GREGORY WARREN v. EBAY INC (2023)

REPORT & RECOMMENDATION

Plaintiff pro se Gregory Warren brought this case against defendants eBay, Inc. (“eBay”), Jamie Iannone, “Cyril B.,” “Kadesh,” Genevieve Leah, “Shiela V.,” and “Oldboombox” a/k/a Jurga Jurgute, alleging fraud and false advertisement under state and federal laws including, inter alia, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”). See Complaint, filed Apr. 29, 2022 (Docket # 2) (“Compl.”). eBay and Iannone now move to compel arbitration of Warren's claims against eBay and to dismiss all claims against Iannone for lack of personal jurisdiction.¹ For the reasons that follow, defendants’ motion should be granted.

I. BACKGROUND

A. Factual Allegations

Plaintiff alleges that on October 21, 2020, he purchased a “Hugo Boss Hooded Tracksuit” on eBay.com from a seller with the username “Oldboombox.” Compl. ¶¶ 18, 20. Plaintiff received the item on November 5, 2020, and discovered that the item “was not in its original package, did not have tags, ha[d] hanging thread around the collar, and [had] the pockets ․ sewn shut.” Id. ¶ 22. Plaintiff attempted to contact both the seller and eBay to obtain a refund, and eBay instructed plaintiff to return the item to the seller. Id. ¶¶ 22-23, 26. Plaintiff mailed the item to the seller on November 17, 2020. Id. ¶ 29.

On December 27, 2020, eBay informed plaintiff that “[a]fter reviewing all the details of this case, we determined that you won't receive a refund.” Id. ¶ 34. Plaintiff “filed an appeal” on December 28, and an eBay representative informed him that “[a]n appeal will be granted once tracking information confirms delivery to seller's location” but that eBay could not “grant an appeal as of now due to tracking information showing item is still in transit.” Id. ¶ 35. On February 28, 2021, USPS informed plaintiff that it was “unable to locate” the item, and plaintiff passed the information on to eBay. Id. ¶¶ 36-37. The same day, eBay representative “Cyril” informed plaintiff that because his case had gone beyond the time for “appeal,” eBay was not “able to accept [plaintiff's] appeal.” Id. ¶¶ 38-39. On the same day, eBay representative “Kadesh” informed plaintiff that he had “reviewed the details of this case and found no return tracking number ․ Thus, the case [is] closed and a refund won't be issued to you.” Id. ¶ 40.

Plaintiff contacted eBay again on March 1, March 24, March 26, April 20, and September 9, 2021. See id. ¶¶ 41-48. On September 10, 2021, plaintiff sent an email to “Lannone” (presumably defendant Jamie Iannone) “request[ing] his assistance reaching a resolution.” Id. ¶ 49. Iannone did not respond. Id.

B. Arbitration Agreement

eBay has provided evidence that “[a]n individual who is purchasing an item on eBay must agree to the eBay User Agreement and Privacy Policy” when checking out online. Conlin Decl. ¶¶ 4, 6. In order to make a purchase, the user must click a button above which a message states that by placing an order, the user “agree[s] to eBay's User Agreement and Privacy Policy.” Id. The words “User Agreement” and “Privacy Policy” can be clicked in order to view the documents referenced. Id. Likewise, “[i]n order to create an account on the eBay.com website, a potential user must first register an account and agree to comply with the terms of the eBay User Agreement ․” Id. ¶ 5. “Individuals who do not click the button and confirm their agreement to the eBay User Agreement cannot complete the checkout process to purchase an item.” Id. ¶ 7.

The User Agreement that was active in June 2020, when Warren created his account, id. ¶ 11, contained the following language:

You and eBay each agree that any and all disputes or claims that have arisen, or may arise, between you and eBay (including any disputes or claims between you and a third-party agent of eBay) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of eBay or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (nonclass, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

* * *

5. Opt-Out Procedure

IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO EBAY INC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 583 WEST EBAY WAY, DRAPER, UT 84020.

For your convenience, we are providing an Opt-Out Notice form. You must complete and mail that to us in order to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by proving the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the eBay Service 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. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements you may have with us.

Id. ¶ 13; see User Agreement, dated Mar. 27, 2020, annexed as Ex. A to Conlin Decl. (Docket # 26-1) (“March 2020 Agreement”), at 14.

eBay has provided evidence that Warren did not submit an opt-out form. Id. ¶ 15. For his part, Warren “does not recall [the] provision [and] thus neither confirms [n]or den[ies] it.” Warren Opp. at 4.

The agreement that was active at the time of Warren's October 2020 purchase, dated August 20, 2020, “has the same introduction, arbitration, and choice of law provisions” as the March 2020 Agreement. Conlin Decl. ¶¶ 18-19; see User Agreement, annexed as Ex. B to Conlin Decl. (Docket # 26-2) (“August 2020 Agreement”). The March and August 2020 Agreements both include a clause stating that arbitration will occur in “the county in which [the user] reside[s] or at another mutually agreed location,” and that “[f]or claims of $10,000 or less, at the user's request, eBay will pay all filing, administrative, and arbitrator fees unless the arbitrator determines the customer's claim is frivolous.” Id. ¶¶ 23-24; see March 2020 Agreement at 13-14; August 2020 Agreement at 13.

Both agreements also contain the following clause:

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and eBay, except as otherwise stated in this User Agreement.2

March 2020 Agreement at 12; August 2020 Agreement at 12.

II. MOTION TO COMPEL ARBITRATION

A. Law Governing a Motion to Compel Arbitration

Section 2 of the Federal Arbitration Act (“FAA”) provides in pertinent part:

A written provision in any ․ contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ․ shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. Section 4 of the FAA permits a party to obtain from a federal district court “an order directing that [an] arbitration proceed in the manner provided for” in an arbitration agreement. 9 U.S.C. § 4. As the Second Circuit has held, the FAA “requires the federal courts to enforce arbitration agreements, reflecting Congress’ recognition that arbitration is to be encouraged as a means of reducing the costs and delays associated with litigation.” Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir. 2003) (quotation omitted). The FAA thus reflects “a strong federal policy favoring arbitration as an alternative means of dispute resolution.” Ross v. Am. Express Co., 547 F.3d 137, 142 (2d Cir. 2008) (quotation omitted).

The Second Circuit has held that a court considering a motion to compel arbitration of a dispute:

first ․ must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of the proceedings pending arbitration.

Guyden v. Aetna, Inc., 544 F.3d 376, 382 (2d Cir. 2008) (quoting Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 75-76 (2d Cir. 1998)).

Under the FAA, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).

When a motion to compel arbitration is brought, a “court applies a standard similar to that applicable for a motion for summary judgment,” in that it must determine whether “there is an issue of fact as to the making of the agreement for arbitration.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). “If undisputed facts in the record required the issue of arbitrability to be resolved against the Plaintiff as a matter of law,” the motion to compel arbitration must be granted. Id. If, however, the party opposing arbitration can show “there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary.” Id. (citing 9 U.S.C. § 4).

B. Analysis

Plaintiff has provided no evidence disputing eBay's evidence regarding the making of the arbitration agreement. Bensadoun, 316 F.3d at 175. Accordingly, we accept eBay's evidence on this point for purposes of adjudicating the motion to compel arbitration.

As to the first element under Guyden, the only evidence in the record on the topic reflects that plaintiff could not have executed his purchase without indicating his agreement to this clause. Conlin Decl. ¶ 7. Plaintiff argues that the arbitration clause is “unconscionable” and thus unenforceable because he “did not have a meaningful choice” whether to agree to the arbitration clause and because the opt-out process was “onerous” and “discourage[d] exercise of the opt[-]out provision” by requiring parties to mail in opt-out forms. Warren Opp. at 8-9.³

We reject this argument. Neither Utah law nor federal law prohibits an entity from offering a take-it-or-leave-it contract to consumers. See Klos v. Lotnicze, 133 F.3d 164, 168-69 (2d Cir. 1997) (“A court will find adhesion only when the party seeking to rescind the contract establishes that the other party used ‘high pressure tactics,’ or ‘deceptive language,’ or that the contract is unconscionable.”) (citation omitted); MacArthur v. San Juan Cnty., 416 F. Supp. 2d 1098, 1187 (D. Utah 2005) (“Under Utah law, ‘adhesion contracts’ are not prohibited per se.”). Plaintiff cites no law, and the Court is aware of none, that requires parties to format opt-out provisions in a particular way. More to the point, both federal and Utah courts have upheld arbitration agreements where a party was required to mail back a response in order to opt out. See, e.g., Boves v. Aaron's Inc., 2019 WL 1206698, at *1, 5 (S.D.N.Y. Mar. 14, 2019) (compelling arbitration where opt-out clause required mailing or hand-delivery); Weiss v. Macy's Retail Holdings, 741 F. App'x 24, 27 (2d Cir. 2018) (summary order) (agreement that required plaintiff to “submit[ ] a written form” to opt out would have been binding if received by plaintiff); Morales v. Cont'l Fin. Co., 2009 WL 2579093, at *2 (D. Utah Aug. 19, 2009) (enforcing agreement in which opt-out provision required notice “in writing”). Accordingly, we find that plaintiff has not demonstrated that the arbitration clause was unconscionable, and thus plaintiff is bound by the arbitration clause.

As to the second element, the language of the arbitration agreement applies to plaintiff's claims in this case. The agreements state that “any and all disputes or claims that have arisen, or may arise, between you and eBay (including any disputes or claims between you and a third-party agent of eBay) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of eBay or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court.” March 2020 Agreement at 12; see August 2020 Agreement at 12 (minor alterations to March 2020 Agreement). The phrase “any and all disputes” encompasses plaintiff's claims, which relate to “products ․ purchased” through eBay.

Plaintiff argues that the clause does not cover the RICO claims because RICO was not specifically mentioned in the arbitration clause and thus “[plaintiff] had no idea that he was forfeiting his rights to bring R.I.C.O. [claims] in federal Court.” Warren Opp. at 11. Plaintiff cites to a New York case that limits a party's ability to waive consequences for negligent actions. See id. at 10 (citing Gross v. Sweet, 49 N.Y.2d 102, 106 (1979)).⁴ Assuming arguendo that New York law on this point governed, any limitation on a party's ability to waive liability in tort has no application here since there is no waiver of liability in the arbitration agreement. Moreover, the Supreme Court in AT&T Techs., Inc. v. Comms. Workers of Am., 475 U.S. 643 (1986), specifically accepted the scope of broad arbitration clauses and held that “[i]n such cases, in the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.” Id. at 650 (emphasis added). Plaintiff has identified no evidence that the parties intended to exclude RICO claims from the arbitration clause. Thus, we find that all claims in the complaint fall within the scope of the arbitration agreement. See Guyden, 544 F.3d at 382.

As to the third element, plaintiff argues that arbitration of his RICO claim is a “usurpation” of federal law, Warren Opp. at 12; and that arbitration “can not [sic] possibly be adequate” to address his RICO claims, id. at 11. In a similar vein, plaintiff argues that “[i]f Congress had any intentions of allowing R.I.C.O. claims [in] any other venue [than federal court] it would have said so,” and thus that “courts lack the authority” to send RICO claims to arbitration. Warren Opp. at 13. We reject these arguments because the Supreme Court has unequivocally held that there is “no basis for concluding that Congress intended to prevent enforcement of agreements to arbitrate RICO claims,” and that “nothing in RICO's text or legislative history otherwise demonstrates congressional intent to make an exception to the Arbitration Act for RICO claims.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 242 (1987). We thus find that Congress did not intend RICO claims to be nonarbitrable. As to plaintiff's related argument that “arbitration can not [sic] possibly be adequate to enforce” his rights under RICO, Warren Opp. at 12, Shearson/Am. Express, Inc. holds that a plaintiff “may effectively vindicate their RICO claim in an arbitral forum, and therefore there is no inherent conflict between arbitration and the purposes underlying [RICO].” 482 U.S. at 242.

The fourth element of Guyden is not at issue. Thus, eBay is entitled to an order compelling arbitration.

C. eBay's Entitlement to a Stay

The sole remaining question on eBay's motion to compel is whether plaintiff's claims against eBay should be stayed pending arbitration. The FAA provides that where an arbitration agreement governs a claim, “the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. In other words, “The FAA ․ provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991). Because Warren's claims against eBay are referrable to arbitration, the action should be stayed as to eBay pending the arbitration.

III. MOTION TO DISMISS

Defendant Iannone seeks dismissal of the complaint as to him on the ground that this court lacks personal jurisdiction over him under Fed. R. Civ. P. 12(b)(2).

A. Standard of Review Under Rule 12(b)(2)

When a defendant moves to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the plaintiff “bears the burden of showing that the court has jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003); accord DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam) (citation omitted); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). If a court does not conduct an evidentiary hearing on the issue of personal jurisdiction, as is the case here, “the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant.” DiStefano, 286 F.3d at 84 (citing Bank Brussels Lambert, 171 F.3d at 784); accord Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84-85 (2d Cir. 2013) (per curiam) (“Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff's prima facie showing may be established solely by allegations.”) (citation and internal quotation marks omitted). “This prima facie showing ‘must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.’ ” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (quoting Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)). Conclusory allegations do not satisfy a plaintiff's burden. See id. at 676; Megna v. Biocomp Labs. Inc., 166 F. Supp. 3d 493, 496 (S.D.N.Y. 2016). Rather, “the prima facie showing must be factually supported.” Beeney v. InSightec, Inc., 2014 WL 3610941, at *2 (S.D.N.Y. July 7, 2014) (citation and internal quotation marks omitted).

A plaintiff can also demonstrate personal jurisdiction “through his own affidavits and supporting materials.” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (citation and internal quotation marks omitted). In deciding whether the plaintiff has met its burden, a court must view the pleadings and affidavits in the light most favorable to the plaintiff, with all doubts resolved in plaintiff's favor. See, e.g., Dorchester Fin. Sec., Inc., 722 F.3d at 85; DiStefano, 286 F.3d at 84.

As to the merits of the personal jurisdiction analysis, courts engage in a two-part inquiry. First, a court determines whether the long-arm statute of the state in which the court sits allows for personal jurisdiction. See, e.g., Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (citation omitted); accord Megna, 166 F. Supp. 3d at 497 (citations omitted). Second, if the long arm-statute permits jurisdiction, a court determines “whether asserting jurisdiction under that [law] would be compatible with requirements of due process established under the Fourteenth Amendment to the United States Constitution.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 315 (1945)).

B. Pro Se Filings

In the case of pro se plaintiffs, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be construed liberally and interpreted “ ‘to raise the strongest arguments that they suggest’ ”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

C. Analysis

Plaintiff argues that New York law permits jurisdiction over Iannone because “eBay continues to do business in New York,” and New York's long-arm statute allows for jurisdiction over suits arising from a company's business activities. Warren Opp. at 15. Plaintiff argues that Iannone “is personally liable for the conduct” of eBay and its employees because plaintiff provided him notice of “unlawful activities of his subordinates.” Warren Opp. at 14-15. Plaintiff argues that Iannone's inaction thus exposes him to liability. See Sur-Reply.

Plaintiff's argument conflates the question of whether Iannone may be held liable in any court with the question of whether this Court has personal jurisdiction over Iannone. Although plaintiff is correct that New York law allows for jurisdiction over individuals who conduct business in the state, see N.Y. C.P.L.R. § 302(a)(1) (“a court may exercise personal jurisdiction over any non-domiciliary ․ who ․ transacts any business within the state”), he has not shown that this allows for jurisdiction over Iannone based on eBay's business acts. Under New York law, “[i]f an individual is sued in his individual capacity, but only had contact with New York as an officer of a corporation acting within the scope of his employment, that individual is not subject to personal jurisdiction in New York.’ ” Seaweed, Inc. v. DMA Prod. & Design & Mktg. LLC., 219 F. Supp. 2d 551, 554 (S.D.N.Y. 2002); accord Outdoor Partners LLC v. Rabbit Hole Interactive Corp., 2013 WL 6503525, at *3 (S.D.N.Y. Dec. 9, 2013). This is in accord with the general principle that “an employee who is engaged in business in the state ‘does not subject himself, individually, to the CPLR 301 jurisdiction of [New York] courts unless he is doing business in [New York] individually.’ ” Wilson & Wilson Holdings LLC v. DTH, LLC, 2023 WL 3449163, at *2 (S.D.N.Y. May 15, 2023) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 313 (1982)). The complaint has no allegations that Iannone committed any acts in his individual capacity, let alone an act that took place in New York. Thus, there is no personal jurisdiction over Iannone.

Conclusion

For the foregoing reasons, defendants’ motion to compel arbitration and to dismiss Iannone as a defendant for lack of personal jurisdiction (Docket # 24) should be granted. Additionally, the case should be stayed as to eBay pending the arbitration.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   Motion to Compel Arbitration and Stay Proceedings and to Dismiss the Complaint, filed Feb. 7, 2023 (Docket # 24) (“Mot.”); Declaration of Duvol M. Thompson, filed Feb. 7, 2023 (Docket # 25) (“Thompson Decl.”); Declaration of Nic Conlin, filed Feb. 7, 2023 (Docket # 26) (“Conlin Decl.”); Memorandum of Law, filed Feb. 7, 2023 (Docket # 27) (“eBay Mem.”); Memorandum of Law, filed Mar. 21, 2023 (Docket # 28) (“Warren Opp.”); Reply in Further Support, filed Mar. 28, 2023 (Docket # 29) (“eBay Reply”); Plaintiff's Response to Defendants’ Reply, filed Apr. 4, 2023 (Docket # 30) (“Sur-Reply”); Letter from Duvol M. Thompson, filed Apr. 12, 2023 (Docket # 31); Response to Defs [sic] Letter 04/12/23, filed Apr. 17, 2023 (Docket # 32).Warren's final two letters were submitted without leave of Court. eBay has responded only to the first and asks that the Court disregard it. See Letter from Duvol M. Thompson. “It is beyond dispute that the decision to permit a litigant to submit a surreply is a matter left to the court's discretion, as is the decision to strike a party's filing.” Endo Pharms. Inc. v. Amneal Pharms., LLC, 2016 WL 1732751, at *9 (S.D.N.Y. Apr. 29, 2016) (citation omitted). The Court has considered the arguments in plaintiffs’ letters as they do not affect the outcome of the motion.

2.   Warren provides no argument that this choice-of-law provision does not apply and cites to Utah case law in his brief. See, e.g., Warren Opp. at 9. Accordingly, we apply Utah law to questions relating to interpretation or enforcement of the User Agreements.

3.   Plaintiff also argues that the clause is unconscionable because it requires plaintiff to travel to Utah and thus “[i]t would be impossible for [plaintiff] or the average consumer to prosecute an action” under the agreement. Warren Opp. at 9-10. Both the March and August agreements, however, provide that arbitration will occur in “the county in which [the user] reside[s] or at another mutually agreed location.” March 2020 Agreement at 13; August 2020 Agreement at 13.

4.   With the exception of the citation to Gross, plaintiff cites to Utah and federal law in his arguments as to the enforceability of the arbitration clause.

GABRIEL W. GORENSTEIN United States Magistrate Judge