PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1170

_____________

DAWN GUIDOTTI, on behalf of herself and all 

other class members similarly situated,

v.

LEGAL HELPERS DEBT RESOLUTION, L.L.C., a/k/a The 

Law Firm of Macey, Aleman, Hyslip and Searns; ECLIPSE 

SERVICING, INC., f/k/a Eclipse Financial, Inc.; GLOBAL 

CLIENT SOLUTIONS, L.L.C.; LEGAL SERVICES 

SUPPORT GROUP, L.L.C.; JG DEBT SOLUTIONS, L.L.C.; 

ROCKY MOUNTAIN BANK AND TRUST OF 

COLORADO SPRINGS, COLORADO; LYNCH 

FINANCIAL SOLUTIONS, INC., trading as: Financial 

Solutions Legal Center, Financial Solutions Consumer 

Center, Financial Solutions Processing Center; JEM GROUP, 

INC.; CENTURY MITIGATIONS, L.P.; LEGAL HELPERS, 

P.C., trading as: The Law Firm of Macey and Aleman; 

THOMAS G. MACEY; JEFFREY J. ALEMAN; JASON E. 

SEARNS; JEFFREY HYSLIP; THOMAS M. NICELY; 

JOEL GAVALAS; AMBER N. DUNCAN; HARRY 

HEDAYA; DOUGLAS L. MCCLURE; MICHAEL 

HENDRIX; JOHN DOE(S) 1-100; JIM DOE(S) 1-1000; 

TOM DOE(S) 1-1000, the said names of John Doe(s), Jim 
2

Doe(s) and Tim Doe(s) being fictitious; STEPHEN CHAYA; 

RELIANT ACCOUNT MANAGEMENT, L.L.C.

GLOBAL CLIENT SOLUTIONS, L.L.C.;

 ROCKY MOUNTAIN BANK AND TRUST 

 OF COLORADO SPRINGS, COLORADO,

Appellants

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 11-cv-1219)

District Judge: Hon. Jerome B. Simandle

_______________

Argued

March 5, 2013

Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

(Filed: May 28, 2013)

_______________

Shaji M. Eapen

Morgan Melhuish Abrutyn

651 W. Mount Pleasant Avenue - #200

Livingston, NJ 07039

Richard W. Epstein

Greenspoon Marder

200 E. Broward Blvd. - #1500

Ft. Lauderdale, FL 33301
3

John H. Pelzer [ARGUED]

Greenspoon Marder

100 W. Cypress Creek Rd. - #700

Ft. Lauderdale, Fl 33309

 Counsel for Appellants

Joseph M. Pinto [ARGUED]

Polino and Pinto

720 E. Main Street – Ste. 1C

Morrestown, NJ 08057

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Dawn Guidotti contracted with several parties to help 

her negotiate a settlement of her consumer debt. When no 

settlement materialized, she filed this putative class action

against them, claiming that she, and people like her, had been 

defrauded. The United States District Court for the District of 

New Jersey granted a motion to compel arbitration as to the 

claims against most of the defendants, but it denied the 

motion as it pertained to Rocky Mountain Bank and Trust 

(“RMBT”) and Global Client Solutions (“Global”) 

(collectively, the “Appellants”). With respect to those two

defendants, the Court held that the pleadings and certain 

evidence adduced by Guidotti were sufficient to demonstrate 

that there had been no meeting of the minds on an agreement 

to arbitrate and that Guidotti‟s claims against them were 

therefore not subject to arbitration.
4

Because we believe that the record before the District

Court was insufficient to prove that there was no genuine 

dispute of material fact as to whether the Appellants and 

Guidotti agreed to arbitrate, we will vacate and remand the 

order denying arbitration. In explaining our reasoning, we

hope to clarify the standards to be applied to motions to 

compel arbitration, identifying the circumstances under which

district courts should apply the standard for a motion to 

dismiss, as provided by Rule 12(b)(6) of the Federal Rules of 

Civil Procedure, and those under which they should apply the 

summary judgment standard found in Rule 56.

I. Background

A. Facts

Guidotti sued twenty-two defendants, alleging that 

they conspired to provide unlicensed debt adjustment services 

in violation of the New Jersey Debt Adjustment and Credit 

Counseling Act, N.J. Stat. Ann. § 17:16G-1, et seq., the New 

Jersey RICO statute, N.J. Stat. Ann. § 2C:41-1, et seq., the 

New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, et 

seq., and various common law principles. In short, she 

alleges that she was deceived into contracting with various 

defendants who led her to believe that they would convince 

her unsecured creditors to settle her consumer debts without 

her having to declare bankruptcy. Instead, she says, the 

defendants participated in a conspiracy to fleece her of her 

remaining assets without negotiating with or protecting her 

from her creditors. This appeal involves only two of the 

defendants, RMBT and Global. Through them, Guidotti 

opened a special bank account into which she automatically 
5

deposited a monthly amount. Those funds were then 

supposedly to be used to pay the various defendants for their 

debt negotiation services, with the remaining funds to be used

to pay a negotiated settlement. RMBT was the financial 

institution at which she opened the account, and Global was 

the processing agent that operated the automatic transfers into 

and out of the account. 

To start at the beginning, however, Guidotti called 

defendant JG Debt Solutions in September 2009. She had 

accumulated approximately $19,550 in unsecured consumer

debt, including credit card debt, and she wanted help in

reducing or negotiating a settlement of her debt, as she hoped 

to ward off bankruptcy. She spoke with defendant Joel 

Gavalas, who described a “debt reduction program” through 

which her “credit card debt could be cut in half and paid off 

within three years.” (App. at 96.) Gavalas explained that 

defendant Eclipse Servicing, Inc. (“Eclipse”), a debt 

negotiation company, would evaluate her finances to 

determine whether she “qualified” for the program, and that,

if she did, a payment program would be prepared for her. 

(Id.)

After the initial call, Gavalas called Guidotti back and 

informed her that “she had been accepted in the program” and 

that Eclipse proposed two alternative plans for her. (Id.) He 

informed her that under either plan she would make monthly 

payments into a special bank account, and that the funds 

deposited into the account would pay for the debt settlement 

negotiation services and would also be used to settle her debts 

with her creditors. Guidotti chose a three-year plan pursuant 

to which she would pay approximately $358 per month. 

Gavalas also informed her that she would be represented in 
6

the debt negotiation process by attorneys from defendant 

Legal Helpers Debt Resolution, LLC (“LHDR”), which calls 

itself a “national law firm” (id. at 333), and by Eclipse, the 

debt negotiation company with which LHDR works. 

Later that same month, on September 29, 2009, 

Guidotti received an email from accounts@plansvc.com, an 

email domain associated with LHDR and Eclipse. The 

subject line of the email read “Debt Settlement Service 

Agreement,” and it contained a link that led to various online 

documents maintained by a company called “DocuSign.” (Id.

at 332.) Included in the documents, Guidotti alleges, were 

two documents containing offers to form separate contracts: 

an attorney retainer agreement (the “ARA”) and an 

application to open a Special Purpose Account with RMBT. 

The application for the Special Purpose Account was called, 

not surprisingly, the Special Purpose Account Application 

(“SPAA”). 

The ARA laid out the respective roles of LHDR and 

Eclipse in the debt settlement negotiation plan, stated the fee 

arrangements with LHDR and Eclipse, and limited the scope 

of the representation to be provided by LHDR to only 

“negotiat[ing] and attempt[ing] to enter into settlements with 

creditors of [Guidotti] in an effort to modify and/or 

restructure [Guidotti‟s] current unsecured debt.” (Id. at 98.) 

The ARA also included an arbitration clause that provided, 

inter alia, that “[i]n the event of any claim or dispute between 

[Guidotti] and LHDR related to the Agreement or related to 

any performance of any services related to this Agreement, 

such claim or dispute shall be submitted to binding arbitration 

upon the request of either party upon the service of that 

request.” (Id. at 193.) Finally, the ARA contained a 
7

provision specifying that Guidotti agreed to establish an 

“authorized bank account” from which service fees, including

legal fees, would automatically be withdrawn on a monthly 

basis, with the first payment to start on September 30, 2009, 

and out of which she would eventually pay her creditors 

following a negotiated settlement. (Id. at 191.)

In furtherance of that last provision of the ARA, the 

collection of documents also included the SPAA, which 

characterized itself as an “application” for that authorized 

bank account. (Id. at 195.) Once signed, the SPAA purported 

to memorialize Guidotti‟s agreement to permit RMBT, 

“through its agent Global, to initiate debit entries” from her 

primary checking account at TD Bank to the RMBT Special 

Purpose Account in the amount of $348.68 per month, “for 

the purpose of accumulating funds to repay [her] debts in 

connection with a debt management program ... sponsored by 

[LHDR].” (Id.) The application also stated that Guidotti

agreed that Global was authorized to “periodically disburse[ ] 

funds from the Account pursuant to instructions that 

[Guidotti] may give from time to time.” (Id.) It also 

“authorize[d] payment from the Account of the fees and 

charges provided for in this Application and the Agreement.” 

(Id.)

The SPAA included an acknowledgment and 

agreement that read:

I understand that the Account‟s features, terms, 

conditions and rules are further described in an 

Account Agreement and Disclosure Statement 

[the “Account Agreement”] that accompanies 

this Application ... . I acknowledge that I have 

received a copy of the [Account Agreement]; 
8

that I have read and understand it; that the 

[Account Agreement] is fully incorporated into 

this Application [the SPAA] by reference; and 

that I am bound by all of its terms and 

conditions.

(Id. (emphasis in original).) According to the amended 

complaint, Guidotti signed and submitted the ARA and the

SPAA on September 29, 2009.1 

The SPAA referred to the Account Agreement nine 

times, but it gave no indication of what that agreement 

contained. Most particularly, for present purposes, the SPAA 

 

1

The documents contained in the record do not all 

corroborate Guidotti‟s assertion that she submitted the ARA 

and the SPAA on September 29, 2009. It is true that the 

email that purportedly conveyed a link to those documents is 

dated September 29, 2009, as is her version of the 

electronically signed ARA. But her version of the 

electronically signed SPAA is dated September 30, 2009. 

Those discrepancies are minor compared to the ones 

contained in the documents supplied by the Appellants. Their 

version of the ARA is dated September 22, 2009, and their 

two versions of the SPAA are dated September 22, 2009, and 

September 30, 2009. The Appellants did not provide any 

copy of the DocuSign email. Because no party has 

endeavored to explain these discrepancies, and given our 

conclusion that, under the circumstances here, a summary 

judgment standard of review applies to the Appellants‟ 

motion to compel arbitration, see infra Part II.B.2, we treat 

the chronology represented in Guidotti‟s amended complaint 

as accurate.
9

did not indicate that the Account Agreement had the 

following arbitration clause:

In the event of a dispute or claim relating in any 

way to this Agreement or our services, you 

agree that such dispute shall be resolved by 

binding arbitration in Tulsa Oklahoma utilizing 

a qualified independent arbitrator of Global‟s 

choosing. The decision of an arbitrator will be 

final and subject to enforcement in a court of 

competent jurisdiction.

(Id. at 185.) The dispositive dispute before the District Court 

was whether the Account Agreement was included in the 

initial package of documents emailed to Guidotti in 

September 2009. The Appellants say that it was, but Guidotti 

contends that it was not provided to her until later, when she 

received it in the mail along with a “welcome” letter on 

October 19, 2009 (App. at 342), three weeks after opening the 

special bank account and depositing her first monthly 

payment. If the facts are as the Appellants claim, then 

presumably Guidotti had knowledge of and assented to the 

arbitration clause contained in the Account Agreement at the 

time she signed and submitted the SPAA. If her version is 

true, then she can credibly argue that she did not assent to 

arbitration and is not bound by that provision.

Guidotti‟s first payment to the Special Purpose 

Account was made on September 30, 2009. Over the course 

of the following 15 months, she deposited into the account a 

total of $5,626.97. After fees to LHDR and Eclipse were 

deducted, Guidotti was left with only $1,090.47 as of 

November 30, 2010. 
10

During the fifteen months that Guidotti made the 

monthly payments, she did not pay anything on her credit 

cards or other debts, in accordance with what she says was 

her understanding of the debt settlement negotiation plan.2 

She received multiple calls and settlement offers from her 

creditors, all of which she forwarded to LHDR, expecting that 

they would address and negotiate a settlement of the 

accounts. None of her debts were settled, however, and she 

observed no negotiation efforts undertaken by LHDR or 

Eclipse. 

Throughout 2010, Guidotti received increasingly dire 

communications from her creditors, eventually resulting in 

three of her four creditors suing to recover sums owed. When 

she requested LHDR‟s assistance with a suit for recovery 

filed by Target National Bank, Eclipse responded by noting 

that the ARA was not intended to cover defending Guidotti 

from suits, “but rather to manage and settle debts.” (Id. at 

101.) Guidotti‟s final payment to the Special Purpose 

Account was made by cashier‟s check in December 2010 

because one of her creditors levied the remaining funds in her 

TD Bank checking account. 

B. Procedural History

 

2

In her amended complaint, Guidotti claimed that “[i]f 

the customer asked [defendant JG Debt Solutions] if they 

[sic] should make their minimum payments, they were told 

that if they did, it would interfere with the negotiation process 

and make it harder to negotiate.” (App. at 110.)
11

Guidotti filed a putative class action in the Superior 

Court of New Jersey, Burlington County, on January 28, 

2011. Defendant LHDR removed the action to the District 

Court on March 4, 2011, and Guidotti then filed the now 

operative pleading, her amended complaint, on March 17, 

2011. Shortly thereafter, on March 23, 2011, thirteen of the 

twenty-two defendants, including the Appellants, filed two 

separate motions to compel arbitration, and the remaining 

defendants either filed motions to stay the action pending 

arbitration or later sought to join the motions to stay. On 

December 20, 2011, the District Court ordered the matter to 

be sent to arbitration, based on the motion filed by LHDR,

Eclipse, and others, holding that the ARA‟s arbitration clause 

is “valid and enforceable.” Guidotti v. Legal Helpers Debt 

Resolution, L.L.C., 866 F. Supp. 2d 315, 329 (D.N.J. 2011).

The District Court did not, however, grant the motion

to compel arbitration filed by RMBT and Global. In her 

response to that motion, Guidotti had attached copies of the 

SPAA, the ARA, and the Account Agreement. She noted that 

the SPAA and the ARA each contained headers bearing the 

name “DocuSign,” indicating that they came from the 

DocuSign website linked to the email she had received. Id. at 

333. In contrast, the Account Agreement did not bear a 

similar header, so Guidotti argued that it had not been

provided to her in that September 29, 2009 email. Id.

Based on that evidence and also on the belief that the 

Appellants had, in four earlier cases from other jurisdictions,

provided the Account Agreement to similarly situated 

plaintiffs only after those other plaintiffs had signed and 

submitted the SPAA, the District Court concluded that “the 

record is sufficient to establish that [Guidotti] did not receive 
12

the [Account Agreement] in her initial collection of 

documents sent via e-mail ... .” Id. Without requiring or 

permitting discovery on the matter, the Court held that 

Guidotti “d[id] not appear to have had knowledge of and 

assented to the incorporated terms.” Id. 336 (internal 

quotation marks omitted).

The Appellants then sought our review of the denial of 

their motion to compel arbitration. 

II. Discussion3

 

3

The District Court had jurisdiction under the Class 

Action Fairness Act, 28 U.S.C. § 1332(d)(2). Although, as 

the District Court acknowledged, complete diversity does not 

exist, Guidotti, 866 F. Supp. 2d at 321 n.1, complete diversity 

is not required under § 1332(d)(2) as long as, pertinent to this 

case, “the matter in controversy” is “a class action,” the 

aggregate amount in controversy “exceeds the sum or value 

of $5,000,000,” and “any member of a class of plaintiffs is a 

citizen of a State different from any defendant.” 28 U.S.C. 

§ 1332(d)(2)(A). Each of those requirements is met in this 

case. 

The District Court also had jurisdiction to decide the 

motion to compel arbitration under the FAA, which provides:

A party aggrieved by the alleged failure, 

neglect, or refusal of another to arbitrate under a 

written agreement for arbitration may petition 

any United States district court which, save for 

such agreement, would have jurisdiction under 

title 28, in a civil matter ... of the subject matter

of a suit arising out of the controversy between 
13

A. Standard for Evaluating Motions to Compel 

Arbitration

Because “[a]rbitration is a matter of contract between 

the parties,” a judicial mandate to arbitrate must be predicated 

upon the parties‟ consent. Par-Knit Mills, Inc. v. Stockbridge 

Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980). The 

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

enables the enforcement of a contract to arbitrate, but requires

that a court shall be “satisfied that the making of the 

agreement for arbitration ... is not in issue” before it orders 

arbitration. Id. § 4. “In the event that the making of the 

arbitration agreement is in issue, then „the court shall proceed 

summarily to the trial‟ of that issue.” Par-Knit Mills, 636 

F.2d at 54 (quoting 9 U.S.C. § 4). “[T]he party who is 

contesting the making of the agreement has the right to have 

the issue presented to a jury.” Id.

Our precedents are not entirely clear on the standard 

for district courts to apply when determining whether, in a 

 

the parties, for an order directing that such 

arbitration proceed in the manner provided for 

in such agreement.

9 U.S.C. § 4.

We have jurisdiction to review a district court‟s denial 

of a motion to compel arbitration under 9 U.S.C. 

§ 16(1)(1)(B). See also Quilloin v. Tenet HealthSystem 

Phila., Inc., 673 F.3d 221, 227-28 (3d Cir. 2012) (court of 

appeals has jurisdiction to review a district court order 

denying motion to compel arbitration even if the motion was 

denied without prejudice).
14

specific case, an agreement to arbitrate was actually reached. 

The issue typically arises when one of the parties files a 

motion to compel arbitration. Some of our cases “support the 

traditional practice of treating a motion to compel arbitration 

as a motion to dismiss for failure to state a claim upon which 

relief can be granted,” under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure. Palcko v. Airborne Express, Inc., 

372 F.3d 588, 597 (3d Cir. 2004). We have also said, 

however, that “when considering a motion to compel 

arbitration ... [a district court] should” employ “the standard 

used ... in resolving summary judgment motions pursuant to 

[Rule 56 of the Federal Rules of Civil Procedure].” Par-Knit 

Mills, 636 F.2d at 54 & n.9; see also Kaneff v. Del. Title 

Loans, Inc., 587 F.3d 616, 620 (3d Cir. 2009) (“A district 

court decides a motion to compel arbitration under the same 

standard it applies to a motion for summary judgment.”). In 

this case, the District Court did not identify the standard it 

employed to analyze the Appellants‟ motion to compel 

arbitration. It simply said that, although there had been no 

discovery, the record was “sufficient to establish that 

[Guidotti] did not receive the [Account Agreement] in her 

initial collection of documents sent via e-mail,” and that 

therefore there had been no agreement to arbitrate. Guidotti, 

866 F. Supp. 2d at 333.

“We exercise plenary review over questions regarding 

the validity and enforceability of an agreement to arbitrate,” 

Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir. 

2010), and we are first obliged to determine which standard 

should have been applied, cf. Exxon Shipping Co. v. Exxon 

Seamen’s Union, 73 F.3d 1287, 1291 (3d Cir. 1996) (“[W]e 

apply the same standard the district court should have applied 

in reviewing the arbitration award.” (citation omitted)). 
15

Answering that question is of utmost importance because the 

two standards differ in significant ways. The test in 

reviewing a motion to dismiss for failure to state a claim 

under Rule 12(b)(6) is whether, under any “plausible” reading 

of the pleadings, the plaintiff would be entitled to relief. Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). We 

will affirm a district court‟s dismissal for failure to state a 

claim “only if, accepting all factual allegations as true and 

construing the complaint in the light most favorable to the 

plaintiff, we determine that the plaintiff is not entitled to relief 

under any reasonable reading of the complaint.” McGovern 

v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009). We 

“consider only the complaint, exhibits attached to the 

complaint, matters of public record, as well as undisputedly 

authentic documents if the complainant‟s claims are based 

upon these documents,” Mayer v. Belichick, 605 F.3d 223, 

230 (3d Cir. 2010).

Under Rule 56, by contrast, a “court shall grant 

summary judgment if the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party asserting that there is a genuine dispute of 

material fact must support that assertion by “citing to 

particular parts of ... the record, including depositions, 

documents, electronically stored information, affidavits or 

declarations, stipulations ..., admissions, interrogatory 

answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In 

evaluating the motion, “the court must draw all reasonable 

inferences in favor of the nonmoving party, and it may not 

make credibility determinations or weigh the evidence.” 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 

150 (2000). Because summary judgment can be supported or 
16

defeated by citing a developed record, courts must give the 

parties “adequate time for discovery.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986).

In short, “[b]oth the burden on the non-moving party 

and the documents available to that party ... differ 

significantly under the motion to dismiss and summary 

judgment standards.” Somerset Consulting, LLC v. United 

Capital Lenders, LLC, 832 F. Supp. 2d 474, 479 (E.D. Pa. 

2011).4 Under the standard applied to a motion to dismiss, a

“defendant need only shoulder a single burden – to show that 

the complaint fails to state a claim.” Id. To combat the 

motion, the plaintiff typically “can rely only on the complaint 

and selected other documents.” Id. Under a summary 

judgment standard, however, “a burden-shifting framework 

applies,” id., pursuant to which the moving party bears the 

initial burden of showing that the non-movant has failed to 

establish one or more essential elements of its case, and, once 

that initial burden is met, the non-moving party must “go 

beyond the pleadings and by her own affidavits, or by the 

„depositions, answers to interrogatories, and admissions on 

file,‟ designate „specific facts showing that there is a genuine 

issue for trial.‟” Celotex, 477 U.S. at 324 (quoting Fed. R. 

Civ. P. 56(e)). A party opposing a motion for summary 

judgment has significantly more material at his disposal than 

when opposing a motion to dismiss, given that he may cite 

evidence gained during discovery.

 

4 Much of our analysis here is drawn from the 

insightful opinion in Somerset Consulting written by the 

Honorable Stewart R. Dalzell of the United States District 

Court for the Eastern District of Pennsylvania.
17

Our inconsistent pronouncements on the applicable 

standard for evaluating motions to compel arbitration are

perhaps explained by the competing purposes of the FAA, 

and by the values underlying contract interpretation. On one 

hand, the FAA places considerable emphasis on “efficient and 

speedy dispute resolution.” Dean Witter Reynolds, Inc. v. 

Byrd, 470 U.S. 213, 221 (1985); see also Prima Paint Corp. 

v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967) 

(remarking on “the unmistakably clear congressional purpose 

that the arbitration procedure, when selected by the parties to 

a contract, be speedy and not subject to delay and obstruction 

in the courts”). The Supreme Court has explained that, in 

pursuit of that goal, the FAA “calls for a summary and speedy 

disposition of motions or petitions to enforce arbitration 

clauses.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 460 U.S. 1, 29 (1983). On the other hand, speed is not 

the sole or even the dominant goal of the FAA. The Supreme 

Court has identified the “enforcement of private agreements,”

as another important aim, Dean Witter, 470 U.S. at 221, and it

has “reject[ed] the suggestion that the overriding goal of the 

Arbitration Act was to promote the expeditious resolution of 

claims,” id. at 219.

The significant role courts play in interpreting the 

validity and scope of contract provisions applies an additional 

brake on the FAA‟s speed impulse. Although the FAA 

manifests “a congressional declaration of a liberal federal 

policy favoring arbitration agreements,” Moses H. Cone, 460 

U.S. at 24, “questions of arbitrability, including challenges to 

an arbitration agreement‟s validity, are presumed to be 

questions for judicial determination,” Quilloin v. Tenet 

HealthSystem Phila., Inc., 673 F.3d 221, 228 (3d Cir. 2012); 

see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 
18

944 (1995) (“Courts should not assume that the parties agreed 

to arbitrate arbitrability unless there is „clea[r] and 

unmistakabl[e]‟ evidence that they did so.” (alterations in 

original) (quoting AT&T Techs., Inc. v. Commc’ns Workers of 

Am., 475 U.S. 643, 649 (1986))). Accordingly, “[b]efore a 

party to a lawsuit can be ordered to arbitrate and thus be 

deprived of a day in court, there should be an express, 

unequivocal agreement to that effect.” Par-Knit Mills, 636 

F.2d at 54.

Viewed in light of those competing goals, our split 

pronouncements on the standard for deciding a motion to 

compel arbitration are reconcilable. “[W]here the affirmative 

defense of arbitrability of claims is apparent on the face of a 

complaint (or ... documents relied upon in the complaint),” 

Somerset, 832 F. Supp. 2d at 481, “the FAA would favor 

resolving a motion to compel arbitration under a motion to 

dismiss standard without the inherent delay of discovery,” id.

at 482. That approach appropriately fosters the FAA‟s 

interest in speedy dispute resolution. In those circumstances, 

“[t]he question to be answered ... becomes whether the 

assertions of the complaint, given the required broad sweep, 

would permit adduction of proofs that would provide a 

recognized legal basis” for rejecting the affirmative defense. 

Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir. 

1979).

In many cases, however, a more deliberate pace is 

required, in light of both the FAA‟s insistence that private 

agreements be honored and the judicial responsibility to 

interpret the parties‟ agreement, if any, to arbitrate. Thus, a 

Rule 12(b)(6) standard is inappropriate when either “the 

motion to compel arbitration does not have as its predicate a 
19

complaint with the requisite clarity” to establish on its face 

that the parties agreed to arbitrate, Somerset, 832 F. Supp. 2d 

at 482, or the opposing party has come forth with reliable 

evidence that is more than a “naked assertion ... that it did 

not intend to be bound” by the arbitration agreement, even 

though on the face of the pleadings it appears that it did. ParKnit Mills, 636 F.2d at 55. Under the first scenario,

arbitrability not being apparent on the face of the complaint, 

the motion to compel arbitration must be denied pending 

further development of the factual record. The second 

scenario will come into play when the complaint and 

incorporated documents facially establish arbitrability but the 

non-movant has come forward with enough evidence in 

response to the motion to compel arbitration to place the 

question in issue. At that point, the Rule 12(b)(6) standard is 

no longer appropriate, and the issue should be judged under 

the Rule 56 standard. See id. (judging motion to compel 

arbitration under summary judgment standard where plaintiff 

presented “[a]n unequivocal denial that the agreement had 

been made, accompanied by supporting affidavits”).

Under either of those scenarios, a “restricted inquiry 

into factual issues” will be necessary to properly evaluate 

whether there was a meeting of the minds on the agreement to 

arbitrate, Moses H. Cone, 460 U.S. at 22, and the non-movant 

“must be given the opportunity to conduct limited discovery 

on the narrow issue concerning the validity” of the arbitration 

agreement, Deputy v. Lehman Bros., Inc., 345 F.3d 494, 511 

(7th Cir. 2003).5 In such circumstances, Rule 56 furnishes the 

 

5

Pre-arbitration discovery has been held necessary in 

other contexts. In Green Tree Financial Corp.-Alabama v. 

Randolph, 531 U.S. 79 (2000), the Supreme Court 
20

 

“established the right of a claimant to invoke discovery 

procedures in the pre-arbitration proceeding in order to assist 

the claimant in meeting her burden of showing the likelihood 

[that arbitration will] bear[] prohibitive costs.” Blair v. Scott 

Specialty Gases, 283 F.3d 595, 608-09 (3d Cir. 2002). 

“Arbitration costs are directly related to a litigant‟s ability to 

pursue [a] claim,” id. at 605, because “„the existence of large 

arbitration costs could preclude a litigant ... from effectively 

vindicating her federal statutory rights in the arbitral forum,‟” 

id. (alteration in original) (quoting Green Tree, 531 U.S. at 

90). The plaintiff in Green Tree had argued that she would be 

unable to vindicate her statutory rights in arbitration because 

“the arbitration agreement‟s silence with respect to costs and 

fees create[d] a „risk‟ that she [would] be required to bear 

prohibitive arbitration costs if she pursue[d] her claims in an 

arbitral forum.” Green Tree, 531 U.S. at 90. Discussing 

Green Tree in Blair v. Scott Specialty Gases, we stated that, 

“[a]lthough discovery is ordinarily not undertaken at such an 

early stage of a proceeding that is governed by an arbitration 

agreement, there is language in the Supreme Court‟s opinion 

faulting the claimant for not presenting evidence „during 

discovery,‟” Blair, 283 F.3d at 609 (quoting Green Tree, 531 

U.S. at 92), and we noted that, during oral argument before it, 

“the Supreme Court assumed that discovery was available,” 

Id. In Blair, the plaintiff argued that a fee-splitting provision 

in the arbitration agreement would similarly prevent her from 

vindicating her statutory rights. Id. at 605. The need for 

discovery in that context is apparent, we said, because, 

“[w]ithout some discovery, albeit limited to the narrow issue 

of the estimated costs of arbitration and the claimant‟s ability 

to pay, it is not clear how a claimant could present 

information on the costs of arbitration,” or “how the 
21

 

defendant could meet its burden to rebut the claimant‟s 

allegation that she cannot afford to share the cost.” Id.

Pre-arbitration discovery has also been allowed to 

determine whether an arbitration clause is unconscionable. 

See, e.g., Parilla v. IAP Worldwide Servs., V.I., Inc., 368 F.3d 

269, 284 (3d Cir. 2004) (remanding for “the development of a 

record” on whether the reasonably anticipated costs of 

arbitration and the plaintiff‟s financial situation would make 

arbitration prohibitively expensive, because “an arbitration 

provision that makes the arbitral forum prohibitively 

expensive for a weaker party is unconscionable”). In 

addition, it has commonly been allowed to determine whether 

an agreement to arbitrate has been formed. See, e.g., 

SBRMCOA, LLC v. Bayside Resort, Inc., 707 F.3d 267, 272-

73 (3d Cir. 2013) (holding that “additional discovery [was] 

warranted” on the issue of whether the plaintiff‟s board acted 

ultra vires when it signed an agreement containing an 

arbitration clause); Deputy v. Lehman Bros., Inc., 345 F.3d 

494, 511 (7th Cir. 2003) (holding that the defendant “must be 

given the opportunity to conduct limited discovery on the 

narrow issue concerning the validity of [the plaintiff‟s] 

signature” in arbitration agreement); Application of 

Deiulemar Compagnia Di Navigazione S.p.A. v. M/V Allegra, 

198 F.3d 473, 482 (4th Cir. 1999) (“Rule 81 [of the Federal 

Rules of Civil Procedure] ... would authorize a district court, 

in enforcing an arbitration agreement, to „order discovery 

pursuant to Fed. R. Civ. P. 26 on matters relevant to the 

existence of an arbitration agreement.‟” (quoting Champ v. 

Siegel Trading Co., Inc., 55 F.3d 269, 276 (7th Cir. 1995))); 

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 

1999) (“The FAA provides for discovery and a full trial in 

connection with a motion to compel arbitration only if „the 
22

correct standard for ensuring that arbitration is awarded only 

if there is “an express, unequivocal agreement to that effect.” 

Par-Knit Mills, 636 F.2d at 54.

6

 

making of the arbitration agreement or the failure, neglect, or 

refusal to perform the same be in issue.‟” (quoting 9 U.S.C. 

§ 4)). Given that “[t]he burden of proving a generally 

applicable contract defense lies with the party challenging the 

contract provision,” Lloyd v. HOVENSA, LLC., 369 F.3d 263, 

274 (3d Cir. 2004), the need for discovery in these types of

situations is evident. Indeed, any time the court must make a 

finding to determine arbitrability, pre-arbitration discovery 

may be warranted. See, e.g., Sandvik AB v. Advent Int’l 

Corp., 220 F.3d 99, 112 (3d Cir. 2000) (holding that “when 

the very existence of ... an [arbitration] agreement is 

disputed, a district court is correct to refuse to compel 

arbitration until it resolves the threshold question of whether 

the arbitration agreement exists”).

6

The conversion of the standard for reviewing a 

motion to compel arbitration mirrors the process provided by 

Rule 12(d) for converting a motion to dismiss to a motion for 

summary judgment. That rule provides that “[i]f, on a motion 

under Rule 12(b)(6) or 12(c), matters outside the pleadings 

are presented to and not excluded by the court, the motion 

must be treated as one for summary judgment under Rule 56,” 

and “[a]ll parties must be given a reasonable opportunity to 

present all the material that is pertinent to the motion.” Fed. 

R. Civ. P. 12(d). Once the motion is converted to a motion 

for summary judgment, reasonable allowance must be made 

for the parties to obtain discovery. See E.I. du Pont de 

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th 

Cir. 2011) (“Such conversion is not appropriate where the 

parties have not had an opportunity for reasonable 
23

To summarize, when it is apparent, based on “the face 

of a complaint, and documents relied upon in the complaint,” 

that certain of a party‟s claims “are subject to an enforceable 

arbitration clause, a motion to compel arbitration should be 

considered under a Rule 12(b)(6) standard without 

discovery‟s delay.” Somerset, 832 F. Supp. 2d at 482. But if

the complaint and its supporting documents are unclear

regarding the agreement to arbitrate, or if the plaintiff has 

responded to a motion to compel arbitration with additional 

facts sufficient to place the agreement to arbitrate in issue, 

then “the parties should be entitled to discovery on the 

question of arbitrability before a court entertains further 

briefing on [the] question.” Id. After limited discovery, the 

court may entertain a renewed motion to compel arbitration, 

this time judging the motion under a summary judgment 

standard. In the event that summary judgment is not 

warranted because “the party opposing arbitration can 

demonstrate, by means of citations to the record,” that there is

“a genuine dispute as to the enforceability of the arbitration 

clause,” the “court may then proceed summarily to a trial 

regarding „the making of the arbitration agreement or the 

failure, neglect, or refusal to perform the same,‟ as Section 4 

of the FAA envisions.” Id. (quoting 9 U.S.C. § 4).

B. Application to This Case

1. Clarity of the Pleadings

 

discovery.”). Otherwise, weighing the new factual assertions 

against the facts pleaded in the complaint would “invite[] 

courts to consider facts and evidence that have not been tested 

in formal discovery.” Pfeil v. State St. Bank and Trust Co., 

671 F.3d 585, 594 (6th Cir. 2012).
24

The Appellants contend that Guidotti‟s complaint was 

sufficiently clear to establish that she received, and agreed to 

the terms of, the Account Agreement when she signed the 

SPAA. They base that contention on language from the 

complaint itself and on the SPAA, which is a document cited 

extensively in the complaint. First, they argue that, by stating 

in her complaint that she received by email “a Special 

Purpose Account application [the SPAA], and account 

agreement establishing a Special Purpose Account” (App. at 

97), Guidotti “affirmatively alleged,” “[b]y the use of the 

comma, and the conjunction „and‟ between the designation of 

the „Special Purpose Account application‟ and the „account 

agreement,‟” that she received both the SPAA and the 

Account Agreement in the same email. (Appellants‟ Opening 

Br. at 15-16.) Second, they note that the SPAA, which 

Guidotti signed and submitted on September 29, 2009, states 

that the Special Purpose Account‟s “features, terms, 

conditions and rules are further described in an Account 

Agreement and Disclosure Statement that accompanies this 

Application.” (App. at 183.) The next sentence provides (in 

italics and bold), “I acknowledge that I have received a copy 

of the [Account] Agreement; that I have read and understood 

it; that the [Account] Agreement is fully incorporated into this 

Application by reference; and that I am bound by all of its 

terms and conditions.” (Id.) According to the Appellants, the 

SPAA is “a signed, contemporaneous document” that 

establishes that Guidotti received the Account Agreement at 

the same time as the SPAA, and that she therefore was 

cognizant of, and assented to, binding arbitration. 

(Appellants‟ Opening Br. at 14.) Thus, our first task is to 

determine whether the complaint and the SPAA, which is 

relied upon in the complaint, establish on their face that 
25

Guidotti agreed to be bound by the terms of the Account 

Agreement, including its provision for arbitration, thereby 

triggering a Rule 12(b)(6) standard.

In that regard, the Appellants make a compelling case. 

It is true, as the District Court concluded, that Guidotti‟s 

“vague reference to „agreement‟ in the Amended Complaint 

... does not clearly contradict” a finding that she was not 

emailed the Account Agreement, because “the sentence could 

be interpreted to mean that [Guidotti] was characterizing the 

„Special Purpose Account‟ document as both an application 

and an agreement, which she signed and returned.” Guidotti, 

866 F. Supp. 2d at 333. But her signed acknowledgment of 

receipt of the Account Agreement and her acceptance of its 

terms is unequivocal. The signed SPAA states on its face that 

Guidotti “received a copy” of the Account Agreement, that 

she “read and understood it,” and that she knew she was 

“bound by all of its terms and conditions.” (App. at 183

(emphasis omitted).) Under the Rule 12(b)(6) standard, there 

would be no reading of the complaint, no matter how friendly 

to Guidotti, that could rightly relieve her of the arbitration 

provision in the Account Agreement, if the complaint were 

the only document in play. But it is not the only relevant 

document, and Guidotti‟s evidence cannot be ignored.

2. Guidotti’s Assertion That She Did Not 

Intend to Be Bound by the Terms of the 

Account Agreement

Despite her signed acknowledgment, Guidotti asserts 

that in reality the Account Agreement was not supplied to her

and she accordingly was unaware of its arbitration provision,

until she received it in the mail on October 19, 2009, three 
26

weeks after she had submitted the SPAA. She thus argues 

that she did not agree to, and cannot be bound by, the 

provisions of the Account Agreement, because she did not see 

them at the time she agreed to the contract and there was no 

meeting of the minds on the agreement to arbitrate.

The Appellants repeatedly insist that, in the words of 

Par-Knit Mills, Guidotti‟s denial in the face of the SPAA‟s 

acknowledgment of receipt of the Account Agreement is a 

mere “naked assertion” that she “did not intend to be bound 

by the terms” of the Account Agreement. Par-Knit Mills, 636 

F.2d at 55. As such, they argue, it is “insufficient to place in 

issue the „making of the arbitration agreement‟” under the 

FAA, id., and the District Court should have granted without 

further delay the motion to compel arbitration.

But contrary to the Appellants‟ emphatic position, 

Guidotti‟s denial is not entirely unsupported. Rather, she 

pointed out to the District Court, and has noted again on 

appeal, that the one-page SPAA and every page of the ARA, 

each supplied separately by her and the Appellants, have an 

encoded “DocuSign” header line, but that the Account 

Agreement, which was also provided by both sides, does not 

have it. From that evidence, she argues that the documents 

that contain the header – the ARA and the SPAA – were sent 

to her by email on September 29, 2009, with the intent that 

she would sign and return them, while the document that does

not contain the header – the Account Agreement – was only 

later mailed to her on October 19, 2009. The question, then, 

is whether that evidence is sufficient to move the case beyond 

the pleadings and warrant the application of the summary 

judgment standard, with its accompanying call for discovery
27

and perhaps a limited trial if a genuine issue of material fact 

emerges.

To answer that, we look to Par-Knit Mills. The 

contract at issue in that case had “a space designated for 

signature entitled „Buyer‟s Acceptance.‟” Par-Knit Mills, 

636 F.2d at 52. The documents also contained a paragraph 

“entitled „Arbitration‟ [that] clearly stated, albeit in small 

print, that any claim arising out of the contract or the 

merchandise covered thereby shall be submitted to and 

determined by arbitration.” Id. at 53. The parties “agree[d] 

that there had been no prior oral discussions or agreements 

regarding arbitration.” Id. In addition, the plaintiff, Par-Knit 

Mills, admitted that one of its plant production managers 

signed the Buyer‟s Acceptance. Id. It asserted, however, that 

the production manager “signed the documents as 

confirmation only of the delivery dates contained therein, and 

that Par-Knit Mills never intended to bind itself to the clauses 

contained in the confirmations.” Id. In other words, Par-Knit 

Mills “claim[ed] that there was never a „meeting of the 

minds‟ on the terms and conditions contained in the 

confirmations and that absent such agreement, there can be no 

duty to arbitrate,” notwithstanding the production manager‟s 

signature. Id.

As support, Par-Knit Mills argued that the production 

manager lacked the authority to execute contracts on behalf of 

the corporation and that the corporation therefore could not be 

bound by his signature, “no matter how clearly the document 

was labeled.” Id. at 55. It also presented a sworn affidavit of 

the production manager asserting that it was not his intention 

to confirm all provisions of the contract, but merely to affirm 

the dates of delivery. Id. at 54. Under those circumstances, 
28

we held, “it is for a jury and not the court” to determine 

whether the parties agreed to arbitrate. Id. at 55.

In so holding, we recognized that our ruling “may run 

contrary to the general policy of encouraging the arbitration 

of disputes,” id., and we contemplated the possibility of 

parties trying to dodge their obligations. For example, “[a] 

party may, in an effort to avoid arbitration, contend that it did 

not intend to enter into the agreement which contained an 

arbitration clause.” Id. Such “[a] naked assertion ... by a 

party to a contract that it did not intend to be bound by the 

terms [of an arbitration clause],” we reasoned, would be 

“insufficient to place in issue the „making of the arbitration

agreement‟” for purposes of the FAA. Id. But we did not 

want to cut off legitimate disputes over an alleged agreement 

to arbitrate when there has been “[a]n unequivocal denial that 

the agreement had been made, accompanied by supporting 

affidavits ... [;] in most cases [that] should be sufficient to 

require a jury determination on whether there had in fact been 

a „meeting of the minds.‟” Id. (citation omitted).

We find further support for that conclusion in Kirleis 

v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156 (3d Cir. 

2009), a case in which we examined whether a lawyer had 

agreed to an arbitration provision contained in her firm‟s 

bylaws. She alleged in a sworn affidavit that she “was never 

provided with a copy of the By-Laws of defendant Firm,” had

“never signed any agreement or document which refers to or 

incorporates the arbitration provision in the By-Laws,” and 

had “never agreed to arbitrate ... claims against Firm.” Id. at 

159-60. Although the law firm did not “submit[] 

contradictory evidence showing that Kirleis had received the 

bylaws or had signed them,” we noted that, even if it had, 
29

“the task of weighing the evidence and choosing which side 

to believe would have been for a jury.” Id. at 161-62 (citing 

Par-Knit Mills, 636 F.2d at 54). “Accordingly,” we held, 

“Kirleis‟s allegations create a genuine issue of fact as to the 

existence of an agreement to arbitrate.” Id. at 162.

It is true that, unlike the plaintiffs in Par-Knit Mills 

and Kirleis, Guidotti has not produced any affidavits to 

support her claim that she did not receive the Account 

Agreement until October 2009. Had she done so – had she 

sworn in an affidavit that she did not receive that agreement 

until three weeks after signing and returning the SPAA, for 

example – the facts of this case would be very similar to ParKnit Mills and Kirleis, and we could more easily find that she 

had come forward with enough evidence to move beyond the 

pleadings and trigger the application of the summary 

judgment standard to determine whether there was a meeting 

of the minds on the agreement to arbitrate. But, even without 

an affidavit, the evidence concerning the DocuSign headers is 

not insubstantial. If Guidotti is correct that any document 

linked in the email that also linked to the SPAA would, like 

the SPAA, have a DocuSign header, then the fact that neither 

party has furnished a version of the Account Agreement

bearing a DocuSign header is significant. We accordingly 

hold that Guidotti came forth with enough evidence in 

response to the Appellants‟ arbitration motion to trigger, 

pursuant to Par-Knit Mills and Kirleis, the summary 

judgment standard found in Rule 56 of the Federal Rules of 

Civil Procedure.

3. Genuine Issue of Material Fact
30

Although Guidotti‟s proffer of evidence placed in issue 

the parties‟ agreement to arbitrate, the District Court did not 

order discovery on the question, but instead “conclude[d],” on 

the very limited evidence before it, “that the record is 

sufficient to establish that [Guidotti] did not receive the 

[Account Agreement] in her initial collection of documents 

sent via e-mail.” Guidotti, 866 F. Supp. 2d at 333. Stated 

differently, the Court held that, despite Guidotti‟s own 

signature on a document acknowledging receipt of the 

Account Agreement, the Appellants had not put forth enough 

evidence to establish even a genuine dispute of material fact

on whether she had received that agreement and hence had 

notice of the arbitration clause. Instead, the Court summarily 

found that Guidotti had not received it until weeks after she

had signed and returned the SPAA and thereby formed the 

contract.

The Court arrived at its conclusion for two reasons, it 

seems. First, it apparently accepted Guidotti‟s argument that 

the emailed documents contained a DocuSign header, but the 

Account Agreement did not, and that the implication of that 

difference was highly significant. Second, and perhaps most 

convincing to the Court, it found support for Guidotti‟s 

assertion in four cases from other jurisdictions in which the 

same parties who appear before us now as the Appellants 

purportedly provided customers with the same form of 

Account Agreement only after those customers had already 

signed the SPAA. Specifically, the Court cited Carlsen v. 

Global Client Solutions, LLC, 423 F. App‟x 697 (9th Cir. 

2011) (nonprecedential), Davis v. Global Client Solutions, 

LLC, 2011 WL 4738547, at *1 (W.D. Ky. Oct. 7, 2011) 

(unreported), Webster v. Freedom Debt Relief, LLC, No. 

1:10CV1587, 2011 WL 3422872 (N.D. Ohio Aug. 4, 2011) 
31

(unreported), and Festa v. Capital One Bank, ATL-L-4851-10 

(N.J. Super. Ct. Law Div. Apr. 21, 2011) (unreported). 

Believing the factual circumstances of those cases to match 

Guidotti‟s assertion that she did not receive the Account 

Agreement until after she had already signed and submitted 

the SPAA, the District Court noted that “Defendants Global 

and RMBT seem to be accustomed to making this argument 

that the late-arriving conditions in the [Account Agreement] 

should bind the consumer, perhaps because they so frequently 

fail to send a copy of the [Account Agreement] until after the 

consumer/debtor has already committed to its terms via the 

incorporation clause in the SPAA.” Guidotti, 866 F. Supp. 2d 

at 335 n.7. The Court even indicated that it could find that 

business practice “unconscionable” because, “based only on 

the cases cited by the Parties in this dispute, Plaintiff Guidotti 

appears to be the fifth customer so treated by these 

Defendants.” Id. at 336 n.8.

Unlike the District Court, we are persuaded that a 

genuine issue of material fact remains regarding the 

agreement to arbitrate. We do not agree, in other words, that, 

based on her unsworn claim that the Account Agreement did 

not accompany the package of documents originally emailed 

to her in September 2009, and based further on the cases 

relied on by the District Court, Guidotti was entitled to 

summary judgment on the question of whether the parties had 

agreed to arbitrate.

Although it is true that neither side has come forth 

with a version of the Account Agreement that contains the 

DocuSign header, there has been no showing that all 

documents provided in the link included in the September 

2009 email must necessarily contain the header. Said 
32

differently, we have no way of knowing whether some of the 

documents provided in the email link could have borne the 

DocuSign header (the ARA and the SPAA, for example) 

while others did not (perhaps the Account Agreement). The 

headers certainly cast doubt on the proposition that the 

Account Agreement was included in the original email, but 

they do not establish that fact outright. Presumably, limited 

discovery regarding the email would have cleared up the issue 

– either the emailed link contained the Account Agreement or 

it did not – but given that no discovery has taken place, any 

summary conclusion is unwarranted.

In addition, the cases from other jurisdictions that 

involved the Appellants are less compelling in our view than 

they were to the District Court. Indeed, in two of those cases,

the courts found that the customer had timely received the 

Account Agreement and granted the respective motions to 

compel arbitration. See Davis, 2011 WL 4738547, at *1 

(holding that plaintiff had agreed to be bound by the terms of 

the Account Agreement by signing a second SPAA after 

receiving the Account Agreement); Webster, 2011 WL 

3422872, at *2 (granting motion to compel arbitration and 

adopting the reports and recommendations of the magistrate 

judge, including a finding that the plaintiff received a copy of 

the Account Agreement with the SPAA).7 

 

7

In the other two cases, the courts did find that the 

Account Agreement was provided only after the contractual 

agreement had commenced with the signing of the SPAA. 

See Carlsen v. Global Client Solutions, LLC, 423 F. App‟x 

697, 698-99 (9th Cir. Mar. 21, 2011) (holding that plaintiffs 

had not agreed to arbitrate because the SPAA did not contain 

an arbitration clause and because the Account Agreement was 
33

Thus, the District Court should not have denied the 

Appellants‟ motion to compel arbitration without first 

allowing limited discovery and then entertaining their motion 

under a summary judgment standard. If, after presentation of 

the evidence uncovered during discovery, a genuine dispute 

of material fact remained, the Court then should have 

submitted to a jury (if either party demanded one) the factual 

question of whether Guidotti was aware of the arbitration 

clause in the Account Agreement at the time she signed and 

submitted the SPAA.8

III. Conclusion

 

not available to the plaintiffs when they signed the SPAA); 

Capital One Bank v. Festa, C.A. No. ATL-L-4851-10 (N.J. 

Super. Ct. Law Div. Apr. 21, 2011) (finding that customer did 

not receive the Account Agreement until two weeks after 

signing the SPAA).

8

In their briefing, the Appellants asserted in the 

alternative that “[e]ven if the [Account Agreement] was 

omitted from the package that was e-mailed to Guidotti” on 

September 29, 2009, the arbitration clause is still enforceable. 

(Appellants‟ Opening Br. at 16.) At oral argument, however, 

counsel for the Appellants stated that, if this Court were to 

vacate the District Court‟s order and remand for additional 

evidentiary development on the validity of the agreement to 

arbitrate, our review of those arguments would be 

“unnecessary.” See Oral Argument at 30:30-31:00, available 

at http://www.ca3.uscourts.gov/oralargument/audio/12-

1170Guidotti%20v%20Legal%20

Helpers%20Debt%20Resolution%20LLC%20et%20al.wma. 

We accordingly do not address those arguments here.
34

For the foregoing reasons we will vacate the District 

Court‟s order denying the Appellants‟ motion to compel 

arbitration and remand for proceedings consistent with this 

opinion.