United States District Court, D. Arizona
G. Campbell, United States District Judge
have filed a motion to dismiss Plaintiff's third amended
complaint (“Complaint”) and compel arbitration.
Doc. 8. The motion is fully briefed. Docs. 10, 14. No party
requests oral argument. The Court will grant the motion.
February 2004, Plaintiff Guy Pinto was hired by Defendant
United Services Automobile Association (“USAA”),
a provider of insurance products, credit cards, financial
planning, investments, and banking products. Doc. 1-2 at 32,
¶ 2. In December 2014, USAA terminated Plaintiff's
employment. Id. At the time of his termination,
Plaintiff was a Financial Foundations Relationship Specialist
working for USAA's Financial Planning Services Insurance
Agency, Inc. Doc. 8 at 2. Plaintiff's Complaint alleges
two counts: willful misconduct under A.R.S. § 23-1022(B)
(Count One), and “discrimination and/or
violations” of the Family Medical Leave Act, 29 U.S.C.
§ 2615 et seq. (Count Two). Doc. 1-2 at 40,
asks the Court to compel arbitration of Plaintiff's
claims and to dismiss the Complaint in its entirety.
See Doc. 8. USAA submits evidence that, in August
2004, USAA implemented the Dialogue Dispute Resolution
Program (“Dialogue”), which provides in part that
all employment-related disputes between USAA and its
employees (with some exceptions not relevant here) that are
not resolved through Dialogue must be submitted to binding
arbitration using, where applicable, the Employment Dispute
Resolution Rules of the American Arbitration Association.
Id. at 2. Further, USAA asserts that in June 2004,
USAA “posted the Dialogue Program materials on its
intranet referred to as ‘Connect, '” and
“[s]ince June 2004, Dialogue Program materials
including but not limited to the Dialogue Rules and Dialogue
Guide have been available to all USAA employees, including
Plaintiff, on Connect.” Doc. 14 at 4; Doc. 8 at 3. USAA
submits evidence that Plaintiff acknowledged he had received,
reviewed, and understood the Dialogue materials and consented
to be bound to Dialogue. Doc. 8 at 3-4.
argues that he “never agreed to USAA's Dialogue
Program or its arbitration requirement[, ]” and
“Defendants have produced no signature evidencing
Plaintiff's assent[.]” Doc. 10 at 5-6. Plaintiff
also contends that “[t]he Dialogue Program is
procedurally unconscionable because it is a contract of
adhesion, it is not irrevocable, and because it did not
specify what the rules and procedures of arbitration would
be.” Id. at 9. Plaintiff further argues that
“USAA's actions and inactions demonstrate that if
the program even applied to Plaintiff, USAA waived its
Dialogue Program by avoiding and proceeding in disregard of
its Dialogue program.” Id. at 11.
Federal Arbitration Act (“FAA”) “provides
that arbitration agreements ‘shall be valid,
irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract.'” Chalk v. T-Mobile USA, Inc.,
560 F.3d 1087, 1092 (9th Cir. 2009) (quoting 9 U.S.C. §
2). The FAA “leaves no place for the exercise of
discretion by a district court, but instead mandates that
district courts shall direct the parties to proceed to
arbitration on issues as to which an arbitration agreement
has been signed.” Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 218 (1985). “The court's
role under the [FAA] is therefore limited to determining (1)
whether a valid agreement to arbitrate exists and, if it
does, (2) whether the agreement encompasses the dispute at
issue.” Chiron Corp. v. Ortho Diagnostic Sys.,
Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). “If the
court finds that an arbitration clause is valid and
enforceable, the court should stay or dismiss the action to
allow the arbitration to proceed.” Kam-Ko Bio-Pharm
Trading Co. Ltd-Australasia v. Mayne Pharma, 560 F.3d
935, 940 (9th Cir. 2009).
does not dispute that Dialogue, if valid, encompasses the
dispute at hand. Accordingly, the Court need only decide
whether a valid agreement to arbitrate exists. See
Chiron, 207 F.3d at 1130.
Agreement to Arbitrate.
argues that Plaintiff agreed to arbitrate claims when he
agreed to participate in Dialogue. Doc. 8 at 3. Plaintiff
argues that he never agreed to Dialogue or its arbitration
agreement, and USAA has not produced a document containing
his signature. Doc. 10 at 5-8. Plaintiff also argues that the
arbitration provision is substantively unconscionable, and
that USAA has waived its right to proceed under Dialogue.
Id. at 9-11.
argues that “Arizona law requires an electronic
signature for a person to assent to a contract via
email.” Doc. 10 at 6. The Court does not agree. The
statute cited by Plaintiff, A.R.S. § 44-7007, confirms
that electronic records can be used to create a contract,
and, with respect to signatures, provides only that an
electronic signature can satisfy any law that requires a
A. A record or signature in electronic form cannot be denied
legal effect and enforceability solely because the record or
signature is in electronic form.
B. A contract formed by an electronic record cannot be denied
legal effect and enforceability solely because an electronic