United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee United States District Judge.
Abdul Mohammed (“Mohammed”), formerly a driver
for Uber Technologies, Inc. (“Uber”), filed a
twenty-one count pro se complaint  against Uber,
Uber's wholly owned subsidiary Rasier, LLC
(“Rasier”), as well as individuals Travis
Kalanick, Garrett Camp, and Ryan Graves (collectively,
“Defendants”). The various counts allege
violations of various state and federal laws and the United
States Constitution. Defendants have moved to compel
arbitration of Mohammed's claims [14, 17] pursuant to the
Federal Arbitration Act, 9 U.S.C. §§ 3-4.
Additionally, Defendant Camp has moved to dismiss all claims
against him  for lack of personal jurisdiction under
Federal Rule of Civil Procedure (“Rule”)
the applicability of the arbitration provision implicates
factual questions that go to the agreement's initial
formation, the Court denies the first motion . Defendant
Camp's motion to dismiss for lack of personal
jurisdiction , however, is granted.
began driving for Uber on or about August 3, 2014. Compl.
Jury Demand 2:10, ECF No. 1. Uber is a company that utilizes
a smartphone application, or “app, ” to pair
individuals seeking car transportation with Uber drivers.
Mem. Supp. Defs. Uber & Rasier Mot. Dismiss 2, ECF No.
16. Customers use the app to hail a ride, and drivers use the
app to locate and interact with customers. Id.
Mohammed began driving for Uber, he used a phone supplied by
Uber, on which the app was pre-installed. See
Pl.'s Resp. Defs.' Mot. Compel Arb. ¶ 14, ECF
No. 20; Hr'g Tr. of May 12, 2016, at 5:3-13, ECF No. 22.
Later, Mohammed was able to install the app on his own phone.
On October 1, 2014, in an effort to download the app onto his
phone, Mohammed sought help from a Driver Services
Representative (DSR) at Uber's office in Chicago.
Pl.'s Resp. Mot. Compel Arb. ¶ 6; Hr'g Tr. at
to Mohammed, when he arrived at the office, the DSR asked him
for a username and password, explaining they were needed to
log in to the Uber app. Hr'g Tr. at 3:24-25; see
Pl.'s Resp. Mot. Compel Arb. ¶ 6. Mohammed supplied
his e-mail as a username, wrote a password on a note, and
handed the note to the DSR. Hr'g Tr. at 3:24-4:1.
to Defendants, once a potential user inputs his or her log-in
credentials, the app prompts the individual on two separate
occasions to review and accept an agreement known as the
“Rasier Agreement, ” a service and licensing
agreement described in greater detail below. Mem. Supp. Defs.
Uber & Rasier Mot. Dismiss at 3. Mohammed claims that he
never saw these prompts. Rather, according to Mohammed, the
DSR entered Mohammed's credentials, saw the prompts, and
accepted the Rasier Agreement without showing Mohammed the
prompts or the agreement. Hr'g Tr. at 4:1-2, 4:18-25. The
DSR then returned the phone to Mohammed with the app
downloaded and ready for use. Id. at 5:1-3.
proceeded to use the app as a driver for Uber for a period of
approximately eight months. Defs.' Reply 9, ECF No. 25;
see also Compl. Emp't Discrim. 2, ECF No. 1
(alleging that Defendants' misconduct began in June 2015,
or nearly eight months after Mohammed began using the app).
During this period, Defendants assert that the Rasier
Agreement was available for Mohammed to review through the
app at any time. Mem. Supp. Defs. Uber & Rasier Mot.
Dismiss at 3.
Rasier Agreement, formally titled the “Rasier Software
Sublicense & Online Services Agreement, ” contains
an “Arbitration Provision” that applies to
disputes “arising out of or related to [drivers']
relationship[s]” with Uber. Id., Ex. D, at 12.
In pertinent part, the Arbitration Provision provides:
This Arbitration Provision is governed by the Federal
Arbitration Act, 9 U.S.C. § 1 et seq. . . . This
Arbitration Provision applies to any dispute arising out of
or related to this Agreement or termination of the Agreement
and survives after the Agreement terminates. . . .
Such disputes include without limitation disputes arising out
of or relating to interpretation or application of this
Arbitration Provision, including the enforceability,
revocability or validity of the Arbitration Provision or any
portion of the Arbitration Provision. All such matters shall
be decided by an Arbitrator and not by a court or judge.
Except as it otherwise provides, this Arbitration Provision
also applies, without limitation, to disputes arising out of
or related to this Agreement and disputes arising out of or
related to your relationship with [Uber], including
termination of the relationship.
February 24, 2016, Mohammed filed suit against Uber and
Rasier, as well as Travis Kalanick, Garrett Camp, and Ryan
Graves in their roles as agents, servants, and employees of
Uber. He alleges twenty-one different counts
asserting violations of various state and federal laws and
the United States Constitution. On May 3, 2016, Defendants moved
to dismiss Mohammed's complaint and compel arbitration
under the Arbitration Provision. Additionally, Defendant Camp
moved to dismiss all claims against him for lack of personal
Motion to Compel Arbitration
Federal Arbitration Act (FAA) mandates that courts enforce
valid, written arbitration agreements. Tinder v.
Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002)
(citing 9 U.S.C. § 2). This mandate reflects a federal
policy that favors arbitration and places arbitration
agreements on equal footing with all other contracts.
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.
440, 443 (2006).
court is satisfied that an agreement to arbitrate exists, the
FAA instructs the court to stay proceedings on issues subject
to arbitration and provides a mechanism for parties to
request that the court compel arbitration pursuant to the
agreement. 9 U.S.C. §§ 3-4; see also
Tinder, 305 F.3d at 733.
opposing a motion to compel arbitration bears the burden of
identifying a triable issue of fact as to the existence of
the purported arbitration agreement. Tinder, 305
F.3d at 735. The opponent's evidentiary burden is akin to
that of a party opposing summary judgment under Rule 56.
Id. “[A] party 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.” Id. The Court must believe
the evidence of the party opposing arbitration and draw all
justifiable inferences in its favor. Id.
present case, Defendants have moved the Court to compel
arbitration of Mohammed's claims. As a threshold matter,
Defendants assert that the Rasier Agreement's Arbitration
Provision delegates any questions as to its
“enforceability” and “validity” to an
arbitrator, thereby depriving the Court of the ability to
consider these questions. In the alternative, Defendants
raise two arguments as to why the Court should enforce the
Arbitration Provision. First, Defendants claim that under
Illinois's Electronic Commerce Security Act,
Mohammed's provision of a username and password was
sufficient to bind him to the arbitration agreement. Second,
Defendants argue that Mohammed accepted the arbitration
agreement by his course of conduct, by equitable estoppel, or
through agency principles. For the reasons that follow, the Court
concludes that none of these arguments have merit.
Impact of the Delegation Clause
Arbitration Provision states, in part, that it applies to
“disputes arising out of or relating to interpretation
or application of this Arbitration Provision, including the
enforceability, revocability or validity of the Arbitration
Provision or any portion of the Arbitration Provision.”
Mem. Supp. Defs. Uber & Rasier Mot. Dismiss, Ex. D, at
12. Defendants rely on this language-commonly referred to as
the “delegation clause”-to argue that the
validity of the provision as to Mohammed (and, consequently,
the applicability of the Arbitration Provision to this
dispute) should be decided by the arbitrator and not this
the impact of the delegation clause upon the Court's
ability to resolve this threshold question requires the Court
to wade into a doctrinal thicket. As the Seventh Circuit has
observed, “The division of labor between courts and
arbitrators is a perennial question in cases involving