Abigail Bacon v. Avis Budget Group Inc ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-3780
______________
ABIGAIL BACON; ARCADIA LEE; JEANNINE
DEVRIES; LISA GEARY;
RICHARD ALEXANDER; YVONNE WHEELER;
GEORGE DAVIDSON,
and on behalf of themselves and the putative class
v.
AVIS BUDGET GROUP, INC.;
PAYLESS CAR RENTAL, INC.,
Appellants
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cv-05939)
District Judge: Honorable Kevin McNulty
______________
Argued April 23, 2020
______________
Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges.
(Opinion Filed: May 18, 2020)
______________
OPINION
______________
Jason E. Hazlewood
Kim M. Watterson [ARGUED]
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
M. Patrick Yingling
Reed Smith
10 South Wacker Drive
40th Floor
Chicago, IL 60606
Counsel for Appellants
Lisa R. Considine
David J. DiSabato
The Wolf Law Firm
1520 U.S. Highway 130
Suite 101
North Brunswick, NJ 08902
Greg M. Kohn [ARGUED]
Nagel Rice
103 Eisenhower Parkway
Roseland, NJ 07068
2
Counsel for Appellees
SHWARTZ, Circuit Judge.
Plaintiffs Richard Alexander, Abigail Bacon, George
Davidson, Jeannine DeVries, Lisa Geary, Yvonne Wheeler,
and Arcadia Lee rented cars from Payless Car Rental, Inc., a
subsidiary of Avis Budget Group, Inc. Plaintiffs, on behalf of
a putative class, sued Defendants Payless and Avis for
unauthorized charges. Defendants moved to compel Plaintiffs
to arbitrate their claims. Because the District Court correctly
denied their motions, we will affirm.
I
A
Plaintiffs rented cars in 2016. Six plaintiffs rented cars
in the United States (“U.S. Plaintiffs”), and one rented a car in
Costa Rica. At the Payless rental counter, the U.S. Plaintiffs
each signed identical one-page rental agreements (“U.S.
Agreement”), which, among other things, itemized charges and
fees and showed whether the customer had accepted or
declined certain products and services. Each U.S. Plaintiff
affixed his or her signature below the final paragraph, which
provides: “I agree the charges listed above are estimates and
that I have reviewed&agreed to all notices&terms here and in
the rental jacket.” J.A. 631, 685, 720, 784, 842, 875.
After the U.S. Plaintiffs signed their agreements, the
rental associate folded the agreement into thirds, placed it into
what Defendants call a “rental jacket,” and handed the jacket
to the U.S. Plaintiffs. The rental jacket bears the title “Rental
3
Terms and Conditions” at the top of the front page, not the title
“rental jacket,” and contains thirty-one paragraphs. J.A. 220,
225. The word “jacket” appears in only the second paragraph,
in the phrase “Rental Document Jacket.” J.A. 220, 225. The
twenty-eighth paragraph contains an arbitration provision,
which provides that “all disputes . . . arising out of, relating to
or in connection with [the] rental of a vehicle from Payless . . .
shall be exclusively settled through binding arbitration.” J.A.
223, 228 (emphasis omitted).
The rental jackets were kept at the rental counter,
typically near the rental associate’s computer terminal or
printer. Payless rental associates are trained to give a rental
jacket to each customer after the customer signs the U.S.
Agreement and to any customer who requests one, but the
associates are not trained to alert customers to the additional
terms in the rental jacket. The rental associates said nothing
about the rental jacket when the U.S. Plaintiffs reviewed their
agreements.
Lee rented a car in Costa Rica from a licensee of
Payless. The licensee uses a two-sided single page document
for its rentals (“Costa Rica Agreement”). The front side
contains the details of the transaction. The back side is titled
“Rental Agreement” and includes pre-printed terms in English
and Spanish. J.A. 204. The back side also includes a “Dispute
resolution” clause, which requires that disputes related to the
agreement be arbitrated. J.A. 204.
The front and back sides both have signature lines. On
the front side, just before the signature line, the Costa Rica
Agreement states: “By signing below, you agree to the terms
and conditions of this Agreement, and you acknowledge that
4
you have been given an opportunity to read this Agreement
before being asked to sign.” J.A. 203. The back side has a
separate signature line at the bottom-right corner, preceded by
the statement in English and Spanish: “By signing below, you
agree to the terms and conditions of this Agreement.” J.A. 204.
Lee signed the front side of the Costa Rica Agreement but did
not sign the back side. A video of Lee’s rental transaction
shows the rental associate instructing Lee to initial and sign on
the front side of the Costa Rica Agreement but does not show
the associate informing Lee about the back side. In addition,
the video does not show that Lee turned the document over.
Five of the U.S. Plaintiffs used websites—
Expedia.com, Hotwire.com, or Priceline.com—to reserve their
Payless car rentals. Each of the websites’ terms of use included
an arbitration provision.
B
Plaintiffs brought a putative class action against
Defendants, alleging violations of the New Jersey Consumer
Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq., the Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201
et seq., the Nevada Deceptive Trade Practices Act, Nev. Rev.
Stat. § 598.0903 et seq., the Nevada Statutory Consumer Fraud
Act, Nev. Rev. Stat. § 41.600 et seq., and for common law
unjust enrichment and conversion. Plaintiffs allege that
Defendants charged them for products and services that they
either had not authorized or had declined.
In response, Defendants moved to compel arbitration
and to dismiss or stay the action pending arbitration pursuant
to the Federal Arbitration Act (“FAA”). The District Court
5
denied the motions and directed the parties to engage in
discovery on arbitrability. It said that it would “accept one
joint motion from [D]efendants for partial summary judgment
on the motion to compel arbitration,” and that Plaintiffs could
then cross-move for summary judgment on arbitrability.
Bacon v. Avis Budget Grp., Inc., Civ. No. 16-5939 (KM)
(JBC), 2017 WL 2525009, at *16 (D.N.J. June 9, 2017)
(emphasis omitted). Following targeted discovery, Defendants
filed a new joint motion, styled as a “Motion for Summary
Judgment to Compel Arbitration.” ECF No. 81 at 1. In that
motion, they “renew[ed] their request that [the] Court enforce
the arbitration provisions in Plaintiffs’ rental contracts and
compel bilateral arbitration . . . consistent with the” FAA. ECF
No. 81-1 at 8. Plaintiffs cross-moved for summary judgment
on the arbitration issue, arguing that the undisputed facts
showed that they had never agreed to arbitrate.
The District Court denied Defendants’ motion and
granted in part Plaintiffs’ motion. Bacon v. Avis Budget Grp.,
Inc., 357 F. Supp. 3d 401, 432 (D.N.J. 2018). As to the U.S.
Agreements, the Court denied Defendants’ motion and granted
Plaintiffs’ motion on the ground that the undisputed facts
showed that the U.S. Plaintiffs did not assent to the arbitration
provision. Id. at 418-26. As to the Costa Rica Agreement, the
Court denied both parties’ motions because a disputed factual
issue existed as to whether Lee was on reasonable notice of the
arbitration provision. Id. at 426-29. As to the motions based
on the website terms, the Court held that the record was not
sufficiently developed concerning assent and that the issue
could be resolved after further discovery either via summary
judgment or at trial. Id. at 429-32. Defendants appeal.
6
II1
Before turning to the merits of this appeal, we must
determine whether we have appellate jurisdiction. The order
here addressed three items: (1) the request to compel the U.S.
Plaintiffs to arbitrate their dispute; (2) the request to compel
Lee to arbitrate her dispute; and (3) the request to compel
arbitration pursuant to the arbitration clauses in the websites
Plaintiffs used to make their reservations. The parties agree,
correctly, that we have appellate jurisdiction over the order
denying the request to compel the U.S. Plaintiffs to arbitrate.
9 U.S.C. § 16. The parties disagree, however, about whether
we have jurisdiction over the other two aspects of the order.
For the reasons set forth below, we have jurisdiction over those
items, too.
Generally, the Courts of Appeals have jurisdiction over
only the “final decisions” of district courts, 28 U.S.C. § 1291,
which are decisions that “end[] the litigation on the merits and
leave[] nothing for the court to do but execute the judgment,”
Weber v. McGrogan, 939 F.3d 232, 236 (3d Cir. 2019)
(quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
The FAA sets forth an exception to the final decision rule in 28
U.S.C. § 1291, providing that an “appeal may be taken from
. . . an order . . . refusing a stay of any action under [§] 3 of”
the FAA, “denying a petition under [§] 4 of [the FAA] to order
arbitration to proceed,” or “denying an application under
1
The District Court had jurisdiction under 28 U.S.C.
§ 1332(d)(2)(A).
7
[§] 206 of [the FAA] to compel arbitration.” 9 U.S.C.
§ 16(a)(1)(A)-(C).
Thus, whether § 16(a) gives us jurisdiction over the
District Court’s order hinges on whether the order involves a
§ 3 motion for a stay or a § 4 or § 206 petition or motion to
compel arbitration.2 9 U.S.C. § 16. As a result, we first
2
While Defendants relied on only 9 U.S.C. §§ 3 and 4
in their motions, they initially sought to compel arbitration of
the Costa Rica Agreement in Costa Rica, so to the extent the
Costa Rica Agreement can be read as requiring arbitration to
take place in Costa Rica, the District Court’s authority to
compel arbitration as to that agreement would derive from 9
U.S.C. § 206. See Control Screening LLC v. Tech.
Application & Prod. Co. (Tecapro), 687 F.3d 163, 171 n.6 (3d
Cir. 2012) (“A district court’s primary authority to compel
arbitration in the international context comes from 9 U.S.C.
§ 206, rather than from 9 U.S.C. § 4.”). Thus, we construe the
Court’s order as resolving the arbitration demand involving the
U.S. Plaintiffs under § 4 and the demand involving the Costa
Rica Agreement under § 206. In any event, “[u]nder § 208, the
requirements of § 4 apply to § 206 applications as well,
provided there is no conflict between the two provisions.”
Devon Robotics, LLC v. DeViedma, 798 F.3d 136, 144 n.8 (3d
Cir. 2015). While § 4 “accrues only when the respondent
unequivocally refuses to arbitrate,” Control Screening LLC,
687 F.3d at 171 n.6 (quoting PaineWebber Inc. v. Faragalli, 61
F.3d 1063, 1066 (3d Cir. 1995)), and this requirement has
never been applied to § 206, this distinction has no impact here
because all Plaintiffs unequivocally refused to arbitrate by
8
examine whether the order denied a motion to compel
arbitration (as opposed to a ruling beyond compelling
arbitration, such as an adjudication on the merits of the
dispute). Devon Robotics, LLC v. DeViedma, 798 F.3d 136,
146-47 (3d Cir. 2015). If we conclude that the order denied a
motion to compel arbitration, then we will exercise jurisdiction
even if that order is not final. Sandvik A.B. v. Advent Int’l
Corp., 220 F.3d 99, 102-03 (3d Cir. 2000).
To determine whether a district court was presented
with a motion to compel arbitration, we examine (1) “the
caption and relief requested in the underlying motion” and
(2) “the label and the operative terms of the district court’s
order.” Devon, 798 F.3d at 146-47. “[L]ook[ing] beyond the
caption itself . . . ensure[s] that a true motion to compel is not
overlooked and . . . that parties cannot game the captions of
their motions in an effort to gain an interlocutory appeal where
none is warranted.” Id. at 146 (internal quotation marks and
citation omitted).3
filing their class-action complaint. See PaineWebber Inc., 61
F.3d at 1068.
3
In Devon, we declined to extend § 16 to all motions
for summary judgment, explaining that the FAA “provides no
support for exercising jurisdiction over an order denying a
motion for summary judgment,” and “Congress’s enumeration
of several categories of appealable orders, but not orders
denying summary judgment, indicates that Congress intended
orders denying summary judgment to fall outside the scope of
§ 16.” 798 F.3d at 142-43. Thus, we must take care not to
blindly equate a denial of summary judgment with a denial of
a motion to compel under § 16 because “a party trying to
9
Here, the events leading to the filing of the motion, its
title, and the substance of the District Court’s order all show
that the motion sought an order compelling arbitration, which
is appealable under § 16(a). First, the procedural history of this
case shows that Defendants did not “game the caption[] of their
motion[] in an effort to gain an interlocutory appeal where none
is warranted.” Id. Defendants first moved to compel
arbitration and dismiss the complaint or stay the action pending
arbitration under the FAA. The District Court denied the
motions, directed the parties to engage in discovery on
arbitrability, and instructed that they could then file renewed
motions, to be decided under a summary judgment standard.
After discovery, Defendants filed a “Motion for Summary
Judgment to Compel Arbitration.” ECF No. 81 at 1. This label
reflected compliance with the Court’s directive to file a joint
motion for summary judgment. Furthermore, in their summary
judgment brief, Defendants stated: “Defendants renew their
request that this Court enforce the arbitration provisions in
Plaintiffs’ rental contracts and compel bilateral arbitration,”
under the FAA and “the United States Supreme Court’s
mandate that arbitration agreements be strictly enforced.” ECF
No. 81-1 at 8. Thus, the relief sought was to compel
arbitration.4
enforce an arbitration agreement but seeking to avoid trial on
the issue of arbitrability could file a motion for summary
judgment instead of a § 4 petition . . . and then seek immediate
review if the motion is denied.” Id. at 144.
4
The motion also mirrored the procedural requirements
of § 4. Under § 4, a party’s ability to petition for an order
directing arbitration to proceed is premised on the opposing
party’s “alleged failure, neglect, or refusal . . . to arbitrate,” and
10
Second, the District Court acknowledged that
Defendants sought as relief an order to compel arbitration by
stating that “[D]efendants’ motion for summary judgment to
compel arbitration (DE 81) is DENIED as presented.” Bacon,
2017 WL 2525009, at *16; see also J.A. 4; cf. Devon, 798 F.3d
at 147-48 (concluding that motion was not one to compel
arbitration where order denied summary judgment on the
merits). Accordingly, the language and substance of
Defendants’ motion and the Court’s order show that
Defendants sought an order compelling arbitration, and the
Court denied that request. Because the plain text of § 16(a)
reaches an order refusing to compel arbitration, we have
jurisdiction over this order.
that the party serve the opposing party with “[f]ive days’ notice
in writing” of the petition. § 4. First, Plaintiffs unequivocally
refused to arbitrate by filing their class-action complaint. See
PaineWebber Inc., 61 F.3d at 1068. Second, Plaintiffs were on
notice that Defendants sought arbitration over litigation.
Defendants moved to compel arbitration—and the District
Court ordered the parties to engage in targeted discovery on
arbitrability and to renew their motions—more than one year
before Defendants filed the instant motions. See Guidotti, 716
F.3d at 776 (“After limited discovery, the court may entertain
a renewed motion to compel arbitration, this time judging the
motion under a summary judgment standard.”); Kirleis v.
Dickie, McCamey, & Chilcote, P.C., 560 F.3d 156, 158-59 (3d
Cir. 2009) (analyzing § 4 motion to compel arbitration in
response to a complaint). Furthermore, “no one was
‘prejudicially misled’ in this case by [Defendants’] styling of
[their] motion as a motion for summary judgment rather than a
motion to compel.” Devon, 798 F.3d at 148.
11
To be sure, two aspects of the District Court’s order
were not final as more work must be done in the District Court.
First, the Court declined to compel Lee to arbitrate in Costa
Rica because there was a disputed issue of fact and hence the
issue of arbitrability will proceed to trial. Second, the Court
declined to rule on whether Plaintiffs assented to the websites’
arbitration clauses because it needed additional evidence. That
latter motion was essentially denied without prejudice subject
to additional discovery.
Both orders, however, denied motions to compel
arbitration, and we may exercise appellate jurisdiction over
them regardless of finality. See Sandvik, 220 F.3d at 103. The
FAA “makes no distinction between orders denying arbitration
and ‘final orders’ that accomplish the same end.” Id. at 102.
We have jurisdiction over orders refusing to compel arbitration
“irrespective of the fact that the [motion] was denied without
prejudice,” Quilloin v. Tenet HealthSystem Phila., Inc., 673
F.3d 221, 228 (3d Cir. 2012), as well as orders entered where
the “district court does not feel itself ready to make a definitive
decision on whether to order arbitration and therefore denies a
motion to compel,” Sandvik, 220 F.3d at 103. Thus, we may
exercise appellate jurisdiction over all three issues raised in this
appeal.
III5
Having determined that we have appellate jurisdiction,
we turn to the merits. The FAA, 9 U.S.C. §§ 1-16, embodies
5
“We exercise plenary review over questions regarding
the validity and enforceability of an agreement to
12
the “national policy favoring arbitration and places arbitration
agreements on equal footing with all other contracts.”
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443
(2006). The FAA requires courts to stay litigation and compel
arbitration of claims covered by a written, enforceable
arbitration agreement. 9 U.S.C. §§ 3, 4; see also § 206.
Before compelling a party to arbitrate under the FAA,
we must consider two “gateway” questions, one of which is
“whether the parties have a valid arbitration agreement.”6
arbitrate,” Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177
(3d Cir. 2010), and “we may affirm on any grounds supported
by the record,” MacDonald v. Cashcall, Inc., 883 F.3d 220, 225
(3d Cir. 2018) (quoting Hassen v. Gov’t of V.I., 861 F.3d 108,
114 (3d Cir. 2017)).
When presented with a motion to compel arbitration
based on an evidentiary record, courts apply the summary
judgment standard under Federal Rule of Civil Procedure 56(a)
“because the district court’s order . . . is in effect a summary
disposition of the issue of whether or not there had been a
meeting of the minds on the agreement to arbitrate.’” Jaludi v.
Citigroup, 933 F.3d 246, 251 n.7 (3d Cir. 2019) (omission in
original) (quoting White v. Sunoco, Inc., 870 F.3d 257, 262 (3d
Cir. 2017)). A “district court should only grant a motion to
compel arbitration ‘if there is no genuine dispute as to any
material fact and, after viewing facts and drawing inferences in
favor of the non-moving party, the party moving to compel is
entitled to judgment as a matter of law.’” Id. (quoting White,
870 F.3d at 262).
6
The second issue is whether the dispute is covered by
the arbitration clause. Lamps Plus, 139 S. Ct. 1416-17. This
issue is not implicated in this appeal.
13
Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1416 (2019)
(quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452
(2003) (plurality opinion)). One component of a valid
arbitration agreement is that the parties agreed to arbitrate. To
determine this, we apply state-law principles of contract
formation. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
944 (1995).
The parties do not dispute that New Jersey law governs
the question of contract formation for both the U.S.
Agreements signed by Alexander, Bacon, Davidson, and
DeVries, and the Costa Rica Agreement signed by Lee, nor do
they dispute that Florida law governs the question of contract
formation for the U.S. Agreements signed by Geary and
Wheeler.
Defendants assert that valid agreements existed and that
the District Court erred in refusing to compel arbitration based
on all the agreements. First, Defendants argue that the rental
jacket containing the arbitration provision was incorporated
into the U.S. Agreements under New Jersey and Florida law.
Second, they contend that Lee signed the Costa Rica
Agreement and had reasonable notice of the arbitration
provision on the back side. Third, Defendants argue that
Plaintiffs who booked online agreed to each website’s terms of
use and arbitration provision, and that the Court erred in
excluding evidence on which Defendants relied concerning
these websites. Their arguments fail.
A
The District Court properly held that the rental jackets
were not adequately incorporated into the U.S. Agreements
14
and thus that the U.S. Plaintiffs did not assent to the arbitration
provision in the rental jackets.
1
Under New Jersey law, “[a]n enforceable agreement
requires mutual assent, a meeting of the minds based on a
common understanding of the contract terms.” Morgan v.
Sanford Brown Inst., 137 A.3d 1168, 1180 (N.J. 2016). New
Jersey law permits contract terms to be incorporated by
reference. “[F]or there to be a proper and enforceable
incorporation by reference of a separate document,” (1) the
separate document “must be described in such terms that its
identity may be ascertained beyond doubt” and (2) “the party
to be bound by the terms must have had ‘knowledge of and
assented to the incorporated terms.’” Alpert, Goldberg, Butler,
Norton & Weiss, P.C. v. Quinn, 983 A.2d 604, 617 (N.J. Super.
Ct. App. Div. 2009) (quoting 11 Samuel Williston & Richard
A. Lord, A Treatise on the Law of Contracts § 30:25 (4th ed.
1999)).
The U.S. Agreement does not incorporate the rental
jacket beyond doubt and thus does not bind Plaintiffs
Alexander, Bacon, Davidson, and DeVries to the arbitration
provision contained within the jacket. First, the U.S.
Agreement does not describe the rental jacket “in such terms
that its identity may be ascertained beyond doubt.” Quinn, 983
A.2d at 617. The final paragraph of the U.S. Agreement
provides that the customer “reviewed&agreed to all
notices&terms here and in the rental jacket,” J.A. 631, 720,
784, 842, but the phrase “rental jacket” is not defined or even
used in the U.S. Agreement and is not otherwise so “specific
or identifiable” that the customer could ascertain the document
15
to which the phrase refers, Quinn, 983 A.2d at 618 (holding
that a retainer agreement stating only that the client would be
bound “by our standard billing practices and firm policies” did
not incorporate the master retainer because the purportedly
incorporating agreement provided no way to identify the
purportedly incorporated agreement, such as by document date
or publication number). In fact, the rental jacket itself is
labeled “Rental Terms and Conditions” rather than “rental
jacket.” J.A. 220, 225. Thus, the U.S. Agreement does not
sufficiently describe the rental jacket to incorporate it by
reference.
Second, there is no evidence that Plaintiffs knew about
the arbitration provision in the rental jacket when they signed
the U.S. Agreement. Indeed, “it is without dispute that
[Plaintiffs] were not shown and did not see [the rental jacket],”
Quinn, 983 A.2d at 619, until after they had signed the U.S.
Agreement and that the rental associates did not discuss any
terms contained in the rental jacket at any time.
While there is no obligation to provide a copy of a
clearly identified incorporated agreement at the time the
agreement itself is signed, the incorporated document must be
identified beyond doubt. Here, the incorporated agreement is
not so identified. Furthermore, Defendants’ contention that
the rental jacket was readily available to Plaintiffs is belied by
the undisputed facts. The rental jackets sat behind the rental
counter where the associate worked and hence not in an area
that a reasonable customer would think he had access.
Moreover, there is no evidence to indicate that Plaintiffs were
directed to the jacket that Defendants assert was incorporated
into the U.S. Agreement or were on “reasonable notice” of its
terms when they signed the U.S. Agreement. Hoffman v.
16
Supplements Togo Mgmt., LLC, 18 A.3d 210, 217 (N.J. Super.
Ct. App. Div. 2011) (holding that a party may be bound if it
has “reasonable notice” of the contract terms (quoting Caspi v.
Microsoft Network, L.L.C., 732 A.2d 528, 532 (N.J. Super. Ct.
App. Div. 1999))). “[A] party cannot be required to arbitrate
without its assent,” James v. Glob. TelLink Corp., 852 F.3d
262, 268 (3d Cir. 2017), and a party cannot assent to something
he does not know exists. Because the U.S. Agreement did not
describe the rental jacket “in such terms that its identity [could]
be ascertained beyond doubt” and Plaintiffs did not have
“knowledge of and assent[] to” the rental jacket terms when
they signed the U.S. Agreements, Quinn, 983 A.2d at 617, the
District Court properly held that Plaintiffs whose agreements
are subject to New Jersey law could not be compelled to
arbitrate.
2
We reach the same conclusion for Plaintiffs subject to
Florida law. Under that law, “where a writing expressly refers
to and sufficiently describes another document, that other
document . . . is to be interpreted as part of the writing.” OBS
Co. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla. 1990).
“Incorporation by reference, however, requires more than
simply making reference to another document in a contract.”
Jenkins v. Eckerd Corp., 913 So. 2d 43, 51 (Fl. Dist. Ct. App.
2005). Instead, “[t]o incorporate by reference a collateral
document, the incorporating document must (1) specifically
provide that it is subject to the incorporated collateral
document and (2) the collateral document to be incorporated
must be ‘sufficiently described or referred to in the
incorporating agreement’ so that the intent of the parties may
be ascertained.” BGT Grp., Inc. v. Tradewinds Engine Servs.,
17
LLC, 62 So. 3d 1192, 1194 (Fla. Dist. Ct. App. 2011)
(alteration, internal quotation marks, and citation omitted).
Although Florida law applies a more lenient test for
incorporation than New Jersey law, the rental jacket was
nonetheless not “sufficiently described” to meet Florida’s
requirement to be deemed incorporated into the U.S.
Agreement. As noted above, the rental jacket is labelled
“Rental Terms and Conditions” rather than “rental jacket.”
See BGT Grp., 62 So. 3d at 1194-95 (holding a quote for sale
of turbine parts did “not sufficiently describe” terms in a
purportedly incorporated document because the incorporating
document did not provide a specific description of them or
attach them to the quote, and thus “it cannot objectively be said
that [the party] agreed to be bound”). The U.S. Agreement also
lacked any description of where the rental jacket could be
found or what the rental jacket was. Cf. Avatar Props., Inc. v.
Greetham, 27 So. 3d 764, 766 (Fla. Dist. Ct. App. 2010)
(holding an agreement incorporated the arbitration clause in
the home warranty document where the incorporating
agreement stated that the warranty was available at the
defendant’s office); Kaye v. Macari Bldg. & Design, Inc., 967
So. 2d 1112, 1114 (Fla. Dist. Ct. App. 2007) (holding a
contract incorporated an arbitration provision where the
incorporating document listed the incorporated document and
the document number). Finally, the rental associate did not
provide the rental jacket to Plaintiffs before they signed the
U.S. Agreement, see Spicer v. Tenet Fla. Physician Servs.,
LLC, 149 So. 3d 163, 167-68 (Fla. Dist. Ct. App. 2014)
(holding a document with arbitration clause was not
incorporated because the incorporating agreement did not
describe, cite, or name the location of the purportedly
incorporated document until after plaintiff signed the
18
agreement), nor was it in a location that a customer would view
as accessible. Thus, the District Court properly held that
Plaintiffs subject to Florida law did not objectively agree to be
bound by the arbitration provision in the rental jacket.7
B
We next address whether Lee agreed to arbitrate her
claims based on the Costa Rica Agreement. Unlike Plaintiffs
who received rental jackets after they signed the U.S.
Agreement, Lee received a single-page, two-sided document at
the outset of the transaction and was asked only to review and
sign the front side. The back side had a separate unsigned
signature line and an arbitration clause.
Under New Jersey law, to be binding, a contract term
must have “been mutually agreed upon by the parties,”
Hoffman, 18 A.3d at 216, and each party must have
“reasonable notice” of the contract term, id. at 217 (quoting
Caspi, 732 A.2d at 532).
The District Court correctly concluded that a genuine
dispute exists over whether Lee was on reasonable notice of
the arbitration provision on the back side of the Costa Rica
Agreement. The front side of the Costa Rica Agreement
contains the following language immediately above the
7
Defendants contend that several district courts have
held on nearly identical facts that a rental jacket is incorporated
into a rental car agreement. These decisions are inapposite,
however, because they either arise under a different state’s
contract law or involve agreements that described the jacket
more specifically than in this case.
19
signature line: “By signing below, you agree to the terms and
conditions of this Agreement, and you acknowledge that you
have been given an opportunity to read this Agreement before
being asked to sign.” J.A. 203. This language does not direct
the customer to the back side or inform him of its terms.
See Rockel v. Cherry Hill Dodge, 847 A.2d 621, 627 (N.J.
Super. Ct. App. Div. 2004) (declining to compel arbitration
where the arbitration provision was in small print on the back
side of a document that only cautioned “in slightly larger print
on the front, that ‘important arbitration disclosures’ appear on
the reverse side”). Construing the facts in a light most
favorable to Lee, this statement, and the lack of reference to
the back side, imply that the “Agreement” consists of the text
only on the front side. Thus, the evidence does not
undisputedly show that Lee had “reasonable notice” of the
arbitration agreement on the back side of the Costa Rica
Agreement.
Furthermore, as the District Court correctly concluded,
the parties dispute whether the rental associate showed Lee the
Costa Rica Agreement in a way that would have revealed that
there was writing on the back side. Based on the video,
Defendants contend that the rental associate “told Lee that he
would give her a copy of the [Costa Rica Agreement] and then
showed her the two-sided agreement as he put it into a folder
and handed it to her.” J.A. 1374 ¶ 209. Notably, this would
have occurred after she signed the front side of the agreement.
Moreover, the video does not depict the associate presenting
Lee the back side of the document as he did with the front side,
nor did she sign the back side. In fact, the video does not depict
the associate instructing Lee to sign the back of the document
as he did with the front side. Furthermore, Lee asserts that the
associate did not explain the terms and conditions paragraph of
20
the Costa Rica Agreement, advise her that it contained an
arbitration provision, or direct her to the back side of the Costa
Rica Agreement. Based upon this evidence, a reasonable juror
might find that Lee acted in reliance on the representations of
the sales associate, which pointed her only to the terms on the
front side.
Because there are genuine disputes of fact concerning
whether Lee had reasonable notice of the back side of the Costa
Rica Agreement and its arbitration provision, the motion for
summary judgment to compel arbitration was properly denied.
C
The District Court also correctly rejected Defendants’
assertion that they provided copies of the website screenshots
that embody the layouts and the terms of the website
agreements Plaintiffs viewed when they made their rental
reservations. Because the Court lacked authenticated evidence
that would establish Plaintiffs’ assent to the terms in the
screenshots Defendants offered, it correctly declined to decide
whether the websites bound Plaintiffs to arbitrate.8
8
Plaintiffs argue that Defendants waived the
opportunity to compel arbitration based on the websites’ terms
because they did not include this ground in their initial motions
to compel arbitration. We will not enforce the waiver here.
Defendants relied on the website terms in their motion for
summary judgment and Plaintiffs did not present the waiver
argument in their opposition to Defendants’ joint motion for
summary judgment to compel arbitration. As a result, they
have waived any waiver argument on appeal. See Freeman v.
21
Facts supporting summary judgment must be capable of
being “presented in a form that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(2). “We review a district
court’s determinations concerning the admissibility of
evidence for an abuse of discretion.” Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
Authenticating evidence under Federal Rule of
Evidence 901 may be satisfied by testimony of a witness with
personal knowledge “that an item is what it is claimed to be.”
Fed. R. Evid. 901(b)(1); United States v. Bansal, 663 F.3d 634,
667 (3d Cir. 2011). Defendants offered the Certification of
Matthew Enderle, Avis Online Travel Account Manager, to
authenticate website screenshots. His certification provides
that he is “generally familiar with the terms and conditions on
Expedia.com, Hotwire.com, and Priceline.com, which [he]
review[s] and reference[s] from time to time as part of [his]
job, including during the spring and summer of 2016.” J.A.
232. Attached to the certification are screenshots of the
process for booking a rental through Expedia.com,
Hotwire.com, and Priceline.com, taken in December 2017.
Thus, the 2017 screenshots Enderle presented captured images
of websites as they existed not in 2016, when Plaintiffs made
their reservations, but rather as they were some eighteen
months later.
Pittsburgh Glass Works, LLC, 709 F.3d 240, 250 (3d Cir.
2013) (holding that defendant waived its waiver argument on
appeal where it never presented the argument to the district
court). Accordingly, the District Court correctly considered
whether those Plaintiffs agreed to arbitrate when booking on
the websites.
22
As the District Court correctly observed, Enderle did
not have “direct knowledge” about how the websites appeared
when Plaintiffs accessed them in 2016. His lack of direct
knowledge is no surprise. Enderle is an Avis employee, and
he provided only his views about websites that “were created
and maintained” by companies other than Avis without
explaining how he had personal knowledge that the website
screen shots he presented were accurate depictions of the
websites Plaintiff saw. See Thompson v. Bank of Am. Nat’l
Ass’n, 783 F.3d 1022, 1027 (5th Cir. 2015) (holding at
summary judgment that witness affidavits did not authenticate
an online log because the affidavits did not “say that [the
witnesses] have personal knowledge of the online log or that it
represents an unaltered version of the website . . . likely
because . . . th[e] log[] w[as] created and maintained by” a third
party rather than by the witnesses). Because Enderle’s
affidavit lacked the personal knowledge required for affidavits
“used to support or oppose a [summary judgment] motion,”
Fed. R. Civ. P. 56(c)(4), and he did not present the screenshots
that Plaintiffs accessed in 2016 or state that the screenshots he
produced were accurate copies of the websites as they existed
on the date Plaintiffs made their on-line reservations, the
District Court did not abuse its discretion in excluding this
evidence.
Because Defendants failed to produce admissible
evidence concerning the layouts or contents of the websites
Plaintiffs accessed, the District Court had no basis to determine
whether Plaintiffs had assented to the websites’ terms.
See James, 852 F.3d at 267 (acknowledging that whether
online terms are enforceable “often turn[s] on whether the
terms or a hyperlink to the terms are reasonably conspicuous
on the webpage” and where “terms are linked in obscure
23
sections of a webpage . . . courts have refused to find
constructive notice”). “[T]he language of the FAA
affirmatively requires the court to be ‘satisfied’ that the
arbitration agreement’s existence is not at issue,” Sandvik,
220 F.3d at 109, and the record at this stage does not provide a
basis to be so satisfied regarding the websites’ arbitration
clauses. As a result, the District Court had good grounds for
refusing to order arbitration on the evidentiary record it had.9
III
For these reasons, we will affirm.
9
We will not consider Plaintiffs’ argument that the
District Court erred in permitting Defendants to conduct
additional discovery about online assent. Plaintiffs’ argument
seeks to attack a judicial decree “with a view either to enlarging
his own rights thereunder or of lessening the rights of his
adversary.” Jennings v. Stephens, 135 S. Ct. 793, 798 (2015)
(citation omitted). Such an attack can only be pursued in a
cross appeal. Moreover, while Plaintiffs attempted to cross-
appeal this order, Appellate No. 19-1065, the cross-appeal was
properly dismissed because it was predicated on a non-
appealable interlocutory discovery order. See Cipollone v.
Liggett Grp., Inc., 785 F.2d 1108, 1116 (3d Cir. 1986)
(“Discovery orders, being interlocutory, are not normally
appealable.”). Thus, for these reasons, Plaintiffs are not
entitled to review of the discovery order as part of this appeal.
24