UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-60886-RAR

PAUL SINCLAIR, on behalf of himself 

and all others similarly situated,

Plaintiff,

v.

WIRELESS ADVOCATES, LLC,

Defendant.

____________________________________/

ORDER DENYING MOTION TO COMPEL ARBITRATION

AND SETTING CASE MANAGEMENT CONFERENCE

THIS CAUSE comes before the Court upon Defendant’s Motion to Compel Arbitration 

and to Stay Proceedings Pending Arbitration [ECF No. 22] (“Motion”). The Court has reviewed 

the Motion and the accompanying exhibits, as well as Plaintiff’s Response in Opposition [ECF 

No. 36] (“Response”) and the Declaration of Paul Sinclair in Support of Plaintiff’s Opposition to 

Defendant’s Motion [ECF No. 37-1] (“Sinclair Decl.”). For the reasons discussed herein, it is

ORDERED AND ADJUDGED that the Motion [ECF No. 22] is DENIED without 

prejudice pending a jury trial on the limited issue of whether Plaintiff entered into the alleged 

agreement requiring arbitration. 

BACKGROUND

Plaintiff Paul Sinclair commenced this collective action in May 2020, asserting violations 

of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., against his former employer Wireless 

Advocates, LLC (“Wireless Advocates”). See Collective Action Complaint [ECF No. 1]; 

Amended Collective Action Complaint [ECF No. 10] (“Amended Complaint”). Defendant filed 

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the instant Motion on June 4, 2020,

1

and argues that Plaintiff is required to arbitrate his claims in 

accordance with Wireless Advocates’ mutual binding arbitration agreement titled “Arbitration 

Policy – Non-California Locations – Mutual Agreement to Arbitrate Claims” (“Agreement”). 

Mot. at 1-2.

According to Wireless Advocates, since 2014 its employees have been subject to the 

Agreement pursuant to a company-wide dispute resolution procedure which provides that all 

disputes arising out of the employment context must be resolved by binding arbitration. See

Declaration of Krishawn Smith (“Smith Decl.”) [ECF No. 22-1] ¶ 4. The Agreement is set forth 

in the company’s employee handbook and in a PowerPoint-like presentation that all employees 

must review and acknowledge, called the Mutual Agreement Arbitration Agreement Module 

(“Module”). Id. ¶ 6. Employees are given the opportunity to opt out of arbitration and both the 

employee handbook and the Module provide specific instructions on how to opt out. See

Declaration of Joan Toigo (“Toigo Decl.”) [ECF No. 22-2] ¶ 3. Defendant keeps records of all 

requests to opt out of the Agreement. Id.

2

 

To ensure employees understand and review the Agreement, Wireless Advocates requires 

all employees to complete the Module. Smith Decl. ¶ 6. At the beginning of the Module, 

employees are informed that when they reach the end of the presentation, they will be required to 

attest that they have “read and received and agree to the terms of the Mutual Agreement to 

Arbitrate claims” and that falsification of the attestation could result in disciplinary action up to 

and including termination. Id., Ex. B at p. 15. Each Module slide contains a portion of the 

Agreement and employees are required to deliberately click on an icon labeled “Next” at the 

1

 Defendant has not filed a response to the Amended Complaint. Further, as of the date of this Order, 36 

opt-in plaintiffs have consented to join the case. See [ECF Nos. 29, 48, 56, 69, 72-75, 77-80].

2

 Plaintiff does not claim to have opted out; rather, he denies having ever signed or otherwise electronically

acknowledged the Agreement. See Sinclair Decl. ¶¶ 3-7. 

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bottom right of each slide in order to advance to the next slide. Id. After reviewing all the Module 

slides, employees arrive at a screen where they are prompted to indicate their acceptance of the 

Agreement by entering their unique five-digit Personal Identification Number (“PIN”) and then 

manually clicking on the icon marked “I Agree.” Smith Decl. ¶ 7. The Module further states that 

by entering the PIN and clicking the “I agree” icon, “you are binding yourself to this Agreement 

just like you had signed it in ink.” Id. ¶ 6, Ex. B at p. 18. Further, employees are not able to 

advance to this final step until they have clicked through every slide in the Module. Id. ¶ 7. 

According to Defendant’s records, on April 20, 2015, Plaintiff reviewed the Module and 

acknowledged acceptance of the Agreement by entering his unique PIN and clicking the “I Agree” 

icon. Id. ¶ 8, Ex. C at p. 37 column X. Plaintiff vehemently denies having performed any of those 

actions and claims that during his nearly seven years of employment with Wireless Advocates, he

was never even presented with the Agreement. Sinclair Decl. ¶¶ 2-3. Specifically, Plaintiff claims 

that he did not (1) see the Agreement; (2) review, much less complete, the Module; (3) create or 

use a PIN; (4) enter the last four digits of his social security number; or (5) sign or otherwise 

electronically acknowledge anything relating to arbitration while employed by Wireless 

Advocates. Id. ¶¶ 3-7.

Plaintiff contends that no agreement to arbitrate exists between the parties because he never

reviewed or accepted the Agreement—thus, there has never been a meeting of the minds and a 

contract to arbitrate has not been formed. See generally Resp. Plaintiff has not contested that his 

claims are arbitrable (assuming a valid agreement exists).

LEGAL STANDARD

A. Procedural Framework

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., governs the enforceability of 

an arbitration agreement. That statute commands that before compelling arbitration of a dispute, 

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the Court must first be satisfied that the parties agreed to arbitrate the dispute. See id. § 4 (directing 

that courts must direct the parties to arbitration “upon being satisfied that the making of the 

agreement for arbitration . . . is not in issue”); see also Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 626 (1985) (“[T]he first task of a court asked to compel arbitration 

of a dispute is to determine whether the parties agreed to arbitrate that dispute.”). “Simply put, 

parties cannot be forced to submit to arbitration if they have not agreed to do so.” Chamlee v. 

Jonesboro Nursing and Rehab. Ctr., LLC, No. 18-CV-05899, 2019 WL 6042273, at *1 (N.D. Ga. 

Aug. 14, 2019) (citation omitted). 

Section 4 of the FAA provides that “[i]f the making of the arbitration agreement or the 

failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to 

the trial thereof.” 9 U.S.C. § 4. The Eleventh Circuit has held that “a summary judgment-like 

standard is appropriate” when the making of an arbitration agreement is in question and “that a 

district court may conclude as a matter of law that parties did or did not enter into an arbitration 

agreement only if ‘there is no genuine dispute as to any material fact’ concerning the formation of 

such an agreement.’” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 

2016) (quoting Fed. R. Civ. P. 56(a)).

“A Plaintiff can raise a genuine issue of fact regarding the validity of an arbitration 

agreement by (1) making an unequivocal denial that there was an agreement, and (2) producing 

evidence to substantiate the denial.” Hilton v. Fluent, 297 F. Supp. 3d 1337, 1341 (S.D. Fla. 2018) 

(citation and internal quotations omitted). This determination is to be made solely by the Court 

with no thumb on the scale towards finding a valid arbitration agreement, so “while doubts 

concerning the scope of an arbitration clause should be resolved in favor of arbitration, the 

presumption does not apply to disputes concerning whether an agreement to arbitrate has been 

made.” Dasher v. RBC Bank (USA), 745 F.3d 1111, 1116 (11th Cir. 2014) (citation omitted). 

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All evidence and inferences drawn from the underlying facts must be viewed in the light 

most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 

1282 (11th Cir. 1999). A genuine dispute of fact concerning contract formation precludes a court 

from deciding as a matter of law that the parties did or did not enter into an agreement to arbitrate. 

See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296 (2010). However, a dispute is 

not “‘genuine’ if it is unsupported by the evidence or is created by evidence that is ‘merely 

colorable’ or ‘not significantly probative.’” Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th 

Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). “Conclusory 

allegations without specific supporting facts have no probative value for a party resisting summary 

judgment.” Baloco, 767 F.3d at 1333 (citing Leigh v. Warner Bros., 212 F.3d 1210, 1217 (11th 

Cir. 2000)) (internal quotation marks omitted). Finally, “a district court considering the making 

of an agreement to arbitrate should give to the party denying the agreement the benefit of all 

reasonable doubts and inferences that may arise.” Magnolia Capital Advisors, Inc. v. Bear Stearns 

& Co., 272 F. App’x 782, 786 (11th Cir. 2008) (citation and internal quotations omitted). 

B. State Contract Law

“Federal law establishes the enforceability of arbitration agreements, while state law 

governs the interpretation and formation of such agreements.” Emp’rs Ins. of Wausau v. Bright 

Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir. 2001) (citation omitted); see also Dasher, 

745 F.3d at 1116 (“[W]hen determining whether an arbitration agreement exists, ‘courts generally 

should apply ordinary state-law principles that govern the formation of contracts.’”) (quoting First 

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). 

This case involves “an employment relationship in Florida and both parties appear to 

recognize that Florida law controls the question of whether a valid arbitration agreement exists.” 

Armont v. K12 (Fla. Cyber Charter Acad. - FLCCA), No. 19-CV-00334, 2019 WL 7666549, at *7 

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(M.D. Fla. Dec. 26, 2019), report and recommendation adopted, No. 19-CV-00334, 2020 WL 

376957, at *1 (M.D. Fla. Jan. 23, 2020). Accordingly, Florida law applies here.

ANALYSIS

The central issue here is whether Mr. Sinclair and Wireless Advocates entered into a valid 

and binding arbitration agreement. Plaintiff raises three main arguments in opposition to the 

Motion. First, he contends the Motion should be summarily denied because defense counsel failed 

to confer with Plaintiff’s counsel before filing the Motion. Second, Plaintiff contends no 

arbitration agreement exists because he did not “‘sign’ or ‘execute’ the Agreement and has 

provided evidence supporting those denials.” Resp. at 15. Third, Plaintiff asserts that this matter 

should proceed to trial on the issue of contract formation given that Wireless Advocates has failed 

to meet its burden that an enforceable agreement exists, and, in any event, Plaintiff has raised 

genuine issues of material fact. 

As discussed herein, this Court finds that a genuine factual dispute exists as to whether the 

parties have formed a valid and binding agreement to arbitrate. Therefore, Defendant’s Motion 

will be denied without prejudice pending a jury trial on the issue of whether Plaintiff agreed to 

arbitration. 

A. Wireless Advocates’ Failure to Confer Before Filing the Motion Is a Non-Issue

Plaintiff notes Wireless Advocates failed to comply with Local Rule 7.1(a)(3) of the Local 

Rules for the Southern District of Florida and on that basis alone, Plaintiff argues the Motion is 

due to be denied. Mot. at 6-7. The Court disagrees. Under the Local Rules of this District, a 

movant must first confer with the opposing party to determine whether the requested relief is 

opposed. The Local Rule reads in pertinent part:

Prior to filing any motion in a civil case, except a motion for 

injunctive relief, for judgment on the pleadings, for summary 

judgment, to dismiss or to permit maintenance of a class action, to 

dismiss for failure to state a claim upon which relief can be granted,

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. . . counsel for the movant shall confer (orally or in writing), or 

make reasonable effort to confer (orally or in writing), with all 

parties or non-parties who may be affected by the relief sought in 

the motion in a good faith effort to resolve by agreement the issues 

to be raised in the motion.

S.D. Fla. Local Rule 7.1(a)(3) (emphasis added). 

While Plaintiff argues that defense counsel failed to confer in accordance with the Local 

Rules, Rule 7.1(a)(3) does not require a conference on motions to dismiss. And motions to compel 

arbitration are generally treated as motions to dismiss for lack of subject matter jurisdiction 

pursuant to Fed. R. Civ. P. 12(b)(1). Wash v. Mac Acquisition of Delaware, LLC, No. 14-CV01424, 2014 WL 5173504, at *1 (M.D. Fla. Oct. 14, 2014) (citing Mullinax v. United Mktg. Grp., 

LLC, No. 10-CV-05385, 2011 WL4085933, at *8 (N.D. Ga. Sept. 13, 2011)). Thus, given that the

Motion is akin to a dispositive motion to dismiss, defense counsel was under no obligation to 

confer with opposing counsel prior to filing the Motion.

3

B. Existence of An Agreement to Arbitrate

i. This Court Has Authority to Decide Whether Plaintiff Agreed to Arbitrate

As an initial matter, the Court is not persuaded by Defendant’s argument that any 

challenges brought by Plaintiff regarding “gateway” issues such as formation must be decided by 

an arbitrator and not this Court. Mot. at 9-11. Defendant correctly argues that the arbitration 

provision at issue contains a delegation provision making gateway issues arbitrable. Id. at 10-11. 

3

 Plaintiff cites two cases from this District in support of his argument regarding a failure to confer—but 

neither case involved a motion to compel arbitration. See Thomas v. Miami Dade Pub. Health Trust, No. 

08-CV-22896, 2009 WL 377074 (S.D. Fla. Feb. 12, 2009) (denying a Motion to Compel Interrogatory 

Responses for failure to confer); see also Rubin v. Serv. Ins. Co., No. 12-CV-23861, 2013 WL 12162456 

(S.D. Fla. Jan. 24, 2013) (denying a Motion to Quash Jury for failure to comply with Rule 7.1(a)(3)). Rule 

7.1(a)(3) exists so that parties can establish a line of communication to work through disagreements before 

involving the court. Unlike the instant Motion—which is more appropriately treated as a motion to 

dismiss—the motions at issue in Thomas and Rubin are precisely the types of motions Rule 7.1(a)(3) is

intended to address. 

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However, the Court disagrees that the delegation provision requires that the arbitrator, not the 

Court, determine whether an agreement was made in the first instance.

It is “well settled that where the [arbitration] dispute at issue concerns contract formation, 

the dispute is generally for the courts to decide.” Granite Rock Co., 561 U.S. at 296. However, it 

is also true that “parties may agree to arbitrate gateway questions of arbitrability including the 

enforceability, scope, applicability, and interpretation of the arbitration agreement.” Jones v. 

Waffle House, Inc., 866 F.3d 1257, 1264 (11th Cir. 2017) (citing Rent-A-Ctr., W., Inc. v. Jackson, 

561 U.S. 63, 68-69 (2010)). An antecedent agreement of this type is generally referred to as a 

“delegation provision.” See Rent-A-Ctr., 561 U.S. at 68. 

When an agreement provides for delegation, courts look to the provision’s language to 

ascertain whether it reflects the requisite “clear and unmistakable intent to arbitrate gateway 

issues.” Jones, 866 F.3d at 1267. The requisite intent is present when the provision requires 

arbitration of “any dispute” concerning gateway issues. Id. In this case, the relevant provision 

delegates exclusive authority to the “Arbitrator . . . to resolve any dispute relating to the 

interpretations, applicability, enforceability, or formation of this Agreement.” Smith Decl., Ex. A

at p. 7. Accordingly, if Plaintiff agreed to the arbitration clause, the delegation provision clearly 

and unmistakably evinces an intent to arbitrate gateway issues.

But, “arbitration is a matter of consent, not coercion.” See Lamps Plus, Inc. v. Varela, 139 

S.Ct. 1407, 1416 (2019) (citation omitted). “When one party contends that an agreement to 

arbitrate was never formed, looking to the text of that very agreement is problematic because the 

agreement is only a valid indicator of the parties’ intent if they agreed to be bound by its terms.” 

Allstate Ins. Co. v. Toll Bros., Inc., 171 F. Supp. 3d 417, 427 (E.D. Pa. Mar. 21, 2016). Here, 

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Plaintiff disputes the existence of the Agreement, and the Court must therefore make this threshold 

determination regardless of whether a delegation clause exists.4

The clear text of 9 U.S.C. § 4 indicates that the Court should only direct the parties to 

proceed with arbitration once it is “satisfied that the making of the agreement for arbitration or the 

failure to comply therewith is not in issue.” Parties are free to agree to a clear and unmistakable 

delegation provision in their contract, like the one found here. But before the FAA will require 

enforcement of such a delegation provision, the Court must be satisfied that the parties have agreed 

to it. After all, “a party cannot be required to submit to arbitration any dispute which he has not 

agreed so to submit.” JPay, Inc. v. Kobel, 904 F.3d 923, 929 (11th Cir. 2018) (quoting United 

Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)); accord Henry 

Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 530 (2019) (“To be sure, before referring 

a dispute to an arbitrator”—including an arbitrability dispute—“the court determines whether a 

valid arbitration agreement exists.”). This Court will not compel the parties to settle their dispute 

4

 Further, Plaintiff argues that by insisting all gateway issues must go to an arbitrator, Defendant “conflates 

the issues of arbitrability and enforcement with contract formation, which is the issue here.” Resp. at 8. 

The Court agrees and finds the Allstate court’s reading of Granite Rock instructive on this point:

The Court in Granite Rock appeared to recognize that while the text of an arbitration 

agreement may be able to supply evidence that the parties intended to commit certain 

threshold arbitrability questions to arbitration, the same is not true when the threshold 

question is one of formation. There, the Court observed that before a court may conclude 

that two parties intended to arbitrate a dispute, the court must find that “their express 

agreement to arbitrate was validly formed and (absent a provision clearly and validly 

committing such issues to the arbitrator) is legally enforceable and best construed to 

encompass the dispute.” See Granite Rock, 561 U.S. at 303. The placement of the 

parenthetical in that passage appears to “draw a distinction between the issue of contract 

formation and the issues of contract enforceability and interpretation,” suggesting that the 

text of the agreement to arbitrate cannot serve as the basis for finding that parties clearly 

intended to arbitrate a dispute over whether that very agreement had ever been formed. See

Karen Halverson Cross, Letting the Arbitrator Decide Unconscionability Challenges, 26

OHIO ST. J. ON DISP. RESOL. 1, 59-60 (2011) (reading Granite Rock to suggest that “a 

delegation clause that purports to vest in the arbitrator exclusive authority to determine a 

contract’s formation would be invalid”).

Allstate Ins. Co., 171 F. Supp. 3d at 427. 

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in arbitration in the absence of an arbitration agreement. Thus, it is abundantly clear that the Court, 

not an arbitrator, should decide whether the parties entered into the Agreement in the first place.

ii. Plaintiff Could Not Have Accepted the Agreement by Virtue of His Continued 

Employment with Wireless Advocates

Defendant also argues that “[b]y continuing his employment with Wireless Advocates, 

Plaintiff is deemed to have agreed to the Arbitration Agreement as a matter of law.” Mot. at 17-

18. Defendant is incorrect. The Agreement at issue here did not provide for acceptance through 

continued employment, and the three cases Defendant offers in support of its argument are either 

distinguishable or inapplicable.

First, Defendant cites Santos v. General Dynamics Aviation Services Corp., 984 So. 2d 658 

(Fla. 4th DCA 2008), where an employer provided notice of a new arbitration policy to all of its 

employees. Id. at 659. The notice at issue in Santos stated that “the continuation of employment 

by an individual shall be deemed to be acceptance of the [arbitration agreement]. No signature 

shall be required for the [arbitration agreement] to be applicable.” Id. Because the arbitration 

policy expressly stated that continuation of employment would constitute acceptance of the policy, 

the Santos court found that the employee seeking to avoid arbitration had accepted the agreement 

by continuing his employment. Id. at 661.

The determinative fact in Santos—the acceptance of the agreement through continued 

employment—is not present in the instant case. Here, Defendant’s Agreement expressly states:

7. Your Agreement. You acknowledge and agree that you are 

accepting and agreeing to the terms of this Agreement by providing 

a unique five‐number Personal Identification Number and 

clicking on the appropriate box within the Arbitration 

Agreement module, and that by doing so you are binding yourself 

to this Agreement just like you had signed it in ink.

Smith Decl., Ex. A at p. 9 (emphasis added). In this way, the Agreement expressly indicates that 

acceptance occurs when the employee provides the five-digit PIN and clicks the “I agree” link at 

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the conclusion of the Module. Id. Because Defendant’s Agreement does not state that continued 

employment constitutes acceptance, this case is distinguishable from Santos.

Next, Defendant cites Cintas Corporation No. 2 v. Schwalier, 901 So. 2d 307, 309 (Fla. 1st

DCA 2005), for the proposition that an “employment contract containing [an] arbitration clause 

[is] valid and enforceable and supported by consideration in the form of continued employment.” 

Mot. at 17. Defendant similarly relies on Tranchant v. Ritz Carlton Hotel Co., No. 10-CV-00233, 

2011 WL 1230734, at *6 (M.D. Fla. Mar. 31, 2011) for the proposition that an “arbitration 

provision [is] supported by valid consideration in the form of continued employment in an at-will 

state.” Mot. at 18. However, these points are entirely inapposite to the issue before the Court. 

The question here is whether there was acceptance of the Agreement to begin with—not whether 

there was adequate consideration.

Accordingly, given that the Agreement explicitly provides the manner of acceptance and 

does not provide for acceptance through continued employment, the Court rejects Defendant’s 

argument that Plaintiff should be “deemed” to have accepted the Agreement by continuing his 

employment relationship. 

iii. Plaintiff Raises a Genuine Issue of Material Fact as to the Formation of the 

Agreement

Generally, when a motion to compel arbitration is filed, courts consider the following: “(1) 

whether a valid agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether 

the right to arbitrate was waived.” Gomez v. Allied Professionals Ins. Co., No. 19-CV-24994, 

2020 WL 2197865, at *3 (S.D. Fla. May 6, 2020) (citations omitted). Here, Plaintiff disputes the 

existence of an agreement to arbitrate. He claims he never signed the Agreement and never even 

saw it prior to filing this case. Plaintiff does not otherwise contest the validity of the Agreement 

or the arbitrability of the claims in this case, and he does not contend that the right to arbitration 

has been waived (assuming an agreement to arbitrate exists).

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If this Court finds the making of an arbitration agreement to “be in issue, [it] shall proceed

summarily to the trial thereof.” 9 U.S.C. § 4. As discussed supra, determining whether the making 

of the arbitration agreement is in issue requires the application of a summary judgment-like 

standard. Bazemore, 827 F.3d at 1333. Thus, “a district court may conclude as a matter of law 

that parties did or did not enter into an arbitration agreement only if ‘there is no genuine dispute 

as to any material fact’ concerning the formation of such an agreement.” Id. (citing Fed. R. Civ. 

P. 56(a)). The Eleventh Circuit “repeatedly has emphasized that ‘state law generally governs 

whether an enforceable contract or agreement to arbitrate exists.’” Id. at 1329 (citation omitted). 

And under Florida law, “[t]he party seeking enforcement of an agreement has the burden of 

establishing that an enforceable agreement exists.” CEFCO v. Odom, 278 So. 3d 347, 352 (Fla. 

1st DCA 2019); see also Bazemore, 827 F.3d at 1330 (“The party asserting the existence of a 

contract has the burden of proving its existence and its terms.” (citation omitted)).

Here, Defendant attempts to satisfy its burden by providing two declarations in support of 

its Motion, as well as a print-out version of the Module allegedly reviewed and acknowledged by 

Plaintiff; a copy of the Agreement that Plaintiff allegedly electronically agreed to; and an internal 

chart that purports to serve as evidence that Plaintiff reviewed the Module and acknowledged the 

Agreement. See [ECF Nos. 22-1, 22-2]. However, as Plaintiff notes, Defendant has failed to 

provide any evidence conclusively demonstrating Plaintiff electronically signed the Agreement in 

question. Instead, Defendant has merely pulled a generic copy of the Agreement from its Human 

Resources Policy & Procedure Manual and attached it to its Motion—claiming therein that it was 

an agreement Plaintiff signed. See generally Smith Decl., Ex. A. Similarly, Defendant attaches a 

blank printable version of the Module it claims Plaintiff completed but has provided no evidence 

that Plaintiff checked any of the boxes or otherwise clicked through the slides and reviewed the 

Module. Id., Ex. B. Lastly, Defendant provides an excerpt of an internally created spreadsheet 

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which purports to reflect that Plaintiff reviewed the Module and accepted the Agreement on April 

20, 2015—but no computer-generated receipt or confirmation exists to certify that Plaintiff in fact 

reviewed the Module and signed the Agreement on that date.5 Id. ¶ 8, Ex. C. 

On the other hand, Plaintiff unequivocally denies signing (or even having seen) the 

Agreement. See Sinclair Decl. ¶¶ 3-7. The Court also notes that Defendant’s records show

Wireless Advocates first began using the subject Agreement in 2014, Smith Decl. ¶ 4, which is 

several years after Plaintiff was hired on October 18, 2010, Toigo Decl. ¶ 2. Thus, giving Plaintiff 

the benefit of all reasonable doubts and inferences, Magnolia Capital Advisors, 272 F. App’x at 

786, issues of material fact surrounding contract formation preclude the Court from deciding—as 

a matter of law—that the parties did or did not enter into the agreement to arbitrate. Indeed,

Plaintiff’s declaration is enough on its own to create a genuine issue of material fact. 

But even if that were not the case, it is Defendant who bears the burden of proving the 

existence of an agreement to arbitrate. See Bazemore, 827 F.3d at 1330. Here, issues abound: the 

lack of an Agreement containing Plaintiff’s electronic signature; the absence of any systemgenerated receipt confirming Plaintiff’s completion or acknowledgement of the Module; the 

unexplained date discrepancy (see supra n.5) present in Defendant’s only internal record 

purportedly reflecting Plaintiff’s acceptance of the Agreement; and circumstances surrounding the 

timing of when Defendant introduced the Agreement in relation to Plaintiff’s hire date. Faced 

with these concerns, the Court is unable to decide, as a matter of law, whether the “parties did or 

did not enter into an arbitration agreement,” see Bazemore, 827 F.3d at 1333. 

5

 Additionally, the Court notes that column X of the spreadsheet is titled “Wireless Advocates Policies and 

Procedures Arbitration Outside of California – 2016,” Smith Decl., Ex. C at 37 (emphasis added), which 

naturally contradicts any contention that Plaintiff could have possibly reviewed a 2016 Agreement as of 

April 20, 2015. Defendant’s Motion does not explain this discrepancy. 

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Ultimately, until the question of contract formation is resolved, the Court has no authority 

to compel the arbitration of this dispute. Therefore, this matter must summarily proceed to trial in 

accordance with 9 U.S.C. § 4. Because Plaintiff has requested—in his Response—a jury trial on 

the issue of the making of the Agreement, he is entitled to a jury trial on this issue.

6

 See Burch v. 

P.J. Cheese, Inc., 861 F.3d 1338, 1346-50 (11th Cir. 2017).

CONCLUSION

Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Compel Arbitration and to Stay Proceedings Pending 

Arbitration [ECF No. 22] is DENIED without prejudice pending a jury trial on the limited issue 

of whether Plaintiff entered into the alleged Agreement. 

2. Additionally, the Court will hold a case management conference on Tuesday, 

December 1, 2020 at 10:00 A.M. Counsel for Plaintiff should be prepared to address whether 

Plaintiff will waive his right to a jury trial and opt to proceed with a bench trial in this matter. The 

parties are instructed to call 1-877-402-9753 by no later than 9:55 A.M. The access code is 

9372453 and the password is 0918. The Court requires that the parties appear via a landline (i.e. 

not a cellular phone or a speaker phone) if possible, for clarity.

DONE AND ORDERED in Fort Lauderdale, Florida, this 12th day of November, 2020. 

 _________________________________

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

cc: Counsel of record

6

 Plaintiff is certainly entitled to a jury trial; however, he may wish to consider proceeding by bench trial 

given that no jury trials will occur until April 2021 in the Southern District of Florida as a result of the

ongoing COVID-19 pandemic. See Administrative Order 2020-76 (Seventh Order Concerning Jury Trials 

and Other Proceedings).

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