UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-61438-RAR

PETER CAPUA,

Plaintiff,

v.

AIR EUROPA LINEAS AEREAS S.A. INC.,

Defendant.

_______________________________________/

ORDER GRANTING MOTION TO COMPEL ARBITRATION

Before the Court is Defendant Air Europa Lineas Aereas S.A. Inc.’s Motion to Dismiss 

Plaintiff’s First Amended Complaint and Compel Arbitration [ECF No. 13] (“Motion”). Having 

considered the Motion, Plaintiff’s Response [ECF No. 21],

1 Defendant’s Reply [ECF No. 25], the 

record, and applicable law, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion [ECF No. 13] is GRANTED 

IN PART and DENIED IN PART as set forth herein. 

BACKGROUND

Plaintiff Peter Capua (“Capua”) commenced this putative class action against Defendant 

Air Europa Lineas Aereas S.A. Inc. (“Air Europa”) in July 2020. See Compl. [ECF No. 1]; First 

Amended Complaint [ECF No. 5] (“Am. Compl.”). Capua alleges that Air Europa “cancelled”

2

1

 For clarity, although several responses appear on the docket, the only response this Court has considered 

is Plaintiff’s Response to Air Europa Lineas Aereas S.A. Inc.’s Motion to Compel Arbitration and Motion 

to Dismiss Plaintiff’s First Amended Complaint [ECF No. 21], filed on October 15, 2020. All other 

“responses” were stricken from the record for failure to comply with Local Rule 7.1(c)(2) and the Court’s 

formatting rules. See Order Granting Motion to Strike [ECF No. 20]. 

2

 According to Capua’s Complaint, a “cancelled” flight is defined to include not only the flights cancelled 

by Air Europa but also the “flights booked by individuals who, at some point, during the ‘relevant period’, 

faced travel restrictions imposed by various countries.” See Am. Comp. at 1, n.1.

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his flights in the wake of the COVID-19 pandemic and then refused to refund his travel fares—

which he contends is a violation of Air Europa’s Conditions of Carriage providing that passengers 

have contractual rights to refunds when “an airline either cancels a flight or a flight is significantly 

delayed, regardless of the reason the airline cancels the flight or the reason for the significant 

delay.” Am. Compl. ¶¶ 4, 6, 40.

A. Capua Purchases Air Travel Tickets on Expedia.Com

Capua purchased three non-refundable tickets to travel from Miami, Florida to Porto, 

Portugal, departing on August 4, 2020 and returning on August 11, 2020.

3

 Am. Compl. ¶¶ 6, 34. 

He purchased the tickets through the online travel agency Expedia.com. Id. ¶ 28. The Terms of 

Use (“Expedia’s TOU”),

4 which Capua agreed to in order to purchase the airline tickets on 

Expedia.com, state in relevant part:

3

 It is undisputed that the tickets Capua purchased under reservation locators “SWB4YV” and “SRDVGW” 

were non-refundable. Attached to Capua’s Response are the relevant receipts and booking confirmations 

which conspicuously indicate “Tickets are nonrefundable.” See Resp., Exs. 4, 5 [ECF Nos. 21-4, 21-5]. 

Additionally, Air Europa has provided the affidavit of Pablo Sanchez [ECF No. 13-1], a Country Manager 

for the airline’s USA and Canada division, which further verifies that Capua purchased non-refundable 

tickets. Id., ¶ 4.

4

In his Response, Capua argues the Court cannot consider the copy of Expedia’s TOU [ECF No. 13-2], 

attached to Air Europa’s Motion, because it is “an unauthenticated printout from Expedia . . . purporting to 

be an arbitration agreement.” Resp. ¶ 6. Capua also argues that the version of Expedia’s TOU attached to 

Defendant’s Motion was revised on June 16, 2020—which would have been after Capua purchased his 

tickets on Expedia.com on February 2, 2020. Id. To address Capua’s timing concern, in its Reply, Air 

Europa attaches a (virtually identical) copy of Expedia’s TOU as archived on February 1, 2020 [ECF No. 

25-1]. The archived copy of Expedia’s TOU as of February 1, 2020 was obtained from Internet Archive’s 

Wayback Machine, which maintains archived copies of historical webpages. Importantly, courts have taken 

judicial notice of such records. See Tobinick v. Novella, No. 14-80781, 2015 WL 1526196, at *2 (S.D. Fla. 

Apr. 2, 2015) (taking judicial notice of Internet Archive’s website history); Phol v. MH Sub I, LLC, 332 

F.R.D. 713, 716 (N.D. Fla. 2019) (quoting Fed. R. Evid. 201(b)(2)); see also Pond Guy, Inc. v. Aquascape 

Designs, Inc., No. 13-13229, 2014 WL 2863871, at *4 (E.D. Mich. June 24, 2014) (“[T]he Internet Archive 

has been found to be an acceptable source for the taking of judicial notice.”). Additionally, contrary to 

Capua’s contentions, in considering a motion to compel arbitration, the court may consider matters outside 

of the four corners of the complaint. Mamani v. Sanchez Berzain, 636 F. Supp. 2d 1326, 1329 (S.D. Fla. 

2009); Banks v. Cashcall, Inc., 188 F. Supp. 3d 1296, 1303 n.3 (M.D. Fla. 2016). Accordingly, for purposes 

of the analysis set forth in this Order, Expedia’s TOU as archived on February 1, 2020 [ECF No. 25-1] is 

properly before the Court. 

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DISPUTES 

***

Any and all Claims will be resolved by binding arbitration, rather 

than in court, except you may assert Claims on an individual basis 

in small claims court if they qualify. This includes any Claims you 

assert against us, our subsidiaries, travel suppliers or any 

companies offering products or services through us (which are 

beneficiaries of this arbitration agreement). This also includes 

any Claims that arose before you accepted these Terms of Use, 

regardless of whether prior versions of the Terms of Use required 

arbitration. 

***

Any and all proceedings to resolve Claims will be conducted 

only on an individual basis and not in a class, consolidated or 

representative action. If for any reason a Claim proceeds in court 

rather than in arbitration we each waive any right to a jury trial. The 

Federal Arbitration Act and federal arbitration law apply to this 

agreement. 

Reply, Ex. 1 at 2-3 (emphasis added). Additionally, Expedia’s TOU also states:

SUPPLIER RULES AND RESTRICTIONS

Additional terms and conditions will apply to your reservation 

and purchase of travel—related goods and services that you 

select. Please read these additional terms and conditions carefully. 

In particular, if you have purchased an airfare, please ensure 

you read the full terms and conditions of carriage issued by the 

travel supplier, which can be found on the supplier’s website. 

You agree to abide by the terms and conditions of purchase imposed 

by any supplier with whom you elect to deal, including, but not 

limited to, payment of all amounts when due and compliance with 

the supplier’s rules and restrictions regarding availability and use of 

fares, products, or services. Airfare is only guaranteed once the 

purchase has been completed and the tickets have been issued. 

Airlines and other travel suppliers may change their prices without 

notice. We reserve the right to cancel your booking if full payment 

is not received in a timely fashion. 

Id. at 5 (emphasis added and in original). 

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B. Air Europa’s Conditions of Carriage 

When a passenger purchases a ticket for an Air Europa flight, he enters into a contract of 

carriage with Air Europa which is governed by the airline’s Conditions of Carriage (“COC”). Air 

Europa’s COC provides, in relevant part:5

1. DEFINITIONS 

***

CONDITIONS OF CONTRACT

Mean those statements contained in, or delivered with, the Ticket 

or Itinerary receipt (Printed Itinerary), identified as such and which 

incorporates, by reference, these Conditions of Carriage.

Conditions of Carriage, Art. 1. Air Europa’s COC explains that “[s]ome Tickets are sold at 

discounted fares, which may be partially or completely non-refundable.” Id., Art. 3 Sec. 1. With 

respect to passengers seeking refunds, the COC groups passengers into two categories: (1) those 

affected by “involuntary” cancellations, which occur when Air Europa cancels a flight; and (2) 

“voluntary” cancellations, which occur when a passenger cancels their flight. Id., Art. 10, Sec. 2-

3. 

For a “voluntary” cancellation of a refundable ticket, the COC allows for a refund, provided 

that certain conditions are met. Id. But for a “voluntary” cancellation of a non-refundable ticket, 

the COC does not. Id. Specifically, the COC provides that a refund is not applicable “when the 

fare conditions state that cancellation or refund is not allowed, or Tickets are bearing a ‘NONREFUNDABLE’ or ‘NO REEMBOLSABLE’ remark.” Id., Art. 10, Sec.3(b); see also Art. 10, 

Sec. 5(f).

5

 The First Amended Complaint incorporates Air Europa’s COC by reference. See Am. Compl. ¶ 91. The 

Conditions of Carriage are available on Air Europa’s website at https://www.aireuropa.com/en/

flights/conditions. 

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C. Procedural History

Capua filed this action on behalf of a putative class consisting of all persons who purchased 

tickets for travel with Air Europa in the United States from March 1, 2020, onward, and who were 

not issued a refund for a “cancelled flight,” or for those flights that were significantly delayed. 

Am. Compl. ¶ 42. Air Europa, relying on the arbitration clause in Expedia’s TOU, moves to 

compel arbitration of Capua’s claims against it. In support, Air Europa notes that Capua’s claims 

directly relate to the tickets he purchased through Expedia.com. In other words, according to Air 

Europa, “in purchasing his tickets through Expedia, Plaintiff agreed to resolve any claims against 

Expedia’s travel suppliers (such as Air Europa) through binding, individual arbitration – and 

further agreed that the arbitration agreement could be enforced by travel suppliers, such as Air 

Europa.” Mot. at 8. In the alternative, Air Europa moves to dismiss Capua’s claims pursuant to 

Federal Rules of Civil Procedure 8(a), 10(b), 12(b)(1) and 12(b)(6).6

LEGAL STANDARD

A. Federal Arbitration Act

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

an arbitration agreement. Under the FAA, arbitration agreements are “valid, irrevocable, and 

enforceable.” 9 U.S.C. § 2. The FAA “leaves no room 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) (emphasis in original) (citing 9 U.S.C. §§ 3-4). 

6 Following Air Europa’s Motion, Capua voluntarily withdrew his claims for unjust enrichment, conversion

and fraudulent misrepresentation. See generally, Resp. Accordingly, the remaining claims are Count I -

Violations of State Consumer Protection Acts; Count V - Breach of Contract; and Count VI - Civil 

Remedies for Criminal Practices. 

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Whether an arbitration agreement exists at all is “simply a matter of contract.” Burch v. 

P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017). Here, although the parties do not offer 

any meaningful choice-of-law analysis, for the reasons stated below (see infra B), the Court finds 

that Florida law governing “the validity, revocability, and enforceability of contracts generally” 

controls this dispute. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009). Although 

federal courts apply state contract law in determining the existence of an agreement to arbitrate, 

“federal policy favoring arbitration is taken into consideration even in applying ordinary state 

law.” Caley v. Gulfstream Aerospace Corp., 428 F. 3d 1359, 1368 (11th Cir. 2005).

Under Florida law, courts must consider three factors when ruling on a motion to compel 

arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable 

issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 

So. 2d 633, 636 (Fla. 1999). “[D]oubts about the scope of an arbitration agreement, as well as any 

questions about waivers thereof, are in favor of arbitration, rather than against it.” Breckenridge 

v. Farber, 640 So. 2d 208, 210 (Fla. 4th DCA 1994). However, “[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). And, “no party may be forced to submit a dispute 

to arbitration that the party did not intend and agree to arbitrate.” Seifert, 750 So. 2d at 636.

B. State Contract Law

In this case, the parties have not provided a meaningful choice of law analysis. Instead,

they assume Florida law applies. Air Europa relies primarily on Eleventh Circuit authority 

applying Florida law, and Capua does not contend otherwise. Expedia’s TOU provides that the 

applicable law is the FAA, federal arbitration law, and for reservations made by U.S. residents, the 

laws of the state in which the purchaser’s billing address is located. Reply, Ex. 1 at 23. Capua is 

a resident of the State of Florida. See Am. Compl. ¶ 9. Thus, assuming his billing address is in 

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Florida, Florida law and federal arbitration law govern here in accordance with Expedia’s TOU. 

Therefore, the Court applies Florida law, as well as federal arbitration law, in its analysis of the 

arbitration clause under Expedia’s TOU. 

ANALYSIS

As explained above, Air Europa maintains that Capua agreed to arbitrate any claim relating 

to his ticket purchase when he agreed to Expedia’s TOU. Air Europa contends that, although it is 

a non-signatory to Expedia’s TOU, it may nevertheless invoke arbitration and bind Capua to his 

agreement to arbitrate under the express terms of the arbitration clause in the TOU. In the 

alternative, Air Europa argues that Capua should be required to arbitrate his claims because, while

it is not a signatory, it is a third-party beneficiary of Expedia’s TOU. 

In opposition, Capua contends the arbitration clause he agreed to when he purchased his 

flights on Expedia.com is inapplicable to this action for five reasons. First, Expedia’s TOU is not 

admissible and cannot be considered.7 Second, Air Europa is not a party to Expedia’s TOU, and, 

therefore, cannot enforce the arbitration clause. Third, Air Europa is not a third-party beneficiary 

of Expedia’s TOU. Fourth, Capua argues that his claims fall outside the scope of the arbitration 

clause. And fifth, Capua argues that a federal regulation (namely 14 C.F.R. § 253.10) prohibits Air 

Europa from enforcing the arbitration clause. 

For the following reasons, the Court agrees with Air Europa and finds that the arbitration 

clause is enforceable. Although Air Europa is not a party to Expedia’s TOU, under the plain 

language of the TOU, it is a third-party beneficiary entitled to enforce the arbitration clause with 

any signatory passenger—such as Capua. Further, the Court concludes that Capua’s claims against 

7

 As explained supra n.4, Capua’s evidentiary objection is without merit. The Court can and will consider 

Expedia’s TOU as archived on February 1, 2020 for purposes of Air Europa’s Motion. Therefore, the Court 

need not address this argument any further.

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Air Europa are within the scope of the arbitration clause in Expedia’s TOU. And lastly, the federal 

regulation Capua relies on—section 253.10—is entirely inapplicable to this matter. 

A. Existence of a Valid Agreement to Arbitrate

Capua does not dispute that he purchased his airline tickets through Expedia. See Resp. ¶¶ 

2-4, 5; Exs. 4-5; see also Am. Compl. ¶¶ 28-35. He also does not dispute that by finalizing his 

online ticket purchase, he necessarily clicked through all required prompts, indicating his 

acceptance to Expedia’s TOU, including the arbitration clause contained therein. See Resp. ¶¶ 7-

8 (“[T]he Terms of Use are contracts between the customers making the reservation, Plaintiff and 

Expedia[.]”). Further, he acknowledges that Expedia’s TOU contains an arbitration clause. Id. 

Whether Capua has agreed to, or is otherwise bound, to arbitrate is a threshold question for 

the Court. “[W]ith respect to the threshold question of whether an [arbitration] agreement between 

the parties exists at all, the initial burden is on the defendant to prove the existence of a contract 

by a preponderance of the evidence.” Fantis v. Flywheel Sports, Inc., No. 18-24934, 2019 WL 

1582957, at *2, n.2 (S.D. Fla. Mar. 11, 2019) (citations omitted), report and recommendation 

adopted, No. 18-24934, 2019 WL 2245417 (S.D. Fla. Apr. 29, 2019). Further, whether a valid 

agreement to arbitrate exists is a matter of state contract law. Id. at *1. And “the goal of Florida 

law vis-à-vis contract formation is to effectuate the parties’ intent” as expressed in the terms of the 

contract. Solymar Investments, Ltd. v. Banco Santander S.A., 672 F.3d 981, 991-92 (11th Cir. 

2012); see also Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1002 (Fla. 2d 

DCA 1995) (“[I]n the absence of an ambiguity on the face of a contract, it is well settled that the 

actual language used in the contract is the best evidence of the intent of the parties, and the plain 

meaning of that language controls.”) (internal citations and quotation marks omitted).

“[W]hile 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 

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

(citation omitted). Thus, the Court must first analyze whether a valid agreement to arbitrate exists 

between the parties.

1. Air Europa is Not a Signatory to Expedia’s TOU

Under Expedia’s TOU, Capua and Expedia have agreed to arbitrate certain disputes. It is 

undisputed that Air Europa is not a signatory to the agreement. Expedia’s TOU forms a contract 

between the client making the reservation and the online platform Expedia.com—and Air Europa 

is a non-party to said agreement. The Court, therefore, rejects Air Europa’s argument that under 

the plain language of the arbitration clause, it may invoke the agreement because “Plaintiff’s 

arbitration agreement expressly covers the claims raised by Plaintiff.” Mot. at 9. Accordingly, 

because Air Europa is not a signatory to Expedia’s TOU, it may not directly invoke the arbitration 

clause to compel arbitration of the instant dispute.

2. Air Europa is a Third-Party Beneficiary to Expedia’s TOU

However, Air Europa’s non-party status does not end the analysis. Under Florida law, a

non-party to a contract containing an arbitration clause may compel parties to the contract to 

arbitrate if it is determined that the non-party is a third-party beneficiary to the contract. See Peters

v. The Keyes Co., 402 F. App’x 448, 451 (11th Cir. 2010) (citing Fla. Power & Light Co. v. Road

Rock, Inc., 920 So. 2d 201, 203 (Fla. 4th DCA 2006)). A third party may invoke the agreement 

only if the parties to the contract clearly express an intention to confer a benefit on the third party. 

See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 983 (11th Cir. 2005).

“[I]n order to find the requisite intent, it must be shown that both contracting parties 

intended to benefit the third party.” Caretta Trucking, Inc. v. Cheoy Lee Shipyards Ltd., 647 So.

2d 1028, 1031 (Fla. 4th DCA 1994). “Florida law looks to ‘nature or terms of a contract’ to find 

the parties’ clear or manifest intent that it ‘be for the benefit of a third party.’” Jenne v. Church & 

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Tower, Inc., 814 So. 2d 522, 524 (Fla. 4th DCA 2002) (quoting Am. Sur. Co. of N.Y. v. Smith, 100 

Fla. 1012 (1930)). Further, Florida law holds that “the language used in a contract is the best 

evidence of the intent and meaning of the parties.” Boat Town U.S.A., Inc. v. Mercury Marine 

Div. of Brunswick Corp., 364 So. 2d 15, 17 (Fla. 4th DCA 1978).

Few cases have addressed the third-party beneficiary doctrine in the context of a 

consumer’s acceptance of an Online Travel Agency’s (“OTA”) terms of use.8 The Court finds 

Moretti v. Hertz Corp., No. 13-02972, 2014 WL 1410432, at *1 (N.D. Cal. Apr. 11, 2014) to be 

instructive. In Moretti, the plaintiff used Hotwire.com to reserve a rental car from Hertz Dollar 

Thrifty (“Hertz”). Id., at *1. In order to finalize the rental reservation, plaintiff was required to 

accept Hotwire’s Terms and Conditions (“T&Cs”). Id. Hertz was not a signatory to Hotwire’s 

T&Cs; however, it moved to transfer venue on the basis that it had standing, as a third-party 

beneficiary, to enforce a forum selection clause in Hotwire’s T&Cs. Id., at *4. 

Hotwire’s T&Cs stated the website “offers products, services, advice, merchandise and 

information through [Providers] on an ‘as is,’ ‘as available’ basis.” Id. The court found that Hertz

was clearly within the category of “Providers” because the plaintiff had booked his car rental 

through the Hotwire website and picked up the car at the selected Hertz location. Id. The T&Cs 

also stated “Hotwire . . . shall not be responsible for any Provider’s failure to comply with these 

Terms and Conditions,” which the Moretti court construed as further evidence that the parties to 

the contract intended for the T&Cs to bind Hertz as a Provider. Id. Thus, the court concluded 

Hertz was a third-party beneficiary with standing to enforce the forum selection clause in 

Hotwire’s T&Cs. Id.

8

 OTAs, such as Expedia or Booking.com and others, are in the business of facilitating the process for 

consumers to search for and reserve hotel rooms, flights, and other travel-related services using their online 

platforms. Fiona Schaeffer et al., Competitor Parity Clauses: Increased Scrutiny of MFNs in the United 

States and Europe, 15 ANTITRUST SOURCE 1, 2 (2015).

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The case of Ward v. American Airlines, Inc., No. 20-00371, 2020 WL 8415080, at *1 (N.D. 

Tex. Nov. 2, 2020), is also particularly instructive. Like the instant case, Ward involved a putative 

class action against an airline—American Airlines (“AA”)—based on its alleged refusal to provide 

refunds in connection with COVID-19-related flight cancellations. Two of the plaintiffs purchased 

their airline tickets through two OTAs: Hotwire and Expedia. In doing so, they agreed to Hotwire 

and Expedia’s respective TOUs, both of which contained arbitration clauses. Ward, 2020 WL 

8415080, at *2-3. The Ward court found that, even though AA is not expressly a party to Hotwire 

or Expedia’s TOU, AA is a third-party beneficiary to the TOUs and thus entitled to enforce the 

arbitration clauses contained therein. Id. at *7-8.

Here, as in Moretti and Ward, the parties’ intent to make Air Europa a third-party 

beneficiary of Expedia’s TOU is clearly evidenced by the express language in the arbitration clause 

and more broadly throughout the TOU. For instance, Expedia’s TOU unambiguously provides 

that “any Claims you assert against . . . [our] travel suppliers or any companies offering products 

or services through us (which are beneficiaries of this arbitration agreement)” are to be “resolved 

by binding arbitration.” Reply, Ex. 1 at 2-3. 

Capua argues that the arbitration clause only applies to claims between him and Expedia 

because Expedia’s TOU specifically defines the terms “we,” “us,” and “our” as referring to

Expedia and its subsidiaries and corporate affiliates—and Air Europa is not included within the 

scope of those definitions. The Court is not persuaded by this selective reading. Although certain 

fragments from Expedia’s TOU can be narrowly read to support Capua’s interpretation, when read 

as a whole, the TOU clearly evinces an intent to allow Air Europa, a travel supplier, to compel

arbitration as a third-party beneficiary. Marion Mortg. Co. v. Howard, 100 Fla. 1418, 1425 (1930) 

(“We cannot determine the rights of the parties by looking at only a part of the contract. We must 

construe it as a whole.”) (citations omitted).

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Additionally, Capua’s reliance on Calderon v. Sixt Rent a Car, LLC, No. 19-62408, 2020 

WL 700381, at *1 (S.D. Fla. Feb. 12, 2020) is unavailing. In Calderon, the defendant Sixt was 

unable to compel arbitration pursuant to an OTA’s (Orbitz) terms of use because the court found 

that Sixt was not a “supplier” as defined by Orbitz’s terms. Unlike in Calderon, in this case several 

provisions (including the arbitration clause) within Expedia’s TOU indicate that Air Europa is a 

“travel supplier” as defined by the agreement. Reply, Ex. 1 at 5 (“Airlines and other travel 

suppliers may change their prices without notice.”); see also id. at 5 (“[I]f you have purchased an 

airfare, please ensure you read the full terms and conditions of carriage issued by the travel 

supplier[.]”). 

Therefore, the Court concludes that Expedia’s TOU, read as a whole, establishes a clear 

intent by the parties to make Air Europa, as a travel supplier, a third-party beneficiary of the 

agreement. Accordingly, Air Europa may invoke the arbitration clause in Expedia’s TOU to 

compel arbitration by Capua as a signatory.

9

B. The Claims in this Case Are Within the Scope of the Arbitration Agreement

The next question is whether Capua’s claims fall within the scope of the arbitration clause 

contained in Expedia’s TOU. Under the FAA, “any doubts concerning the scope of arbitrable 

issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 460 U.S. 1, 24 (1983) (emphasis added). Once a court finds that a valid agreement to 

9

 On a somewhat related note, Capua’s contention that Air Europa’s COC does “not incorporate Expedia’s 

Terms of Use” is entirely inaccurate. Resp. at 13. Contrary to Capua’s representations, Air Europa’s COC 

definitions state: “Condictions [sic] of Contract: Mean those statements contained in, or delivered with, the 

Ticket or Itinerary receipt (Printed Itinerary), identified as such and which incorporates, by reference, these 

Conditions of Carriage.” Conditions of Carriage, Art. 1. Additionally, the COC defines a passenger ticket 

as: “Ticket: Means either the document entitled ‘Passenger Ticket and Baggage Check’ or the Electronic 

Ticket issued by Air Europa or on our behalf, and it includes or incorporates by reference the Conditions 

of Contract, notices and Coupons.” Id. Thus, based on Air Europa’s COC definitions, an OTA (such as 

Expedia) issues a ticket or itinerary receipt which incorporates Air Europa’s COC; in turn, any statements 

contained in the document issued by the OTA (such as the OTA’s own terms of use) are also incorporated 

by reference into Air Europa’s COC. 

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arbitrate exists, “[t]he party resisting arbitration bears the burden of proving that the claims at issue 

are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000). 

The Supreme Court has generally held that an arbitration provision covering claims and 

controversies “arising out of or relating to” an agreement is a “broad arbitration clause.” Moses 

H. Cone Mem’l Hosp., 460 U.S. at 5. And “only the most forceful evidence of a purpose to exclude 

the claim from arbitration can prevail.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 

643, 650 (1986). The Eleventh Circuit has held that such evidence will be found only if the parties 

“clearly express their intent to exclude categories of claims from their arbitration agreement.” 

Paladino v. Avnet Comp. Techs., Inc., 134 F.3d 1057, 1057 (11th Cir. 1998).

In this case, the plain language of the arbitration clause is unambiguously broad. Capua 

seeks to limit the scope of “Claims” covered by Expedia’s TOU to include only claims between 

Capua and Expedia. Resp. at 11-12. Capua’s argument is unsupported by the plain language of 

the arbitration clause. Specifically, the arbitration clause at issue expressly applies to “any Claims 

you assert against us, our subsidiaries, travel suppliers or any companies offering products or 

services through us (which are beneficiaries of this arbitration agreement).” Reply, Ex. 1 at 3

(emphasis added). Moreover, the term “Claims” is defined to include “any disputes or claims 

relating in any way to the Website, any dealings with our customer service agents, any services or 

products provided, any representations made by us, or our Privacy Policy,” whether those claims 

are brought against Expedia or against one of Expedia’s travel suppliers—such as Air Europa. Id.

(emphasis added). 

Based on the plain language of Expedia’s TOU, the Court finds Capua’s claims are within 

the scope of the arbitration clause. Capua maintains that his claims are outside the scope of 

Expedia’s TOU because they relate only to Air Europa’s “breach of the Conditions of Carriage”

and refusal to provide “refunds due to its passengers.” Resp. at 12. But Capua’s assertions belie 

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his own argument. It is through his acceptance of Expedia’s TOU that Capua expressly agreed to

abide by Air Europa’s COC. Reply, Ex. 1 at 5 (“In particular, if you have purchased an airfare, 

please ensure you read the full terms and conditions of carriage issued by the travel supplier, 

which can be found on the supplier’s website. You agree to abide by the terms and conditions of 

purchase imposed by any supplier with whom you elect to deal[.]”) (emphasis added). 

Accordingly, the Court concludes that Capua’s claims against Air Europa are within the scope of 

the arbitration clause included in Expedia’s TOU.10

C. The Federal Regulation Capua Invokes Is Inapplicable 

As a last resort, Capua contends that a Department of Transportation (“DOT”) regulation 

prevents Air Europa from enforcing the arbitration agreement. Specifically, Capua relies on 14 

C.F.R. § 253.10, which he argues prohibits Air Europa from “relying on an external contract 

Plaintiff may have with non-parties to enlarge its rights,” even if the arbitration clause is otherwise 

valid and enforceable. Resp. at 13. That regulation provides:

No carrier may impose any contract of carriage provision

containing a choice-of-forum clause that attempts to preclude a 

passenger, or a person who purchases a ticket for air transportation 

on behalf of a passenger, from bringing a claim against a carrier in 

any court of competent jurisdiction, including a court within the 

jurisdiction of that passenger’s residence in the United States 

(provided that the carrier does business within that jurisdiction).

14 C.F.R. § 253.10 (emphasis added). By its own terms, section 253.10 prohibits Air Europa from 

including an arbitration clause in its own contract of carriage. But contrary to Capua’s assertions, 

nothing in section 253.10 prohibits Air Europa from relying on an arbitration clause found in 

Expedia’s TOU—an entirely separate and distinct contract.

10

 Even if the scope of arbitrable issues was ambiguous—and it is not, the FAA’s presumption in favor of 

arbitrability would be triggered because the Court has found that there is a valid and enforceable arbitration 

agreement. See FAA, 9 U.S.C. § 1 et seq.; see also Dasher, 745 F.3d at 1115 (citing Granite Rock Co. v. 

Int'l Bhd. of Teamsters, 561 U.S. 287, 301 (2010)).

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Capua also fails to mention that the applicability of section 253.10 is limited in nature. 

According to DOT commentary in the Federal Register, the regulation applies only to contracts of 

carriage for domestic flights. Enhancing Airline Passenger Protections, 76 Fed. Reg. 23, 2011 

WL 152717, at *23155 (Apr. 25, 2011). Contracts for international flights are governed by the 

Warsaw and Montreal Conventions, as applicable. Capua purchased tickets to fly to Portugal; 

therefore, his contract of carriage with Air Europa for those international flights would not be 

governed by section 253.1. For these reasons, Capua cannot invoke section 253.1 to prohibit 

arbitration in this matter.

Although it has no bearing on the resolution of the instant Motion, the Court feels 

compelled to address Plaintiff’s Notice of Supplemental Authority [ECF No. 34] (“Notice”). 

Plaintiff filed the Notice to apprise the Court of a recent opinion, Rudolph v. United Airlines 

Holdings, Inc. and United Airlines, Inc., No. 20-02142, 2021 WL 534669, at *1 (N.D. Ill. Feb. 12, 

2021), in which the court found that pursuant to section 253.10, the “[defendant] should not be

permitted to do indirectly what federal regulations prohibit it from doing directly . . . .” Id. at *5. 

The Rudolph court addressed the same arbitration clause at issue here, under virtually identical 

circumstances, and ultimately prohibited United Airlines from invoking the arbitration clause “in 

an attempted end-run around [section 253.10].” Id. 

This Court is troubled by the suggestion that a little-known DOT regulation could take 

precedence over the “emphatic federal policy in favor of arbitral dispute resolution.” Mitsubishi 

Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 631 (1985). The FAA promotes a 

“federal policy favoring arbitration . . . [and] requiring that [courts] rigorously enforce agreements 

to arbitrate.” Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1192 (11th Cir. 1995) (citations and 

internal quotations omitted). Under AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343-45

(2011), “rules that stand as an obstacle to the FAA’s objectives” represent the kind of “hostility” 

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to arbitration that the Supreme Court has repeatedly found inappropriate and unenforceable under 

the FAA. Following that logic, the FAA is a “super-statute” 11 and thus, as the Fifth and Eleventh 

Circuits have found, it can at times swallow Chevron12 deference. See Davis v. S. Energy Homes, 

Inc., 305 F.3d 1268, 1278 (11th Cir. 2002), cert. denied, 528 U.S. 945 (2003); see also Walton v. 

Rose Mobile Homes LLC, 298 F.3d 470, 475-78 (5th Cir. 2002).13 In any event, because the Court 

finds that section 253.10 is inapplicable to Capua’s claims, the Court need not address whether the 

DOT’s regulation should be accorded any deference.14

CONCLUSION

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

1. Defendant Air Europa Lineas Aereas S.A. Inc.’s Motion to Dismiss Plaintiff’s First 

Amended Complaint and Compel Arbitration [ECF No. 13] is GRANTED IN PART and 

DENIED IN PART. Specifically, the Court GRANTS the Motion to Compel Arbitration of 

11

 See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1216, 1260-63 (2001)

(defining the term “super-statute” as, in part, a statute whose “institutional or normative principles have a 

broad effect on the law—including an effect beyond the four corners of the statute”—and explaining how 

the FAA is one such statute).

12

 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

13

 In Davis, the Eleventh Circuit grappled with challenges to the Federal Trade Commission’s (“FTC”) 

regulations and interpretations, which at the time prohibited binding arbitration of auto-warranty claims 

under the Magnuson–Moss Warranty Act (“MMWA”). 305 F.3d at 1270. The Davis court refused to defer 

to the FTC. Id. at 1279-80. First, it concluded (under the Supreme Court’s McMahon Test) that no intent 

to limit arbitration was “deducible from the [MMWA’s] text or legislative history, or from an inherent 

conflict between arbitration and the statute’s underlying purposes.” Shearson/Am. Express, Inc. v. 

McMahon, 482 U.S. 220, 227 (1987) (internal citations omitted). Next, under step one of the Chevron

analysis, the court concluded that because “Congress failed to directly address binding arbitration in the 

text or legislative history,” the MMWA was ambiguous. 305 F.3d at 1278. Finally, the court held that the 

FTC’s interpretation of its substantive act was unreasonable—because any such limit on arbitration is 

unreasonable—and therefore no deference was warranted. Id. at 1277-80. In Walton, the Fifth Circuit, 

presented with the same issue, reached the same conclusion under a slightly different analysis. 298 F.3d at 

475-78. 

14

 Air Europa moves, in the alternative, to dismiss under Rules 8(a), 10(b), 12(b)(1) and 12(b)(6). Because 

the Court grants Air Europa’s Motion to Compel Arbitration, it need not consider its alternative motion to 

dismiss these claims.

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Plaintiff Capua’s claims. Accordingly, the parties shall submit all claims asserted in the Amended 

Complaint to arbitration in accordance with the arbitration provision in Expedia’s TOU.

2. This matter is STAYED pending arbitration of Plaintiff’s claims. The Clerk of 

Court is directed to CLOSE this matter for administrative purposes.

3. All pending motions are DENIED AS MOOT, and any pending deadlines are 

TERMINATED. 

DONE AND ORDERED in Fort Lauderdale, Florida, this 15th day of March, 2021.

 _________________________________

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

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