Tieszen v. EBay, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RYAN TIESZEN,
Plaintiff,
vs.
EBAY, INC., LG CHEM LTD., LG CHEM
AMERICA, INC., VAPAH, INC., and the
FIRST DOE through THIRTIETH DOE,
inclusive,
Defendants.
4:21-CV-04002-KES
ORDER GRANTING DEFENDANT
EBAY, INC.’S MOTION TO COMPEL
ARBITRATION
Plaintiff, Ryan Tieszen, filed this suit in the State of South Dakota
Second Circuit Court for Minnehaha County. Docket 1-1. Defendants include
eBay, Inc., LG Chem, Ltd., LG Chem America, Inc (LGCAI), Vapah, Inc., and
DOES 1 through 30. Id. LGCAI removed the matter to federal court under 28
U.S.C. §§ 1332, 1441(b), and 1446. Docket 1. eBay consented to removal.
Docket 3. LGCAI was later dismissed as a named defendant. Docket 47. eBay
moves to compel arbitration. Docket 17. Tieszen opposes the motion. Docket
27. For the following reasons, the court grants eBay’s motion to compel
arbitration.
FACTUAL BACKGROUND
Tieszen is a resident of the state of South Dakota. Docket 1-1 ¶ 1. eBay
is incorporated in California with its principal place of business in San Jose,
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California. Id. ¶ 2. eBay operates an online marketplace. Docket 18 at 2. It
derives a large portion of its sales from third-party vendors because eBay does
not own or sell the items listed on its website. Id.; Docket 1-1 ¶ 3. In order to
create a user account on eBay, a potential user must register on the website
and agree to comply with eBay’s User Agreement, Privacy Policy, and other
policies. Docket 19 ¶ 3. Acceptance of the User Agreement is mandatory for a
user to create an eBay account. Id. ¶ 12.
eBay’s business records indicate that Tieszen created an eBay account
under the username “rtieszen.” Id. ¶ 4; see also Docket 19-1 at 1. Tieszen
agreed to eBay’s User Agreement and Privacy Policy on August 12, 2004.
Docket 19 ¶ 4. Tieszen created a second account under the username
“rtagent5” on September 30, 2008. Id.; see also Docket 19-1 at 2. Tieszen was
required to affirmatively accept eBay’s User Agreement to confirm his
registration on his second eBay account. See Docket 19 ¶ 11. The 2008 version
of the User Agreement would have been in effect when Tieszen registered his
second eBay account. Id. ¶ 13. The 2008 User Agreement states that eBay
“may amend this Agreement at any time by posting the amended terms on this
site[,]” and “all amended terms shall automatically be effective 30 days after
they are initially posted.” Docket 19-2 at 3.
In August 2012, eBay posted an update to the User Agreement
concerning dispute resolution between eBay and its users. Docket 19 ¶ 16.
eBay notified its users of the change, which went into effect on October 10,
2012. Id.; Docket 19-3. In the Introduction section, the 2012 User Agreement
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states that it “contains provisions that govern how claims you and [eBay] have
against each other are resolved. . . . It also contains an Agreement to Arbitrate
. . . unless you opt-out of the Agreement to Arbitrate[.]” Docket 19-4 at 1.
Under the Legal Disputes section, the User Agreement provides that Utah law
will govern the User Agreement “and any claim or dispute that has arisen or
may arise between you and eBay, except as otherwise stated[.]” Id. at 7. The
Legal Disputes section also states that the user and eBay:
[A]gree that any and all disputes or claims that have arisen or
may arise between you and eBay shall be resolved exclusively
through final and binding arbitration, rather than in court,
except that you may assert claims in small claims court, if your
claims 	qualify. 	The 	Federal 	Arbitration 	Act 	governs 	the
interpretation and enforcement of this Agreement to Arbitrate.
Id. (bold in original). The 2012 User Agreement also includes an option for a
user to opt-out of arbitration, which provides that:
You can choose to reject this Agreement to Arbitrate (“opt-out”)
by mailing us a written opt-out notice (“Opt-Out Notice”). . . . If
you are already a current eBay user and previously accepted the
User Agreement prior to the introduction of this Agreement to
Arbitrate, the Opt-Out Notice must be postmarked no later than
November 9, 2012. You must mail the Opt-Out Notice to eBay
Inc., c/o National Registered Agents, Inc., 2778 W. Shady Bend
Lane, Lehi, UT 84043.
The 	Opt-Out 	Notice 	must 	state 	that 	you 	do 	not 	agree 	to 	this
Agreement to Arbitrate and must include your name, address, and
the 	user 	ID(s) 	and 	email 	address(es) 	associated 	with 	the 	eBay
account(s) to which the opt-out applies. You must sign the Opt-Out
Notice for it to be effective. This procedure is the only way you can
opt-out of the Agreement to Arbitrate.
Id. at 9. Tieszen did not submit an Opt-Out Notice to eBay and his eBay
accounts remain open and active. Docket 19 ¶ 20. Tieszen purchased items
from sellers on eBay in 2013, 2014, 2015, and 2016. Id. ¶ 22.
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eBay’s User Agreement has been amended several times since 2012. Id. ¶
21. The agreement to arbitrate claims portion of the User Agreement has
remained materially unchanged since the 2012 User Agreement. Id. The 2016
User Agreement contained essentially the same agreement to arbitrate as the
2012 User Agreement, including the Utah choice of law provision. See Docket
19-5 at 7-10. But the 2016 User Agreement expanded upon the scope of the
arbitration agreement, providing:
You and eBay each agree that any and all disputes or claims
that have arisen, or may arise, between you and eBay relating
in any way to or arising out of this or previous versions of the
User Agreement, your use of or access to eBay’s Services, or any
products or services sold, offered, or purchased through eBay’s
Services shall be resolved exclusively through final and binding
arbitration, rather than in court.
Id. at 8. The 2016 User Agreement also contains a similar opt-out procedure for
new users, but the procedure is not available to current users because they
would have had to opt-out under previous versions of the User Agreement. See
id. at 9. The 2016 User Agreement went into effect for existing users on
September 29, 2016. Id. at 1.
On or around November 6, 2016, Tieszen purchased two LG lithium-ion
18650 batteries on eBay. Docket 1-1 ¶ 11. The batteries were purchased from
Vapah, a third-party seller on eBay. Id. ¶ 2. On December 14, 2017, the
batteries allegedly burst into flames in Tieszen’s pocket, causing first and
second-degree burns to Tieszen’s right thigh. Id. ¶¶ 12, 15. Tieszen asserts
claims of product liability, strict liability, negligence, and breach of various
warranties against all defendants. See id.
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eBay argues that it is entitled to an order (1) compelling Tieszen to
arbitrate his claims against eBay under the arbitration agreement, (2) staying
Tieszen’s claims against eBay pending arbitration, and (3) staying eBay’s
deadline to respond to Tieszen’s complaint and any other discovery deadline
pending the resolution of eBay’s motion. Docket 17. Tieszen contends that he
should not be compelled to arbitrate his claims against eBay because the User
Agreement and its included arbitration agreement is unenforceable. Docket 27
at 2. Thus, the court will address whether the User Agreement and its
arbitration agreement is enforceable and whether it encompasses Tieszen’s
claims.
DISCUSSION
Congress enacted the Federal Arbitration Act (FAA) “to overrule the
judiciary’s long-standing refusal to enforce agreements to arbitrate.” Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219-20 (1985). Under the FAA, a
written agreement to arbitrate in a contract involving interstate commerce
“shall be valid, irrevocable, and enforceable, save upon such grounds as exist
at law or equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA
provides two mechanisms for enforcing an agreement to arbitrate: (1) a stay of
judicial proceedings where an issue may be referred to arbitration under § 3;
and (2) an order compelling arbitration where one party refuses to adhere to an
arbitration agreement under § 4. 9 U.S.C. §§ 3-4.
When a contract is within the scope of the FAA, courts engage in a two-
part inquiry to determine whether to stay the case and compel arbitration. See
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Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir. 2004). The first inquiry is
whether a valid arbitration agreement exists. Id. The second inquiry is “whether
the particular dispute falls within the terms of that agreement.” Id. (citations
omitted). These two issues are for the court to decide “[u]nless the parties
clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds,
Inc., 537 U.S. 79, 83 (2002) (alteration in original) (quoting AT & T Tech., Inc. v.
Commc’ns Workers, 475 U.S. 643, 649 (1986)). If an issue of fact remains as to
the making of the arbitration agreement, then a trial on the issue of
arbitrability is necessary. Erickson v. Thrivent Ins. Agency, Inc., 231 F. Supp. 3d
324, 328 (D.S.D. 2017). “When the parties agreed to arbitrate and the
particular dispute falls within the agreement, the FAA allows courts to stay the
case and compel arbitration.” Id.
Here, the FAA applies to the User Agreement between Tieszen and eBay.
The User Agreement, including the arbitration agreement, was in writing. See
Dockets 19-2, 19-4, 19-5. Tieszen’s purchase of LG 18650 lithium-ion batteries
from Vapah, a Georgia corporation with its principal place of business in
Georgia, on eBay meets the FAA’s interstate commerce requirement. See
Docket 1-1 ¶¶ 2, 4. Neither of the parties allege that the court cannot decide
the issue of arbitrability in this case, and nothing in the contract clearly and
unmistakably provides otherwise. Thus, the first issue for the court to decide is
whether a valid arbitration agreement exists between Tieszen and eBay.
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I. 	Validity of Arbitration Agreement
A. 	Choice of Law Provision
As a threshold matter, the parties disagree on which state’s law should
apply. eBay argues that Utah law should govern under the User Agreement’s
choice of law provision. Docket 18 at 9; Docket 28 at 2-3. Conversely, Tieszen
contends that South Dakota law should apply because the entire User
Agreement is both procedurally and substantively unconscionable. Docket 27
at 3-5. Thus, the court will address which state’s law applies and whether the
User Agreement—and, by extension, the arbitration agreement—is
unconscionable.
Under the FAA, state contract law governs whether a valid arbitration
agreement exists between Tieszen and eBay. First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). Because this court is sitting in diversity
jurisdiction, it applies South Dakota’s choice of law rules to determine which
state’s laws govern the issue of whether the arbitration agreement is valid.
Erickson, 231 F. Supp. 3d at 329.
Under South Dakota law, choice of law provisions within a contract are
generally permitted. Dunes Hosp., L.L.C. v. Country Kitchen Int’l, Inc., 623
N.W.2d 484, 488 (S.D. 2001). But choice of law provisions are subject to
limitation and may be invalidated by overriding public policy of South Dakota.
Id. “South Dakota applies the provisions of the Restatement (Second) of
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Conflicts of Laws in order to resolve questions about which state’s laws govern
in particular factual situations.” Id. (quoting Stockmen’s Livestock Exch. v.
Thompson, 520 N.W.2d 255, 257 (S.D. 1994) (additional citation omitted)).
Comment b to § 187 of the Restatement (Second) of Conflict of Laws notes that
a choice of law provision “will not be given effect if the consent of one of the
parties to its inclusion in the contract was obtained by improper means, such
as by misrepresentation, duress, or undue influence, or by mistake.”
Tieszen argues that the User Agreement and its associated choice of law
provision should not be given effect because Tieszen’s consent was obtained by
improper means. Docket 27 at 5. Specifically, Tieszen claims that he “was not
provided an opportunity to negotiate the agreement[] and entered into the
agreement with wholly unequal bargaining power. The User Agreement
therefore amounts to an unconscionable contract of adhesion.” Id.
The comments to the Restatement (Second) of Conflict of Laws note that
the court “may consider . . . whether the choice-of-law provision is contained in
an ‘adhesion’ contract, namely one that is drafted unilaterally by the dominant
party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party
who has no real opportunity to bargain about its terms.” Restatement (Second)
of Conflict of Laws § 187 cmt. b. But the same comment notes that such
contracts and associated choice of law provisions are usually upheld. Id.
“Nevertheless, the forum will scrutinize such contracts with care and will
refuse to apply any choice-of-law provision they may contain if to do so would
result in substantial injustice to the adherent.” Id.
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Here, Tieszen fails to demonstrate how enforcement of the User
Agreement’s choice of law provision favoring Utah law is against South Dakota
public policy or how it would result in substantial injustice to Tieszen. Utah
law, like South Dakota, recognizes unconscionability as a defense to invalidate
a contract. See Res. Mgmt. Co. v. Weston Ranch & Livestock Co., Inc., 706 P.2d
1028, 1040-43 (Utah 1985); Bekins Bar V Ranch v. Huth, 664 P.2d 455, 459,
461 (Utah 1983). Because Utah law and South Dakota law both recognize
unconscionability as a defense to invalidate a contract, it does not violate
South Dakota public policy to apply Utah law. Thus, the court finds that Utah
law governs the interpretation of the User Agreement.
B. 	Unconscionability
Tieszen contends that the entire User Agreement is an unconscionable
contract of adhesion and cannot be enforced. Docket 27 at 5. eBay argues that
the User Agreement is valid and enforceable against Tieszen. Docket 28 at 4.
The court must determine whether the User Agreement is unconscionable and
unenforceable under Utah law.
As previously mentioned, Utah law recognizes unconscionability as a
defense to the enforcement of contracts. Bekins, 664 P.2d at 461.
Unconscionability is analyzed under two prongs: (1) procedural
unconscionability and (2) substantive unconscionability. Res. Mgmt. Co., 706
P.2d at 1041. “ ‘Procedural unconscionability’ focuses on the manner in which
the contract was negotiated and the circumstances of the parties.” Id.
Procedural unconscionability is often characterized as the “absence of
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meaningful choice.” Id. at 1042 (quoting Williams v. Walker-Thomas Furniture
Co., 350 F.2d 445, 449 (D.C. Cir. 1965)). Various factors that courts consider
when analyzing procedural unconscionability are: (1) the use of boilerplate or
printed form contracts drawn by the party in the stronger economic position;
(2) whether the contract includes language that is incomprehensible to a
layperson; (3) whether key provisions are hidden in fine print; (4) a lack of
meaningful opportunity to bargain or negotiate the contract; (5) whether the
complaining party was compelled to accept the contract; and (6) whether the
contract takes advantage of the “underprivileged, unsophisticated, uneducated
and illiterate.” Id. (citations omitted); Bekins, 664 P.2d at 461-62.
Substantive unconscionability focuses on whether the terms of the
contract are “so one-sided as to oppress or unfairly surprise an innocent
party,” or whether there is “an overall imbalance in the obligations and rights
imposed by the bargain.” Res. Mgmt. Co., 706 P.2d at 1042 (quoting Bekins,
664 P.2d at 462). In order to find a contract unconscionable, the existence of
substantive unconscionability must be either dominant or exclusive. See id. at
1043 (noting that where unconscionability has been found to exist, the
existence of substantive unconscionability is either the dominant or exclusive
issue). “Where only procedural irregularities are involved, the judicial doctrines
of fraud, misrepresentation, duress, and mistake may provide superior tools for
analyzing the validity of contracts.” Id.
Tieszen contends that the User Agreement is both procedurally and
substantively unconscionable. Docket 27 at 6. Tieszen first argues that the
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User Agreement is procedurally unconscionable because the relative bargaining
power of the parties weighed heavily in favor of eBay. Id. While Resource
Management Co. and Bekins do not specifically mention relative bargaining
power as a factor to consider, they do contemplate whether the contract was
drawn by the party in the stronger economic position. Res. Mgmt. Co., 706 P.2d
at 1042; Bekins, 664 P.2d at 462. Here, eBay was the drafting party and was
clearly in a stronger economic position than Tieszen. eBay does business
nationwide while Tieszen is a sole consumer of goods. The court finds that this
factor weighs in favor of Tieszen.
Tieszen next argues that he lacked a meaningful choice when it came to
accepting eBay’s User Agreement. Docket 27 at 6-7. This argument implicates
the fourth factor mentioned above. eBay admits that acceptance of the User
Agreement is mandatory in order to create and use an eBay account. Docket 19
¶ 12. Nothing in the record indicates that Tieszen had the opportunity to
negotiate with eBay regarding the User Agreement. But Tieszen did have the
opportunity to opt out of the arbitration agreement, which is the provision
pertinent to this motion. Docket 19-4 at 9. eBay provided a procedure for
opting out of the arbitration agreement, which had to be exercised by
November 9, 2012, for existing users like Tieszen. Id. Tieszen did not exercise
the option to opt out of the arbitration agreement. Docket 19 ¶ 20. Thus, the
court finds that Tieszen did have a meaningful choice when it came to
accepting the arbitration agreement, and this factor weighs in favor of eBay.
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Tieszen also alleges that the User Agreement is “rife with fine print and
technical jargon that is beyond the scope of understanding of a lay consumer.”
Docket 27 at 7. Tieszen points specifically to the arbitration agreement listed in
the 2016 User Agreement. Id. at 7-8; Docket 19-5 at 7-10. Tieszen argues that
he
would have no way of knowing . . . what an arbitration was, what
‘final and binding’ meant in the context of an arbitration, what type
of ‘claims’ could possibly arise against eBay, the type of relief which
could be associated with those claims, and what the [FAA] is and
how it affects the user’s rights.
Docket 27 at 8. But, under Utah law, “[o]ne party to a contract does not have a
duty to ensure that the other has a complete and accurate understanding of all
terms embodied in a written contract.” Res. Mgmt. Co., 706 P.2d at 1047.
Rather, “[e]ach party has the burden to understand the terms of a contract
before he affixes his signature to it and may not thereafter assert his ignorance
as a defense.” Id. In any event, the court finds that the arbitration agreement
does not contain technical jargon that is incomprehensible to a layperson. The
User Agreement clearly states that, upon acceptance, the user agrees to
arbitrate “any and all disputes or claims that have arisen, or may arise,
between you and eBay . . . .” Docket 19-5 at 8. There is also a provision in the
arbitration agreement that explains exactly what arbitration is to users who
may be unaware. Docket 19-4 at 8.
Nor is the arbitration agreement hidden in the fine print of the User
Agreement. Instead, the “Legal Disputes” section features prominently in the
User Agreement, is in bold print, and states in all caps to “PLEAE READ THIS
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SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A
SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND EBAY HAVE AGAINST
EACH OTHER ARE RESOLVED.” Docket 19-5. at 7. The court finds that the
arbitration agreement is not incomprehensible to a layperson and it is not
hidden in the fine print of the User Agreement. After considering all the factors,
the court finds that the User Agreement and its associated arbitration
agreement is not procedurally unconscionable.
Tieszen next argues that the User Agreement is substantively
unconscionable. Docket 27 at 9. He alleges that the mandatory nature of the
User Agreement, the User Agreement’s amendment procedure, the arbitration
agreement, and the choice of law provision render the User Agreement
unenforceable. Id. at 9-10. Here, Tieszen fails to demonstrate that the terms of
the User Agreement are so one-sided as to make the User Agreement
substantively unconscionable. While it is true that acceptance of the User
Agreement was mandatory to use eBay, that alone does not make the User
Agreement substantively unconscionable. Additionally, the amendment
procedure was laid out clearly in the User Agreement and cannot be said to
have taken Tieszen by surprise. Docket 19-2 at 3. This is especially true given
the fact that the User Agreement was amended several times while Tieszen
remained an eBay user. Docket 19 ¶ 21. Likewise, the arbitration agreement is
not one sided. As mentioned, there was an opt-out provision that would have
favored Tieszen had he exercised his right to opt out. The User Agreement also
contains user-friendly features like cost free arbitration for claims under
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$10,000, a small claims court option, and a provision that states that
arbitration will take place in the county where the user resides. Docket 19-4 at
7-8. Finally, the choice of law provision does not render the User Agreement
substantively unconscionable because, as discussed above, Utah provides for
the same defense to contract enforcement as Tieszen would have raised under
South Dakota law. Thus, the court finds that the User Agreement is not
substantively unconscionable.
Utah law applies to the interpretation of eBay’s User Agreement and its
associated arbitration agreement. Under Utah law, the User Agreement and
associated arbitration agreement is not procedurally or substantively
unconscionable. Thus, the court finds that the arbitration agreement between
Tieszen and eBay is valid and enforceable.
II. 	Scope of Arbitration Agreement
Federal substantive law governs whether a claim falls within the scope of
an arbitration clause. Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726,
731 (8th Cir. 2019). “Under federal law, ‘any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration,’ including
‘construction of the contract language itself.’ ” Erickson, 231 F. Supp. 3d at 335
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25
(1983)). Here, the arbitration agreement in the User Agreement is expansive. It
covers
any and all disputes or claims that have arisen, or may arise,
between you and eBay relating in any way to or arising out of this
or previous versions of the User Agreement, your use of or access to
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eBay’s 	Services, 	or 	any 	products 	or 	services 	sold, 	offered, 	or
purchased through eBay’s services.
Docket 19-5 at 8. The Eighth Circuit has found that expansive arbitration
provisions, like the one in this case, cover tort claims that relate to the parties’
contractual relationship. See PRM Energy Sys., Inc. v. Primenergy, LLC, 592
F.3d 830, 837 (8th Cir. 2010) (“Arbitration may be compelled under a broad
arbitration clause . . . as long as the underlying factual allegations simply
touch matters covered by the arbitration provision.” (cleaned up)). Tieszen’s
product liability, strict liability, negligence, and breach of various warranties
claims relate to the User Agreement with eBay because they arise out of a
product sold or purchased through eBay’s services. Thus, Tieszen’s claims fall
within the scope of the User Agreement’s arbitration agreement.
CONCLUSION
The arbitration agreement contained in the User Agreement between
Tieszen and eBay is valid and enforceable, and Tieszen’s claims against eBay
fall within the scope of the arbitration agreement.
Thus, it is ORDERED
1. eBay’s motion to compel arbitration (Docket 17) is granted.
2. Tieszen’s claims against eBay are stayed pending arbitration; and
3. eBay’s deadline to respond to the complaint and any other discovery
deadline is stayed pending arbitration.
DATED this 20th day of September, 2021.
BY THE COURT:
/s/ Karen E. Schreier
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KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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