Opinion
2:23-cv-682
07-31-2023
KIM SIFLINGER, individually and on behalf of all others similarly situated, Plaintiff, v. ALBERTSONS COMPANIES, INC., a foreign limited liability corporation, and SAFEWAY INC., a foreign corporation, Defendants.
TERRELL MARSHALL LAW GROUP PLLC Beth E. Terrell, WSBA #26759 Blythe H. Chandler, WSBA #43387 SUGERMAN DAHAB David F. Sugerman, Pro Hac Vice Forthcoming Email: david@sugermandahab.com Nadia S. Dahab, Admitted Pro Hac Vice Tim Alan Quenelle, Pro Hac Vice Forthcoming Email: tim.quenelle@gmail.com 4800 SW Meadows Road, #300 Lake Oswego, OR 97035 Telephone: (503) 675-4330 BERGER MONTAGUE, P.C. E. Michelle Drake, Admitted Pro Hac Vice Attorneys for Plaintiffs PERKINS COIE LLP James F. Williams, WSBA #23613 Attorneys for Defendant Albertson's Companies, Inc. and Safeway Inc.
NOTED FOR CONSIDERATION: JULY 27, 2023
TERRELL MARSHALL LAW GROUP PLLC
Beth E. Terrell, WSBA #26759
Blythe H. Chandler, WSBA #43387
SUGERMAN DAHAB
David F. Sugerman, Pro Hac Vice Forthcoming Email: david@sugermandahab.com
Nadia S. Dahab, Admitted Pro Hac Vice
Tim Alan Quenelle, Pro Hac Vice Forthcoming Email: tim.quenelle@gmail.com
4800 SW Meadows Road, #300 Lake Oswego, OR 97035 Telephone: (503) 675-4330
BERGER MONTAGUE, P.C.
E. Michelle Drake, Admitted Pro Hac Vice Attorneys for Plaintiffs
PERKINS COIE LLP James F. Williams, WSBA #23613 Attorneys for Defendant Albertson's Companies, Inc. and Safeway Inc.
STIPULATION AND ORDER REGARDING THE PARTIES' LIMITED AGREEMENT TO ARBITRATE ISSUES CONCERNING THE SCOPE OF THE ALLEGED AGREEMENT TO ARBITRATE
JAMAL N. WHITEHEAD, UNITED STATES DISTRICT JUDGE
WHEREAS, on April 7, 2023, Plaintiff Kim Siflinger commenced this action (the “Action”) by filing a Class Action Complaint in Washington Superior Court, King County, asserting claims against Defendants Albertsons Companies, Inc. and Safeway Inc. (together, “Defendants”) under the Washington Consumer Protection Act, on behalf of herself and a proposed class;
WHEREAS, on May 10, 2023, Defendants filed a timely Notice of Removal to this Court (ECF No. 1);
WHEREAS, on May 12, 2023, Plaintiff filed a First Amended Class Action Complaint (ECF No. 10) (the “Complaint”), which is currently the operative complaint in this Action;
WHEREAS, on June 12, 2023, Defendants filed a Motion to Compel Arbitration or, in the Alternative, to Dismiss for Failure to State a Claim (ECF No. 23) (the “Motion”);
WHEREAS, as part of the Motion, Defendants asserted that Plaintiff and Defendants are parties to a contract, substantially in the form set forth in Exhibit A to the Declaration of Kevin Michael, dated June 7, 2023 (ECF No. 24) (the “Terms of Use”), containing a provision (paragraph 24, the “Arbitration Clause”) in which Plaintiff and Defendants purportedly agreed to arbitrate certain disputes;
WHEREAS, Defendants further asserted in the Motion that the Arbitration Clause contains a delegation provision by which Plaintiff and Defendants purportedly agreed that any disputes concerning the scope of the Arbitration Clause would be decided by an arbitrator in the first instance;
WHEREAS, Plaintiff disputes that she entered into a binding agreement to arbitrate any disputes she may have or had with Defendants and disputes that the Arbitration Clause Defendants seek to enforce contains a delegation provision;
WHEREAS, Plaintiff further disputes that the scope of the Arbitration Clause would encompass the subject matter of this Action, even if such an enforceable arbitration agreement exists; and
WHEREAS, notwithstanding the foregoing, Plaintiff has nevertheless agreed to consent to confidential arbitration for the limited and sole purpose of determining whether the claims asserted in this Action fall within the scope of the Arbitration Clause;
NOW, THEREFORE, Plaintiff and Defendants (the “Parties”) jointly stipulate and agree as follows, subject to the Court's approval:
1. The Recitals are incorporated herein by reference to the same extent and with the same force and effect as if fully set forth herein.
2. Plaintiff consents to arbitration under the terms set forth in the Arbitration Clause solely and exclusively for the limited purpose of determining the threshold issue of arbitrability-i.e., whether the claims at issue in this Action fall within the scope of the Arbitration Clause. If the arbitrator determines that the claims at issue in this Action fall within the scope of the Arbitration Clause, Plaintiff agrees that she must arbitrate those claims according to the terms of the Arbitration Clause and the Terms of Use.
3. In an effort to further streamline proceedings and promote judicial economy, the Parties agree to produce certain documents and information (as specified in Schedule A hereto) within 30 days of the service on Defendants of an arbitration demand by Plaintiff. The Parties otherwise agree that the discovery requests served by Plaintiff on June 14, 2023, are moot and no further response by Defendants is required.
4. The Parties agree that the arbitration will be kept confidential except that they may disclose to this Court whether the arbitrator concludes that the claims at issue in this Action fall within or outside the scope of the Arbitration Clause. Nothing in this stipulation precludes either party from moving in this Court for entry of an order enforcing an arbitrator's award or ruling under 9 U.S.C. § 9.
5. The Parties respectfully request that the Court stay this Action pending the outcome of the arbitration proceeding described above and that this Court retain jurisdiction, as necessary, pending the outcome of such arbitration proceeding.
6. The Parties further agree to submit joint status reports to the Court every 30 days until the stay described above is lifted. The first such status report shall be due on September 1, 2023.
7. The Parties further agree that this Stipulation is without prejudice to the dismissal arguments under Federal Rule of Civil Procedure 12(b)(6) that Defendants raised in the Motion and that Defendants may renew those arguments after the arbitrator rules on the threshold issue of arbitrability-i.e., whether the claims at issue in this Action fall within the scope of the Arbitration Clause.
This Stipulation may be signed in counterparts. A facsimile, PDF, or electronic signature on this Stipulation shall have the same force and effect as an original signature.
SCHEDULE A
For Production by Defendants
1. All documents reviewed by Kevin Michael in connection with preparation of his declaration dated June 7, 2023 (Dkt. No. 24), including but not limited to the documents constituting “ACI's records,” as that phrase is used in Paragraph 8 of Mr. Michael's declaration.
2. A copy of the contractual terms that relate to Ms. Siflinger's Club Card account or to any “predecessor Club Cards,” as available, and as described in paragraph 8 of Mr. Michael's declaration.
3. Documents reflecting any purchases made by Ms. Siflinger in her capacity as a visitor to or a user of any ‘Site,' as that term is defined in the ‘Terms of Use' attached as Exhibit A to the Declaration of Kevin Michael (ECF No. 24-1) and identifiable by reference to (a) Ms. Siflinger's Safeway and/or ACI account information or (b) other information specific to Ms. Siflinger (e.g., credit card, email address, etc.).
For Production by Plaintiff
4. All documents within Ms. Siflinger's custody, possession, or control related to her Safeway Club Card and/or Safeway for U accounts, purchases she made using a Safeway Club Card and/or Safeway for U account, and her download and/or use of the Safeway mobile app (the application Safeway makes available to customers for download and use on a mobile device).
ORDER
IT IS SO ORDERED. This matter is STAYED pending the outcome of arbitration. The parties shall provide status reports every 30 days to the Court regarding the arbitration. The Clerk shall ADMINISTRATIVELY CLOSE the case subject to reopening upon completion of arbitration. If the arbitrator determines that the claims at issue in this Action fall outside the scope of the Arbitration Clause and are not required to be arbitrated under the Arbitration Clause and Terms of Use, Defendants may within 30 days of the arbitrator's determination renew in this Court the arguments they made under Federal Rule of Civil Procedure 12(b)(6) in the Motion (ECF No. 23).