Summary
In Beaulieu, the plaintiff had plainly agreed to submit to binding arbitration because he had agreed to, and availed himself of, the standard shipping contract which contained that agreement.
Summary of this case from Castro v. Loanpal, LLCOpinion
CV155036003
06-14-2016
Michael Beaulieu v. United Parcel Service
June 14, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR ARBITRATION (#105)
Robin L. Wilson, J.
FACTS
The instant matter involves the alleged mishandling of a package during delivery. On September 14, 2015, the self-represented plaintiff, Michael Beaulieu, filed a five-count complaint sounding in bailment, negligence, breach of written contract, breach of implied contract, and violation of the Uniform Commercial Code adopted into our General Statutes against the defendant, United Parcel Service (UPS). In his complaint, the plaintiff alleges the following facts. On or about March 4, 2015, the plaintiff brought two valuable watches to a UPS store in North Haven, Connecticut for delivery to a buyer in North Carolina at a retail store, the Diamond Gallery. The plaintiff requested that the watches be sent to the buyer in North Carolina for cash on delivery (COD). He further requested that the package be opened by the buyer inside the delivery location in the presence of the UPS delivery person.
The plaintiff claims that the two UPS employees assisting him, Gerald Blodgett and Tracy Gratta, assured that his requests would be honored. Upon delivery, the intended buyer refused delivery and the defendant informed the plaintiff of the refusal. Later, the intended buyer contacted the defendant and allegedly stated that he was ready and willing to accept the COD delivery. The defendant received a cashier's check from the buyer. When the defendant attempted to deposit the check into its account in order to transfer the funds to the plaintiff, it found that the check was fraudulent. The plaintiff claims that the cashier's check contained no markers of authenticity and that the actual location of delivery was a professional building that contained no retail stores or any storefront by the name of the Diamond Gallery. The plaintiff seeks money damages from the loss and expected sale of the watches.
On January 8, 2016, the defendant filed a motion to compel arbitration. In support of its motion, the defendant filed a memorandum in support and in addition, attached the affidavits of Michael McLaughlin, UPS Security Supervisor for the Northeast District, and Tracy Gratta, UPS Office Management Specialist in the Northeast District. The plaintiff filed opposition briefs on January 13, 2016; March 9, 2016; and March 23, 2016. On February 4, 2016, the defendant filed a reply brief to the plaintiff's opposition dated January 13, 2016. The court heard oral argument on this matter on March 14, 2016.
The court permitted the plaintiff until March 28, 2016, to file a supplemental brief in opposition to the defendant's motion for arbitration. As noted, the plaintiff filed his supplemental brief on March 23, 2016. The defendant filed an affidavit in response on April 6, 2016.
DISCUSSION
A procedural clarification regarding to the defendant's motion for arbitration must be made before this court can consider the parties' substantive arguments. Our Supreme Court has explained: " [General Statutes § § ]52-409 and 52-410 serve distinct functions. Section 52-409 provides relief when a party to a contract that contains an arbitration clause desires arbitration of a dispute, and the other party, instead of proceeding with arbitration, institutes a civil action to resolve the dispute. The party desiring arbitration can then seek a stay of the civil action. In contrast, § 52-410 comes into play when no action is pending between the parties, the parties have a contract providing for arbitration, and the parties are unable to agree about the arbitrability of the dispute. In that case, one of the parties may apply to the trial court, in accordance with the distinct statutory procedure provided by § 52-410, for an order directing the parties to proceed with arbitration." (Emphasis omitted.) Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768, 613 A.2d 1320 (1992).
The Supreme Court in Success Centers further elaborated the distinctions between General Statutes § § 52-409 and 52-410: " The trial court's authority under § 52-410 is quite different from its authority under § 52-409. Section 52-410 creates an independent action that can be instituted only by a properly served writ of summons and complaint . . . No civil action need be pending between the parties for a § 52-410 action to be commenced . . . Pursuant to § 52-410, a party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with arbitration can apply to the trial court for an order directing the parties to proceed with the arbitration in compliance with their agreement.
In its initial motion, the defendant concludes: " WHEREFORE, pursuant Conn. Gen. Stat. § § 52-408, 52-409 and 52-410, UPS moves for an Order directing Plaintiff to proceed with an arbitration in compliance with the UPS shipping contract." (Emphasis added.) In its response to the plaintiff's objection to its motion, the defendant concludes: " Accordingly, this matter should be stayed so that this matter can proceed via arbitration pursuant to Conn. Gen. Stat. § § 52-408, 52-409, and 52-410." (Emphasis added).
The language of § 52-410 is unambiguous in that " [t]he application shall be by writ of summons and complaint, served in the manner provided by law." Moreover, the Supreme Court has clearly set out the distinct purposes of and scenarios in which § § 52-409 and 52-410 can be invoked. In the present case, both parties are amidst pending litigation and the defendant has not sought arbitration by a separate writ of summons and complaint. This circumstance does not permit the court to issue an order to compel the plaintiff into arbitration pursuant to § 52-410. This circumstance does, however, permit the court to issue a stay of the current proceedings so that the parties can initiate arbitration in accordance with an alleged binding agreement. A fair reading of the defendant's motion indicates that the defendant is seeking a stay so that arbitration can proceed. Notably, the defendant has cited the specific language of only § § 52-408 and 52-409 in its briefs and not of § 52-410. In addition, while the defendant has not complied with the procedural mandates of § 52-410, it has complied with the procedural and substantive requirements of § 52-409 for this court to consider staying the present proceedings. Therefore, under these circumstances and for procedural reasons, this court cannot issue an order to direct the parties to proceed with arbitration pursuant to § 52-410, but this court may, for purposes of judicial economy, treat the defendant's motion as one for stay pursuant to § 52-409.
If this court were to deny the defendant's motion on a procedural technicality, the defendant would likely refile its motion under a different title and submit substantially the same arguments in support. Under such a situation, the parties would be required to reargue and the court would be required to rehear and reconsider essentially the same motion. As noted by our Supreme Court: " In either case, in granting or denying a stay under § 52-409, or in granting or denying an order directing the parties to proceed with arbitration under § 52-410, the trial court must determine whether the contract between the parties provides for arbitration." Success Centers v. Huntington Learning Centers, 223 Conn. 761, 768-69, 613 A.2d 1320 (1992). Thus, the court's substantive analysis under § 52-409 and § 52-410 are virtually the same; what distinguishes the two statutes are their purpose, procedure, and appealability of a trial court's decision. See id., 768-69.
" [O]ur courts have wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation." MSO, LLC v. DeSimone, 313 Conn. 54, 63, 94 A.3d 1189 (2014). Our public policy favoring arbitration is embodied in General Statutes § 52-408. It provides in relevant part: " An agreement in any written contract . . . to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally." General Statutes § 52-409 provides: " If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration."
The defendant moves for stay of proceedings in pursuit of arbitration on the basis of a standard contract into which all customers enter when they choose the defendant as their carrier. This shipping contract includes the UPS Tariff/Terms and Conditions of Service (UPS Tariff; Def. Ans. Ex., Docket Entry no. 102), which contains an arbitration agreement. Section 52 of the UPS Tariff provides in relevant part: " Claimant and UPS agree that, except for disputes that qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits on their jurisdictions over civil dispute), any controversy or claim, whether at law or equity, arising out of or related to the provision of services by UPS, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration." See Def. Ans., Ex. This section further provides in relevant part: " The Federal Arbitration Act governs the interpretation and enforcement of this provision. This agreement to arbitrate shall survive termination of the Terms." Id.
Section 55 addresses incorporation and modification of the UPS Tariff. It provides in relevant part: " All Shipments are subject to the terms and conditions contained in the Terms . . . The Terms, the Service Guide and the UPS Source Document for each Shipment together comprise the complete and exclusive agreement of the parties, including any of the UPS's affiliates or subsidiaries, except as modified by any existing or future written agreement between the parties, and may not be contradicted, modified or supplemented by oral agreement or by any implied-in-law covenant." Id.
Through the affidavit of McLaughlin, UPS Security Supervisor, the defendant explains that all customers, the plaintiff included, are required to complete a source document in which the customer provides the defendant with the pertinent information regarding the shipment. See McLaughlin Aff., ¶ 7 (Docket entry no. 125). McLaughlin further explains that the source document " contains language that the terms of agreement are subject to the UPS Tariff in effect at the time of shipment and the acceptance of the UPS shipping contract terms by the shipper." Id., ¶ 8. McLaughlin also avers to the defendant's use of the iship system in the regular course of business. Id., ¶ 9. He states that the defendant requires a customer entering into a shipping contract at a customer counter to use the iship system. Id. A customer must complete four sections to obtain a shipping request. Id., ¶ 10, 11. In the field where the customer may print her request, the defendant makes available a link to its terms and services. Id., ¶ 12. If a customer clicks the link, the following message appears: " By clicking on 'Print' and tendering your package for shipment, you agree to, for yourself and as agent for and on behalf of any person having interest in this package, Terms of Service specified by UPS on any applicable waybill, tariff, service guide, including terms which may limit the liability of UPS. UPS Terms of Service and Tariff information is viewable at www.ups.com or may be obtained from the counter attendance upon request." Id., Ex. A.
In order to receive services from the defendant, the customer must provide the printed shipping request to a UPS counter attendant and pay for the services requested. Id., ¶ 13. If a customer does not complete the forms in the iship system or does not agree with the Terms of Service at a service counter, he cannot print out a shipping request or tender a package for delivery by the defendant. Id., ¶ 14. McLaughlin avers that the defendant maintains electronic records of its transactions through the use of tracking numbers and its Electronic Tracking and Tracing System (eTT records). Id., ¶ 16, Ex. B, C. He explains that if a customer enters into a shipping contract through the iship system, the information is stored in the eTT records under the tracking number assigned to the customer's package. Id., ¶ 18. He avers that the iship system was in place at the North Haven location where the plaintiff tendered his package for shipment. Id., ¶ 15. He further avers that the eTT records indicate that the plaintiff had entered into a shipping contract at a UPS customer counter located in North Haven. Id., ¶ 20-21, Ex. B, C.
The affidavit of Gratta confirms that the plaintiff was serviced at a UPS customer counter in North Haven and that the plaintiff entered his information into the iship system and printed a shipping request. Gratta avers to assisting the plaintiff on the day he sought to ship his watches to North Carolina. See Gratta Aff., ¶ 7 (Docket entry no. 136). Gratta further avers that no employees or contracted workers at the UPS in North Haven had the authority to change the terms of the UPS shipping contract or to enter into separate agreements on behalf of the defendant. Id., ¶ 5.
In opposition to the defendant's motion, the plaintiff argues that the shipping agreement is a contract of adhesion and that the arbitration agreement is unconscionable. Additionally, the plaintiff maintains that he never agreed to the defendant's standard shipping contract. The plaintiff also explains that his counts for breach of implied contract and breach of written contract refer to a separate agreement entered into with Gratta and another UPS worker, Gerald Blodgett. To support the existence of this separate agreement, the plaintiff offers the affidavit of Blodgett. Blodgett assisted the plaintiff in shipping his watches. See Blodgett Aff., ¶ 6-10 (Docket entry no. 121). Blodgett avers that he and his supervisor, Gratta, agreed to and signed a written contract with the plaintiff setting out the terms and conditions of shipment and delivery of the watches. Id., ¶ 16, 21. Blodgett further avers that other than the written agreement between himself and the plaintiff, the plaintiff did not sign any UPS documents and did not use or was asked to use any electronic devices at the UPS location. Id., ¶ 24. Notably, in Gratta's affidavit, she denies that Blodgett was employed by the defendant. See Gratta Aff., ¶ 3-4. Gratta explains that Blodgett was employed by a " temp agency" and assigned to work at the defendant's customer counter located in North Haven. Id., ¶ 4. Gratta also avers that neither she nor Blodgett would have had the authority to alter the terms of the defendant's standard shipping contract or enter into separate agreements on the defendant's behalf. Id., ¶ 5.
I
EXISTENCE OF CONTRACT
Given that the plaintiff denies assenting to the defendant's standard shipping contract and the defendant asserts that a contract was formed when the plaintiff completed his transaction with the defendant, the court must first determine whether the contract existed on the basis of the available facts. " It is well established that [a]rbitration is a creature of contract . . . The arbitration provision in an agreement is, in effect, a separate and distinct agreement. Courts of law can enforce only such agreements as the parties actually make . . . Accordingly, because an arbitrator's jurisdiction is rooted in the agreement of the parties . . . a party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision." (Citations omitted; emphasis in original; internal quotation marks omitted.) Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 72-73, 856 A.2d 364 (2004). " [T]he issue of whether the parties to a contract have agreed to arbitration implicates their intention, an issue of fact for the court's determination." (Citation omitted.) Salomon Smith Barney, Inc. v. Cotrone, 81 Conn.App. 755, 758, 841 A.2d 1199 (2004).
" It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were . . . Whether the parties intended to be bound without signing a formal written document is an inference of fact for the trial court that [the appellate court] will not review unless [the appellate court] find[s] that its conclusion is unreasonable . . . Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Citation omitted; emphasis added; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006).
In the present case, the plaintiff emphasizes that he never signed a document in which he assented to the terms of the standard shipping contract, namely, the agreement to submit to binding arbitration. In addition, he maintains that the defendant did not mention to him or communicate to him about a written contract binding him and the defendant to the standard shipping contract. The plaintiff further contends that he did not see a contract or hear or discuss or mention a contract with anyone at the time his watches were processed for shipment.
At the outset, the plaintiff's argument that the standard shipping contract was unenforceable because he did not sign a document reflecting his assent is unavailing. As clearly stated by our appellate authority, whether a contract existed and is, therefore, enforceable, turns on the intent of the parties. If their intent indicates assent to the contract, the absence of a signature will not render the contract unenforceable or nonexistent. Turning to the available facts, this court can reasonably infer that a contract existed between the plaintiff and the defendant, based on the parties' intent. McLaughlin's affidavit indicates that the plaintiff could not have tendered his package for delivery by the defendant without agreeing to the UPS Tariff. In essence, agreement to the UPS Tariff is a condition precedent to the defendant rendering delivery services. The eTT record, tracking the plaintiff's package, and provided by both the plaintiff and the defendant, demonstrate that the plaintiff sought out the defendant's services, gave his watches to the defendant to package and deliver, and paid for these services, which were actually carried out. As a result, the plaintiff assented to the standard shipping contract when he initiated and completed his shipping transaction with the defendant. The plaintiff availed himself of the defendant's services and, therefore, subjected himself to the standard shipping contract.
Furthermore, the plaintiff's contention that he entered into a separate contract with Blodgett and Gratta is also unavailing. Despite the contradicting averments in Blodgett's and Gratta's affidavits, the plaintiff's evidence does not indicate that either Blodgett or Gratta agreed to disregard the terms of the standard shipping contract. While the plaintiff maintains that Blodgett and Gratta signed a written contract setting out his specific directions for shipment and delivery of his watches, nowhere in either Blodgett's or Gratta's affidavit do the affiants state that they agreed to reject the standard shipping contract and substitute the standard contract with the one allegedly written by the plaintiff. See Blodgett Aff., ¶ 15-23; Gratta Aff., ¶ 7. Blodgett avers only to have entered into a written agreement that detailed the plaintiff's particular concerns and requests regarding the delivery of his watches. Blodgett Aff., ¶ 15-23. Gratta denies having agreed to any terms outside the standard shipping contract. Gratta Aff., ¶ 7.
There is no indication by affidavit or other form of evidence that either Gratta or Blodgett agreed to renounce the standard shipping contract, including the arbitration agreement contained in the UPS Tariff, when they transacted business with the plaintiff. The plaintiff has not presented a copy of this alleged written contract with Gratta and Blodgett. It is only the plaintiff's assertion that the agreement between himself, Gratta, and Blodgett had the effect of replacing the standard shipping contract. Absent evidence to support this assertion, and given the evidence before the court, the court cannot conclude that the standard shipping contract was substituted by a separate agreement between the plaintiff and the defendant.
As to the plaintiff's contention that there was a contract implied at law, § 55 of the UPS Tariff explicitly states that the standard shipping contract cannot be contradicted, modified or supplemented by any implied-in-law covenant. As noted, the plaintiff, having availed himself of the defendant's services, and the completion of a shipping transaction, manifested his assent to the standard shipping contract, including the provisions of § 55 of the UPS Tariff. On the basis of the evidence before this court, the plaintiff, by his actions, assented to the standard shipping contract and, therefore, the contract existed and is enforceable.
II
ARBITRABILITY
Having determined that a contract existed between the plaintiff and defendant, the court must next determine whether the defendant has met the threshold requirements of § § 52-408 and 52-409. " [A]n agreement to arbitrate must meet the requirements of [General Statutes § 52-408], including the requirement that the agreement be in writing, or it is invalid." Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988). " General Statutes § 52-409 provides that where an action is brought by any party to a written agreement to arbitrate, the court shall stay the action upon motion by any party to the agreement, provided that the issue involved is referable to arbitration and that the person seeking the stay is ready and willing to proceed with arbitration." KND Corp. v. Hartcom, Inc., 5 Conn.App. 333, 336, 497 A.2d 1038 (1985). " An arbitrator's power to arbitrate claims consists of the power to hear and determine issues that fall within the class of matters that the parties have agreed to resolve using this alternative forum." MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 389, 926 A.2d 1035 (2007). " [I]t is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed." (Internal quotation marks omitted.) Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 72.
In the present case, it is clear that the defendant is ready and willing to proceed with arbitration as it is the party moving and advocating for arbitration. It is also clear that the arbitration agreement is in writing as demonstrated by a copy of the UPS Tariff attached to the defendant's answer and special defense (Docket entry no. 102). As to whether the issues involved here are referable to arbitration requires examining the language of the agreement itself. The arbitration agreement in the UPS Tariff provides in relevant part: " Claimant and UPS agree that, except for disputes that qualify for state courts of limited jurisdiction (such as small claims, justice of the peace, magistrate court, and similar courts with monetary limits on their jurisdictions over civil disputes), any controversy or claim, whether at law or equity, arising out of or related to the provision of services by UPS, regardless of the date of accrual of such dispute, shall be resolved in its entirety by individual (not class-wide nor collective) binding arbitration." (Emphasis added.)
The scope of the arbitration agreement is broad to encompass any controversy or claim in law or equity arising between the plaintiff and the defendant involving the defendant's provision of services. The plaintiff's causes of action arise out of the defendant's alleged failure to exercise the proper duty of care in the delivery of his watches and failure to follow the plaintiff's particular instructions in the delivery of his watches. While the agreement contains an exception for disputes that qualify for courts of limited jurisdiction, the facts of the present case do not fall within this exception. Thus, the plaintiff's claims are referable to arbitration as they arise out of and are related to the provision of delivery and shipment services by the defendant. As a result the defendant has met the threshold requirements of § § 52-408 and 52-409.
III
PLAINTIFF'S CHALLENGES TO THE STANDARD SHIPPING CONTRACT
The plaintiff's challenges to the standard shipping contract as a contract of adhesion and to the arbitration agreement as unconscionable remain. Specifically, the plaintiff argues that requiring him to submit to arbitration per the standard shipping agreement would be unconscionable as the terms are harsh and were a product of unfair bargaining and negotiating conditions. Our Supreme Court has acknowledged three propositions regarding arbitration agreements: " First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts." C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 75, 919 A.2d 1002 (2007); Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 72. (" The arbitration provision in an agreement is, in effect, a separate and distinct agreement").
As our Supreme Court has made clear, an arbitration provision is severable from the contract and attacks on the contract as a whole should be submitted to the arbitrator while the determination as to whether the arbitration provision itself is valid and enforceable is left for the court to decide. See Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 72-73 ([A] party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision" [emphasis in original; internal quotation marks omitted]). Even more specifically, " the question of whether the entire agreement containing an arbitration provision is a contract of adhesion is one for an arbitrator's determination and not, at this juncture, one for judicial review." Salomon Smith Barney, Inc. v. Cotrone, supra, 81 Conn.App. 761. In accordance with our appellate authority, the plaintiff's attack on the standard shipping contract as a whole as an adhesion contract is not an issue for this court to address in the first instance, but for an arbitrator.
As to whether the arbitration agreement is unconscionable, this court, in Horrocks v. Keepers, Inc . previously noted that the unconscionability of arbitration agreements has not been directly addressed by any of our state courts. See Horrocks v. Keepers Inc., Superior Court, judicial district of New Haven, Docket No. CV-15-6054684-S (January 4, 2016, Wilson, J.) [61 Conn.L.Rptr. 599, ]. In Horrocks, this court looked to our state's general legal standards of contract enforcement and unconscionability and guidance from federal law on the enforceability of arbitration agreements in granting the defendant's motion for stay pursuant to § 52-409. Id.
" [T]he classic definition of an unconscionable contract is one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other . . . In practice, [the court has] come to divide this definition into two aspects of unconscionability, one procedural and the other substantive, the first intended to prevent unfair surprise and the other intended to prevent oppression." (Citation omitted; internal quotation marks omitted.) Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 349, 721 A.2d 1187 (1998). " Substantive unconscionability focuses on the content of the contract, as distinguished from procedural unconscionability, which focuses on the process by which the allegedly offensive terms found their way into the agreement." (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, n.14, 87, 612 A.2d 1130 (1992).
" Under Connecticut law, a court cannot find procedural unconscionability unless the party opposing enforcement of a contractual provision has introduced some specific evidence of overreaching by the other party in the formation of the agreement." (Emphasis in original.) Daimlerchrysler Insurance Co., LLC v. Pambianchi, 762 F.Supp.2d 410, 423 (D.Conn. 2011), aff'd, 469 Fed.Appx. 65 (2d Cir. 2012); see also Smith v. Mitsubishi Motors Credit of America, Inc., supra, 247 Conn. 351-52. Along this vein, arbitration agreements may be deemed void where the factual circumstances indicate duress, misrepresentation, fraud, or undue influence in the formation of the arbitration agreement. See Nussbaum v. Kimberly Timbers, Ltd., supra, 271 Conn. 74-75.
" The Second Circuit instructs us that any analysis of a party's challenge to the enforcement of an arbitration agreement must begin by recognizing the [Federal Arbitration Act (FAA)]'s strong policy in favor of rigorously enforcing arbitration agreements." (Internal quotation marks omitted.) Morales v. Rent-A-Center, Inc., 306 F.Supp.2d 175, 179 (D.Conn. 2003). " When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA . . . But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or . . . unconscionability, is alleged to have been applied in a fashion that disfavors arbitration." (Citation omitted.) AT& T Mobility, LLC v. Concepcion, 563 U.S. 333, 340, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).
As in Horrocks, the arbitration agreement in the UPS Tariff is governed by the FAA and thus, the strong policy favoring enforcement of arbitration agreements underlying the FAA and underlying our public policy favoring arbitration as an alternative to litigation is recognized here. Also, similar to Horrocks, the plaintiff has not produced sufficient evidence to demonstrate unconscionability. Specifically, he fails to introduce some specific evidence of overreaching by the defendant in the formation of the agreement or that the agreement is one that " no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept." See Smith v. Mitsubishi Motors Credit of America, Inc., supra, 247 Conn. 349. The UPS Tariff clearly is a standard form service agreement that a vast majority of commercial patrons enter into on a daily basis. There is no indication by the nature of the transaction with the plaintiff, as detailed by the affidavits offered to this court, that would render the arbitration agreement unconscionable. The plaintiff does not offer evidence of duress, misrepresentation, fraud, or undue influence in the formation of the arbitration agreement. In addition, the plaintiff does not direct the court's attention to any specific language in the arbitration agreement that is so patently unfair or oppressive as to be deemed unconscionable. On the contrary, the language of § 52 of the UPS Tariff clearly and neutrally sets out the scope of arbitration, the laws and procedures governing arbitration with the defendant, and acknowledgments both parties make in relation to § 52.
Moreover, as concluded in Horrocks: " An adhesion contract with unequal bargaining power, by itself, is not sufficient to make an arbitration agreement unconscionable." Horrocks v. Keepers Inc., Superior Court, judicial district of New Haven, Docket No. CV-15-6054684-S (January 4, 2016, Wilson, J.) [61 Conn.L.Rptr. 59, 9]. The circumstances of the present case do not support the existence of unequal bargaining power such that would void the arbitration agreement at issue. Although the defendant was the sole author of the standard shipping contract, the plaintiff was in a position to choose the carrier he wished to ship and deliver his watches. The plaintiff was not in such a position that he had no choice and was forced into the defendant's standard shipping contract thereby unfairly binding him to the arbitration agreement. On the contrary, the plaintiff, as many patrons in the plaintiff's position do, likely had a number of carriers that he could have researched and chosen to deliver his package. Therefore, because the plaintiff challenges the contract as a whole as one of adhesion, this court is not required to address this challenge in the first instance. Furthermore, absent evidence of overreaching in the formation of the agreement or unduly oppressive language in the agreement, the arbitration agreement in the UPS Tariff is neither procedurally nor substantively unconscionable.
CONCLUSION
For the foregoing reasons, defendant's motion for arbitration and to stay the current proceedings pursuant to General Statutes § 52-409 is granted.
In either case, in granting or denying a stay under § 52-409, or in granting or denying an order directing the parties to proceed with arbitration under § 52-410, the trial court must determine whether the contract between the parties provides for arbitration. Because, however, a civil action must be pending for a § 52-409 order to be issued, we have held that such an order is interlocutory and, therefore, not appealable . . . Section 52-410, on the other hand, allows a party to an arbitration agreement to commence an independent action in the Superior Court to compel arbitration when no civil action is pending between the parties. The trial court's decision in a § 52-410 action, therefore, terminates the action between the parties. Thus, we have construed a court order made pursuant to § 52-410 as a final order from which either party to the agreement may appeal." (Citations omitted; emphasis in original.) Success Centers, Inc. v. Huntington Learning Centers, 223 Conn. 761, 768-69, 613 A.2d 1320 (1992).