Guidotti v. Legal Helpers Debt Resolution, L.L.C. , 716 F.3d 764 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1170
_____________
DAWN GUIDOTTI, on behalf of herself and all
other class members similarly situated,
v.
LEGAL HELPERS DEBT RESOLUTION, L.L.C., a/k/a The
Law Firm of Macey, Aleman, Hyslip and Searns; ECLIPSE
SERVICING, INC., f/k/a Eclipse Financial, Inc.; GLOBAL
CLIENT SOLUTIONS, L.L.C.; LEGAL SERVICES
SUPPORT GROUP, L.L.C.; JG DEBT SOLUTIONS, L.L.C.;
ROCKY MOUNTAIN BANK AND TRUST OF
COLORADO SPRINGS, COLORADO; LYNCH
FINANCIAL SOLUTIONS, INC., trading as: Financial
Solutions Legal Center, Financial Solutions Consumer
Center, Financial Solutions Processing Center; JEM GROUP,
INC.; CENTURY MITIGATIONS, L.P.; LEGAL HELPERS,
P.C., trading as: The Law Firm of Macey and Aleman;
THOMAS G. MACEY; JEFFREY J. ALEMAN; JASON E.
SEARNS; JEFFREY HYSLIP; THOMAS M. NICELY;
JOEL GAVALAS; AMBER N. DUNCAN; HARRY
HEDAYA; DOUGLAS L. MCCLURE; MICHAEL
HENDRIX; JOHN DOE(S) 1-100; JIM DOE(S) 1-1000;
TOM DOE(S) 1-1000, the said names of John Doe(s), Jim
Doe(s) and Tim Doe(s) being fictitious; STEPHEN CHAYA;
RELIANT ACCOUNT MANAGEMENT, L.L.C.
GLOBAL CLIENT SOLUTIONS, L.L.C.;
ROCKY MOUNTAIN BANK AND TRUST
OF COLORADO SPRINGS, COLORADO,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 11-cv-1219)
District Judge: Hon. Jerome B. Simandle
_______________
Argued
March 5, 2013
Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.
(Filed: May 28, 2013)
_______________
Shaji M. Eapen
Morgan Melhuish Abrutyn
651 W. Mount Pleasant Avenue - #200
Livingston, NJ 07039
Richard W. Epstein
Greenspoon Marder
200 E. Broward Blvd. - #1500
Ft. Lauderdale, FL 33301
2
John H. Pelzer [ARGUED]
Greenspoon Marder
100 W. Cypress Creek Rd. - #700
Ft. Lauderdale, Fl 33309
Counsel for Appellants
Joseph M. Pinto [ARGUED]
Polino and Pinto
720 E. Main Street – Ste. 1C
Morrestown, NJ 08057
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Dawn Guidotti contracted with several parties to help
her negotiate a settlement of her consumer debt. When no
settlement materialized, she filed this putative class action
against them, claiming that she, and people like her, had been
defrauded. The United States District Court for the District of
New Jersey granted a motion to compel arbitration as to the
claims against most of the defendants, but it denied the
motion as it pertained to Rocky Mountain Bank and Trust
(“RMBT”) and Global Client Solutions (“Global”)
(collectively, the “Appellants”). With respect to those two
defendants, the Court held that the pleadings and certain
evidence adduced by Guidotti were sufficient to demonstrate
that there had been no meeting of the minds on an agreement
to arbitrate and that Guidotti‟s claims against them were
therefore not subject to arbitration.
3
Because we believe that the record before the District
Court was insufficient to prove that there was no genuine
dispute of material fact as to whether the Appellants and
Guidotti agreed to arbitrate, we will vacate and remand the
order denying arbitration. In explaining our reasoning, we
hope to clarify the standards to be applied to motions to
compel arbitration, identifying the circumstances under which
district courts should apply the standard for a motion to
dismiss, as provided by Rule 12(b)(6) of the Federal Rules of
Civil Procedure, and those under which they should apply the
summary judgment standard found in Rule 56.
I. Background
A. Facts
Guidotti sued twenty-two defendants, alleging that
they conspired to provide unlicensed debt adjustment services
in violation of the New Jersey Debt Adjustment and Credit
Counseling Act, N.J. Stat. Ann. § 17:16G-1, et seq., the New
Jersey RICO statute, N.J. Stat. Ann. § 2C:41-1, et seq., the
New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, et
seq., and various common law principles. In short, she
alleges that she was deceived into contracting with various
defendants who led her to believe that they would convince
her unsecured creditors to settle her consumer debts without
her having to declare bankruptcy. Instead, she says, the
defendants participated in a conspiracy to fleece her of her
remaining assets without negotiating with or protecting her
from her creditors. This appeal involves only two of the
defendants, RMBT and Global. Through them, Guidotti
opened a special bank account into which she automatically
4
deposited a monthly amount. Those funds were then
supposedly to be used to pay the various defendants for their
debt negotiation services, with the remaining funds to be used
to pay a negotiated settlement. RMBT was the financial
institution at which she opened the account, and Global was
the processing agent that operated the automatic transfers into
and out of the account.
To start at the beginning, however, Guidotti called
defendant JG Debt Solutions in September 2009. She had
accumulated approximately $19,550 in unsecured consumer
debt, including credit card debt, and she wanted help in
reducing or negotiating a settlement of her debt, as she hoped
to ward off bankruptcy. She spoke with defendant Joel
Gavalas, who described a “debt reduction program” through
which her “credit card debt could be cut in half and paid off
within three years.” (App. at 96.) Gavalas explained that
defendant Eclipse Servicing, Inc. (“Eclipse”), a debt
negotiation company, would evaluate her finances to
determine whether she “qualified” for the program, and that,
if she did, a payment program would be prepared for her.
(Id.)
After the initial call, Gavalas called Guidotti back and
informed her that “she had been accepted in the program” and
that Eclipse proposed two alternative plans for her. (Id.) He
informed her that under either plan she would make monthly
payments into a special bank account, and that the funds
deposited into the account would pay for the debt settlement
negotiation services and would also be used to settle her debts
with her creditors. Guidotti chose a three-year plan pursuant
to which she would pay approximately $358 per month.
Gavalas also informed her that she would be represented in
5
the debt negotiation process by attorneys from defendant
Legal Helpers Debt Resolution, LLC (“LHDR”), which calls
itself a “national law firm” (id. at 333), and by Eclipse, the
debt negotiation company with which LHDR works.
Later that same month, on September 29, 2009,
Guidotti received an email from accounts@plansvc.com, an
email domain associated with LHDR and Eclipse. The
subject line of the email read “Debt Settlement Service
Agreement,” and it contained a link that led to various online
documents maintained by a company called “DocuSign.” (Id.
at 332.) Included in the documents, Guidotti alleges, were
two documents containing offers to form separate contracts:
an attorney retainer agreement (the “ARA”) and an
application to open a Special Purpose Account with RMBT.
The application for the Special Purpose Account was called,
not surprisingly, the Special Purpose Account Application
(“SPAA”).
The ARA laid out the respective roles of LHDR and
Eclipse in the debt settlement negotiation plan, stated the fee
arrangements with LHDR and Eclipse, and limited the scope
of the representation to be provided by LHDR to only
“negotiat[ing] and attempt[ing] to enter into settlements with
creditors of [Guidotti] in an effort to modify and/or
restructure [Guidotti‟s] current unsecured debt.” (Id. at 98.)
The ARA also included an arbitration clause that provided,
inter alia, that “[i]n the event of any claim or dispute between
[Guidotti] and LHDR related to the Agreement or related to
any performance of any services related to this Agreement,
such claim or dispute shall be submitted to binding arbitration
upon the request of either party upon the service of that
request.” (Id. at 193.) Finally, the ARA contained a
6
provision specifying that Guidotti agreed to establish an
“authorized bank account” from which service fees, including
legal fees, would automatically be withdrawn on a monthly
basis, with the first payment to start on September 30, 2009,
and out of which she would eventually pay her creditors
following a negotiated settlement. (Id. at 191.)
In furtherance of that last provision of the ARA, the
collection of documents also included the SPAA, which
characterized itself as an “application” for that authorized
bank account. (Id. at 195.) Once signed, the SPAA purported
to memorialize Guidotti‟s agreement to permit RMBT,
“through its agent Global, to initiate debit entries” from her
primary checking account at TD Bank to the RMBT Special
Purpose Account in the amount of $348.68 per month, “for
the purpose of accumulating funds to repay [her] debts in
connection with a debt management program … sponsored by
[LHDR].” (Id.) The application also stated that Guidotti
agreed that Global was authorized to “periodically disburse[ ]
funds from the Account pursuant to instructions that
[Guidotti] may give from time to time.” (Id.) It also
“authorize[d] payment from the Account of the fees and
charges provided for in this Application and the Agreement.”
(Id.)
The SPAA included an acknowledgment and
agreement that read:
I understand that the Account‟s features, terms,
conditions and rules are further described in an
Account Agreement and Disclosure Statement
[the “Account Agreement”] that accompanies
this Application … . I acknowledge that I have
received a copy of the [Account Agreement];
7
that I have read and understand it; that the
[Account Agreement] is fully incorporated into
this Application [the SPAA] by reference; and
that I am bound by all of its terms and
conditions.
(Id. (emphasis in original).) According to the amended
complaint, Guidotti signed and submitted the ARA and the
SPAA on September 29, 2009.1
The SPAA referred to the Account Agreement nine
times, but it gave no indication of what that agreement
contained. Most particularly, for present purposes, the SPAA
1
The documents contained in the record do not all
corroborate Guidotti‟s assertion that she submitted the ARA
and the SPAA on September 29, 2009. It is true that the
email that purportedly conveyed a link to those documents is
dated September 29, 2009, as is her version of the
electronically signed ARA. But her version of the
electronically signed SPAA is dated September 30, 2009.
Those discrepancies are minor compared to the ones
contained in the documents supplied by the Appellants. Their
version of the ARA is dated September 22, 2009, and their
two versions of the SPAA are dated September 22, 2009, and
September 30, 2009. The Appellants did not provide any
copy of the DocuSign email. Because no party has
endeavored to explain these discrepancies, and given our
conclusion that, under the circumstances here, a summary
judgment standard of review applies to the Appellants‟
motion to compel arbitration, see infra Part II.B.2, we treat
the chronology represented in Guidotti‟s amended complaint
as accurate.
8
did not indicate that the Account Agreement had the
following arbitration clause:
In the event of a dispute or claim relating in any
way to this Agreement or our services, you
agree that such dispute shall be resolved by
binding arbitration in Tulsa Oklahoma utilizing
a qualified independent arbitrator of Global‟s
choosing. The decision of an arbitrator will be
final and subject to enforcement in a court of
competent jurisdiction.
(Id. at 185.) The dispositive dispute before the District Court
was whether the Account Agreement was included in the
initial package of documents emailed to Guidotti in
September 2009. The Appellants say that it was, but Guidotti
contends that it was not provided to her until later, when she
received it in the mail along with a “welcome” letter on
October 19, 2009 (App. at 342), three weeks after opening the
special bank account and depositing her first monthly
payment. If the facts are as the Appellants claim, then
presumably Guidotti had knowledge of and assented to the
arbitration clause contained in the Account Agreement at the
time she signed and submitted the SPAA. If her version is
true, then she can credibly argue that she did not assent to
arbitration and is not bound by that provision.
Guidotti‟s first payment to the Special Purpose
Account was made on September 30, 2009. Over the course
of the following 15 months, she deposited into the account a
total of $5,626.97. After fees to LHDR and Eclipse were
deducted, Guidotti was left with only $1,090.47 as of
November 30, 2010.
9
During the fifteen months that Guidotti made the
monthly payments, she did not pay anything on her credit
cards or other debts, in accordance with what she says was
her understanding of the debt settlement negotiation plan.2
She received multiple calls and settlement offers from her
creditors, all of which she forwarded to LHDR, expecting that
they would address and negotiate a settlement of the
accounts. None of her debts were settled, however, and she
observed no negotiation efforts undertaken by LHDR or
Eclipse.
Throughout 2010, Guidotti received increasingly dire
communications from her creditors, eventually resulting in
three of her four creditors suing to recover sums owed. When
she requested LHDR‟s assistance with a suit for recovery
filed by Target National Bank, Eclipse responded by noting
that the ARA was not intended to cover defending Guidotti
from suits, “but rather to manage and settle debts.” (Id. at
101.) Guidotti‟s final payment to the Special Purpose
Account was made by cashier‟s check in December 2010
because one of her creditors levied the remaining funds in her
TD Bank checking account.
B. Procedural History
2
In her amended complaint, Guidotti claimed that “[i]f
the customer asked [defendant JG Debt Solutions] if they
[sic] should make their minimum payments, they were told
that if they did, it would interfere with the negotiation process
and make it harder to negotiate.” (App. at 110.)
10
Guidotti filed a putative class action in the Superior
Court of New Jersey, Burlington County, on January 28,
2011. Defendant LHDR removed the action to the District
Court on March 4, 2011, and Guidotti then filed the now
operative pleading, her amended complaint, on March 17,
2011. Shortly thereafter, on March 23, 2011, thirteen of the
twenty-two defendants, including the Appellants, filed two
separate motions to compel arbitration, and the remaining
defendants either filed motions to stay the action pending
arbitration or later sought to join the motions to stay. On
December 20, 2011, the District Court ordered the matter to
be sent to arbitration, based on the motion filed by LHDR,
Eclipse, and others, holding that the ARA‟s arbitration clause
is “valid and enforceable.” Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 866 F. Supp. 2d 315, 329 (D.N.J. 2011).
The District Court did not, however, grant the motion
to compel arbitration filed by RMBT and Global. In her
response to that motion, Guidotti had attached copies of the
SPAA, the ARA, and the Account Agreement. She noted that
the SPAA and the ARA each contained headers bearing the
name “DocuSign,” indicating that they came from the
DocuSign website linked to the email she had received. Id. at
333. In contrast, the Account Agreement did not bear a
similar header, so Guidotti argued that it had not been
provided to her in that September 29, 2009 email. Id.
Based on that evidence and also on the belief that the
Appellants had, in four earlier cases from other jurisdictions,
provided the Account Agreement to similarly situated
plaintiffs only after those other plaintiffs had signed and
submitted the SPAA, the District Court concluded that “the
record is sufficient to establish that [Guidotti] did not receive
11
the [Account Agreement] in her initial collection of
documents sent via e-mail … .” Id. Without requiring or
permitting discovery on the matter, the Court held that
Guidotti “d[id] not appear to have had knowledge of and
assented to the incorporated terms.” Id. 336 (internal
quotation marks omitted).
The Appellants then sought our review of the denial of
their motion to compel arbitration.
II. Discussion3
3
The District Court had jurisdiction under the Class
Action Fairness Act, 28 U.S.C. § 1332(d)(2). Although, as
the District Court acknowledged, complete diversity does not
exist, Guidotti, 866 F. Supp. 2d at 321 n.1, complete diversity
is not required under § 1332(d)(2) as long as, pertinent to this
case, “the matter in controversy” is “a class action,” the
aggregate amount in controversy “exceeds the sum or value
of $5,000,000,” and “any member of a class of plaintiffs is a
citizen of a State different from any defendant.” 28 U.S.C.
§ 1332(d)(2)(A). Each of those requirements is met in this
case.
The District Court also had jurisdiction to decide the
motion to compel arbitration under the FAA, which provides:
A party aggrieved by the alleged failure,
neglect, or refusal of another to arbitrate under a
written agreement for arbitration may petition
any United States district court which, save for
such agreement, would have jurisdiction under
title 28, in a civil matter … of the subject matter
of a suit arising out of the controversy between
12
A. Standard for Evaluating Motions to Compel
Arbitration
Because “[a]rbitration is a matter of contract between
the parties,” a judicial mandate to arbitrate must be predicated
upon the parties‟ consent. Par-Knit Mills, Inc. v. Stockbridge
Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980). The
Federal Arbitration Act (the “FAA”), 9 U.S.C. § 1, et seq.,
enables the enforcement of a contract to arbitrate, but requires
that a court shall be “satisfied that the making of the
agreement for arbitration … is not in issue” before it orders
arbitration. Id. § 4. “In the event that the making of the
arbitration agreement is in issue, then „the court shall proceed
summarily to the trial‟ of that issue.” Par-Knit Mills, 636
F.2d at 54 (quoting 9 U.S.C. § 4). “[T]he party who is
contesting the making of the agreement has the right to have
the issue presented to a jury.” Id.
Our precedents are not entirely clear on the standard
for district courts to apply when determining whether, in a
the parties, for an order directing that such
arbitration proceed in the manner provided for
in such agreement.
9 U.S.C. § 4.
We have jurisdiction to review a district court‟s denial
of a motion to compel arbitration under 9 U.S.C.
§ 16(1)(1)(B). See also Quilloin v. Tenet HealthSystem
Phila., Inc., 673 F.3d 221, 227-28 (3d Cir. 2012) (court of
appeals has jurisdiction to review a district court order
denying motion to compel arbitration even if the motion was
denied without prejudice).
13
specific case, an agreement to arbitrate was actually reached.
The issue typically arises when one of the parties files a
motion to compel arbitration. Some of our cases “support the
traditional practice of treating a motion to compel arbitration
as a motion to dismiss for failure to state a claim upon which
relief can be granted,” under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Palcko v. Airborne Express, Inc.,
372 F.3d 588, 597 (3d Cir. 2004). We have also said,
however, that “when considering a motion to compel
arbitration … [a district court] should” employ “the standard
used … in resolving summary judgment motions pursuant to
[Rule 56 of the Federal Rules of Civil Procedure].” Par-Knit
Mills, 636 F.2d at 54 & n.9; see also Kaneff v. Del. Title
Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009) (“A district
court decides a motion to compel arbitration under the same
standard it applies to a motion for summary judgment.”). In
this case, the District Court did not identify the standard it
employed to analyze the Appellants‟ motion to compel
arbitration. It simply said that, although there had been no
discovery, the record was “sufficient to establish that
[Guidotti] did not receive the [Account Agreement] in her
initial collection of documents sent via e-mail,” and that
therefore there had been no agreement to arbitrate. Guidotti,
866 F. Supp. 2d at 333.
“We exercise plenary review over questions regarding
the validity and enforceability of an agreement to arbitrate,”
Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir.
2010), and we are first obliged to determine which standard
should have been applied, cf. Exxon Shipping Co. v. Exxon
Seamen’s Union, 73 F.3d 1287, 1291 (3d Cir. 1996) (“[W]e
apply the same standard the district court should have applied
in reviewing the arbitration award.” (citation omitted)).
14
Answering that question is of utmost importance because the
two standards differ in significant ways. The test in
reviewing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) is whether, under any “plausible” reading
of the pleadings, the plaintiff would be entitled to relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). We
will affirm a district court‟s dismissal for failure to state a
claim “only if, accepting all factual allegations as true and
construing the complaint in the light most favorable to the
plaintiff, we determine that the plaintiff is not entitled to relief
under any reasonable reading of the complaint.” McGovern
v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009). We
“consider only the complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly
authentic documents if the complainant‟s claims are based
upon these documents,” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010).
Under Rule 56, by contrast, a “court shall grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party asserting that there is a genuine dispute of
material fact must support that assertion by “citing to
particular parts of … the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations …, admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In
evaluating the motion, “the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000). Because summary judgment can be supported or
15
defeated by citing a developed record, courts must give the
parties “adequate time for discovery.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In short, “[b]oth the burden on the non-moving party
and the documents available to that party … differ
significantly under the motion to dismiss and summary
judgment standards.” Somerset Consulting, LLC v. United
Capital Lenders, LLC, 832 F. Supp. 2d 474, 479 (E.D. Pa.
2011).4 Under the standard applied to a motion to dismiss, a
“defendant need only shoulder a single burden – to show that
the complaint fails to state a claim.” Id. To combat the
motion, the plaintiff typically “can rely only on the complaint
and selected other documents.” Id. Under a summary
judgment standard, however, “a burden-shifting framework
applies,” id., pursuant to which the moving party bears the
initial burden of showing that the non-movant has failed to
establish one or more essential elements of its case, and, once
that initial burden is met, the non-moving party must “go
beyond the pleadings and by her own affidavits, or by the
„depositions, answers to interrogatories, and admissions on
file,‟ designate „specific facts showing that there is a genuine
issue for trial.‟” Celotex, 477 U.S. at 324 (quoting Fed. R.
Civ. P. 56(e)). A party opposing a motion for summary
judgment has significantly more material at his disposal than
when opposing a motion to dismiss, given that he may cite
evidence gained during discovery.
4
Much of our analysis here is drawn from the
insightful opinion in Somerset Consulting written by the
Honorable Stewart R. Dalzell of the United States District
Court for the Eastern District of Pennsylvania.
16
Our inconsistent pronouncements on the applicable
standard for evaluating motions to compel arbitration are
perhaps explained by the competing purposes of the FAA,
and by the values underlying contract interpretation. On one
hand, the FAA places considerable emphasis on “efficient and
speedy dispute resolution.” Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 221 (1985); see also Prima Paint Corp.
v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967)
(remarking on “the unmistakably clear congressional purpose
that the arbitration procedure, when selected by the parties to
a contract, be speedy and not subject to delay and obstruction
in the courts”). The Supreme Court has explained that, in
pursuit of that goal, the FAA “calls for a summary and speedy
disposition of motions or petitions to enforce arbitration
clauses.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 29 (1983). On the other hand, speed is not
the sole or even the dominant goal of the FAA. The Supreme
Court has identified the “enforcement of private agreements,”
as another important aim, Dean Witter, 470 U.S. at 221, and it
has “reject[ed] the suggestion that the overriding goal of the
Arbitration Act was to promote the expeditious resolution of
claims,” id. at 219.
The significant role courts play in interpreting the
validity and scope of contract provisions applies an additional
brake on the FAA‟s speed impulse. Although the FAA
manifests “a congressional declaration of a liberal federal
policy favoring arbitration agreements,” Moses H. Cone, 460
U.S. at 24, “questions of arbitrability, including challenges to
an arbitration agreement‟s validity, are presumed to be
questions for judicial determination,” Quilloin v. Tenet
HealthSystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012);
see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,
17
944 (1995) (“Courts should not assume that the parties agreed
to arbitrate arbitrability unless there is „clea[r] and
unmistakabl[e]‟ evidence that they did so.” (alterations in
original) (quoting AT&T Techs., Inc. v. Commc’ns Workers of
Am., 475 U.S. 643, 649 (1986))). Accordingly, “[b]efore a
party to a lawsuit can be ordered to arbitrate and thus be
deprived of a day in court, there should be an express,
unequivocal agreement to that effect.” Par-Knit Mills, 636
F.2d at 54.
Viewed in light of those competing goals, our split
pronouncements on the standard for deciding a motion to
compel arbitration are reconcilable. “[W]here the affirmative
defense of arbitrability of claims is apparent on the face of a
complaint (or … documents relied upon in the complaint),”
Somerset, 832 F. Supp. 2d at 481, “the FAA would favor
resolving a motion to compel arbitration under a motion to
dismiss standard without the inherent delay of discovery,” id.
at 482. That approach appropriately fosters the FAA‟s
interest in speedy dispute resolution. In those circumstances,
“[t]he question to be answered … becomes whether the
assertions of the complaint, given the required broad sweep,
would permit adduction of proofs that would provide a
recognized legal basis” for rejecting the affirmative defense.
Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir.
1979).
In many cases, however, a more deliberate pace is
required, in light of both the FAA‟s insistence that private
agreements be honored and the judicial responsibility to
interpret the parties‟ agreement, if any, to arbitrate. Thus, a
Rule 12(b)(6) standard is inappropriate when either “the
motion to compel arbitration does not have as its predicate a
18
complaint with the requisite clarity” to establish on its face
that the parties agreed to arbitrate, Somerset, 832 F. Supp. 2d
at 482, or the opposing party has come forth with reliable
evidence that is more than a “naked assertion … that it did
not intend to be bound” by the arbitration agreement, even
though on the face of the pleadings it appears that it did. Par-
Knit Mills, 636 F.2d at 55. Under the first scenario,
arbitrability not being apparent on the face of the complaint,
the motion to compel arbitration must be denied pending
further development of the factual record. The second
scenario will come into play when the complaint and
incorporated documents facially establish arbitrability but the
non-movant has come forward with enough evidence in
response to the motion to compel arbitration to place the
question in issue. At that point, the Rule 12(b)(6) standard is
no longer appropriate, and the issue should be judged under
the Rule 56 standard. See id. (judging motion to compel
arbitration under summary judgment standard where plaintiff
presented “[a]n unequivocal denial that the agreement had
been made, accompanied by supporting affidavits”).
Under either of those scenarios, a “restricted inquiry
into factual issues” will be necessary to properly evaluate
whether there was a meeting of the minds on the agreement to
arbitrate, Moses H. Cone, 460 U.S. at 22, and the non-movant
“must be given the opportunity to conduct limited discovery
on the narrow issue concerning the validity” of the arbitration
agreement, Deputy v. Lehman Bros., Inc., 345 F.3d 494, 511
(7th Cir. 2003).5 In such circumstances, Rule 56 furnishes the
5
Pre-arbitration discovery has been held necessary in
other contexts. In Green Tree Financial Corp.-Alabama v.
Randolph, 531 U.S. 79 (2000), the Supreme Court
19
“established the right of a claimant to invoke discovery
procedures in the pre-arbitration proceeding in order to assist
the claimant in meeting her burden of showing the likelihood
[that arbitration will] bear[] prohibitive costs.” Blair v. Scott
Specialty Gases, 283 F.3d 595, 608-09 (3d Cir. 2002).
“Arbitration costs are directly related to a litigant‟s ability to
pursue [a] claim,” id. at 605, because “„the existence of large
arbitration costs could preclude a litigant … from effectively
vindicating her federal statutory rights in the arbitral forum,‟”
id. (alteration in original) (quoting Green Tree, 531 U.S. at
90). The plaintiff in Green Tree had argued that she would be
unable to vindicate her statutory rights in arbitration because
“the arbitration agreement‟s silence with respect to costs and
fees create[d] a „risk‟ that she [would] be required to bear
prohibitive arbitration costs if she pursue[d] her claims in an
arbitral forum.” Green Tree, 531 U.S. at 90. Discussing
Green Tree in Blair v. Scott Specialty Gases, we stated that,
“[a]lthough discovery is ordinarily not undertaken at such an
early stage of a proceeding that is governed by an arbitration
agreement, there is language in the Supreme Court‟s opinion
faulting the claimant for not presenting evidence „during
discovery,‟” Blair, 283 F.3d at 609 (quoting Green Tree, 531
U.S. at 92), and we noted that, during oral argument before it,
“the Supreme Court assumed that discovery was available,”
Id. In Blair, the plaintiff argued that a fee-splitting provision
in the arbitration agreement would similarly prevent her from
vindicating her statutory rights. Id. at 605. The need for
discovery in that context is apparent, we said, because,
“[w]ithout some discovery, albeit limited to the narrow issue
of the estimated costs of arbitration and the claimant‟s ability
to pay, it is not clear how a claimant could present
information on the costs of arbitration,” or “how the
20
defendant could meet its burden to rebut the claimant‟s
allegation that she cannot afford to share the cost.” Id.
Pre-arbitration discovery has also been allowed to
determine whether an arbitration clause is unconscionable.
See, e.g., Parilla v. IAP Worldwide Servs., V.I., Inc., 368 F.3d
269, 284 (3d Cir. 2004) (remanding for “the development of a
record” on whether the reasonably anticipated costs of
arbitration and the plaintiff‟s financial situation would make
arbitration prohibitively expensive, because “an arbitration
provision that makes the arbitral forum prohibitively
expensive for a weaker party is unconscionable”). In
addition, it has commonly been allowed to determine whether
an agreement to arbitrate has been formed. See, e.g.,
SBRMCOA, LLC v. Bayside Resort, Inc., 707 F.3d 267, 272-
73 (3d Cir. 2013) (holding that “additional discovery [was]
warranted” on the issue of whether the plaintiff‟s board acted
ultra vires when it signed an agreement containing an
arbitration clause); Deputy v. Lehman Bros., Inc., 345 F.3d
494, 511 (7th Cir. 2003) (holding that the defendant “must be
given the opportunity to conduct limited discovery on the
narrow issue concerning the validity of [the plaintiff‟s]
signature” in arbitration agreement); Application of
Deiulemar Compagnia Di Navigazione S.p.A. v. M/V Allegra,
198 F.3d 473, 482 (4th Cir. 1999) (“Rule 81 [of the Federal
Rules of Civil Procedure] … would authorize a district court,
in enforcing an arbitration agreement, to „order discovery
pursuant to Fed. R. Civ. P. 26 on matters relevant to the
existence of an arbitration agreement.‟” (quoting Champ v.
Siegel Trading Co., Inc., 55 F.3d 269, 276 (7th Cir. 1995)));
Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir.
1999) (“The FAA provides for discovery and a full trial in
connection with a motion to compel arbitration only if „the
21
correct standard for ensuring that arbitration is awarded only
if there is “an express, unequivocal agreement to that effect.”
Par-Knit Mills, 636 F.2d at 54.6
making of the arbitration agreement or the failure, neglect, or
refusal to perform the same be in issue.‟” (quoting 9 U.S.C.
§ 4)). Given that “[t]he burden of proving a generally
applicable contract defense lies with the party challenging the
contract provision,” Lloyd v. HOVENSA, LLC., 369 F.3d 263,
274 (3d Cir. 2004), the need for discovery in these types of
situations is evident. Indeed, any time the court must make a
finding to determine arbitrability, pre-arbitration discovery
may be warranted. See, e.g., Sandvik AB v. Advent Int’l
Corp., 220 F.3d 99, 112 (3d Cir. 2000) (holding that “when
the very existence of … an [arbitration] agreement is
disputed, a district court is correct to refuse to compel
arbitration until it resolves the threshold question of whether
the arbitration agreement exists”).
6
The conversion of the standard for reviewing a
motion to compel arbitration mirrors the process provided by
Rule 12(d) for converting a motion to dismiss to a motion for
summary judgment. That rule provides that “[i]f, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56,”
and “[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.” Fed.
R. Civ. P. 12(d). Once the motion is converted to a motion
for summary judgment, reasonable allowance must be made
for the parties to obtain discovery. See E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th
Cir. 2011) (“Such conversion is not appropriate where the
parties have not had an opportunity for reasonable
22
To summarize, when it is apparent, based on “the face
of a complaint, and documents relied upon in the complaint,”
that certain of a party‟s claims “are subject to an enforceable
arbitration clause, a motion to compel arbitration should be
considered under a Rule 12(b)(6) standard without
discovery‟s delay.” Somerset, 832 F. Supp. 2d at 482. But if
the complaint and its supporting documents are unclear
regarding the agreement to arbitrate, or if the plaintiff has
responded to a motion to compel arbitration with additional
facts sufficient to place the agreement to arbitrate in issue,
then “the parties should be entitled to discovery on the
question of arbitrability before a court entertains further
briefing on [the] question.” Id. After limited discovery, the
court may entertain a renewed motion to compel arbitration,
this time judging the motion under a summary judgment
standard. In the event that summary judgment is not
warranted because “the party opposing arbitration can
demonstrate, by means of citations to the record,” that there is
“a genuine dispute as to the enforceability of the arbitration
clause,” the “court may then proceed summarily to a trial
regarding „the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same,‟ as Section 4
of the FAA envisions.” Id. (quoting 9 U.S.C. § 4).
B. Application to This Case
1. Clarity of the Pleadings
discovery.”). Otherwise, weighing the new factual assertions
against the facts pleaded in the complaint would “invite[]
courts to consider facts and evidence that have not been tested
in formal discovery.” Pfeil v. State St. Bank and Trust Co.,
671 F.3d 585, 594 (6th Cir. 2012).
23
The Appellants contend that Guidotti‟s complaint was
sufficiently clear to establish that she received, and agreed to
the terms of, the Account Agreement when she signed the
SPAA. They base that contention on language from the
complaint itself and on the SPAA, which is a document cited
extensively in the complaint. First, they argue that, by stating
in her complaint that she received by email “a Special
Purpose Account application [the SPAA], and account
agreement establishing a Special Purpose Account” (App. at
97), Guidotti “affirmatively alleged,” “[b]y the use of the
comma, and the conjunction „and‟ between the designation of
the „Special Purpose Account application‟ and the „account
agreement,‟” that she received both the SPAA and the
Account Agreement in the same email. (Appellants‟ Opening
Br. at 15-16.) Second, they note that the SPAA, which
Guidotti signed and submitted on September 29, 2009, states
that the Special Purpose Account‟s “features, terms,
conditions and rules are further described in an Account
Agreement and Disclosure Statement that accompanies this
Application.” (App. at 183.) The next sentence provides (in
italics and bold), “I acknowledge that I have received a copy
of the [Account] Agreement; that I have read and understood
it; that the [Account] Agreement is fully incorporated into this
Application by reference; and that I am bound by all of its
terms and conditions.” (Id.) According to the Appellants, the
SPAA is “a signed, contemporaneous document” that
establishes that Guidotti received the Account Agreement at
the same time as the SPAA, and that she therefore was
cognizant of, and assented to, binding arbitration.
(Appellants‟ Opening Br. at 14.) Thus, our first task is to
determine whether the complaint and the SPAA, which is
relied upon in the complaint, establish on their face that
24
Guidotti agreed to be bound by the terms of the Account
Agreement, including its provision for arbitration, thereby
triggering a Rule 12(b)(6) standard.
In that regard, the Appellants make a compelling case.
It is true, as the District Court concluded, that Guidotti‟s
“vague reference to „agreement‟ in the Amended Complaint
… does not clearly contradict” a finding that she was not
emailed the Account Agreement, because “the sentence could
be interpreted to mean that [Guidotti] was characterizing the
„Special Purpose Account‟ document as both an application
and an agreement, which she signed and returned.” Guidotti,
866 F. Supp. 2d at 333. But her signed acknowledgment of
receipt of the Account Agreement and her acceptance of its
terms is unequivocal. The signed SPAA states on its face that
Guidotti “received a copy” of the Account Agreement, that
she “read and understood it,” and that she knew she was
“bound by all of its terms and conditions.” (App. at 183
(emphasis omitted).) Under the Rule 12(b)(6) standard, there
would be no reading of the complaint, no matter how friendly
to Guidotti, that could rightly relieve her of the arbitration
provision in the Account Agreement, if the complaint were
the only document in play. But it is not the only relevant
document, and Guidotti‟s evidence cannot be ignored.
2. Guidotti’s Assertion That She Did Not
Intend to Be Bound by the Terms of the
Account Agreement
Despite her signed acknowledgment, Guidotti asserts
that in reality the Account Agreement was not supplied to her
and she accordingly was unaware of its arbitration provision,
until she received it in the mail on October 19, 2009, three
25
weeks after she had submitted the SPAA. She thus argues
that she did not agree to, and cannot be bound by, the
provisions of the Account Agreement, because she did not see
them at the time she agreed to the contract and there was no
meeting of the minds on the agreement to arbitrate.
The Appellants repeatedly insist that, in the words of
Par-Knit Mills, Guidotti‟s denial in the face of the SPAA‟s
acknowledgment of receipt of the Account Agreement is a
mere “naked assertion” that she “did not intend to be bound
by the terms” of the Account Agreement. Par-Knit Mills, 636
F.2d at 55. As such, they argue, it is “insufficient to place in
issue the „making of the arbitration agreement‟” under the
FAA, id., and the District Court should have granted without
further delay the motion to compel arbitration.
But contrary to the Appellants‟ emphatic position,
Guidotti‟s denial is not entirely unsupported. Rather, she
pointed out to the District Court, and has noted again on
appeal, that the one-page SPAA and every page of the ARA,
each supplied separately by her and the Appellants, have an
encoded “DocuSign” header line, but that the Account
Agreement, which was also provided by both sides, does not
have it. From that evidence, she argues that the documents
that contain the header – the ARA and the SPAA – were sent
to her by email on September 29, 2009, with the intent that
she would sign and return them, while the document that does
not contain the header – the Account Agreement – was only
later mailed to her on October 19, 2009. The question, then,
is whether that evidence is sufficient to move the case beyond
the pleadings and warrant the application of the summary
judgment standard, with its accompanying call for discovery
26
and perhaps a limited trial if a genuine issue of material fact
emerges.
To answer that, we look to Par-Knit Mills. The
contract at issue in that case had “a space designated for
signature entitled „Buyer‟s Acceptance.‟” Par-Knit Mills,
636 F.2d at 52. The documents also contained a paragraph
“entitled „Arbitration‟ [that] clearly stated, albeit in small
print, that any claim arising out of the contract or the
merchandise covered thereby shall be submitted to and
determined by arbitration.” Id. at 53. The parties “agree[d]
that there had been no prior oral discussions or agreements
regarding arbitration.” Id. In addition, the plaintiff, Par-Knit
Mills, admitted that one of its plant production managers
signed the Buyer‟s Acceptance. Id. It asserted, however, that
the production manager “signed the documents as
confirmation only of the delivery dates contained therein, and
that Par-Knit Mills never intended to bind itself to the clauses
contained in the confirmations.” Id. In other words, Par-Knit
Mills “claim[ed] that there was never a „meeting of the
minds‟ on the terms and conditions contained in the
confirmations and that absent such agreement, there can be no
duty to arbitrate,” notwithstanding the production manager‟s
signature. Id.
As support, Par-Knit Mills argued that the production
manager lacked the authority to execute contracts on behalf of
the corporation and that the corporation therefore could not be
bound by his signature, “no matter how clearly the document
was labeled.” Id. at 55. It also presented a sworn affidavit of
the production manager asserting that it was not his intention
to confirm all provisions of the contract, but merely to affirm
the dates of delivery. Id. at 54. Under those circumstances,
27
we held, “it is for a jury and not the court” to determine
whether the parties agreed to arbitrate. Id. at 55.
In so holding, we recognized that our ruling “may run
contrary to the general policy of encouraging the arbitration
of disputes,” id., and we contemplated the possibility of
parties trying to dodge their obligations. For example, “[a]
party may, in an effort to avoid arbitration, contend that it did
not intend to enter into the agreement which contained an
arbitration clause.” Id. Such “[a] naked assertion … by a
party to a contract that it did not intend to be bound by the
terms [of an arbitration clause],” we reasoned, would be
“insufficient to place in issue the „making of the arbitration
agreement‟” for purposes of the FAA. Id. But we did not
want to cut off legitimate disputes over an alleged agreement
to arbitrate when there has been “[a]n unequivocal denial that
the agreement had been made, accompanied by supporting
affidavits … [;] in most cases [that] should be sufficient to
require a jury determination on whether there had in fact been
a „meeting of the minds.‟” Id. (citation omitted).
We find further support for that conclusion in Kirleis
v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156 (3d Cir.
2009), a case in which we examined whether a lawyer had
agreed to an arbitration provision contained in her firm‟s
bylaws. She alleged in a sworn affidavit that she “was never
provided with a copy of the By-Laws of defendant Firm,” had
“never signed any agreement or document which refers to or
incorporates the arbitration provision in the By-Laws,” and
had “never agreed to arbitrate … claims against Firm.” Id. at
159-60. Although the law firm did not “submit[]
contradictory evidence showing that Kirleis had received the
bylaws or had signed them,” we noted that, even if it had,
28
“the task of weighing the evidence and choosing which side
to believe would have been for a jury.” Id. at 161-62 (citing
Par-Knit Mills, 636 F.2d at 54). “Accordingly,” we held,
“Kirleis‟s allegations create a genuine issue of fact as to the
existence of an agreement to arbitrate.” Id. at 162.
It is true that, unlike the plaintiffs in Par-Knit Mills
and Kirleis, Guidotti has not produced any affidavits to
support her claim that she did not receive the Account
Agreement until October 2009. Had she done so – had she
sworn in an affidavit that she did not receive that agreement
until three weeks after signing and returning the SPAA, for
example – the facts of this case would be very similar to Par-
Knit Mills and Kirleis, and we could more easily find that she
had come forward with enough evidence to move beyond the
pleadings and trigger the application of the summary
judgment standard to determine whether there was a meeting
of the minds on the agreement to arbitrate. But, even without
an affidavit, the evidence concerning the DocuSign headers is
not insubstantial. If Guidotti is correct that any document
linked in the email that also linked to the SPAA would, like
the SPAA, have a DocuSign header, then the fact that neither
party has furnished a version of the Account Agreement
bearing a DocuSign header is significant. We accordingly
hold that Guidotti came forth with enough evidence in
response to the Appellants‟ arbitration motion to trigger,
pursuant to Par-Knit Mills and Kirleis, the summary
judgment standard found in Rule 56 of the Federal Rules of
Civil Procedure.
3. Genuine Issue of Material Fact
29
Although Guidotti‟s proffer of evidence placed in issue
the parties‟ agreement to arbitrate, the District Court did not
order discovery on the question, but instead “conclude[d],” on
the very limited evidence before it, “that the record is
sufficient to establish that [Guidotti] did not receive the
[Account Agreement] in her initial collection of documents
sent via e-mail.” Guidotti, 866 F. Supp. 2d at 333. Stated
differently, the Court held that, despite Guidotti‟s own
signature on a document acknowledging receipt of the
Account Agreement, the Appellants had not put forth enough
evidence to establish even a genuine dispute of material fact
on whether she had received that agreement and hence had
notice of the arbitration clause. Instead, the Court summarily
found that Guidotti had not received it until weeks after she
had signed and returned the SPAA and thereby formed the
contract.
The Court arrived at its conclusion for two reasons, it
seems. First, it apparently accepted Guidotti‟s argument that
the emailed documents contained a DocuSign header, but the
Account Agreement did not, and that the implication of that
difference was highly significant. Second, and perhaps most
convincing to the Court, it found support for Guidotti‟s
assertion in four cases from other jurisdictions in which the
same parties who appear before us now as the Appellants
purportedly provided customers with the same form of
Account Agreement only after those customers had already
signed the SPAA. Specifically, the Court cited Carlsen v.
Global Client Solutions, LLC, 423 F. App‟x 697 (9th Cir.
2011) (nonprecedential), Davis v. Global Client Solutions,
LLC, 2011 WL 4738547, at *1 (W.D. Ky. Oct. 7, 2011)
(unreported), Webster v. Freedom Debt Relief, LLC, No.
1:10CV1587, 2011 WL 3422872 (N.D. Ohio Aug. 4, 2011)
30
(unreported), and Festa v. Capital One Bank, ATL-L-4851-10
(N.J. Super. Ct. Law Div. Apr. 21, 2011) (unreported).
Believing the factual circumstances of those cases to match
Guidotti‟s assertion that she did not receive the Account
Agreement until after she had already signed and submitted
the SPAA, the District Court noted that “Defendants Global
and RMBT seem to be accustomed to making this argument
that the late-arriving conditions in the [Account Agreement]
should bind the consumer, perhaps because they so frequently
fail to send a copy of the [Account Agreement] until after the
consumer/debtor has already committed to its terms via the
incorporation clause in the SPAA.” Guidotti, 866 F. Supp. 2d
at 335 n.7. The Court even indicated that it could find that
business practice “unconscionable” because, “based only on
the cases cited by the Parties in this dispute, Plaintiff Guidotti
appears to be the fifth customer so treated by these
Defendants.” Id. at 336 n.8.
Unlike the District Court, we are persuaded that a
genuine issue of material fact remains regarding the
agreement to arbitrate. We do not agree, in other words, that,
based on her unsworn claim that the Account Agreement did
not accompany the package of documents originally emailed
to her in September 2009, and based further on the cases
relied on by the District Court, Guidotti was entitled to
summary judgment on the question of whether the parties had
agreed to arbitrate.
Although it is true that neither side has come forth
with a version of the Account Agreement that contains the
DocuSign header, there has been no showing that all
documents provided in the link included in the September
2009 email must necessarily contain the header. Said
31
differently, we have no way of knowing whether some of the
documents provided in the email link could have borne the
DocuSign header (the ARA and the SPAA, for example)
while others did not (perhaps the Account Agreement). The
headers certainly cast doubt on the proposition that the
Account Agreement was included in the original email, but
they do not establish that fact outright. Presumably, limited
discovery regarding the email would have cleared up the issue
– either the emailed link contained the Account Agreement or
it did not – but given that no discovery has taken place, any
summary conclusion is unwarranted.
In addition, the cases from other jurisdictions that
involved the Appellants are less compelling in our view than
they were to the District Court. Indeed, in two of those cases,
the courts found that the customer had timely received the
Account Agreement and granted the respective motions to
compel arbitration. See Davis, 2011 WL 4738547, at *1
(holding that plaintiff had agreed to be bound by the terms of
the Account Agreement by signing a second SPAA after
receiving the Account Agreement); Webster, 2011 WL
3422872, at *2 (granting motion to compel arbitration and
adopting the reports and recommendations of the magistrate
judge, including a finding that the plaintiff received a copy of
the Account Agreement with the SPAA).7
7
In the other two cases, the courts did find that the
Account Agreement was provided only after the contractual
agreement had commenced with the signing of the SPAA.
See Carlsen v. Global Client Solutions, LLC, 423 F. App‟x
697, 698-99 (9th Cir. Mar. 21, 2011) (holding that plaintiffs
had not agreed to arbitrate because the SPAA did not contain
an arbitration clause and because the Account Agreement was
32
Thus, the District Court should not have denied the
Appellants‟ motion to compel arbitration without first
allowing limited discovery and then entertaining their motion
under a summary judgment standard. If, after presentation of
the evidence uncovered during discovery, a genuine dispute
of material fact remained, the Court then should have
submitted to a jury (if either party demanded one) the factual
question of whether Guidotti was aware of the arbitration
clause in the Account Agreement at the time she signed and
submitted the SPAA.8
III. Conclusion
not available to the plaintiffs when they signed the SPAA);
Capital One Bank v. Festa, C.A. No. ATL-L-4851-10 (N.J.
Super. Ct. Law Div. Apr. 21, 2011) (finding that customer did
not receive the Account Agreement until two weeks after
signing the SPAA).
8
In their briefing, the Appellants asserted in the
alternative that “[e]ven if the [Account Agreement] was
omitted from the package that was e-mailed to Guidotti” on
September 29, 2009, the arbitration clause is still enforceable.
(Appellants‟ Opening Br. at 16.) At oral argument, however,
counsel for the Appellants stated that, if this Court were to
vacate the District Court‟s order and remand for additional
evidentiary development on the validity of the agreement to
arbitrate, our review of those arguments would be
“unnecessary.” See Oral Argument at 30:30-31:00, available
at http://www.ca3.uscourts.gov/oralargument/audio/12-
1170Guidotti%20v%20Legal%20
Helpers%20Debt%20Resolution%20LLC%20et%20al.wma.
We accordingly do not address those arguments here.
33
For the foregoing reasons we will vacate the District
Court‟s order denying the Appellants‟ motion to compel
arbitration and remand for proceedings consistent with this
opinion.
34