United States District Court, District of Columbia
MEMORANDUM OPINON AND ORDER
G. SULLIVAN UNITED STATES DISTRICT JUDGE.
Patrick Daniel (“Mr. Daniel”), an attorney
proceeding pro se, brings suit against eBay, Inc.
(“eBay”) and individual eBay seller Jack Ly
(“Mr. Ly”)(also known as David Kennedy). Mr.
Daniel brings several claims against both defendants,
including “breach of contract, fraud, collusion,
conspiracy, failure to monitor business and its agents,
failure to supervise business and its sellers, agency, unjust
enrichment, redhibition, theft by deception, theft by
conversion, unfair and deceptive trade practices, and
violations of [unspecified] laws, statutes, and/or
regulations designed for the safety of consumers.”
Compl., ECF No. 1 ¶ 13. Mr. Daniel's claims all
arise from his purchase of an allegedly counterfeit watch
from Mr. Ly through eBay's online marketplace. Arguing
that Mr. Daniel had agreed to submit to arbitration, eBay
filed a motion to compel arbitration and stay this
litigation. Def.'s Mot. to Arb., ECF Nos. 6,
Pending before the Court are Mr. Daniel's objections to
Magistrate Judge G. Michael Harvey's Report and
Recommendation (“R&R”), which recommends that
the Court grant eBay's motion to compel arbitration and
stay litigation. See R&R, ECF No. 15.
consideration of the R&R, Mr. Daniel's objections,
eBay's response to those objections, eBay's motion to
compel arbitration, the responses and replies thereto, and
the relevant law, the Court declines to adopt Magistrate
Judge Harvey's R&R and DENIES
eBay's motion to compel arbitration and stay the
litigation pending before the Court.
Daniel does not appear to object to Magistrate Judge
Harvey's recitation of the facts. See Pl.'s
Objections, ECF No. 17. To briefly summarize, Mr. Daniel
bought what he thought was an “authentic”
Audemars Piguet Royal Offshore Watch from Mr. Ly, a
registered eBay seller, via eBay's online marketplace on
July 9, 2015. Compl., ECF No. 1 ¶¶ 4-6, 8. The
watch was allegedly worth $75, 000. Id. On July 14,
2015, Mr. Daniel learned that the watch was counterfeit, not
“authentic” as marketed. Id.
¶¶ 7, 8. Upon learning the watch was counterfeit,
Mr. Daniel contacted Mr. Ly and arranged a meeting to return
the watch, but Mr. Ly did not appear. Id. ¶ 10.
Mr. Daniel notified eBay, but it allegedly
“refused” to provide him with Mr. Ly's
contact information or refund his money. Id. ¶
9. Within a month, Mr. Daniel sued eBay and Mr. Ly for breach
of contract, fraud, and unjust enrichment, among several
other charges. See Id. ¶ 13.
contends that Mr. Daniel is required to arbitrate his claims
against the company pursuant to various iterations of its
“User Agreements.” See Def.'s Mot.
to Arb., ECF No. 9; R&R, ECF No. 15 at 3-6. When Mr.
Daniel registered as an eBay user in March 1999, he was
required to accept the 1999 User Agreement by clicking
“I accept” on an online form. Long Decl., ECF No.
6-2 ¶¶ 3-12. The 1999 User Agreement did not
contain an arbitration clause, but provided that eBay may
“amend this Agreement at any time by posting the
amended terms on our site.” Long Decl., ECF No. 6-2
¶ 13; 1999 User Agreement (“U.A.”), ECF No.
6-2 at 13.
to that “change-in-terms” provision, eBay amended
its User Agreement to include an arbitration clause in August
2012. Long Decl., ECF No. 6-2 ¶ 14; 2012 U.A., ECF
No. 6-2 at 22-29. The 2012 User Agreement stated that users
and eBay agree that “any and all disputes or claims
that have arisen or may arise between [the user] and eBay
shall be resolved exclusively through final and binding
arbitration, rather than in court.” 2012 U.A., ECF No.
6-2 at 27. The User Agreement allowed users to “opt
out” of the arbitration provision by mailing eBay a
written opt-out notice within a certain amount of time.
Id. at 28. According to eBay, Mr. Daniel did not
“opt out.” Long Decl., ECF No. 6-2 ¶ 17.
2015, eBay amended its User Agreement again. Id.
¶ 18; 2015 U.A., ECF No. 6-2 at 31-40. This version of
the User Agreement was in effect when Mr. Daniel purchased
the counterfeit watch in July 2015. Long Decl., ECF No. 6-2
¶ 18. The 2015 User Agreement contained an arbitration
provision practically identical to the 2012 version:
[The user] and eBay each agree that any and all disputes or
claims that have arisen or may arise between [the user] and
eBay relating in any way to or arising out of this or
previous versions of the User Agreement, [the user's] use
of or access to eBay's Services shall be resolved
exclusively through final and binding arbitration, rather
than in court . . . . The Federal Arbitration Act governs the
interpretation and enforcement of this Agreement to
2015 U.A., ECF No. 6-2 at 37.
Daniel denies receiving notification of either amended User
Agreements. Daniel Aff., ECF No. 17 at Ex. 2 ¶¶ 2,
3 (“At no time have I received an email [or message]
from eBay notifying me of a proposed compulsory arbitration
provision.”). eBay responds, stating that Mr. Daniel
was notified of the 2015 User Agreement via an email sent to
his registered email address. Long Decl., ECF No.
6-2 ¶ 19; see also Form Email with 2015 U.A.,
ECF No. 6-2 at 42-43.
Standards of Review
Objections to a Magistrate Judge's Report and
to Federal Rule of Civil Procedure 72(b), once a magistrate
judge has entered a recommended disposition, a party may file
specific written objections. The district court “must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to, ” and
“may accept, reject or modify the recommended
disposition.” Fed.R.Civ.P. 72(b)(3). Proper objections
“shall specifically identify the portions of the
proposed findings and recommendations to which objection is
made and the basis for objection.” Local Civ. R.
72.3(b). “As numerous courts have held, objections
which merely rehash an argument presented to and considered
by the magistrate judge are not ‘properly objected
to' and are therefore not entitled to de novo
review.” Shurtleff v. U.S. Envtl. Prot.
Agency, 991 F.Supp.2d 1, 8 (D.D.C. 2013) (quoting
Morgan v. Astrue, No. 08-2133, 2009 WL 3541001, at
*3 (E.D. Pa. Oct. 30, 2009) (collecting cases)). Likewise, a