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Daniel v. eBay, Inc.

United States District Court, District of Columbia

July 26, 2018

PATRICK DANIEL, Plaintiff,
v.
EBAY, INC., et. al., Defendants.

          MEMORANDUM OPINON AND ORDER

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE.

         Plaintiff 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, 9.[1] 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.

         Upon 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.

         I. Background

         Mr. 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.

         eBay 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.

         Pursuant 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;[2] 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.

         In June 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 Arbitrate.

2015 U.A., ECF No. 6-2 at 37.

         Mr. 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.

         II. Standards of Review

         A. Objections to a Magistrate Judge's Report and Recommendation

         Pursuant 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 court ...


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