uber Rep. for Jesus

Christian, ECF No. 18-8. In February and March 2022, upon

opening their Uber Apps, Mr. Christian, Mr. Rey, and Ms.

Troncoso were presented with an in-app blocking pop-up screen

with the header “We’ve updated our terms.” Aff. of Alejandra

O’Connor (“O’Connor Aff.”), ECF No. 18-3 ¶¶ 9, 13. The pop-up

encouraged users to read the updated, linked terms dated

December 16, 2021, and required the user to check a box and

click “confirm” before using the Uber app. Id. ¶ 10; see also

Updated Terms Pop-Up Screen (“Pop-Up Screen”), ECF No. 18-4. The

notice confirmed the user was eighteen years of age and stated:

“By checking the box, I have reviewed and agreed to the Terms of

Use and acknowledge the Privacy Notice.” O’Connor Aff., ECF No.

18-3 ¶ 11. Mr. Rey, Ms. Troncoso, and Mr. Christian each checked

the box and clicked “confirm” on February 12, 2022; February 15,

2022; and March 31, 2022, respectively. Id. ¶¶ 13, 15, 21.

The December 16, 2021 Terms included an arbitration

agreement (the “Arbitration Agreement”), which stated:

[Y]ou and Uber agree that any dispute, claim, or controversy in any way arising out of or relating to (i) these Terms and prior versions of these Terms, or the existence, breach, termination, enforcement, interpretation, scope, waiver, or validity thereof; (ii) your access to or use of the Services at any time; (iii) incidents or accidents resulting in personal injury to you or anyone else that you allege occurred in connection with your use of the Services (including, but not limited to,

3 your use of the Uber Marketplace Platform or the driver version of the Uber App), regardless whether the dispute, claim, or controversy occurred or accrued before or after the date you agreed to the Terms, and regardless whether you allege that the personal injury was experienced by you or anyone else; and (iv) your relationship with Uber, will be settled by binding individual arbitration between you and Uber, and not in a court of law. This Arbitration Agreement survives after your relationship with Uber ends.

Ubers Terms of Use Modified on Dec. 16, 2021 (“Dec. 2021 Terms

of Use”), ECF No. 18-6 at 3–4.

The Terms also included a Delegation Clause, which stated,

in part:

Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable. An arbitrator shall also have exclusive authority to resolve all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable, or illusory and any defense to arbitration, including without limitation waiver, delay, laches, or estoppel.

Id. at 6.

On January 15, 2023, Mr. Rey requested a ride through his

Uber App to take him and his long-term girlfriend, Ms. Troncoso,

to Georgetown for an art exhibit. See Compl., ECF No. 1 ¶ 53.

4 Through Uber’s Driver App, Defendant Khalinmandakh Ichinkhorol

(“Mr. Ichinkhorol”) was connected with Mr. Rey to complete his

ride request. Id. ¶ 54. During the trip, Mr. Rey and Ms.

Troncoso sat in the back seat wearing their seatbelts. Id. Mr.

Ichinkhorol’s route required him to make a left turn at the

intersection of 15th Street, N.W. and Massachusetts Avenue, N.W.

Id. ¶ 60. As Mr. Ichinkhorol moved into the intersection to make

the left turn, Defendant Reinald Roland Johnson’s (“Mr.

Johnson”) car approached the intersection, where he had a green

light, requiring individuals making a left turn to yield to him

and other oncoming traffic. Id. ¶¶ 62–66. Mr. Johnson’s vehicle

struck the Uber broadside, colliding directly with the passenger

side of the car. See id. ¶ 66; Photographs of Ichinkhorol’s

vehicle, January 15, 2023 (“Pls.’ Ex. D-6”), ECF No. 21-5 at 27–

33. After being extracted from the vehicle and transported to

George Washington University Hospital, Mr. Rey died from the

injuries he sustained in the collision. Compl., ECF No. 1 ¶ 75.

Ms. Troncoso suffered series physical injuries, “including four

pelvic fractures, a displaced lumbar vertebra, a lung contusion,

splenic hematoma, and concussion.” Id. ¶ 77. 3

3 On June 30, 2023, Mr. Johnson pled guilty to involuntary manslaughter after his blood alcohol level was found to be above the legal limit at the time of the collision. See Compl., ECF No. 1 ¶ 68.

5 Plaintiffs now bring negligence claims along with claims

under the Wrongful Death Act and Survival Act against Uber, Mr.

Johnson, and Mr. Ichinkhorol. Id. at 19–23.

I. Legal Standard

A motion to compel arbitration is examined under the

summary judgment standard of Federal Rule of Civil Procedure

56(c), as if it were “a request for summary disposition of the

issue of whether or not there had been a meeting of the minds on

the agreement to arbitrate.” Mercadante v. XE Servs., LLC,

(D.D.C. 2015) (quoting Aliron Int’l, Inc. v.

Cherokee Nation Indus., Inc.,

(D.C. Cir.

2008)) (internal quotation marks omitted). Under Rule 56(c),

summary judgment is appropriate only if “there is no genuine

issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.”

(quoting Aliron

Int’l,

) (internal quotation marks omitted). “The

party seeking to compel arbitration must present evidence

sufficient to demonstrate an enforceable agreement to

arbitrate.”

(quoting Haire v. Smith, Currie & Hancock LLP,

(D.D.C. 2013)) (internal quotation

marks omitted). “The burden then shifts to plaintiffs to show

that there is a genuine issue of material fact as to the making

of the agreement.”

(internal quotation marks omitted). “The

Court will compel arbitration if the pleadings and the evidence

6 show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of

law.”

(internal quotation marks omitted).

Under the Federal Arbitration Act (“FAA”), a contractual

provision requiring arbitration is “valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.”

. Thus, the FAA

“places arbitration agreements on equal footing with other

contracts . . . and requires courts to enforce them according to

their terms[.]” Rent-A-Center, W., Inc. v. Jackson,

,

67 (2019) (internal citations omitted). In addition to agreeing

to arbitrate, parties may also “agree to have an arbitrator

decide . . . ‘gateway’ questions of ‘arbitrability,’ such as

whether the parties have agreed to arbitrate or whether their

agreement covers a particular controversy.” Henry Schein v.

Archer,

(2019) (quoting Rent-A-Center, 561 U.S.

at 68–69) (internal quotation marks omitted).

II. Analysis

Uber seeks to compel arbitration pursuant to the FAA and

the Arbitration Agreement contained in its Terms of Use. See

Uber’s Mot., ECF No. 18-1 at 9–11. Plaintiffs do not dispute

that they checked the box indicating their review of, and

agreement to, the Terms of Use containing the Arbitration

Agreement and Delegation Clause, or that they further clicked

7 “Confirm.” See generally Pls.’ Opp., ECF No. 21. Rather,

Plaintiffs challenge the Arbitration Agreement, including the

Delegation Clause, in three ways. First, Plaintiffs contend the

pop-up with Uber’s updated terms did not put Plaintiffs on

notice that clicking “Confirm” would “manifest assent to an

agreement,” and therefore, no contract was formed. See

at

31–34. In the alternative, Plaintiffs argue that both the

Arbitration Agreement and Delegation Clause are unenforceable

because they are unconscionable and against public policy. 4

at 27–31. Finally, Plaintiffs argue that even if there is an

enforceable arbitration agreement, their claims are not

arbitrable.

at 13–17. Before turning to the enforceability

of the Arbitration Agreement or the question of arbitrability—

including whether the Court is the proper forum to resolve those

issues—the Court examines whether the in-app blocking pop-up

screen formed a contract.

4 Challenges to a contract’s formation are distinguishable from challenges to the “validity” of a contract. See Buckeye Check Cashing, Inc. v. Cardegna,

(2006). “While the former category concerns nonarbitral questions about whether an arbitration agreement was ‘ever concluded,’ the latter category encompasses questions about the revocation of contracts because of illegality, such as for fraud, duress, unconscionability or mutual mistake, which may be the subject of arbitration.” RDP Techs., Inc. v. Cambi AS,

(D.D.C. 2011) (citing Buckeye,

, 444 n.1) (internal citations omitted).

8 A. The Parties Formed an Agreement to Arbitrate

“[A]rbitration is a matter of contract[,] and a party

cannot be required to submit to arbitration any dispute which he

has not agreed so to submit.” AT & T Techs., Inc. v. Commc’n

Workers of Am.,

(1986). Accordingly, “the

first task of a court asked to compel arbitration of a dispute

is to determine whether the parties agreed to arbitrate that

dispute.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc.,

(1985). Matters of contract formation

are for the court to decide. See Granite Rock Co. v. Int’l

Brotherhood of Teamsters,

, 288 (2010) (“It is [ ]

well settled that where the dispute at issue concerns contract

formation, the dispute is generally for courts to decide.”)

(collecting cases). 5 The parties do not dispute that District of

Columbia (“D.C.”) law governs the contract formation inquiry.

See Dec. 2021 Terms of Use, ECF No. 18-6 (stating that the law

of the state where an accident occurred governs disputes arising

from the accident); First Options of Chi., Inc. v. Kaplan,

(1995) (noting that courts apply ordinary state-

law principles to formation questions). Under D.C. common law, a

5 As the Court addresses later in this Opinion, the Delegation Clause within the Arbitration Agreement provides that an arbitrator shall resolve disputes regarding formation of a contract. See Dec. 2021 Terms of Use, ECF No. 18-6 at 6. However, the law is clear that formation issues are for the Court to decide.

9 contract forms when the parties “express[ ] an intent to be

bound, agree[ ] to all material terms, and assume[ ] mutual

obligations sufficient to create an enforceable contract.”

Eastbanc, Inc. v. Georgetown Park Ass’ns II, L.P.,

(D.C. 2008).

Uber has met its initial burden of establishing that a

contract formed between the parties with respect to the

arbitration provision. See, e.g., Gambo v. Lyft,

, 54–55 (D.D.C. 2022) (holding plaintiff had reasonable notice

of the contract where he was presented with a clickwrap

agreement providing a hyperlink to the relevant terms).

Plaintiffs do not dispute that they agreed to and clicked

“Confirm” on Uber’s in-app Pop-Up Screen with the updated Terms

of Use. See generally Pls.’ Opp., ECF No. 21. Instead,

Plaintiffs argue that the Pop-Up Screen is insufficient to

establish mutual assent because it would not have put a

reasonable person on notice that she was entering into a

contract. See

at 31–33. In response, Defendants present the

Court with a plethora of cases where other courts have upheld

“clickwrap” agreements such as the one at issue here. 6 See Uber’s

6 A clickwrap agreement is “an agreement ‘in which an internet user accepts a website’s terms of use by clicking an ‘I agree’ or ‘I accept’ button, with a link to the agreement readily available[.]’” Gambo, 642 F. Supp. 2d at 49–50 (quoting Seldon v. Airbnb, Inc., No. 16-cv-00933,

, at *4 (D.D.C. Nov. 1, 2016), aff’d,

(D.C. Cir. 2021)).

10 Reply in Support of Mot. to Compel Arbitration (“Uber’s Reply”),

ECF No. 23 at 19 n.4.

Following in the footsteps of many other courts in this

Circuit, the Court agrees that Uber’s pop-up screen provided a

reasonable person with notice that he was entering into a

contract. In Selden v. Airbnb, Inc., the Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) held that

Airbnb’s sign-up page put the plaintiff on inquiry notice that

by signing up for Airbnb he agreed to its terms of service.

. 7 Examining the sign-up screen’s design, the court

concluded that the red text against the white background “drew a

user’s attention to the hyperlinked terms” and any reasonable

user would understand that he was agreeing to the terms by

signing up.

at 156–57. Going steps further than the notice

in Selden, Uber’s pop-up screen makes it abundantly clear that

checking the box and clicking “Confirm” would manifest assent to

an agreement. Against a white backdrop, the page immediately

draws a user’s eye to the statement: “We encourage you to read

our Updated Terms in full.” See Pop-Up Screen, ECF No. 18-4.

Underneath, in a bright blue font, the pop-up includes

hyperlinks to the relevant documents.

Further, before users

7 While the D.C. Circuit applied California state contract law, D.C.’s common law on contracts does not differ in any material way. Gambo, 642 F. Supp. 3d at 54. In Gambo this court applied the D.C. Circuit’s reasoning in Seldon to D.C. law. Id.

11 could access the app’s features, they had to check a box next to

a statement notifying the user: “By checking the box, I have

reviewed and agree to the Terms of Use and acknowledge the

Privacy Notice.” Id.; O’Connor Aff., ECF No. 18-3 ¶¶ 9, 15, 21.

Any reasonable user would understand that by checking the box

and clicking “Confirm,” he was agreeing to those terms.

Plaintiffs attempt to distinguish their case by arguing

that Uber failed to establish that Plaintiffs signed any

agreements with Uber when they first created their accounts. See

Pls.’ Opp., ECF No. 21 at 28–30. Thus, having no prior dealings

with Uber, the Court should consider “whether users not already

in agreements with Uber ‘would have known the terms and the

conduct that would be required to assent to them.’” Id. at 30

(emphasis in original) (quoting Selden,

). The

Court finds this argument unpersuasive. Even using the standard

articulated by Plaintiffs for users not already in agreements

with Uber, the pop-up screen’s design and links are more than

sufficient to provide a reasonable user with notice that he was

entering into an agreement.

Finally, Plaintiffs argue that the pop-up screen is

“confusing” to users, asserting that Uber’s intent of the pop-up

is unclear and “[t]he supposed contractual nature of the Terms

is hardly the most prominent information on the pop-up page.”

at 31–32. Plaintiffs contend that the fact that users could

12 click confirm without clicking on the terms “might lead some

reasonable users to discount any weight they might have placed

on this page,” and therefore, would be unaware they were

agreeing to arbitration.

at 32–33. The Court concludes that

these characterizations of the pop-up are inaccurate, illogical,

and unpersuasive. It is well established that “absent fraud or

mistake, one who signs a contract is bound by a contract which

he has an opportunity to read whether he does so or not.”

Forrest v. Verizon Commc’ns, Inc.,

(D.C.

2002). Here, regardless of whether Plaintiffs read the Terms of

Use, they were on inquiry notice of the terms, including the

Arbitration Agreement.

Accordingly, Plaintiffs have failed to establish any

genuine dispute of material fact as to the formation of the

Arbitration Agreement, and the Court concludes that a contract

formed between the Plaintiffs and Uber when Plaintiffs checked

the box on the pop-up and clicked confirm.

B. The FAA Applies to Uber’s Motion to Compel

Next, Plaintiffs argue that the FAA does not apply here for

two related reasons. First, Plaintiffs’ specific claims do not

‘arise out of’ Uber’s Terms of Use, and section 2 of the FAA

“expressly limit[s] [the FAA] to disputes ‘arising from’ the

underlying contract.” Pls.’ Opp., ECF No. 21 at 17. Second, and

more general, Plaintiffs contend that Uber’s Arbitration

13 Agreement is an unenforceable “infinite arbitration clause,”

“plac[ing] the Agreement outside the scope of § 2.” Id. at 35. 8

Both arguments posit that there is a limit to the Supreme

Court’s pro-arbitration canon of construction where the claims

at issue do not arise out of the underlying contract. In

response, Uber argues that this characterization conflates the

issues of scope and validity, which is an important distinction

because “the policy in favor of arbitration [ ] attaches once

there is a finding of a valid agreement.” Uber’s Reply, ECF No.

23 at 5.

There is very little case law—and Plaintiffs point to none

from the D.C. Circuit—on the FAA’s “arising out of” requirement.

See Calderon v. Sixt Rent a Car, LLC,

(11th

Cir. 2021); David Horton, Infinite Arbitration Clauses,

(2020) (opining on the legal landscape of

infinite arbitration clauses and the recent push back from lower

courts). Focused on the statutory language of § 2, some courts

have applied a state’s arbitration rules rather than the FAA

where the dispute did not have a sufficient “nexus” to the

underlying contract. See, e.g., Calderon,

;

Revitch v. DIRECTV, LLC,

, 723–24 (9th Cir. 2020)

8 Given the Court’s conclusion that the parties agreed to delegate questions of contract validity to an arbitrator, the Court does not address here whether the Arbitration Agreement is an unconscionable infinite arbitration clause.

14 (O’Scannlain, J., concurring) (“Functionally, the ‘arising out

of’ language in § 2 appears to serve as a boundary to the types

of controversies that are covered by the FAA . . . when the

dispute is wholly unrelated to the contract, the FAA is silent;

federal courts have no power to compel arbitration.”). 9 For

example, in Calderon, the Eleventh Circuit refused to apply the

FAA—and the Moses H. Cone pro-arbitration canon—where the

defendant, a rental car company, invoked an arbitration

agreement between the plaintiff and a third-party website that

plaintiff used to reserve a car. Calderon,

.

Emphasizing that the lawsuit did not name the third-party as a

defendant or identify any wrongdoing by the third-party, the

court concluded that the lawsuit against the defendant was not

“an immediate, foreseeable result of” accepting the third-

party’s terms of use.

.

First, while the Court agrees that the plaint text of § 2

seems to limits the FAA to “controversies that actually stem

from the contract containing the arbitration clause,” Revitch,

977 F.3d at 723–24 (O’Scannlain, J., concurring); the Supreme

Court rejected a similar exception to the FAA for cases where

9 Notably, this inquiry becomes muddled where, as here, there is a delegation clause requiring an arbitrator to determine arbitrability, which may include the question of whether a claim “arises out of” the underlying contract.

15 the defendant’s argument for arbitration was “wholly groundless”

because the claims were so far attenuated from the underlying

contract. See Henry Schein,

. Particularly

relevant here, the Supreme Court held: “When the parties’

contract delegates the arbitrability question to an arbitrator,

a court may not override the contract . . . That is true even if

the court thinks that the argument that the arbitration

agreement applies to a particular dispute is wholly groundless.”

Henry makes it clear that the Court has no power to

determine whether a claim is arbitrable, or “arises out of” the

underlying contract, where, as here, there is a delegation

clause.

Additionally, without opining on the arbitrability of

Plaintiffs’ specific claims at this stage, the Court disagrees

with Plaintiffs that their claims are so far attenuated from

Uber’s Terms of Use that the Court should not apply the FAA and

the pro-arbitration canons of construction. Unlike in Calderon

where the defendant was not a party to the arbitration

agreement, each Plaintiff here entered into an Arbitration

Agreement with Uber. See O’Connor Aff., ECF No. 18-3 ¶¶ 9, 15,

21. Additionally, the Terms of Use govern the relationship

between a Rider and Uber and what should occur if Riders bring a

lawsuit against Uber. See Dec. 2021 Terms of Use, ECF No. 18-6.

The dispute here is against Uber, for a car accident that

16 occurred during an Uber trip. See generally Compl., ECF No. 1.

The instant lawsuit is exactly the type of lawsuit that a

reasonable Rider would expect to have to arbitrate after

accepting the Terms of Use.

Moreover, even if the Court did not apply the strong pro-

arbitration canon that accompanies application of the FAA,

Plaintiffs have not pointed to any authority suggesting that

application of D.C.’s contract or arbitration law would yield a

different result. In fact, D.C.’s case law also “express[es] a

strong preference favoring arbitration when a contract contains

an arbitration clause.” TRG Customer Sols., Inc. v. Smith,

, 755 (D.C. 2020); see

, 4407; Carter

v. Cathedral Ave. Coop., Inc.,

(D.C. 1989).

C. The Remaining Issues Shall be Determined by the Arbitrator, Not the Court

Given the Court’s conclusion that an agreement was formed

between the parties to arbitrate disputes, the Court turns to

Plaintiffs’ remaining arguments. First, Plaintiffs argue that

their claims are not arbitrable because they do not “arise out

of” Uber’s Terms of Use as required by the Arbitration

Agreement. Pls.’ Opp., ECF No. 21 at 21–25. Second, Plaintiffs

contend that the agreement is an unconscionable, unenforceable

“infinite arbitration clause.”

at 27–31. Uber points the

Court to the Delegation Clause contained within the agreed upon

17 Terms of Use, arguing that an arbitrator, not the Court, must

resolve these remaining issues. See Uber’s Mot., ECF No. 18-1 at

15–16. The Delegation Clause requires an arbitrator rather than

the Court to resolve threshold issues, including the scope of

the Arbitration Agreement and contract validity. See Dec. 2021

Terms of Use, ECF No. 18-6 at 6. Since enforcing the Delegation

Clause would send Plaintiffs remaining challenges to an

arbitrator, the Court examines any challenges to the Delegation

Clause first. See Rent-A-Center, 561 U.S. at 71–75.

1. The Delegation Clause is Enforceable

“The delegation provision is an agreement to arbitrate

threshold issues concerning the arbitration agreement.” Id. at

68, 70. Here, the parties do not dispute, and the Court agrees,

that they “clearly and unmistakably” agreed to delegate a host

of threshold issues to an arbitrator. See AT&T Techs., Inc.,

; see Mercandante, 78 F. Supp. 3d at 138–39

(concluding the parties “clearly and unmistakably” provided for

an arbitrator to determine threshold questions even where

agreement merely outlined that the American Arbitration

Association rules governed). The Delegation Clause states, in

part:

Only an arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability,

18 enforceability, or formation of this Arbitration Agreement, including without limitation any claim that all or any part of this Arbitration Agreement is void or voidable.

Dec. 2021 Terms of Use, ECF No. 18-6 at 6. The clause goes on to

include that an arbitrator shall resolve “all threshold

arbitrability issues relating to whether the Terms are

applicable, unconscionable, or illusory and any defense to

arbitration . . . .”

However, before the Court sends any issues to the

arbitrator, the Court must consider any challenges to the

Delegation Clause. See Rent-A-Center, 561 U.S. at 71 (“If a

party challenges the validity under § 2 of the precise agreement

to arbitrate at issue, the federal court must consider the

challenge before ordering compliance with that agreement under §

4.”). “Such challenges, pursuant to the applicable state law,

include contract defenses such as fraud in the inducement,

duress, and unconscionability.” Mercadante,

. Here, Plaintiffs assert that the Delegation Clause is

unconscionable and against public policy. See Pls.’ Opp., ECF

No. 21 at 34–35. While Uber’s response does not address the

validity of the Delegation Clause itself, see generally Uber’s

Reply, ECF No. 23 at 7–9 (focusing on the question of

arbitrability once a court determines there is a delegation

clause); Uber argues that the Arbitration Agreement as a whole

19 “contains significant safeguards for users such as Plaintiffs.”

Id. at 11.

The Court concludes that Plaintiffs have failed to

establish any genuine dispute of material fact as to the

validity and enforceability of the Delegation Clause. 10

Plaintiffs’ assertions that the Delegation Clause is

unconscionable and against public policy are unsupported by any

authority or evidence separate from their arguments that the

Arbitration Agreement as a whole is unconscionable. See

generally Pls.’ Opp., ECF No. 21 at 34–35; Rent-A-Center, 561

U.S. at 71–75. Plaintiffs offer no evidence, nor arguments even,

that the Delegation Clause itself is “unreasonably favorable to

the other party” or that they had no “meaningful choice” when

entering into the agreement to delegate. See Doucette v. Neutron

Holdings, Inc.,

, 342 (D.C. 2023). Without more, the

Court concludes that the Delegation Clause is valid and

enforceable.

Given that the parties have agreed to delegate threshold

questions to an arbitrator, the Court concludes that arbitration

is proper at this stage in the litigation. See Henry Schein, 586

10While the Court must consider whether the Delegation Clause is unconscionable, the question of whether the Arbitration Agreement as a whole is unconscionable or otherwise unenforceable is not a question for the Court at this stage of the proceeding.

20 U.S. at 68–69; Rent-A-Center, 561 U.S. at 71–75. Accordingly,

the Court GRANTS Uber’s Motion to Compel Arbitration and stays

the proceedings against all Defendants. 11

III. Conclusion

For the foregoing reasons the Court GRANTS Uber’s Motion to

Compel Arbitration, ECF No. 18; DENIES Uber’s Motion to Dismiss,

ECF No. 18; DENIES Plaintiffs’ Motion for a Surreply, ECF No.

24; and STAYS proceedings pending the outcome of arbitration. An

appropriate order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan United States District Judge March 17, 2025

11While Uber requests dismissal of the claims against it and Rasier, LLC, and a stay of proceedings against the remaining Defendants, the Court concludes that a stay is appropriate for all Defendants. See

; Smith v. Spizzirri,

, 478–79 (2024).

21