UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Richard Daschbach, et al.

v. Civil No. 20-cv-0706-JL Opinion No.

Advanced Marketing & Processing, Inc.

MEMORANDUM ORDER

The motion before the court centers on two issues – the court’s personal jurisdiction over

the claims of an out-of-state named plaintiff and putative, out-of-state class members, and the

formation of an online agreement to arbitrate. The plaintiffs, Richard Daschbach and Elcinda

Person, are residents of New Hampshire and Georgia, respectively. They allege that they

received unsolicited, autodialed telemarketing communications on their personal cellular

telephones from the defendant Advanced Marketing and Processing, Inc. d/b/a Protect My Car

(“PMC”), an auto warranty company headquartered in Florida. Daschbach and Person filed a

putative class action complaint in this court in June 2020, arguing that PMC violated the

Telephone Consumer Protection Act by sending these unsolicited communications. PMC

responded with this motion. The court has subject-matter jurisdiction under

(federal question) and

(FAA).

In this motion, PMC argues that the court lacks personal jurisdiction over it as to the

claims of Person and the out-of-state putative class members. Thus, PMC moves to dismiss

these claims for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2).

Separately, PMC asserts that, a couple months prior to the allegedly unsolicited communications,

both plaintiffs visited websites in which they agreed to receive communications from PMC and

to be bound by the websites’ terms, which included arbitration of any disputes with PMC. Accordingly, PMC moves to compel arbitration of the TCPA claims and stay or dismiss the

plaintiffs’ suit, under the Federal Arbitration Act.

After reviewing the parties’ submissions and holding oral argument, the court grants

PMC’s motion for dismissal of Person’s claim for lack of personal jurisdiction, concluding that

the doctrine of pendent personal jurisdiction does not apply here. The court denies without

prejudice the motion to dismiss the claims of putative, out-of-state class members, as this issue is

better resolved at the class certification stage. Finally, before deciding the motion to compel

arbitration, the court will conduct an evidentiary hearing on the material factual dispute

surrounding the formation of an arbitration agreement between PMC and the remaining plaintiff,

Daschbach.

I. Applicable legal standards

A. Motion to dismiss for lack of personal jurisdiction

When a defendant challenges personal jurisdiction, “the plaintiff has the burden of

showing that jurisdiction exists.” Boit v. Gar-Tec Products, Inc.,

(1st Cir.

1992) (quoting Ealing Corp. v. Harrods Ltd.,

(1st Cir. 1986)). The plaintiff

must meet this burden under one of a “trio of standards” which the court selects. Foster-Miller,

Inc. v. Babcock & Wilcox Canada,

(1st Cir. 1995). “When a district court rules

on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing,

as in this case, the ‘prima facie’ standard governs its determination.” U.S. v. Swiss Am. Bank,

Ltd.,

(1st Cir. 2001) (internal citation omitted).

Under this standard, the court “consider[s] only whether the plaintiff has proffered

evidence that, if credited, is enough to support findings of all facts essential to personal

jurisdiction.” Boit,

. To satisfy the prima facie standard, the “plaintiff must go

2 beyond the pleadings and make affirmative proof.” Chlebda v. H. E. Fortna & Bro., Inc.,

(1st Cir. 1979). The court, in turn, “take[s] specific facts affirmatively alleged

by the plaintiff as true (whether or not disputed) and construe[s] them in the light most congenial

to the plaintiff's jurisdictional claim . . . .” Massachusetts Sch. of L. at Andover, Inc. v. Am. Bar

Ass’n,

(1st Cir. 1998).

B. Motion to compel arbitration

The First Circuit Court of Appeals has not announced the standard of review for a motion

to compel arbitration, but district courts within this circuit apply the summary judgment

standard. See, e.g., Hall-Cloutier v. Sig Sauer, Inc.,

, at *1 (D.N.H. Jan. 11,

2018) (McCafferty, J.) (“courts in the First Circuit employ the summary judgment standard in

resolving a motion to compel arbitration” (citing Landry v. TimeWarnerCable, Inc.,

, at *1 (D.N.H. Aug. 9, 2017)); Snow v. BE & K Const. Co.,

(D.

Me. 2001) (internal citation omitted) (same). Here, the parties’ dispute concerns the existence of

the arbitration agreement. Thus, under the summary judgment standard, PMC must “assert the

absence of a genuine issue of material fact” as to the formation of the arbitration agreement, “and

then support that assertion by affidavits, admissions, or other materials of evidentiary quality.”

Mulvihill v. Top-Flite Golf Co.,

(1st Cir. 2003). “A genuine issue is one that

could be resolved in favor of either party, and a material fact is one that has the potential of

affecting the outcome of the case.” Vera v. McHugh,

(1st Cir. 2010) (internal

quotation omitted). The plaintiffs “cannot avoid compelled arbitration by generally denying the

facts upon which the right to arbitration rests; the party must identify specific evidence in the

record demonstrating a material factual dispute for trial.” Soto v. State Indus. Prod., Inc.,

, 72 n.2 (1st Cir. 2011) (quoting Tinder v. Pinkerton Sec.,

(7th Cir.

3 2002)). As it is obligated to do in the summary judgment context, the court “rehearse[s] the facts

in the light most favorable to the nonmoving party (here, the plaintiff[s]), consistent with record

support,” and gives them “the benefit of all reasonable inferences that those facts will bear.”

Noviello v. City of Boston,

(1st Cir. 2005) (internal citation omitted).

II. Background

The court recites the facts keeping in mind the nature of each of the motions before the

court, drawing the facts pertinent to the motion to dismiss for lack of personal jurisdiction from

the operative complaint, and including undisputed facts from the defendant. Massachusetts Sch.

of L.,

. And “[b]ecause [PMC’s] motion to compel arbitration was made in

connection with a motion to dismiss or stay, [the court] draw[s] the relevant facts from the

operative complaint and the documents submitted to the district court in support of the motion to

compel arbitration.” Cullinane v. Uber Techs., Inc.,

(1st Cir. 2018) (internal

citation omitted).

A. Jurisdictional facts

Daschbach is a resident of New Hampshire. Person is a resident of Georgia. The

defendant PMC is an auto warranty company headquartered in St. Petersburg, Florida, which

conducts business across the country and engages in nationwide telemarketing efforts, including

within the state of New Hampshire.1 PMC does not maintain an office or call center in New

Hampshire, nor does it have property, employees, bank accounts, or telephone numbers in the

state.2

1 Complaint (doc. no. 1) at ¶ 3. 2 Declaration of Stuart C. Reed (doc. no. 12-6) at ¶ 4.

4 B. Facts pertaining to Plaintiff Daschbach

In May 2019, Daschbach received a call on his personal cell phone from the telephone

number 727-835-8246. Daschbach answered the call and said “hello” several times before he

was connected to an individual. This delay is indicative of an autodialed call. On the other end

of the call was a live agent for PMC. The agent tried to sell PMC’s extended auto warranty

options to Daschbach. After the call, Daschbach received an email from PMC’s David Marra

with a sample auto warranty policy.

According to PMC, a couple months before receiving these communications, Daschbach

visited a website at the address http://signup.finddreamjobs.com (the “Jobs Website” or

“Website”).3 A subsidiary of Fluent, LLC operates the Website. Fluent maintains a database

that stores information about its websites’ visitors, including the visitors’ IP addresses, the

timing and nature of their interactions with the website, and what was displayed to the visitors.4

A search for “information stored in the [d]atabase with respect to [] Daschbach” produces the

following information.5 In April 2019, a user visited the Jobs Website and entered the following

identifying information: Daschbach’s name, a telephone number, and a mailing address of

“Exeter, NH 03833.”6 On the same page, the user clicked a large, green button with bold, white

letters spelling “Submit.,” as seen below.7

3 Affidavit of Mitenkumar Bhadania (“Bhadania Affidavit 1”) (doc. no. 12-3) at ¶ 6. 4 Id. at ¶¶ 3-4.

5 Id. at ¶ 4. 6 Id. at ¶¶ 6-7, 11. 7 Id. at ¶¶ 7-8.

5 As the image shows, the underlined phrase “Skip to Results” appeared directly above the

“Submit” button, in black font. Above that was a sentence in smaller, lighter black font that read

in part: “I understand and agree to the Terms which include[] mandatory arbitration . . . .” The

underlined word “Terms” was a hyperlink, and, had the user clicked on that hyperlink, it would

have led to a page entitled “Search Works Media, LLC Job-Listing Related Sites Terms &

Conditions,” which listed the Website’s terms in full.8 The terms included a section entitled

“Arbitration / Dispute Resolution.” That section provided, in part:

You agree to arbitrate any and all claims arising out of or related to the Agreement. . . . An AAA arbitrator will have exclusive authority to resolve any dispute or claims that you may have with us—and our Marketing Partners who are third-party beneficiaries of the mandatory arbitration provision—arising out of or related to the Agreement. Matters subject to mandatory arbitration include, without limitation, whether this Arbitration/Dispute Resolution provision applies to your particular claim or dispute, and any claim that all or any part of the Agreement, including this provision, are/is unenforceable.9

While visiting the Jobs Website, the user, who PMC asserts was Daschbach, also landed

on a page (“Marketing Page”) with a message explaining that, by checking the provided box and

clicking the “Submit” button, the user understood that she may receive text messages or phone

8 Id. at ¶¶ 8-9; Mot. to Compel Ex. D (doc. no. 12-5) at 2. 9 Mot. to Compel Ex. D (doc. no. 12-5) at 6. 6 calls from “our Marketing Partners.” 10 The marketing partners included PMC. 11 The user

checked the box and clicked the “Submit” button below it.12

Daschbach claims that he is not seeking a job, and he never visited the Jobs Website or

authorized anyone else to visit it on his behalf.13 Daschbach further asserts that he earned his

law degree at Georgetown University in 1962, has been a member of the District of Columbia

Bar since 1966, and served as the Chief Judge of the Federal Employees’ Compensation Appeals

Board from 2011 to 2014.14

C. Facts pertaining to Plaintiff Person

The facts surrounding Person are similar to those described above. Around the time that

Daschbach received a call from PMC, Person received a text message on his personal cell phone

from the telephone number 855-910-6113. The text message promoted PMC’s extended auto

warranty and instructed Person to connect to a website, http://protectmycar.com/getafreequote,

or to call the number 855-282-7470.

According to PMC, a couple months before Person received these communications, he

visited a website at the address www.retailproductzone.com (“Retail Website”).15 A Fluent

subsidiary also operates the Retail Website, and Fluent stores information about visits to the

10 Bhadania Affidavit 1 (doc. no. 12-3) at ¶ 12. 11 Id. at ¶ 13. 12 Id. at ¶¶ 14, 16. 13 Declaration of Richard Daschbach (doc. no. 14-1) at ¶¶ 4, 9. 14 Id. at ¶¶ 6-8. 15 Affidavit of Mitenkumar Bhadania (“Bhadania Affidavit 2”) (doc. no. 12-2) at ¶ 6.

7 Retail Website in its database. A search for “information stored in the [d]atabase with respect to

[] Person” produces the following information.16 In March 2019, a user visited the Retail

Website and entered the following identifying information: Person’s name, a telephone number,

and a mailing address in College Park or Atlanta, Georgia.17 Below these entries, the user

clicked a large, blue button with bold, white letters spelling “Continue,” as seen below. 18

As the image shows, the message directly above the “Continue” button reads: “By

clicking below, I agree to . . . the Terms & Conditions, including a mandatory arbitration

provision.” The underlined phrase “Terms & Conditions” was a hyperlink, and, had the user

clicked on the hyperlink, it would have led to a page entitled “RewardZone USA, LLC Websites

Terms & Conditions.” 19 This page listed the full terms and conditions of the Retail Website,

including a section entitled “Arbitration / Dispute Resolution.” This section was identical to the

section of the same title excerpted above.20

While visiting the Retail Website, the user, who PMC asserts was Person, also landed on

a Marketing Page similar to the one described above, which explained that, by checking the

16 Id. at ¶ 5. 17 Id. at ¶¶ 6-7, 11. 18 Id. at ¶¶ 7-8. 19 Id. at ¶ 9; Mot. to Compel Ex. C (doc. no. 12-4) at 2. 20 Mot. to Compel Ex. C (doc. no. 12-4) at 5.

8 provided box the user “request[ed] and consent[ed] to receive phone sales calls and text

messages . . . from . . . our Marketing Partners . . . .” 21 The marketing partners included PMC.22

The user checked the box and clicked the “Continue” button on the page.23

Person asserts that he never visited the Retail Website, nor did he authorize anyone to

visit it on his behalf.24 Person also claims that he rarely uses the internet, and he owns one

internet connective device—a phone—which he “never use[s]” to access the internet.”25

D. Procedural background

Daschbach and Person filed a putative class action complaint in this court in June 2020,

alleging that PMC violated the TCPA by making unsolicited “autodialed telemarketing calls” or

“autodialed telemarketing text messages” to the plaintiffs and other members of the Autodialed

Call Class and Autodialed Text Class, respectively. In response to the complaint, PMC filed this

motion, requesting an order compelling arbitration and staying or dismissing the plaintiffs’

action under the FAA. Alternatively, PMC moves to dismiss the claims of Person and the out-

of-state, putative class members for lack of personal jurisdiction. The court addresses each

motion in turn, beginning with the motion to dismiss for lack of personal jurisdiction, as the

court must have personal jurisdiction over the parties in order to compel them to arbitrate a

dispute. See InterGen N.V. v. Grina,

(1st Cir. 2003) (“[S]o long as the parties

21 Bhadania Affidavit 2 (doc. no. 12-2) at ¶ 12. 22 Id. at ¶ 13. 23 Id. at ¶¶ 14, 16. 24 Declaration of Elcinda Person (doc. no. 14-2) at ¶ 4. 25 Declaration of Richard Daschbach (doc. no. 14-1) at ¶¶ 6-7. 9 are bound to arbitrate and the district court has personal jurisdiction over them, the court is under

an unflagging, nondiscretionary duty to grant a timely motion to compel arbitration . . . .”).

III. Analysis

A. Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction

PMC moves to dismiss Person’s claim and the claims of out-of-state, putative class

members on the ground that the court lacks personal jurisdiction over PMC as to these claims.

PMC is correct that the court cannot exercise personal jurisdiction over PMC as to Person’s

claim. PMC’s motion to dismiss the claims of putative class members is premature, however,

and should be addressed once the plaintiffs move for class certification.26

i. Personal jurisdiction as to Person’s claim

“A district court may exercise authority over a defendant by virtue of either general or

specific jurisdiction.” Massachusetts Sch. of L.,

. General jurisdiction exists

when a “corporation’s general business contacts with the forum are sufficiently continuous and

systematic as to render it essentially at home in the forum State.” Kuan Chen v. United States

Sports Acad., Inc.,

(1st Cir. 2020) (internal quotation omitted). “The

paradigmatic examples of locales in which a defendant corporation is considered at home are its

state of incorporation and the state that houses its principal place of business.”

(citing BNSF

Ry. Co. v. Tyrrell,

(2017)). “Specific jurisdiction exists when there is a

26 As previously explained, to satisfy the prima facie standard, the “plaintiff must go beyond the pleadings and make affirmative proof” of the facts establishing personal jurisdiction. Chlebda,

. The plaintiffs do not provide proof outside of the pleadings of any jurisdictional facts pertaining to Person or the putative, out-of-state plaintiffs. Nevertheless, the court proceeds to analyze the plaintiffs’ arguments for personal jurisdiction and finds them unavailing for reasons that are largely not fact-based. 10 demonstrable nexus between a plaintiff’s claims and a defendant’s forum-based activities.”

Swiss Am. Bank,

(internal quotation omitted).

The plaintiffs concede that the court lacks general jurisdiction over PMC.27 And the

plaintiffs do not argue that the court has specific personal jurisdiction as to Person’s claim.

Rather, the plaintiffs contend that, since the court has specific personal jurisdiction over PMC as

to Daschbach’s claim (which is not in dispute), the court can also exercise personal jurisdiction

as to Person’s claim under the doctrine of pendent personal jurisdiction.

This doctrine provides that “a district court has discretion to exercise personal jurisdiction

over a claim that it ordinarily lacks personal jurisdiction over only when that claim arises out of

the same common nucleus of operative fact as does a claim that is within the in personam

jurisdiction power of the court.” 4A C.A. Wright & M.K. Miller, Federal Practice & Procedure §

1069.7 (4th ed.). When applicable, this doctrine can be beneficial for the purposes of “judicial

economy, avoidance of piecemeal litigation, and overall convenience of the parties . . . .” Action

Embroidery Corp. v. Atlantic Embroidery, Inc.,

(9th Cir. 2004).

This doctrine does not apply here, as Person’s claim does not share a common nucleus of

facts with Daschbach’s claim. The claims arise out of two different, purported interactions with

the defendant. Daschbach’s claim against PMC centers on an autodialed phone call from PMC

to his personal cell phone. Person’s claim concerns an autodialed text message from PMC to his

personal cell phone. The call and the text message originated from different phone numbers.

Moreover, different evidence and witnesses would likely be necessary to establish a TCPA

violation against each plaintiff. See First Cap. Asset Mgmt., Inc. v. Brickellbush, Inc.,

(S.D.N.Y. July 29, 2002) (finding no common nucleus of operative fact

27 Pls.’ Opp’n (doc. no. 14) at 13. 11 between the plaintiffs’ federal and state claims and declining to exercise pendent personal

jurisdiction over the former in part because “different evidence and different witnesses likely

would be required to establish liability.”). For example, the issue of consent to receive PMC’s

communications turns on each plaintiff’s independent interactions with two different websites;

relevant evidence could include each plaintiff’s IP address, browser history, patterns of internet

use, and testimony. The court may also need to undertake a detailed analysis of the specific (and

unique) format of each website.

Person’s and Daschbach’s claims are based on two separate sets of underlying facts, so

the court cannot consider exercising personal jurisdiction over PMC as to Person’s claim based

on the doctrine of pendent personal jurisdiction. Since the plaintiffs do not present any other

arguments for personal jurisdiction as to Person’s claim, and the court sees none, the court grants

PMC’s motion to dismiss Person’s claim for lack of personal jurisdiction.28

ii. Personal jurisdiction as to the claims of putative, out-of-state class members

PMC also argues that the court lacks personal jurisdiction over PMC as to the claims of

out-of-state, putative class members “who can assert no claim upon any nexus to this forum.”29

Since the plaintiffs have not yet moved for class certification, this argument concerns potential,

putative class members, who may or may not exist. This issue is better resolved at the class

certification stage. See Rain v. Connecticut Gen. Corp.,

, at *4 (D. Mass.

Aug. 6, 2019) (“[T]he appropriate time” to consider “personal jurisdiction over Defendants as to

28 Since the court finds the doctrine of pendent personal jurisdiction inapplicable to Person’s claim based on the absence of a common nucleus of operative fact, as discussed, the court need not assess PMC’s additional argument that pendent personal jurisdiction can only apply to the additional claim(s) of the same plaintiff who asserts a claim over which the court has personal jurisdiction. 29 Mot. to Compel (doc. no. 12-1) at 15 (emphasis omitted). 12 the claims of non-resident putative class members” is “at the class certification stage, when

Plaintiff seeks to transform this action from a traditional suit on her own behalf . . . to a class

action in accordance with Rule 23.” (citing Evan v. Taco Bell Corp.,

, at *4

(D.N.H. Sept. 23, 2005)). The court denies PMC’s motion to dismiss the claims of these class

members for lack of personal jurisdiction, without prejudice to raising the claim again under a

different procedural posture. The court now turns to the motion to compel arbitration, focusing

only on the arguments surrounding the remaining plaintiff, Daschbach.

B. Motion to compel arbitration

PMC moves under the FAA for an order compelling arbitration of Daschbach’s TCPA

claim, arguing that Daschbach agreed to arbitrate any disputes with PMC through his interactions

with the Jobs Website. PMC also requests the court to stay or dismiss Daschbach’s suit upon

granting the motion to compel. Daschbach avers that he did not consummate an arbitration

agreement with PMC, as he did not visit the Jobs Website, and the Website does not properly

provide notice of, or obtain assent to, the arbitration agreement. Given the material dispute of

fact concerning Daschbach’s visit to the Website, the court will hold an evidentiary hearing on

the same before deciding the motion to compel arbitration.

i. The FAA and its threshold requirements

Some background on the FAA is helpful at the outset, to ground PMC’s motion.

“Congress enacted the FAA to replace judicial indisposition to arbitration with a national policy

favoring it and placing arbitration agreements on equal footing with all other contracts.” Hall St.

Assocs., L.L.C. v. Mattel, Inc.,

(2008) (internal quotation omitted). To that

end, § 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the revocation of any

13 contract.”

. Section 4 of the FAA allows “a party aggrieved by the alleged failure,

neglect, or refusal of another to arbitrate under a written agreement for arbitration,” to petition a

court for an order compelling arbitration, as PMC has done here.

. And § 3 requires

the court to stay a suit upon finding that an issue involved in the suit is “referable to arbitration.”

. Alternatively, a “court can, in its discretion, choose to dismiss the law suit, if all

claims asserted in the case are found arbitrable.” Dialysis Access Ctr., LLC v. RMS Lifeline,

Inc.,

(1st Cir. 2011) (quoting Next Step Med. Co. v. Johnson & Johnson Int’l,

(1st Cir. 2010)).

As a foundational matter, “the existence of an enforceable agreement to arbitrate is the

first needed step to trigger the FAA’s protective reach.” Rivera-Colón v. AT&T Mobility Puerto

Rico, Inc.,

(1st Cir. 2019) (internal citation omitted). And the party seeking to

compel arbitration, PMC, “bears the burden of . . . demonstrating that a valid agreement to

arbitrate exists.”

(quoting Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino,

(1st Cir. 2011)).

PMC requests that the court submit the issue of the existence, or formation, of an

arbitration agreement to the arbitrator. PMC argues that the arbitration agreement’s delegation

provision “sends the question of the validity and enforceability of the Arbitration Agreement

along with any gateway issues to the arbitrator.”30 PMC’s reliance on the delegation provision is

misplaced. The Supreme Court has recognized that parties can use delegation provisions “to

agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed

30 Mot. to Compel (doc. no. 12-1) at 5. Specifically, the delegation provision subjects to arbitration matters including “without limitation, whether this Arbitration/Dispute Resolution provision applies to your particular claim or dispute, and any claim that all or any part of the Agreement, including this provision, are/is unenforceable.” Doc. no. 12-5 at 6.

14 to arbitrate or whether their agreement covers a particular controversy.” Rent-A-Ctr., W., Inc. v.

Jackson,

, 68-69 (2010) (internal citations omitted). But a delegation provision

cannot displace the court’s role in determining the threshold issue of whether an arbitration

agreement exists. See Henry Schein, Inc. v. Archer & White Sales, Inc.,

(2019) (noting that “[t]he Court has consistently held that parties may delegate threshold

arbitrability questions to the arbitrator,” but “before referring a dispute to an arbitrator, the court

determines whether a valid arbitration agreement exists” (citing

)); Nat’l Fed’n of

the Blind v. The Container Store, Inc.,

(1st Cir. 2018) (“a court should not

compel arbitration unless and until it determines that the parties entered into a validly formed

and legally enforceable agreement . . . .”). Thus, the court, and not an arbitrator, must determine

whether an arbitration agreement exists between PMC and Daschbach.31

31 To bolster its argument, PMC occasionally characterizes the dispute presently before the court as one concerning the validity of the arbitration agreement. See, e.g., Mot to Compel (doc. no. 12-1) at 6 (“If Plaintiffs question the validity of the Arbitration Agreement this Court’s analysis ends and the question goes to the arbitrator.”). But Daschbach disputes the formation (or existence) of the arbitration agreement, not its validity. As the Court of Appeals has noted, “there’s an important distinction between arguments challenging the validity of an agreement and those challenging an agreement’s formation.” Nat’l Fed’n of the Blind v. The Container Store, Inc.,

(1st Cir. 2018) (emphasis in original). The former concerns “the enforceability of the agreement and if it is void or voidable,” and the latter concerns “acceptance of an offer on specified terms.”

(internal citations omitted). This distinction is particularly important here because the Supreme Court has held that “a challenge to the validity of [an arbitration] agreement as a whole,” without a specific challenge to the delegation provision, “[is] for the arbitrator” if the delegation provision submits to arbitration the enforceability of the agreement. Rent-A-Ctr., 561 U.S. at 72 (emphasis added). PMC relies on this precedent, arguing that the dispute before the court should be arbitrated because the plaintiffs challenge the validity of the whole arbitration agreement, and not the delegation provision specifically. See, e.g., Def.’s Reply (doc. no. 16) at 3. The court need not engage with this argument, as it is premised on a mischaracterization or misunderstanding of the dispute. 15 ii. The existence of an arbitration agreement

The dispute surrounding the existence of the arbitration agreement is fairly

straightforward. PMC submitted an affidavit from Mitenkumar Bhadania, a Computer System

Engineer at Fluent, the company that operates the Jobs Website. Bhadania asserts that, based on

Fluent’s records, a user visited the Jobs Website in April 2019, entered Daschbach’s name, an

address, and a telephone number, and clicked the “Submit” button. Bhadania also provided a

regenerated representation of the button and its surrounding text. PMC points to this image and

argues that Daschbach affirmatively assented to the arbitration agreement by clicking the button,

as it was located directly below a “conspicuous and clear” notice stating, “I understand and agree

to the Terms which include[] mandatory arbitration . . . .”32 Daschbach does not dispute

Bhadania’s rendering of the “Submit” button and its surrounding text. Instead, Daschbach

asserts in a declaration that he never visited the Jobs Website or authorized anyone to do so on

his behalf, adding that he earned his law degree in 1962, has been a member of the District of

Columbia Bar since 1966, and is not seeking a job. Separately, Daschbach argues that the

Website did not provide adequate notification of, or properly obtain assent to, its terms,

including the arbitration agreement.

Under § 4 of the FAA, “If the making of the arbitration agreement . . . be in issue, the

court shall proceed summarily to the trial thereof.” The First Circuit Court of Appeals has

clarified that a trial under § 4 is “required only if there is a genuine issue of material fact for

which a hearing would be necessary.” Marks 3 Zet-Ernst Marks GmBh & Co. KG v. Presstek,

Inc.,

(1st Cir. 2006) (citing Am. Int’l Specialty Lines Ins. Corp.,

(7th Cir. 2003). In this case, a material factual dispute exists as to whether Daschbach or

32 Bhadania Affidavit 1 (doc. no. 12-3) at ¶ 8. 16 someone acting on his behalf visited the Jobs Website and clicked the “Submit” button.

Daschbach avers that the presence of his information in Fluent’s records “does not guarantee that

[Daschbach] visited the [W]ebsite and entered the information.”33 As presented in his

declaration, Daschbach categorically denies visiting the Website, and he contends that he has no

reason to visit the Website since he is not seeking employment. Contrary to PMC’s contention,

Daschbach does not “generally den[y] the facts upon which the right to arbitration rests;” rather,

Daschbach has “identif[ied] specific evidence in the record demonstrating a material factual

dispute for trial.” Soto,

n.2 (quoting Tinder,

). Accordingly, and

by the agreement of counsel, the court will conduct an evidentiary hearing to determine whether

Daschbach or someone acting on his behalf visited the Jobs Website and clicked the “Submit”

button. After resolving the factual dispute, the court will consider whether these actions are

sufficient to form an arbitration agreement.

IV. Conclusion

For the foregoing reasons, the Motion to Dismiss for Lack of Personal Jurisdiction34 is

GRANTED as to Person’s claim and DENIED without prejudice as to the claims of out-of-state,

putative class members. The Motion to Compel Arbitration and Dismiss Complaint35 will be

decided after an evidentiary hearing on the relevant, material factual dispute.

33 Pls.’ Opp’n (doc. no. 14) at 9. 34 Doc. no. 12. 35

17 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 26, 2021

cc: Patrick H. Peluso, Esq. Taylor True Smith, Esq. V. Richards Ward, Jr., Esq. Jeffrey A. Backman, Esq. Roy Taub, Esq. Steven J. Dutton, Esq.

18