UNlTED STATES DISTRICT COURT
FOR THE DISTRICT OF C()LUMBIA

 

GREGORY SELDEN,

Plaintiff,

v. Case No. l6-cv-933 (CRC)
AIRBNB, I`NC.,

Defendant.

 

 

OPINION AND ORDER

Plaintiff Gregory Seiden brought this suit against Airbnb, alleging unlawqu race
discrimination ()n Noveinber l, 2016, the Court issued a Memoranduin Opinion and Ordcr
granting Airbnb’s Motion to Compel Arbitration and staying all proceedings in the case. w
Selden v. Airbnb, lG-cV-933, 2016 WL 6476934 (D.D.C. Nov. l, 2016). 'l`he Court’s decision to
stay the case, rather than to dismiss it, is consistent with recent cases in this district §§§ g at *9
n. 5 (coilecting cases). This decision, however, precludes Selden from immediately appealing
the Court’s Order as a matter of right He has thus moved to certify the Order for interlocutory
appeal ln the alternative, Selden asks the Court to simply dismiss the case, thus providing a
basis for appeal

"I`he Couit may certify an order for interlocutory appeal if it finds there are “controiling
question[s] of faw as to Which there is substantial ground for difference ofopinion and that an
immediate appeal from the order may materialiy advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). A substantial ground for difference of opinion may be
established by “a dearth of precedent Witbin the controliingjurisdiction and conflicting decisions
in other circuits.” APCC Servs., lnc. v. AT & T Corp., 297 F. Supp. 2d ]01, 107 (D.D.C. 2003)

(citing City Stores Co. v. Lerner Sbops, 4i0 F.Zd lOlO, lOll (D.C. Cir. 1969)).

’l`his standard is demanding E iudicia| Watch, inc. v. Nat’l Energy Policy Dev. Grp.,
233 F. Supp. 2d l6, 19-20 (D.D.C. 2002). “Although courts have discretion to certify an issue
for interlocutory appeal, interlocutory appeals are rarely allowed.” Nat’l Clnty. Reinvestment
Coal. v. Accredited Hoine Lenders Holdina Co., 597 F. Supp. 2d 120 (D.D.C. 2009) (internai
quotations omitted). 'l`he moving party generally bears a heavy burden to show that “exceptional
circumstances justify a departure from the basic policy of postponing appellate review until after
the entry of final judginent.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (l978). And
this burden is even more stringent where the Court has compelled arbitration, given the Federal
Arbitration Act’s (“FAA”) objective ot`“moving the parties to an arbitrable dispute out of court
and into arbitration as quickly and easily as possible.” Green Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 85_86 (2000) (internal quotations omitted); see also Adler v. De|l, lnc.,
08-cv-13170, 2009 WL 646885 (l\/iar. i0, 2009} (“Certification [under 28 U.S.C. § l292(b)} is
unwarranted where it would frustrate the pro-arbitration tilt of the FAA, with its concomitant
policy of avoiding unnecessary delays in prosecuting arbitration in part through the
discouragement of immediate appellate review of orders compelling arbitration.”).

The Court reiterates its conclusion that “the applicable law is clean Mutuai arbitration
provisions in electronic contracts_so long as their existence is made reasonably known to
consun‘lers»mare enforceable, in commerciai disputes and discrimination cases alike.” §meld§g,
20i 6 WL 6476934 at *2 (ernphasis added). Selden argues that appellate guidance is needed on
this issue because “the [C]ourt did not . . . cite to any authority from the D.C. Circuit with respect
to the nature of electronic bargaining or online adhesion contracts.” Pl.’s l\/Iot. Certify
lnterlocutory Appeal (“MCIA”) 5. But the Court did not cite authority from the D.C. Circuit on

this issue because both parties agreed that California law governed the question of contract

formation. See Selden, 20i6 WL 6476934 at *4 n. l. And as the Couit discussed extensively in

 

its l\/lemorandum Opinion, an electronic adhesion contract must be upheld under California law
if its terms are clear and conspicuous ida at *4»»5. Selden also claims that Judge Rakoff’s recent
opinion in l\/Ieyer v. Kalanicl<, 2016 WL 4073012 (S.D.N.Y. .luly 29, 2016), finding Uber’S
arbitration agreement invalid under California law, constitutes a conflicting decision in another
circuit that warrants certification Pl.’s l\/ICIA 4»-5. But .ludge Ral<off reached a different
outcome based on different facts. "I`he Court’s decision does not conflict with M on any
question of law. Indeed, the Court cited umw in discussing the appropriate legal standard to
apply to Airbnb’s arbitration agreement §§ M, 2016 WL 6476934 at *5. The Court thus
finds that there is not “substantial ground for difference of opinion,” 28 U.S.C. § l292(b), on the
legal issue of electronic adhesion contracting under California law.

Nor is there substantial ground for disagreement on the question of whether Selden’s civil
rights claims are subject to arbitration Selden argues that “there is no clear authority offered
from any higher court indicating that [his civil rights claims are] arbitrable or subject to the
FAA.” Pl.’s l\/ICIA 7. l\lot so. 'l`he Supreme Court “has been quite specific in holding that
arbitration agreements can be enforced under the FAA without contravening the polices of
congressional enactments giving [individuals] specific protection against discrimination

prohibited by federal law.” Selden, 2016 WL 6476934 at *7 (quoting Circuit City Stores. lnc. v.

 

AQM, 532 U.S. 105, l23 (2001))`; see also Bool<er v. Robert Halflntern., Inc., 413 F.3d 77, 79
(D.C. Cir. 2005) (holding that agreements to arbitrate statutory claims are valid “so long as the
agreement does not lequire the claimant to forgo the substantive rights afforded under the
statute”). The Court thus finds that Selden has not met his heavy burden to justify certification

of the Order for interlocutory appeal.

Alternatively, Se|den requests that the Court simply “dismiss this action or provide a final
order disposing ofall claims to enable Plaintiff [to] proceed with an appeal.” Pl.’s i\/lCIA 9. The
Federal Arbitration Act, however, likely precludes the Court from doing so. There is currently a
circuit split as to “whethei' district courts must stay proceedings after ali claims have been
referred to arbitration and a stay has been requested, or whether they retain the discretion to
dismiss such cases outi'ight.” Goodrich v. Adtrav Travel l\/lgnit., 15-cv-899, 2016 WL 4074082
at *4 n. 3 (D.D.C. 2016) (citing Katz v. Cellco Pai'tnership, 794 F.3d 341, 344 (2<;1 Cir. 2015)).
’fhe Courts oprpeals are evenly divided _S@ KLtz, 794 F.3d at 345 (collecting cases). And as
far as the Court is aware, the D.C. Circuit has not addressed this issue.

The Court must decline to dismiss the case. Notwithstanding the D.C. Circuit’s siience
on the issue, issuing a stay comports with recent practice in this district B, gg, Goodrich,
2016 WL 4074082; Ruiz v. i\/lillennium Square Residentiai Assoc., 156 F. Supp. 3d 176, 184
(D.D.C. 2016); White v. Four Seasons Hotels and Resorts, 999 Ft Supp. 2d 250, 261_62 (D.D.C.
2013), i\/loreover, as the Second Circuit persuasively explained in M, “the FAA’s text,
structure, and underlying policy command this resuit.” 794 F.3d at 345. Beginning with the
text, Section 3 of the FAA provides that once a district court refers a case to arbitration, it “s!iall
on application of one of the parties stay the trial of the action until such arbitration has been had
in accordance with the terms of the agreement.” 9 U.S.C. § 3 (eniphasis added). The Supreme
Court has been clear that a statute’s use of the term “shail” will “create[ j an obligation
impervious to judicial disci'etion.” K"_aht~z“, 794 F.3d at 345 (quoting Lexecon lnc. v. l\/lilbcrg Weiss
Bershad l~iynes & Lerach, 523 U.S. 26, 27 (1998)).

"i`he FAA’s structure and policy objectives support this resuit as well. The Act “permits

immediate appeal of orders hostile to arbitration . . . but bars appeal of interlocutory orders

favorable to arbitration,” Green Tree Financial Corp.»Alabaina v. Randoipli, 531 U.S. 79, 86
(2000), “[:e]xeept as otherwise provided in section l292(b) oftitle 28,” 9 U.S.C. § l6. This
structure “is consistent with the FAA’s underlying poiicy to move the parties to an arbitrable
dispute out of court and into arbitration as quickly and easily as possible.” guy 794 F.3d at 346

(quoting Moses H. Cone Mem’l l-losp. v l\/lercurv Constr. Corp., 460 U.S. i, 22 (1983)). i`lie

Court therefore finds that the FAA precludes it from granting Selden’s request to dismiss the

CHS€.l

For the foregoing reasons, it is hereby ORDERED that Seiden’s [23} l\/Iotion for
Certification of an Interlocutory Order for immediate Appeal is DENIED. The proceedings in
this case will remain stayed pending the outcome of arbitration The parties are further
ORDERED to submit ajoint status report within 90 days regarding the status of arbitration

proceedings

%~i!¢&,a /Z. H/¢,t~

CH RISTOPHER Ri COOPER
United States District Judgc

 

Date: December 19, 2016

 

l The Court’s decision today does not preclude Selden from appealing once arbitration
proceedings have concluded and the Court issues an order dismissing the case. w 9 U.S.C. §
i6(a) (“An appeal may be taken from . . . a final decision with respect to an arbitration that is
subject to this title.”).

