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CASE NO. 13cv1986-WQH-WMc
HAYES, Judge:
The matter before the Court is the Motion to Dismiss Complaint and Compel Arbitration Or Alternatively to Stay Proceedings ("Motion to Compel Arbitration"), filed by Defendant GPI SD-DC, Inc., dba Rancho Chrysler Dodge Jeep Ram ("Defendant"). (ECF No. 5).
I. Background
On August 27, 2013, Plaintiff initiated this action by filing a Complaint in this Court. (ECF No. 1). The Complaint alleges: "In late June of 2013, Defendants contacted Plaintiff on Plaintiff's cellular telephone in an attempt to sell him goods or services via an 'automatic telephone dialing system,' as defined by 47 U.S.C. § 227(a)(1) using an 'artificial or prerecorded voice' as prohibited by 47 U.S.C. § 227(b)(1)(A)." Id. ¶ 20. The Complaint asserts two class action claims for violation of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq.
On October 16, 2013, Defendant filed the Motion to Compel Arbitration. (ECF No. 5). On November 4, 2013, Plaintiff filed an opposition to the Motion to Compel Arbitration. (ECF No. 8). On November 8, 2013, Defendant filed a reply brief. (ECF No. 9). On November 11, 2013, Plaintiff filed an objection to Defendant's reply brief on the basis that the reply brief exceeds the page limitations set by the Court's Local Rules. (ECF No. 10). On November 12, 2013, Defendant filed an amended reply brief which complies with the page limitations set by the Local Rules. (ECF No. 11).
In deciding the Motion to Compel Arbitration, the Court considers the amended reply brief, and does not consider the initial reply brief. Plaintiff's objection to the initial reply brief is overruled as moot.
II. Facts
On June 25, 2010, Plaintiff purchased a pre-owned 2006 Mazda Tribute from Defendant's auto dealership in San Diego. (Crumlish Decl. ¶ 4, ECF No. 5-2). The purchase transaction was memorialized in a "Retail Installment Sales Contract" ("Contract"), which was signed by the Plaintiff and a representative of Defendant on June 25, 2010. Id. ¶ 3, Ex. A, ECF No. 5-3. The Contract is a one-page document, with terms on both sides of the document. Plaintiff signed the front side of the Contract, and above his signature is the following language written in capital letters and boldface type: "YOU ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THIS CONTRACT, INCLUDING THE ARBITRATION CLAUSE ON THE REVERSE SIDE, BEFORE SIGNING BELOW." Id. On the reverse side of the Contract, at the bottom of the page, is a large box with the following heading in capital letters and boldface type: "ARBITRATION CLAUSE" and "PLEASE REVIEW - IMPORTANT - AFFECTS YOUR LEGAL RIGHTS." Id. The arbitration clause within the large box states:
Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arise out of or relate to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Clause shall not apply to such a claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose one of the following arbitration organizations and its applicable rules: the National Arbitration Forum Box 50191, Minneapolis, MN 55405-0191 (www.arb-forum.com), the American Arbitration Association, 335 Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org), or any other organization that you may choose subject to our approval. You may get a copy of the rules of these organizations by contacting the arbitration organization by visiting its website.
Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law in making an award. The arbitration hearing shall be conducted in the federal district in which you reside unless the Creditor Seller is a party to the claim or dispute, in which case the hearing will be held in the federal district where this Contract was executed. We will advance your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum of $2,500, which may be reimbursed by decision of the arbitrator at the arbitrator's discretion. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization's rules conflict with this Arbitration Clause, then the provisions of this Arbitration Clause shall control. The arbitrator's award shall be final and binding on all parties, except that in the event the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel. The appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs. Any arbitration under this Arbitration Clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and not by any state law concerning arbitration.
You and we retain any rights to self-help remedies, such as repossession. You and we retain the right to seek remedies in small claims court for disputes or claims within the court's jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate by using self-help remedies or filing suit. Any court having jurisdiction may enter judgment on the arbitrator's award.
This Arbitration Clause shall survive any termination, payoff or transfer of this Contract. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class actions rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Clause shall be unenforceable.
In a declaration, Plaintiff states: "Prior to signing the Retail Installment Sale Contact, I did not specifically read the arbitration clause that appears towards the bottom and reverse side of the Retail Installment Sale Contact.... When I signed the Retail Installment Sale Contact, I did not understand that I was agreeing to arbitrate any and all disputes that I may have with Rancho Chrysler Dodge Jeep Ram." (Sherman Decl. ¶¶ 5-6, ECF No. 8-1). Plaintiff states that he did not negotiate the terms of the arbitration clause, nor did he take part in the drafting of the preprinted Contact. See id. ¶ 10.
On November 26, 2010, Plaintiff had his vehicle serviced at Defendant's auto dealership. (Crumlish Decl. ¶ 5, ECF No. 5-2). "On or about March 25, 2011, [Plaintiff] traded in the Mazda Tribute to San Diego Auto Connection." (Sherman Decl. ¶ 11, ECF No. 8-1).
Plaintiff's attorney submits a transcription of "what appears to [the attorney] to be a prerecorded voice message that was allegedly received on Plaintiff's cellular telephone [in late June of 2013] by [Defendant] or someone acting on behalf of [Defendant]." (Ibey Decl. ¶ 3, ECF No. 8-2). The transcription is as follows:
Hello, I'm calling on behalf of Bernie Vasallo, the Internet manager at Rancho Dodge Chrysler Jeep. I am calling to let you know it s the anniversary of your vehicle's purchase and it's time for another status review of your ownership experience. Your feedback is greatly appreciated. We truly hope your vehicle continues to perform as expected, your interactions with our team remain positive, and your overall ownership experience is going well. If you have any questions or concerns, we encourage you to contact us directly at 858-560-7100. Again, we value your business and look forward to a long and positive relationship. Thanks very much, and have a great day.Id. ¶ 4.
III. Contentions of the Parties
Defendant contends that the arbitration clause in the Contract is enforceable and neither substantively nor procedurally unconscionable under California law. Defendant contends that the arbitration clause encompasses the issues raised by the Complaint. Defendant requests that "the matter [be] ordered to arbitration and dismissed, or stayed pending the arbitration proceeding." (ECF No. 5-1 at 6).
Plaintiff requests that the Court deny the motion in its entirety. Plaintiff contends:
The arbitration clause contained in the Retail Installment Sale Contract provided by Defendant should not be enforced for a number of reasons. First, there is insufficient evidence that Plaintiff ever agreed to the arbitration clause, especially when Plaintiff did not read the arbitration clause prior to signing the Agreement and the arbitration clause was never called to Plaintiff's attention by Defendant. Second, even if Plaintiff had agreed to arbitration the arbitration clause is unconscionable and therefore [unenforceable. The Agreement used by Defendant ... by virtue of its terms limiting Plaintiff's ability to represent a class, coupled with the overbroad scope of the agreement, is a procedurally and substantively unconscionable contract.(ECF No. 8 at 9-10).
Defendant's alternative request for a stay should be denied because, even if the arbitration clause were enforceable, the arbitration clause does not cover the alleged misconduct in this case under the TCPA and would serve only to delay the progress of this litigation.
IV. Discussion
A. Federal Arbitration Act
The Federal Arbitration Act ("FAA") "was enacted ... in response to widespread judicial hostility to arbitration agreements." AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (citation omitted). Section 2 of the FAA states: "A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Section 2 of the FAA "reflect[s] both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract." Concepcion, 131 S. Ct. at 1745 (quotations omitted). "In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms." Id. at 1745-46 (citations omitted).
"The basic role for courts under the FAA is to determine (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." Kilgore v. KeyBank, Nat'l Ass'n, 718 F.3d 1052, 1058 (9th Cir. 2013) (en banc) (quotation omitted). "If the response is affirmative on both counts, then the [FAA] requires the court to enforce the arbitration agreement in accordance with its terms." Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). "[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91-92 (2000).
B. Plaintiff's Agreement to the Arbitration Clause
Plaintiff contends that "arbitration cannot be compelled under the FAA due to lack of mutual assent to the terms of the arbitration agreement because Plaintiff did not read the arbitration clause or understand that Plaintiff was agreeing to arbitration." (ECF No. 8 at 11).
Pursuant to California law, the "general rule" is that "one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing." Metters v. Ralphs Grocery Co., 161 Cal. App. 4th 696, 701 (2008) (quotation omitted). "[A]n exception to the general rule exists when the writing does not appear to be a contract and the terms are not called to the attention of the recipient. In such a case, no contract is formed with respect to the undisclosed term." Id. at 702 (quotation omitted). Plaintiff relies upon Windsor Mills, Inc. v. Collins and Aikman Corp., 25 Cal. App. 3d 987 (1972), wherein the court found an arbitration provision unenforceable because it was in small print on the reverse side of a form on which a carpet manufacturer acknowledged receipt of yarn shipments from the yarn distributor. The court stated that an offeree "is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious." Id. at 993 (citations omitted).
The parties agree that California law applies in deciding this issue. (ECF No. 8 at 12; ECF No. 11 at 5).
In this case, the Contract is entitled, "Retail Installment Sales Contract" (Crumlish Decl., Ex. A, ECF No. 5-3), and the "contractual nature" of the document is "obvious." Windsor Mills, 25 Cal. App. 3d at 993. Plaintiff signed the front side of the Contract, and above his signature is the following language written in capital letters and boldface type: "YOU ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THIS CONTRACT, INCLUDING THE ARBITRATION CLAUSE ON THE REVERSE SIDE, BEFORE SIGNING BELOW." (Crumlish Decl., Ex. A, ECF No. 5-3). On the reverse side of the Contract, the arbitration clause is set apart from the rest of the text in a large box with the following heading in capital letters and boldface type: "ARBITRATION CLAUSE" and "PLEASE REVIEW - IMPORTANT - AFFECTS YOUR LEGAL RIGHTS." Id. The arbitration clause in the Contract is not an "inconspicuous contractual provision." Windsor Mills, 25 Cal. App. 3d at 993. Plaintiff has made no showing that any representative of Defendant engaged in fraud or misrepresentation as to the terms of the Contract or the arbitration clause. Based upon the record, the Court finds that the "general rule" that "one who signs an instrument which on its face is a contract is deemed to assent to all its terms" should apply in this case. Metters, 161 Cal. App. 4th at 701 (quotation omitted).
C. Unconscionability
"Under the FAA savings clause, state law that arose to govern issues concerning the validity, revocability, and enforceability of contracts generally remains applicable to arbitration agreements." Kilgore, 718 F.3d at 1058 (quotation omitted). "Thus, generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2." Id. (quotation omitted). "Under California law, a contractual provision is unenforceable if it is both procedurally and substantively unconscionable." Id. (citing Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000)). "[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." Armendariz, 24 Cal. 4th at 114. "[T]he party opposing arbitration has the burden of proving the arbitration provision is unconscionable." Higgins v. Superior Court, 140 Cal. App. 4th 1238, 1249 (2006) (quotation omitted).
1. Substantive Unconscionability
"Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause." Kilgore, 718 F.3d at 1058 (quotation omitted). "The term [substantive unconscionability] focuses on the terms of the agreement and whether those terms are so one-sided as to shock the conscience." Davis v. O'Melveny & Myers, 485 F.3d 1066, 1075 (9th Cir. 2007) (quotation omitted), overruled on other grounds by Kilgore v. KeyBank, Nat'l Ass'n, 673 F.3d 947, 960 (9th Cir. 2012). Plaintiff contends that "[t]he arbitration clause is substantively unconscionable because it would not permit Plaintiff to vindicate his statutory rights under the TCPA, is unfairly one-side, and therefore shocks the conscience." (ECF No. 8 at 21). Plaintiff contends that "[t]he arbitration clause is unfairly one-sided in favor of Defendant because it is highly unlikely that Defendant would ever sue consumers on a class action basis," and "[e]nforcing the arbitration clause's class action waiver and thus precluding a class action by Plaintiff here would essentially deny Plaintiff his statutory rights to seek damages under the TCPA." Id. at 22, 24. Plaintiff contends that "[i]t is highly unlikely that Plaintiff would be able to find legal representation for a single violation of the TCPA in an individual action sent to arbitration." Id. at 26.
The arbitration clause in the Contract states: "Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action." (Crumlish Decl., Ex. A, ECF No. 5-3). Plaintiff contends that this "ban on class arbitration is unconscionable under California law, but that argument is now expressly foreclosed by Concepcion, 131 S. Ct. at 1753." Kilgore, 718 F.3d at 1058; see also Concepcion, 131 S. Ct. at 1751 ("[C]lass arbitration, to the extent it is manufactured by [a California rule that made class action waivers unconscionable] rather than consensual, is inconsistent with the FAA.").
Plaintiff's contention that the single violation of the TCPA alleged in the Complaint would cost more for an attorney to litigate than the Plaintiff could expect to recover is similar to an argument rejected by the Concepcion majority. See Concepcion, 131 S. Ct. at 1753 ("The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons."); see also Coneff v. AT&T Corp., 673 F.3d 1155, 1159 (9th Cir. 2012) ("Although Plaintiffs argue that the claims at issue in this case cannot be vindicated effectively because they are worth much less than the cost of litigating them, the Concepcion majority rejected that premise."); cf. Am. Exp. Co. v. Italian Colors Rest, 133 S. Ct. 2304, 2311 (2013) ("[T]he fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy. The class-action waiver merely limits arbitration to the two contracting parties.").
The arbitration clause in the Contract contains a provision that Defendant "will advance [the purchaser's] filing, administration, service or case management fee and [the purchaser's] arbitrator or hearing fee all up to a maximum of $2,500, which may be reimbursed by decision of the arbitrator at the arbitrator's discretion." (Crumlish Decl., Ex. A, ECF No. 5-3). The arbitration clause also allows the arbitrator to award attorney's fees "under applicable law." Id. In light of the provision requiring Defendant to advance a consumer's arbitration fees, and the lack of evidence demonstrating that the arbitration clause will preclude Plaintiff from vindicating his rights under the TCPA, the Court finds that Plaintiff has failed to meet his burden of showing that the arbitration clause is substantively unconscionable. See Green Tree Fin. Corp., 531 U.S. at 90-91 ("It may well be that the existence of large arbitration costs could preclude a litigant such as Randolph from effectively vindicating her federal statutory rights in the arbitral forum. But the record does not show that Randolph will bear such costs if she goes to arbitration.... The risk that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.") (quotation omitted); Coneff, 673 F.3d at 1159 (finding no substantive unconscionability in the class-action waiver in an arbitration provision, and noting that "the arbitration agreement here has a number of fee-shifting and otherwise pro-consumer provisions" which allow "aggrieved customers ... to be made whole"); cf. Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 925-26 (9th Cir. 2013) (finding arbitration provision substantively unconscionable because of multiple "unconscionable terms," including a cost term that "requires that the arbitrator impose significant costs on the employee up front, regardless of the merits of the employee's claims, and severely limits the authority of the arbitrator to allocate arbitration costs in the award").
2. Procedural Unconscionability
"Procedural unconscionability focuses on the factors of surprise and oppression." Kilgore, 718 F.3d at 1059 (quotation omitted). "'Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice,' while '[s]urprise involves the extent to which the supposedly agreed-upon terms are hidden in a prolix printed form drafted by the party seeking to enforce them.'" Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1280 (9th Cir. 2006) (quoting Flores v. Transamerica HomeFirst, Inc., 93 Cal. App. 4th 846, 853 (2001)).
Plaintiff contends that the arbitration clause is procedurally unconscionable because the "arbitration agreement is a contract of adhesion where the inconspicuous arbitration clause was not called to Plaintiff's attention by Defendant or read by Plaintiff," and "[t]here is no evidence that Defendant provided Plaintiff with the arbitration rules for the National Arbitration Forum." (ECF No. 8 at 18, 21).
Plaintiff states in a declaration that he did not negotiate the terms of the arbitration clause, nor did he take part in the drafting of the preprinted Contact. (Sherman Decl. ¶ 10, ECF No. 8-1). In light of the Supreme Court's decision in Concepion, the Court does not find that the adhesive nature of the agreement weighs strongly in favor of a finding of procedural unconscionability. Cf. Concepion, 131 S. Ct. at 1750 (holding that California's "Discover Bank rule" is preempted by the FAA in part because "[t]he rule is limited to adhesion contracts, but the times in which consumer contracts were anything other than adhesive are long past").
Plaintiff contends that the arbitration clause is unconscionable because Defendant did not provide Plaintiff with a copy of the arbitration rules for the National Arbitration Forum or the American Arbitration Association. The arbitration clause states: "You may choose one of the following arbitration organizations and its applicable rules: the National Arbitration Forum Box 50191, Minneapolis, MN 55405-0191 (www.arb-forum.com), the American Arbitration Association, 335 Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org), or any other organization that you may choose subject to our approval. You may get a copy of the rules of these organizations by contacting the arbitration organization by visiting its website." (Crumlish Decl., Ex. A, ECF No. 5-3). California courts have found that a degree of procedural unconscionability may be found when an arbitration provision refers to arbitration rules, but a copy of those rules are not provided to the individual. See Zullo v. Superior Court, 197 Cal. App. 4th 477, 485 (2011) ("The absence of the [American Arbitration Association] arbitration rules adds a bit to the procedural unconscionability."). In this case, the arbitration clause does not require the purchaser to choose the National Arbitration Forum or the American Arbitration Association, but simply offers those two organizations as options for the purchaser. The arbitration clause also mitigates any small degree of procedural unconscionability by directing the consumer to the organizations' websites to obtain each organization's rules.
As discussed above, the arbitration provision is not hidden in the Contract; it is referenced in boldface type close to Plaintiff's signature line, and the clause itself is set out in a prominent fashion on the reverse side of the one-page contract. The Court finds that Plaintiff has failed to make an adequate showing of unconscionability necessary to render the arbitration clause in the Contract unenforceable.
D. Whether the Agreement Encompasses the Dispute at Issue
Plaintiff contends that the Motion to Compel Arbitration should be denied because the arbitration clause does not cover the misconduct alleged. Plaintiff relies upon In re Jiffy Lube International, Inc., Text Spam Litigation, 847 F. Supp. 2d 1253 (S.D. Cal. 2012), where the district court denied a motion to compel arbitration of a TCPA class-action claim alleging that plaintiffs received unauthorized text messages offering discount Jiffy Lube services. The arbitration agreement at issue was allegedly signed by a plaintiff when he visited one of the defendant's store locations to receive an oil change. The court stated that the language of the arbitration agreement was "incredibly broad" because "[i]t purports to apply to 'any and all disputes' between [the parties], and is not limited to disputes arising from or related to the transaction or contract at issue." Id. at 1262. The court stated that "a suit ... regarding a tort action arising from a completely separate incident could not be forced into arbitration—such a clause would clearly be unconscionable." Id. at 1263. The court "decline[d] to rewrite the agreement " to contain a "typical limitation, such as that the dispute at issue must 'arise out of or relate to' the contract," and stated that even if the court were willing to do so, "it is doubtful whether that language would encompass the claims here." Id.
In this case, the arbitration clause in the Contract is not as broad as the provision in Jiffy Lube. The Contract states: "Any claim or dispute, whether in contract, tort, statute or otherwise ..., between you and us or our employees, agents, successors or assigns, which arise out of or relate to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship ... shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action." (Crumlish Decl., Ex. A, ECF No. 5-3 (emphasis added)). Unlike the contract for a onetime oil change at issue in Jiffy Lube, the Contract in this case envisions an ongoing relationship between Plaintiff and Defendant. See id. (providing for a 59 month/5 year payment term, requiring monthly payments of $199.73 by Plaintiff to Defendant).
The alleged phone message that forms the basis of the TCPA claims states: "I am calling to let you know it's the anniversary of your vehicle's purchase and it's time for another status review of your ownership experience.... We truly hope your vehicle continues to perform as expected, your interactions with our team remain positive, and your overall ownership experience is going well. If you have any questions or concerns, we encourage you to contact us directly...." (Ibey Decl. ¶ 4, ECF No. 8-2). The Court finds that Plaintiff's TCPA claims relate to his Contract with Defendant, and, accordingly, are subject to arbitration. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) ("any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration"); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 720 (9th Cir. 1999) ("[A]n arbitration clause containing the phrase 'any and all disputes arising under the arrangements contemplated hereunder' must be interpreted liberally.... To require arbitration, Simula's factual allegations need only 'touch matters' covered by the contract containing the arbitration clause and all doubts are to be resolved in favor of arbitrability.") (citations omitted).
V. Conclusion
IT IS HEREBY ORDERED that the Motion to Compel Arbitration is GRANTED. (ECF No. 5). The Complaint is dismissed without prejudice and the parties are ordered to proceed to arbitration in accordance with the terms of the arbitration clause in the Contract.
United States District Judge


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Apple is back with the Apple Watch Series 4, the latest in the smartwatch game that's focused on helping wearers live a healthier lifestyle. Running on Apple's S4 64-bit dual-core processor and the new WatchOS 5 operating system, it's twice as fast as its predecessor. Available in two sizes — 40 mm and 44mm — it has a 30 percent larger display than the Series 3 and comes in six different aluminum and stainless steel finishes. New improvements include Walkie Talkie mode and a speaker that is 50% louder than in the Series 3. The microphone has been moved to the watch's opposite side to reduce noise and create clearer phone calls. The bottom, now made from black ceramic and sapphire crystal for better radio wave transmission, is intended to help with cellular reception and call quality.
Apple has continued its focus on its health focus with the Series 4. In addition to being able to detect a fall, this new Apple Watch introduces three heart-rate tracking features that will be available later this year. It lets you know if your heart rate is too low, it can detect irregular rhythms (which may indicate atrial fibrillation), and most impressively, it serves as an FDA-cleared electrocardiogram.
As mentioned, the rotating crown on the Q watches is a bit stiffer than it should be. This makes it somewhat more difficult to spin through notifications or scroll through a longer bit of text with the tip of one finger. The fix is to push the crown forward or backward from a lower angle, or roll more of your finger over it. It's easier to turn with two fingers, but that's definitely not a convenient gesture; you'll likely just learn to get the rolling right.
In the same year, Microsoft announced the SPOT smartwatch and it began hitting stores in early 2004.[30] SPOT stands for Smart Personal Objects Technology, an initiative by Microsoft to personalize household electronics and other everyday gadgets. For instance, the company demonstrated coffee makers, weather stations, and alarm clocks featuring built-in SPOT technology.[31] The device was a standalone smartwatch[32] that offered information at a glance where other devices would have required more immersion and interaction. The information included weather, news, stock prices, and sports scores and was transmitted through FM waves.[30] It was accessible through a yearly subscription that cost from $39 to $59.[31]
The Fitbit Versa is nearly a full smartwatch, but the way it handles notifications prevents it from being a pick. Fitbit's sleep, step, and workout tracking features beat our current picks', and in our testing the Versa regularly lasted for four or more days between full charges. It lacks GPS, which the Ionic has, but it has a lower price as a result. You can choose from a decent variety of band types, although the bands are an odd 23 mm size (rather than a standard 22 mm), and slot in at an angle, making it hard to know if an unofficial band will fit. You can cache Deezer or Pandora radio stations to the Versa's 2.5 GB of reserved space, control the music on your phone (after reconnecting your watch in "classic mode"), or transfer your own music to the watch, though it's a tedious process involving a computer and cable. Where the Versa falls short is in working with notifications from your phone. The notifications pile up, and it can be a hassle to clear them; most notifications don't expand to show more text; and though a software update has given you quick replies to select from, you're limited to five of them. Like the Ionic, it's more of a smartened-up fitness tracker than a fitness-savvy smartwatch.
Fitbit Versa: The Fitbit is the health tracker for the masses and they have a model for every need. But the best option for adults who do a moderate amount of exercise and just want to keep tabs on their general fitness (ie: most of us), the Fitbit Versa is a great choice. It's an entry-level smartwatch. For more on the Fitbit Versa's various attributes, read my in-depth review. ($350)
The Huawei Watch 2 comes into its own if you're looking for a smartwatch that can double as a sports watch, thanks to built-in GPS and a heart rate monitor on its rear. Use the 4GB of built-in storage to save your Google Play Music playlists offline and you can pair Bluetooth headphones for a phone-free experience. The Huawei Watch 2 will work with Huawei's own suite of fitness apps, Google Fit, or other third-party apps such as Strava, offering excellent choice.
A smart watch is nice to have and it can be a neat buffer when deciding if you want to answer an incoming call or let it go to voicemail. Smart watches with apps for fitness and travel are also a lot more convenient in some cases than having your smartphone. However, if you prefer to use your iPhone for these and other activities, you probably won't get much more out of a smart watch.
The watch faces themselves are classic Kate Spade designs. You get a sultry winking moon face with perfectly curled lashes, calling you a leading lady; cute bubbly balloons for a digital watch face with numbers; a speeding cab that reassures you that you'll be there in a New York minute; and a daisy that loses petals as the time ticks away in a classic game of "He loves me; he loves me not."
Many of these smart watches work with your smartphone rather than just outright replacing it. Others, like the Samsung Gear Sports can work just as well solo. Do you stream music? Do you use your GPS for all your little excursions? While these are tasks easily handled by most modern smartphones, if you intend to use your smart watch in a similar fashion, you'll want to make sure you choose one that can keep up with your phone.
The headline features are the new ECG monitor that unlocks the ability for serious heart health monitoring. It's been FDA cleared, so the feature can be used to detect heart rhythm irregularities - however, it's only in the US only for now. There's also a new fall detection mode that can let users access Siri to contact emergency services or a emergency contact. Apple's new smartwatch offers groundbreaking features and an improved design that makes it the standout option for iPhone owners right now.
The LTE connection will cost you about $10 a month at most carriers, and the LTE model does cost more. There's a non-LTE version, too, if you're not interested in the new feature. Most people probably don't need LTE, frankly, unless you regularly go on hikes or long runs and you don't want to be weighed down with your phone. Still, it's a nice option to have.
Of the scores of Wear OS by Google (also called Wear OS, and formerly Android Wear) smartwatches that function nearly the same, the Fossil Q Explorist and Fossil Q Venture are the ones we recommend for most people. Similar models that differ mainly in size and design, these two Fossil watches offer style and band options for the widest range of tastes while performing as well as (or better than) anything else out there. They handle notifications and your responses without delay, provide all-day battery life, swiftly handle voice transcription and Google Assistant questions, and provide casual fitness tracking. Their buttons and screens are responsive. They look and feel like good watches, too, which is something we think most people want from a smartwatch at this point.
Waterproof to 165 feet, the Versa handles swimming as well as any other exercise, with the screen surprisingly visible underwater. As is standard with many other non-smartwatch Fitbit models, heart rate tracking is built in, which allows for detailed sleep tracking. There's no GPS, though — if you want to track your running route, you'll need to carry your phone or pay the extra for the Ionic model.
The Fitbit Ionic works fine as a Fitbit tracker, but despite being more expensive than our picks or the Apple Watch Series 1, it lacks many smartwatch functions you'd hope to have. It passes notifications from your phone to the watch, but you can only respond to some of them (with only five quick reply lines); and dismissing them (either one by one or as a group) involves annoyingly hard presses and long scrolls. Syncing music files and offline Pandora playlists requires you to use a desktop app, which is laborious. Two Wirecutter writers who tested the Ionic also had trouble setting it up to work with their Android phones (a 2015 Moto X Pure and a 2016 Samsung Galaxy S7) and had to perform significant troubleshooting to get their data to sync. The Ionic's battery life, even while using GPS for outdoor exercise tracking, is its most impressive feature, lasting at least five days in one test and nearly seven days in another. The Ionic is most useful to Fitbit enthusiasts who want to track outdoor exercise without bringing a phone; it's not a good option if you're looking to deal with incoming information.
The newest member of the TicWatch family from Mobvoi is the TicWatch Pro. The biggest feature about this smartwatch is that it actually has two displays. The first is a transparent and low-power FTSN LCD display, and that is placed on top of its OLED display. While the top FTSN display shows you basic info like the time, the date, your heart rate and step count, you can switch over to the OLED display, which shows off all of the features of Google's Wear OS.
The Charge 3 works continuously throughout the day to track steps, distance, calories, floors climbed, and heart rate—the standard array of activity data. Fitbit has been tracking these metrics for so long, without making many significant updates as of late, that they are business as usual on the Charge 3. I appreciated that most of the watch faces available for the Charge 3 show your real-time heart rate, either in a corner or at the bottom of the rectangular display. I like being able to glance down and know my pulse.
We loved Samsung's characteristic bezel navigation. Instead of having to swipe your finger across the touchscreen repeatedly, all you have to do is gently twist the bezel. It's a much smoother way of scrolling through your list and it just feels more natural. The are other side buttons which lie almost flush with the side of the watch, making it difficult for them to catch on sleeves.


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Freemans Bay | 1 May – 22 May 2020 | Friday mornings
May 1 @ 10:00 am - 11:30 am$197.00
Don't wait until it's too late – Give your brain a weekly workout while learning some practical, fun new strategies that will give you increased confidence and self-belief regarding your memory.
Join our Freemans Bay Brainfit for Life® class with Accredited Brainfit Coach Jude Walter on Friday mornings, starting 1 May.
One 90 minute session per week for four weeks with a focus on 6 key memory skills that allow people to remain confident, independent and productive throughout their lives.
These face to face, facilitated classes will be held at the Freemans Bay Community Centre, 52 Hepburn St, Freemans Bay, Auckland.
Any questions please contact Jude on 027 2863961
Some feedback from Jude's classes in 2019:
"Very worthwhile indeed. Lots of fun – one of the best things I have ever done!!" – Kate, Auckland
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Crime & Legal
DSI: Missing Karen activist "Billy" bones discovered
BANGKOK — The Department of Special Investigation said Tuesday that bone fragments of a Karen community rights activist missing since 2014 have been found.
At a presser on Tuesday, the Department of Special Investigation said that bone fragments belonging to Porlajee "Billy" Rakchongcharoen, who went missing after being detained in Kaeng Krachan National Park in April 2014, match those of his mother.
The bone fragments were found in May inside a 200-liter oil tank submerged in water near a suspension bridge inside Kaeng Krachan National Park in Phetchaburi province.
"The tank that was found was burnt. The bones were also burnt," DSI deputy chief Kornwat Panpraphakorn said.
The DSI said parts of the bone fragments, which came from the skull, share DNA with Billy's mother, Pairoh Rakchongcharoen.
Activists have accused then-director of Kaeng Krachan National Park Chaiwat Limlikhit-aksorn of engineering the disappearance of the local Karen activist.
Several suspects have been questioned, but officials refused to name them and said that the investigation is still ongoing.
Chaiwat and several park officials briefly detained Billy on April 17, 2014 to reprimand him for "wild honey theft" but claim they later released him without charge. Billy, a campaigner for community rights, had not been seen since. His friends and family fear the 30-year-old activist was abducted and murdered for his opposition to the government's eviction efforts.
No chance of survival
A written press release issued by the investigation committee today concluded that the burning of the bones was an attempt to cover up the murder, reasoning the bones must have been exposed to flames between 200 to 300 degrees celsius. The committee called it "a heinous crime."
More than one investigator at the presser stressed that the Karen activist could not possibly be alive as the bone fragments came from vital parts of the body, such as the left side of Billy's skull.
DSI Chief Pol. Col. Paisit Wongmuang refused to spell out how Billy might have died, though he acknowledged the burnt state of the bones and oil tank. Four burnt wooden sticks and two metal rods have also been found.
"Whether he died through torture is something we will look into through collecting evidence," Paisit also said.
Former National Human Rights Commissioner Angkhana Neelapaijit posted on Facebook after the press conference that the two metal rods may have been used to lock the metal drum's lid in place while the body burned.
When asked about the significance of the two metal rods by a reporter, the DSI refused to elaborate.
Divers located the underwater oil drum by using sonar machines.
Nearby, investigators also found 20 more bone fragments underwater in August, which are awaiting DNA tests.
The DSI has asked anyone with information regarding the case to call their center at 1202.
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Crime & Legal
Suspect Kaeng Krachan park staff transferred
Alleged witnesses to the arrest of activist Porlajee "Billy" Rakchongcharoen have been moved to other posts as Thailand's DSI pursues the murder investigation.
Source: https://www.bangkokpost.com/thailand/general/1744584/4-kaeng-krachan-park-staff-transferred
Crime & Legal
Udon Thani: Star defrocked as monk, arrested for scamming
A well known star has been arrested in a scam based at the Udon Thani Lotus Condotel.
Thai police from the Economic Crime Suppression division came for their man this Sunday at a temple in Nakhon Ratchasima province. A well-known singing star who had been ordained a monk there. On June 12th last, a Thai court had issued an arrest warrant for Sittichai Pabchompu in relation to a credit card fraud racket run at an Udon Thani hotel in December and January of this year.
Crime & Legal
Sakon Nakhon man fakes own kidnapping to get ransom cash from parents
In one of the more lame stories of desperation (was he addicted to meth?) a Son has faked his own kidnapping to get ransom cash, story here on Thai Residents.
Vichian 47 years old and Janya 45 years old came to the Udon Thani Police Station on the 5th of this month (September 2019) to tell the police that their son's abduction was fake as they previously came to file a report on the abduction on the 3rd. Turns out that Anucha 27 years old called the parents one day stating that a group of men had abducted him because he borrowed some money from a loan shark and they demanded 40,000 THB in exchange with his release.
The parents live in Sakon Nakhon Province, but the son told them he was abducted in Udon Thani so the parents came to file a report with the Udon Thani Police. The parents were extremely worried for their son's safety and asked the police for help. After the news went public the son called the parents on the 4th at 4 am to admit that he was safe. The son told them he made the story up, but he still wanted the 40,000 THB.
Suspect Kaeng Krachan park staff transferred
DSI: Missing Karen activist "Billy" bones discovered
Nong Khai: Cargo train derails near Bua Yai junction station
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Below is our current list of Cabot food pantries.
We not only provide listings of pantries, but we also provide information on: food closets, food banks, soup kitchens, congregate meal locations, food boxes, vouchers, etc.
Our comprehensive list of food assistance programs provides full descriptions, pictures, hours, volunteer information, etc.
Food locations provided are faith based, government and non profit. We list them all.
If you know of a food pantry that is not included in our list, please submit new food resources to our database by going to the ADD A LISTING link on the header of our website. Provide as much volunteer information as possible as we are the top resources for volunteering at food pantries.
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Cabot Food Bank
View Website and Full Address
Cabot , PA - 16023
(724) 352-2074
Sometimes life gets hard: relationships break up; jobs are lost; medical emergencies drain health and energy. If this describes you, the Cabot Food Bank is here to serve you and your family who are in need of assistance. Food is provided from the Greater Pittsburgh Community Food Bank, local Butler county agencies, local churches, businesses, and members of our community. FREE COMMUNITY MEAL: A free meal is offered on each Wednesday night that the Food Bank is open. The meal is served from 5:00-6:00pm and is open toGo To Details Page For More Information
Nearby Area ListingsDue to the low number of listings in Cabot, we have added area listings below.
The Lighthouse Foundation
View Website and Full Address
Butler, PA - 16002
(724) 586-5554
Food Pantry Location: 10.02 miles from Cabot
The Lighthouse offers a food bank and monthly fresh produce distribution in order to help alleviate the problem of limited food access by families in Allegheny and Butler Counties. Every week the Lighthouse distributes full grocery orders to over 175 families at our food bank on Cruikshank Road in Middlesex Township. In addtion, once per month at the Butler City Farmer's Market, fresh produce is distributed to over 400 people. In order to qualify for The Lighthouse's food programs, an individual/family must be at 150% of poverty or less, ...Go To Details Page For More Information
Allegheny Valley Association of Churches
View Website and Full Address
Natrona Heights, PA - 15065
(724) 226-0606
Food Pantry Location: 11.26 miles from Cabot
The Food Bank provides wholesome foods for the homeless, hungry, elderly, and all those under 150% of the income poverty guidelines who reside within the service area of the AVAC. More than 480 families are currently registered with our Food Bank. Qualifying individuals and families are eligible to receive food on a monthly basis. The foods available are canned goods, boxed foods, produce, meats, and dairy products. Most of the food is purchased from the Greater Pittsburgh Community Food Bank. We also receive food donations from Scouting f...Go To Details Page For More Information
Loaves and Fishes Food Pantry Allison Park
View Website and Full Address
Allison Park, PA - 15101
Food Pantry Location: 19.96 miles from Cabot
North Hills Community Outreach is an interfaith organization addressing the needs of people in crisis, hardship and poverty.Hours:First Tuesday: 5:00pm to 8:00pm Second Tuesday: 12:00pm to 3:00pm Third Tuesday: 9:00am to 12:00pm Fourth Tuesday: 10:00am to 1:00pm...Go To Details Page For More Information
Southwest Butler County Food Cupboard
View Website and Full Address
Harmony, PA - 16037
(724) 453-4184
Food Pantry Location: 20.00 miles from Cabot
Provides a food pantry. Clients Must Signup in Advance Pantry hours: 3rd Tues. 7-8pm...Go To Details Page For More Information
Rosedale Food Pantry
View Website and Full Address
Verona, PA - 15147
(412) 302-2509
Food Pantry Location: 21.62 miles from Cabot
Serving families in the Penn Hills, Verona, Oakmont & Plum areas. Hours:Wednesday 5:00pm - 7:30pm**Clients start to line up at 4:30pm**Closed the 5th Wednesday of any month*Proof of residency and income required. For more information, please call....Go To Details Page For More Information


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