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Magee v. WD Services, LLC

United States District Court, D. Nevada

January 30, 2017

SCOTT MAGEE, on behalf of homself and person similarly situated
v.
WD SERVICES, LLC, Defendant

          ORDER GRANDING DEFENDANT'S MOTION TO DISSMISS AND COMPLLING ARBITRATION [ECF NOS. 10, 13, 14, 20, 24, 25, 26, 27, 28]

          Jennffer A. Dorsey United-States Distric Judge

         Scott Magee alleges that defendant WD Services, LLC used an automated telephone system to "bombard" him with dozens of text messages, each promising that he could "get cash now!" Magee sues alleging that these text messages violate the Telephone Consumer Protection Act (TCPA), which regulates how businesses can contact consumers via text message. WD Services asks me to dismiss this case and send it to arbitration. It provides evidence showing that Magee visited WD's website on three specific dates, entered his personal information into an online form, and then clicked on a button stating that he agreed to arbitrate the types of claims he now brings.

         Magee does not dispute whether WD Service's arbitration agreement covers his claims or is otherwise enforceable; he argues that he never entered into an arbitration agreement with WD Services in the first place. Magee raises two narrow arguments on this point: 1) he never visited WD Service's website and consented to arbitration, or 2) if he did, his agreement to arbitrate was with another company, not WD Services. But Magee provides no evidence creating a genuine dispute about whether he visited the website and consented to the arbitration agreement, and WD Services offers undisputed evidence that it is either a party to that agreement or an affiliate entitled to enforce it.[1] I therefore grant the motion to compel, dismiss this case without prejudice to the arbitration of Magee's claim, and deny all other pending motions without prejudice as moot.

         Discussion

         A. Legal Standard

         "[W]here there is a doubt as to whether an agreement to arbitrate exists . . . [o]nly when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement."[2] Courts usually apply the familiar summary-judgment standards when this sort of dispute arises.[3] I thus must consider whether "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law."[4] An issue is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party.[5] A fact is "material" if it could affect the outcome of the case.[6]

         When considering a motion for summary judgment, I view all facts and draw all inferences in the light most favorable to the nonmoving party[7] The purpose of summary judgment is "to isolate and dispose of factually unsupported claims"[8] and to determine whether a case "is so one-sided that one party must prevail as a matter of law."[9] It is not my role to weigh evidence or make credibility determinations.[10] If reasonable minds could differ on material facts, summary judgment is inappropriate.[11]

         If the moving party shows that there is no genuine issue as to any material fact, the burden shifts to the nonmoving party, who must "set forth specific facts showing that there is a genuine issue for trial."[12] The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"; the nonmoving party "must produce specific evidence, through affidavits or admissible discovery material, to show that" there is a sufficient evidentiary basis on which a reasonable fact finder could find in his favor.[13] When reviewing the parties' papers, I only consider properly authenticated, admissible evidence.[14]

         B. Magee has not created a genuine dispute about whether he consented to the arbitration

         WD Services provides detailed evidence showing that Magee did indeed visit its website, called "45cash.com, " and consent to a Terms of Service that included an arbitration agreement. WD Services' declarations from company personnel aver that Magee visited its website once on October 22, 2015, and twice on November 24, 2015.[15] Magee then submitted his personal information, including his cell phone number (which is how WD Services and its affiliates were able to text message him).[16] When Magee submitted his information, he was forced to click on a button stating that he agreed to the website's Terms of Service.[17] These terms stated that Magee agreed to arbitrate "any dispute" "with regard to any of [his] dealings with 45cash.com."[18]

         To refute that he visited 45cash.com and agreed to the arbitration agreement, Magee relies on a one-sentence declaration that "to the best of his memory, [he has] never accessed a website called 45cash.com." Even viewing the facts in a light favorable to him, Magee has not created a genuine dispute. In light of the detailed evidence showing that Magee did in fact visit the website and enter his personal information, no reasonable fact finder could find for Magee based only on his representation that he does not recall doing so.[19] Magee provides no specific facts from which a reasonable jury could find in his favor on this point, so I must reject this argument.

         C. Magee has not shown that WD Services cannot enforce the arbitration agreement.

         Magee finally suggests that WD Services cannot enforce the arbitration agreement because a different company owned the 45cash.com website at the time that Magee allegedly accessed it and consented to arbitration. The first problem with Magee's argument is that WD Services provides evidence that it has always owned 45cash.com[20]-and to refute this, Magee relies solely on an online printout that is not only of questionable admissibility, [21] but does not even purport to reflect the dates that Magee is alleged to have accessed WD Service's website.[22] Even if I were to assume that Magee's printout is true, that would only prove that on August 3, 2016, a different company owned 45cash.com; it would not prove that WD Services did not own 45cash.com on the specific days its evidence shows that Magee accessed the site: in October and November of 2015. Magee's failure to provide specific, admissible evidence to create a genuine dispute about who owned 45cash.com on the key dates is enough to foreclose this argument.

         But even if I were to assume that Magee is right that another company was operating 45cash.com when he accessed it, WD Services provides undisputed evidence that the only other possible owners were its wholly-owned subsidiaries who would have entered the arbitration agreement on WD Services's behalf or have since assigned their rights to WD Services-thus entitling WD Services to enforce the arbitration agreement.[23] And in any event, the arbitration agreement's terms are quite broad, covering any dispute related to "45cash.com" generally-not just disputes against the website's owner.[24 ...


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