Alkutkar v. Bumble Inc. et al, No. 4:2022cv00422 - Document 55 (N.D. Cal. 2022)
Court Description: Order DENYING 53 plaintiff's Motion for Reconsideration of 49 Order on Motion to Compel. The lawsuit is STAYED pending completion of arbitration proceedings. Signed by Judge Phyllis J. Hamilton on November 16, 2022. (pjhlc1, COURT STAFF) (Filed on 11/16/2022)
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Alkutkar v. Bumble Inc. et al Doc. 55 Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 1 of 7 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HARSH ALKUTKAR, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 Case No. 22-cv-00422-PJH v. ORDER DENYING RECONSIDERATION BUMBLE INC., et al., Re: Dkt. No. 53 Defendants. 12 13 14 Before the court is plaintiff’s motion for reconsideration of the order compelling 15 arbitration. The matter is fully briefed and suitable for decision without oral argument. 16 Having read the parties’ papers and carefully considered their arguments and the 17 relevant legal authority, and good cause appearing, the court hereby rules as follows. 18 BACKGROUND 19 Plaintiff sued defendants for violations of consumer protection laws based on 20 defendants’ allegedly misleading advertisements regarding the special features available 21 for purchase in the Bumble online dating app. Dkt. 1. Defendants responded by 22 simultaneously moving to dismiss the complaint and moving to compel arbitration. Dkt. 23 28, Dkt. 30. Following briefing of both motions and a hearing, the court granted 24 defendants’ motion to compel arbitration. Dkt. 49. Plaintiff requested, and was granted, 25 leave to file a motion for reconsideration. Dkt. 50, Dkt. 52. Plaintiff filed the instant 26 motion seeking reconsideration of the order compelling the parties to arbitration. Dkt. 53. 27 Defendants oppose reconsideration. Dkt. 54. 28 Dockets.Justia.com Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 2 of 7 DISCUSSION 1 Under Civil Local Rule 7-9(b), a party may request that a court reconsider a prior 2 3 order if there is a “manifest failure by the court to consider material facts or dispositive 4 legal arguments presented prior the subject order.” Civ. L.R. 7-9(b)(3). Reconsideration 5 is an extraordinary remedy that should be granted only in “highly unusual circumstances.” 6 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation 7 omitted). In his motion, plaintiff contends that the court 8 9 12 committed clear error by (1) applying a preponderance standard of review rather than the correct summary judgment standard of review; (2) failing to consider how Plaintiff’s evidence creates a triable issue of material fact; (3) failing to consider Plaintiff’s demand for a jury trial pursuant to 9 U.S.C. § 4; and (4) failing to consider and rule on Plaintiff’s evidentiary objections to Defendants’ evidence. 13 Dkt. 53 at 3. The court analyzes—and rejects—each reason below, though in a different 14 order. 15 1. 10 United States District Court Northern District of California 11 16 Standard of Review and Standard of Proof First, plaintiff argues that the court applied the wrong standard in deciding the 17 motion to compel arbitration, that the court should have applied the summary judgment 18 standard of Rule 56 rather than a preponderance of the evidence standard. The party 19 seeking to compel arbitration bears the burden to “prove the existence of a valid 20 agreement by a preponderance of the evidence.” Knapke v. PeopleConnect, Inc., 38 21 F.4th 824, 832 (9th Cir. 2022) (quoting Wilson v. Huuuge, Inc., 944 F.3d 1212, 1219 (9th 22 Cir. 2019)). And in considering whether an arbitration agreement was formed, “The 23 summary judgment standard is appropriate because the district court’s order compelling 24 arbitration ‘is in effect a summary disposition of the issue of whether or not there had 25 been a meeting of the minds on the agreement to arbitrate.’” Hansen v. LMB Mortg. 26 Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021) (quoting Par-Knit Mills, Inc. v. Stockbridge 27 Fabrics Co., 636 F.2d 51, 54 n.9 (3d Cir. 1980)). 28 2 United States District Court Northern District of California Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 3 of 7 1 Here, plaintiff incorrectly conflates the standard of proof with the standard of 2 review by arguing that the court applied one rather than the other. Both standards 3 govern a motion to compel arbitration: courts apply the preponderance standard as the 4 standard of proof and the summary judgment standard as the standard of review. 5 Bumble had the burden to establish by a preponderance of evidence that clicking through 6 the Blocker Card was the act of plaintiff necessary to show that he electronically signed 7 and agreed to the updated Terms. After considering the parties’ arguments and 8 evidence, and construing facts and reasonable inferences in favor of plaintiff as is 9 required under the summary judgment standard of review, the court concluded that 10 Bumble showed “by a preponderance of evidence that clicking through the Blocker Card 11 was ‘the act of’ plaintiff necessary to show that he electronically signed and agreed to the 12 updated Terms, including the Arbitration Agreement.” Dkt. 49 at 16. Plaintiff’s argument 13 that the preponderance standard is irreconcilable with the summary judgment standard of 14 review is hard to comprehend given, as defendant notes, the number of times that 15 plaintiff refers to the preponderance standard in his own papers. See, e.g., Dkt. 32 at 12 16 (“Bumble cannot show by a preponderance of the evidence that Plaintiff assented to the 17 updated Terms.”). Therefore, this argument is rejected. 18 2. Jury Trial Demand Second, plaintiff’s conflation of the standard of review with the standard of proof 19 20 dovetails with another argument he makes in support of reconsideration. Plaintiff argues 21 that the court failed to consider his jury trial demand pursuant to Title 9 U.S.C. § 4. 22 However, in its determination that Bumble met its burden to show assent to arbitration, 23 the court necessarily found that there was no triable issue of material fact. See Fed. R. 24 Civ. Pro. 56. Without a genuine dispute of material fact, there was no triable issue to 25 submit to a jury. Therefore, the court did not err on this ground either. 26 3. Consideration of Plaintiff’s Evidence 27 Third, the court reached the conclusion that there was no triable issue of material 28 fact in part because the evidence submitted by plaintiff did not suffice to create a triable 3 Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 4 of 7 1 issue, and it is from this angle that the court considers the third issue raised by plaintiff— 2 the court’s consideration of his evidence. Plaintiff submits that there was a genuine 3 dispute of material fact that precluded the court’s conclusion where he denied that he 4 viewed and clicked on the Blocker Card. Specifically, the evidence included two 5 declarations submitted by plaintiff. In the first declaration, dated May 14, 2022, he 6 declares that: 7 • 8 I had viewed the Blocker Card and clicked ‘I agree’ on March 4, 2021, I believe I 9 would recall doing so” (Alkutkar Decl. ¶ 4); 10 • 12 13 “The first time I recall signing in to the Bumble app after January 18, 2021 was in March 2021” (id. ¶ 5); and 11 United States District Court Northern District of California “I never viewed the Blocker Card and clicked an orange-colored ‘I agree’ button. If • “During the time I had the Bumble app installed on my phone, others have had access to my phone and have used it” (id. ¶ 8). 14 Dkt. 32-2 at 2–3. In the second declaration, dated July 6, 2022, plaintiff clarified that he 15 “unequivocally den[ies] that [he] viewed and clicked to agree to the Blocker Card,” and 16 that he was speaking hypothetically when he said in his earlier declaration that if he had 17 clicked the button, he believes that he would recall doing so. Dkt. 44-1 at 2. It is difficult 18 to reconcile these two alternatives—that plaintiff did not see the Blocker Card either 19 (1) because it did not appear, contrary to defendants’ evidence, or (2) because someone 20 else using his phone saw it and clicked the “I agree” button. By offering these two 21 alternatives, plaintiff equivocates and thus fails to create a triable issue against 22 defendants’ evidentiary showing. 23 Bumble’s evidence that plaintiff first accessed the app after January 18, 2021, on 24 March 4, 2021, is consistent with plaintiff’s claim that he first accessed the app after 25 January 18, 2021, in March 2021. Wong Decl. ¶¶ 17–18 (Dkt. 36-1 at 7). Defendants’ 26 evidence also shows that activity in plaintiff’s account in the app on March 4, 2021, 27 included the addition of photos and the swiping of profiles of potential dates, and in 28 March, August, and September 2021, the purchase of the premium features that are the 4 Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 5 of 7 1 subject of this lawsuit. Wong Decl. ¶ 18 (Dkt. 36-1 at 7). These facts are uncontroverted 2 by plaintiff’s evidence because if it is true, as plaintiff declared, that other people had 3 access to his phone and may have clicked the “I accept” button on the Blocker Card, his 4 argument that Bumble did not present the Blocker Card is mere speculation. He wouldn’t 5 know one way or the other whether the Blocker Card appeared if other people accessed 6 the app through his phone on March 4, 2021. As for plaintiff’s argument that defendants 7 could not prove that it was plaintiff and not someone else using plaintiff’s phone who 8 clicked the button, the court is not persuaded by plaintiff’s self-serving declaration with no 9 corroborating evidence on this point.1 This alternative explanation that someone else 10 clicked “I accept” on the Blocker Card, if corroborated, might have created a triable issue. Instead, plaintiff relies on his uncorroborated, self-serving declaration and the United States District Court Northern District of California 11 12 declarations of several other users who also declare that they didn’t see the Blocker Card 13 when they first opened the Bumble app in April or May 2022. Alkutkar Decl. ¶ 4 (Dkt. 32- 14 2 at 2); Autry Decl. ¶ 5 (Dkt. 32-3 at 2); Bothman Decl. ¶ 5 (Dkt. 32-4 at 2); Keysar Decl. 15 ¶ 6 (Dkt. 32-5 at 2); Krakirian Decl. ¶ 5 (Dkt. 32-6 at 2); Pawell Decl. ¶ 6 (Dkt. 32-7 at 2). 16 Most of these declarations suffer from the same hedge as plaintiff’s—they report that 17 other people used the declarants’ phones, suggesting someone else may have clicked 18 through the Blocker Card appearing upon the sign-in to their accounts without their 19 knowledge or consent. See id. But further, while these declarations might have some 20 probative value on the issue of whether there was a recent glitch in the Blocker Card 21 technology resulting in the Blocker Card not working as it was supposed to more than a 22 year after plaintiff first re-accessed the Bumble app, they are not probative of what 23 plaintiff experienced in March 2021. Plaintiff admits that he accessed the app in March 24 25 26 27 28 1 This is a claim that would have been easy to corroborate. Plaintiff could have submitted declarations from the other users of his device simply explaining that they saw (or did not see) the Blocker Card when they opened the app. The other user(s) of plaintiff’s device also could have explained that they were responsible for posting new photos to plaintiff’s account, swiping on profiles, and purchasing premium features for him. Plaintiff could even have just named the other users and provided the dates they used his phone and accessed his Bumble account. But he submitted nothing. 5 United States District Court Northern District of California Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 6 of 7 1 2021 and provides no corroboration that the Blocker Card was not working as intended 2 then. The court is left only with a self-serving declaration that he did not see the Blocker 3 Card. This is insufficient. See, e.g., Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1061 4 (9th Cir. 2002) (“this court has refused to find a ‘genuine issue’ where the only evidence 5 presented is ‘uncorroborated and self-serving’ testimony.”); FTC v. Publishing Clearing 6 House, 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking 7 detailed facts and any supporting evidence, is insufficient to create a genuine issue of 8 material fact.”). Thus, although plaintiff avers that there was a genuine dispute of 9 material fact as to whether he viewed and clicked on the Blocker Card, consideration of 10 the inconsistent and contradictory statements in plaintiff’s declarations precludes finding 11 a genuine dispute. 12 4. 13 Objections to Defendants’ Evidence Finally, plaintiff argues that the court committed error by failing to consider his 14 objections to defendants’ evidence. Plaintiff objected to the Chheena Declaration on the 15 following bases: lacks foundation; hearsay; lacks personal knowledge FRE 602; lacks 16 authenticity FRE 901; violates best evidence rule FRE 1002. Dkt. 32 at 31. Plaintiff 17 objected to the Wong Declaration on the same bases: lacks foundation; hearsay; lacks 18 personal knowledge FRE 602; lacks authenticity FRE 901; violates best evidence rule 19 FRE 1002. Dkt. 40 at 3-6. 20 As noted above, a court ruling on a motion to compel arbitration reviews the 21 evidence on the same standard as for summary judgment under Rule 56. See Navarro v. 22 SmileDirectClub, Inc., No. 22-CV-00095-WHO, 2022 WL 1786582, at *5 (N.D. Cal. June 23 1, 2022) (citing Tabas v. MoviePass, Inc., 401 F. Supp. 3d 928, 936 (N.D. Cal. 2019)). 24 “On a motion to compel arbitration . . . the Court ‘does not focus on the admissibility of 25 the evidence’s form,’ so long as the contents are capable of presentation in an admissible 26 form at trial.” Lomeli v. Midland Funding, LLC, No. 19-cv-01141-LHK, 2019 WL 4695279, 27 at *7 (N.D. Cal. Sept. 26, 2019) (quoting McKee v. Audible, Inc., No. 17-cv-1941, 2017 28 WL 7388530, at *4 (C.D. Cal. Oct. 26, 2017)); accord Hughes v. United States, 953 F.2d 6 Case 4:22-cv-00422-PJH Document 55 Filed 11/16/22 Page 7 of 7 1 531, 543 (9th Cir. 1992) (district court could base its grant of summary judgment in part 2 on government employee’s affidavit despite hearsay and best evidence rule objections). 3 “Objections on the basis of a failure to comply with the technicalities of authentication 4 requirements or the best evidence rule are, therefore, inappropriate.” McKee, 2017 WL 5 7388530, at *4. 6 In light of this authority, the court concludes that plaintiff’s boiler plate objections 7 need not be sustained. In this circuit, a court must rule on material evidentiary 8 objections. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). In the order 9 granting the motion to compel, the court implicitly overruled plaintiff’s objections and 10 expressly does so now. Plaintiff’s evidentiary objections are OVERRULED. CONCLUSION United States District Court Northern District of California 11 12 For the foregoing reasons, the court DENIES reconsideration of its order. The 13 parties must proceed to arbitration. The lawsuit is STAYED pending completion of the 14 arbitration proceedings. 15 16 17 18 IT IS SO ORDERED. Dated: November 16, 2022 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 19 20 21 22 23 24 25 26 27 28 7
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