1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

PATRICK DANIEL, ) 

 ) 

 Plaintiff, ) 

 v. ) 

 ) 

EBAY, INC., et. al., ) Civil Action No. 15-1294 (EGS) 

 ) 

Defendants. ) 

 ) 

MEMORANDUM OPINON AND ORDER

 Plaintiff Patrick Daniel (“Mr. Daniel”), an attorney 

proceeding pro se, brings suit against eBay, Inc. (“eBay”) and 

individual eBay seller Jack Ly (“Mr. Ly”)(also known as David 

Kennedy). Mr. Daniel brings several claims against both 

defendants, including “breach of contract, fraud, collusion, 

conspiracy, failure to monitor business and its agents, failure 

to supervise business and its sellers, agency, unjust 

enrichment, redhibition, theft by deception, theft by 

conversion, unfair and deceptive trade practices, and violations 

of [unspecified] laws, statutes, and/or regulations designed for 

the safety of consumers.” Compl., ECF No. 1 ¶ 13. Mr. Daniel’s 

claims all arise from his purchase of an allegedly counterfeit 

watch from Mr. Ly through eBay’s online marketplace. Arguing 

that Mr. Daniel had agreed to submit to arbitration, eBay filed 

a motion to compel arbitration and stay this litigation. Def.’s 
2 

Mot. to Arb., ECF Nos. 6, 9.1 Pending before the Court are Mr. 

Daniel’s objections to Magistrate Judge G. Michael Harvey’s 

Report and Recommendation (“R&R”), which recommends that the 

Court grant eBay’s motion to compel arbitration and stay 

litigation. See R&R, ECF No. 15. 

 Upon consideration of the R&R, Mr. Daniel’s objections, 

eBay’s response to those objections, eBay’s motion to compel 

arbitration, the responses and replies thereto, and the relevant 

law, the Court declines to adopt Magistrate Judge Harvey’s R&R 

and DENIES eBay’s motion to compel arbitration and stay the 

litigation pending before the Court. 

I. Background 

Mr. Daniel does not appear to object to Magistrate Judge 

Harvey’s recitation of the facts. See Pl.’s Objections, ECF No. 

17. To briefly summarize, Mr. Daniel bought what he thought was 

an “authentic” Audemars Piguet Royal Offshore Watch from Mr. Ly, 

a registered eBay seller, via eBay’s online marketplace on July 

9, 2015. Compl., ECF No. 1 ¶¶ 4-6, 8. The watch was allegedly 

worth $75,000. Id. On July 14, 2015, Mr. Daniel learned that the 

watch was counterfeit, not “authentic” as marketed. Id. ¶¶ 7, 8. 

Upon learning the watch was counterfeit, Mr. Daniel contacted 

 

1 eBay’s motion to compel was filed as docket entry number 6, but 

eBay filed an amended memorandum in support of its motion to 

compel as docket entry number 9.
3 

Mr. Ly and arranged a meeting to return the watch, but Mr. Ly 

did not appear. Id. ¶ 10. Mr. Daniel notified eBay, but it 

allegedly “refused” to provide him with Mr. Ly’s contact 

information or refund his money. Id. ¶ 9. Within a month, Mr. 

Daniel sued eBay and Mr. Ly for breach of contract, fraud, and 

unjust enrichment, among several other charges. See id. ¶ 13. 

eBay contends that Mr. Daniel is required to arbitrate his 

claims against the company pursuant to various iterations of its 

“User Agreements.” See Def.’s Mot. to Arb., ECF No. 9; R&R, ECF 

No. 15 at 3-6. When Mr. Daniel registered as an eBay user in 

March 1999, he was required to accept the 1999 User Agreement by 

clicking “I accept” on an online form. Long Decl., ECF No. 6-2 

¶¶ 3-12. The 1999 User Agreement did not contain an arbitration 

clause, but provided that eBay may “amend this Agreement at any 

time by posting the amended terms on our site.” Long Decl., ECF 

No. 6-2 ¶ 13; 1999 User Agreement (“U.A.”), ECF No. 6-2 at 13. 

Pursuant to that “change-in-terms” provision, eBay amended 

its User Agreement to include an arbitration clause in August 

2012. Long Decl., ECF No. 6-2 ¶ 14;2 2012 U.A., ECF No. 6-2 at 

22-29. The 2012 User Agreement stated that users and eBay agree 

that “any and all disputes or claims that have arisen or may 

arise between [the user] and eBay shall be resolved exclusively 

 

2 Paragraph 14 of the Long Declaration appears to be incomplete 

and paragraph 15 is missing. See Long Decl., ECF No. 6-2. 
4 

through final and binding arbitration, rather than in court.” 

2012 U.A., ECF No. 6-2 at 27. The User Agreement allowed users 

to “opt out” of the arbitration provision by mailing eBay a 

written opt-out notice within a certain amount of time. Id. at 

28. According to eBay, Mr. Daniel did not “opt out.” Long Decl., 

ECF No. 6-2 ¶ 17. 

In June 2015, eBay amended its User Agreement again. Id. ¶ 

18; 2015 U.A., ECF No. 6-2 at 31-40. This version of the User 

Agreement was in effect when Mr. Daniel purchased the 

counterfeit watch in July 2015. Long Decl., ECF No. 6-2 ¶ 18.

The 2015 User Agreement contained an arbitration provision 

practically identical to the 2012 version: 

[The user] and eBay each agree that any and 

all disputes or claims that have arisen or may 

arise between [the user] and eBay relating in 

any way to or arising out of this or previous 

versions of the User Agreement, [the user’s] 

use of or access to eBay’s Services shall be 

resolved exclusively through final and binding 

arbitration, rather than in court . . . . The 

Federal Arbitration Act governs the 

interpretation and enforcement of this 

Agreement to Arbitrate. 

 

2015 U.A., ECF No. 6-2 at 37. 

Mr. Daniel denies receiving notification of either amended 

User Agreements. Daniel Aff., ECF No. 17 at Ex. 2 ¶¶ 2, 3 (“At 

no time have I received an email [or message] from eBay 

notifying me of a proposed compulsory arbitration provision.”). 

eBay responds, stating that Mr. Daniel was notified of the 2015 
5 

User Agreement via an email sent to his registered email 

address. Long Decl., ECF No. 6-2 ¶ 19; see also Form Email with 

2015 U.A., ECF No. 6-2 at 42-43. 

II. Standards of Review 

A. Objections to a Magistrate Judge’s Report and 

Recommendation 

Pursuant to Federal Rule of Civil Procedure 72(b), once a 

magistrate judge has entered a recommended disposition, a party 

may file specific written objections. The district court “must 

determine de novo any part of the magistrate judge’s disposition 

that has been properly objected to,” and “may accept, reject or 

modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3). 

Proper objections “shall specifically identify the portions of 

the proposed findings and recommendations to which objection is 

made and the basis for objection.” Local Civ. R. 72.3(b). “As 

numerous courts have held, objections which merely rehash an 

argument presented to and considered by the magistrate judge are 

not ‘properly objected to’ and are therefore not entitled to de 

novo review.” Shurtleff v. U.S. Envtl. Prot. Agency, 991 F. 

Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, Case No. 

08–2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009) 

(collecting cases)). Likewise, a court need not consider cursory 

objections made only in a footnote. Hutchins v. District of 

Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also
6 

Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 

2009) (Williams, J. concurring) (internal citations omitted). 

B. Motion to Compel Arbitration 

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

“governs the enforcement of contractual arbitration provisions” 

related to matters of interstate commerce. Aneke v. Am. Express 

Travel Related Servs., Inc., 841 F. Supp. 2d 368, 373 (D.D.C. 

2012). It provides that written agreements to arbitrate “shall 

be valid, irrevocable, and enforceable, save upon such grounds 

as exist at law or in equity for the revocation of any 

contract.” 9 U.S.C. § 2. The “saving clause” in this section 

“permits agreements to arbitrate to be invalidated by generally 

applicable contract defenses, such as fraud, duress, or 

unconscionability, but not by defenses that apply only to 

arbitration or that derive their meaning from the fact that an 

agreement to arbitrate is at issue.” AT&T Mobility LLC v. 

Concepcion, 563 U.S. 333, 339 (2011) (internal quotations and 

citations omitted). 

The FAA reflects “a liberal federal policy favoring 

arbitration and the fundamental principle that arbitration is a 

matter of contract.” Id. (internal quotations and citations 

omitted). It “strongly favors the enforcement of agreements to 

arbitrate as a means of securing prompt, economical and adequate 

solution of controversies.” Rodriguez de Quijas v. 
7 

Shearson/Am. Express, Inc., 490 U.S. 477, 479–80 (1989). 

Therefore, “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) (citing 9 U.S.C. §§ 3, 4)(emphasis in original). 

When adjudicating a motion to compel arbitration, district 

courts apply the summary judgment standard of Federal Rule of 

Civil Procedure 56(c). Aliron Int'l, Inc. v. Cherokee Nation 

Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008). Under Rule 56, 

summary judgment is appropriate only if “there is no genuine 

dispute as to any material fact and the movant is entitled to a 

judgment as a matter of law.” Fed. R. Civ. P. 56. To that end, 

“the party seeking to stay the case in favor of arbitration 

bears an initial burden of demonstrating that an agreement to 

arbitrate was made . . . . [while] the party resisting 

arbitration bears the burden of proving that the claims at issue 

are unsuitable for arbitration.” Saki v. Estee Lauder Cos., -- 

F. Supp. 3d --, 2018 WL 1953899 at *4-5 (D.D.C. April 25, 

2018)(citing Green Tree Fin. Corp.-Ala. V. Randolph, 531 U.S. 

79, 91 (2000)). 

III. Analysis 

In its motion to compel arbitration, eBay argues that Mr. 

Daniel is required to submit to arbitration because he agreed to 

the 1999 User Agreement, which contained the change-in-terms 
8 

clause. See Def.’s Mot. to Arb., ECF No. 9. Because eBay amended 

its User Agreement to require arbitration pursuant to that 

clause, eBay argues that Mr. Daniel agreed to the changes. See 

id. eBay points to the fact that Mr. Daniel did not opt out of 

the arbitration provision even though he had the option to do 

so. See id. at 3. In response, Mr. Daniel argues that he never 

agreed to the 2012 and 2015 arbitration clauses because he never 

received notification of the amended terms. See Pl.’s Opp’n, ECF 

No. 11. Alternatively, he argues that the arbitration agreement, 

if any, is unenforceable and does not encompass his claims 

against eBay. See id. 

The R&R recommends that the Court grant eBay’s motion to 

compel because: (1) the parties entered into a valid arbitration 

agreement, see R&R, ECF No. 15 at 12-14; (2) the arbitration 

agreement is enforceable, see id. at 14-16, 19-27; and (3) the 

arbitration clause encompasses Mr. Daniel’s claims, see id. at 

16-18. In recommending this outcome, the R&R did not resolve the 

choice of law dispute between the parties. See R&R, ECF No. 15 

at 9-11 (“When determining whether an arbitration agreement is 

valid, ‘courts apply ordinary state-law principles that govern 

the formation of contracts.’”) (quoting First Options of Chi., 

Inc. v. Kaplan, 514 U.S. 938, 955 (1995)). Mr. Daniel argues 

that Louisiana law applies, see Pl.’s Opp’n, ECF No. 11 at 2, 6-

10, while eBay asserts that “either Utah or Texas law applies,” 
9 

see Def.’s Reply, ECF No. 14 at 5, 7. The R&R does not resolve 

the issue because it concludes that eBay’s motion to compel 

arbitration should be granted pursuant to the law of each 

jurisdiction. See R&R, ECF No. 15 at 9-11. While the Court 

disagrees that eBay’s motion should be granted, it agrees that 

it need not resolve the choice of law issue as the laws of these 

jurisdictions produce identical results. See Nat’l R.R. 

Passenger Corp. v. Lexington Ins. Co., 365 F.3d 1104, 1107 (D.C. 

Cir. 2004)(“we need not delve into choice of law issues, as 

there is no conflict of law for this Court to resolve”). 

Consequently, the Court looks to Utah, Louisiana, and Texas law. 

In his objections, Mr. Daniel seems to argue that the Court 

should apply California law. See Pl.’s Objection, ECF No. 17 at 

5-6. Not only does California not appear to have a significant 

interest in the application of its law to this dispute, see 

Geico v. Fetisoff, 958 F.2d 1137, 1141 (D.C. Cir. 1992), but Mr. 

Daniel also did not argue that California law should apply when 

opposing eBay’s motion to compel arbitration, see Pl.’s Opp’n, 

ECF No. 11. Mr. Daniel is entitled to a de novo review of 

Magistrate Judge Harvey’s findings; he is “not, however, 

entitled to a de novo review of an argument never raised.” 

Aikens v. Shalala, 956 F. Supp. 14, 22 (D.D.C. 1997). 
10 

A. Mr. Daniel Did Not Consent to Arbitration 

In adjudicating motions to compel arbitration, the Court must 

determine (1) whether the parties entered into a valid and 

enforceable arbitration agreement; and, if so, (2) whether the 

arbitration agreement encompasses the parties’ claims. See 

Courville v. Allied Prof’ls Ins. Co., 174 So.3d 659, 663 (La. 

Ct. App. 2015) (“In ruling on a motion to compel arbitration, 

the court must first determine whether the parties agreed to 

arbitrate the type of claim that is at issue.”); Bybee v. 

Abdulla, 189 P.3d 40 ¶ 26 (Utah 2008)(“ For a dispute to be 

subject to arbitration, an agreement to arbitrate must exist 

that binds the party whose submission to arbitration is sought 

and the dispute to be arbitrated must fall within the scope of 

the agreement.”) (internal citations omitted); In re Conseco 

Fin. Serv. Corp., 19 S.W.3d 562, 567 (Tex. App. 2000)(same). 

The R&R finds that eBay and Mr. Daniel had agreed to 

arbitrate because Mr. Daniel accepted the 1999 User Agreement, 

which contained the change-in-terms provision that allowed eBay 

to amend future User Agreements. See R&R, ECF No. 15 at 12-14. 

Therefore, the R&R concludes that the 2012 and 2015 User 

Agreements—which contained arbitration clauses—are enforceable 

by virtue of the 1999 User Agreement. Id. By failing to opt out 

of the arbitration provision, Mr. Daniel “manifested his assent 

to the terms of eBay’s User Agreement and the arbitration clause 
11 

therein.” Id. at 14. The R&R did not consider whether Mr. Daniel 

could consent to the later-added arbitration provisions without 

personal notice of the changes or whether posting the amended 

User Agreements on eBay’s website was sufficient notice. See id. 

Although the R&R assumes that Mr. Daniel was entitled to notice 

of the arbitration provisions, it does not address whether the 

record establishes that eBay sent such notice. See id. 

Mr. Daniel objects to the R&R by arguing that he never 

consented to arbitration. Pl.’s Objections, ECF No. 17 at 2-3, 

7-9. Mr. Daniel does not dispute that he consented to the 1999 

User Agreement by clicking “I accept” when he registered for an 

eBay account. See generally Pl.’s Opp’n, ECF No. 11; Pl.’s 

Objections, ECF No. 17. He also does not dispute that the 1999 

User Agreement allows eBay to amend its contract by “posting the 

amended terms on [eBay’s] site.” See id.; 1999 U.A., ECF No. 6-2 

at 13. Instead, Mr. Daniel argues that he never received 

notification of the amended User Agreements and thus, eBay 

“cannot offer credible evidence of [his] intent to be bound to 

arbitration.” Id. at 1, 3; Pl.’s Aff., ECF No. 17 at 22 ¶¶ 2-4. 

Mr. Daniel contends that he had no intent to be bound to 

arbitrate when he accepted a contract that did not contain an 

arbitration provision thirteen years earlier. See Pl.’s 

Objections, ECF No. 17 at 3-4, 8-9 (“eBay has no proof of [Mr. 

Daniel’s] consent to arbitrate”). At issue, then, is whether Mr. 
12 

Daniel consented to the later-added arbitration clause by virtue 

of the change-in-terms provision and whether Mr. Daniel could 

consent to the arbitration clauses without notice of them. 

As a matter of “basic contract formation principles, an 

agreement to arbitrate is not created by a unilateral offer from 

one party”; it requires “mutual assent” to be enforceable. 

Morgan v. Bronze Queen Mgmt. Co., 474 S.W.3d 701, 706 (Tex. App. 

2014). Indeed, “the general rule of arbitration agreements is 

that one who has not manifested assent to an agreement to 

arbitrate cannot be required to submit to arbitration.” 

Ellsworth v. Am. Arb. Ass’n, 148 P.3d 983, 989 ¶ 19 (Utah 2006). 

Therefore, the “minimum threshold” for enforcement of an 

arbitration provision is “direct and specific evidence of an 

agreement [to arbitrate] between the parties.” Id. at 987 ¶ 14 

(quotations and citations omitted). A plaintiff is “not bound by 

the terms of [] later-added arbitration clauses unless he 

consented to them, as a ‘substantive change in the terms of a 

contract requires the consent of parties.’” FIA Card Servs. v. 

Weaver, 62 So.3d 709, 718 (La. 2011)(quoting Lanier v. Alenco, 

459 F.2d 689, 693 (5th Cir. 1972)). Therefore, the Court rejects 

the R&R’s finding that eBay and Mr. Daniel agreed to arbitrate 

solely because Mr. Daniel accepted the 1999 User Agreement, 

which contained the change-in-terms provision that allowed eBay 

to amend future User Agreements. 
13 

A party may consent to a later-added arbitration clause if 

the party: (1) is notified about the arbitration clause; and (2) 

assents via continued use of the product or service. See FIA, 62 

So.3d at 718 (“it is black letter law that, if a credit card 

company sends a notice of change in terms of the agreement, the 

customer assents to the new terms by his continued use of the 

card”); Koontz v. Citibank, Civ. No. 01-08-495, 2010 WL 2545583 

at *2 (Tex. App. 2010)(finding that the consumer consented to a 

later-added arbitration clause, despite not signing a new 

contract, because she received a notice explaining the change, 

did not opt out of the provision, and continued using the 

product). Therefore, while a party need not necessarily sign a 

contract with a later-added arbitration clause in order to 

assent, the party cannot agree to a newly-added arbitration 

clause without personal notice of that provision. See McCoy v. 

Blue Cross & Blue Shield, 20 P.3d 901, 904 ¶ 13 (Utah). 

Notice of a later-added arbitration provision is essential 

because “when parties agree to arbitrate, they waive the 

substantial right to judicial resolution of their disputes.” Id.

¶ 15. While the FAA “requires courts [to] rigorously . . . 

enforce arbitration agreements,” Epic Sys. Corp. v. Lewis, -- S. 

Ct. --, 2018 WL 2292444 at *5 (May 21, 2018)(quotations and 

citations omitted), “the policy of liberally construing 

agreements in favor of arbitration is conditioned upon the prior 
14 

determination that arbitration is a ‘remedy freely bargained for 

by the parties and [which] provides a means of giving effect to 

the intention of the parties,’” McCoy, 20 P.3d at 904 ¶ 15. This 

is not to say that eBay must prove that Mr. Daniel actually 

received notice. FIA, 62 So.3d at 718 n.7 (“There is no 

requirement that FIA prove Weaver, specifically, received the 

notice.”). However, eBay must show and the record must reflect 

that it undertook specific efforts to send notice of the new 

arbitration provisions to Mr. Daniel on a certain date. See id. 

(citing Nolan v. Mabray, 51 So.3d 665 (La. 2010)(not enforcing a 

later-added arbitration clause because the record did not 

contain evidence “showing when or if the notices were mailed to 

customers”)); see also Marsh v. First USA Bank, N.A., 103 F. 

Supp. 2d 909, 918–19 (N.D. Tex. 2000)(enforcing a valid 

arbitration provision because the record established, via 

depositions and affidavits, that the company had quality 

assurance controls to ensure that every customer received notice 

of the later-added arbitration provision). 

In McCoy v. Blue Cross & Blue Shield, the Utah Supreme 

Court applying Utah law—eBay’s preferred forum—denied a motion 

to compel arbitration for failure to demonstrate notice and 

assent. 20 P.3d at 905 ¶¶ 17, 18. Relying on a change-in-terms 

clause, Blue Cross argued that the plaintiff had agreed to 

arbitrate because the parties had agreed that Blue Cross “had 
15 

the absolute right to modify or amend [its] agreement from time 

to time.” Id. ¶ 16. Notwithstanding that provision, the Utah 

Supreme Court found that the plaintiff had not agreed to 

arbitrate by merely agreeing that Blue Cross could amend the 

contract terms at a later time. Id. ¶ 17. Instead, the company 

was required to establish that it had notified the plaintiff 

“personally” about the newly-added arbitration provision. Id. ¶ 

18. Blue Cross’ statement that it had mailed a notice to all 

subscribers was not sufficient: “its evidence described general 

procedures but did not establish any actual mailing, or even 

attempt to mail, that was directed to [the plaintiff] 

personally.” Id. So here too. 

eBay has not established that it notified Mr. Daniel about 

the 2012 and 2015 amended User Agreements containing the 

arbitration clauses. First, eBay contends that Mr. Daniels 

received notice when it posted the amended User Agreements on 

its website. See 2012 U.A., ECF No. 6-2 at 22 (posted on eBay’s 

website); 2015 U.A., ECF No. 6-2 at 31 (posted on eBay’s 

website); Long Decl., ECF No. 6-2 ¶¶ 14, 19. eBay does not 

provide any authority from any of the three jurisdictions for 

the proposition that such posts constituted notice sufficient to 

demonstrate an agreement to arbitrate. See generally Def.’s Mot. 

to Arb., ECF No. 9. Indeed, in eBay’s preferred forum claims of 

“general” notice without evidence of “personal[]” and “actual” 
16 

mailing to affected customers was insufficient to demonstrate 

consent. See McCoy, 20 P.3d at 905 ¶ 18. 

Next, eBay asserts that it sent the 2012 User Agreement to 

Mr. Daniel “through his My eBay Message Center.” Def.’s Mot. to 

Arb., ECF No. 9 at 3 (citing Long Decl., ECF No. 6-2 ¶ 18); see 

also Def.’s Reply, ECF No. 14 at 2 (citing Long. Decl., ECF No. 

6-2 ¶¶ 18-20). The record does not support this assertion. 

Paragraphs 18 and 19 of the Long Declaration do not state that 

Mr. Daniel was sent a message regarding the 2012 User Agreement 

via the “Message Center” and paragraph 20 does not exist. See 

Long Decl., ECF No. 6-2. Moreover, eBay does not provide a copy 

of any message sent to Mr. Daniel. 

Finally, eBay asserts that its “records show that Daniel 

was notified of the [2015] revisions via an email sent to his 

registered email address.” Def.’s Mot. to Arb., ECF No. 9 at 3-4 

(citing Long Decl., ECF No. 6-2 ¶ 20; Form Email with 2015 U.A., 

ECF No. 6-2 at 42-43). Again, the record does not support this 

assertion. Not only is there no paragraph 20 in the Long 

Declaration, but the email attached as an exhibit to the 

Declaration was not addressed to Mr. Daniel. Instead, eBay 

relies on a form email that it states was sent to eBay users to 

notify them of updates to the 2015 User Agreement. See Long. 

Decl., ECF No. 6-2 ¶ 19; Form Email with 2015 U.A., ECF No. 6-2 

at 42-43(form email is addressed to “[USER]” without any email 
17 

address or date sent). eBay has therefore failed to demonstrate 

that it sent Mr. Daniel an email notifying him of the 2015 User 

Agreement. See McCoy, 20 P.3d at 905 ¶ 18 (requiring evidence of 

personal notification to establish consent to arbitration); FIA, 

62 So.3d at 718-19 (vacating arbitration award because the 

company failed to provide evidence that notice of the 

arbitration clause was mailed to customers and as such, the 

court was “unable to conclude that [the consumer] ever consented 

to resolve his credit card disputes via arbitration”); Koontz, 

2010 WL 2545583 at *2-3 (finding that the consumer had consented 

to arbitration because it was undisputed that the company had 

sent the consumer the agreement to arbitrate). In sum, eBay has 

failed to establish mutual assent to arbitrate because it failed 

to meet its burden of demonstrating that Mr. Daniel was 

personally notified of the 2012 or 2015 User Agreements 

containing the arbitration provisions.3 

IV. Conclusion and Order 

For the aforementioned reasons, the Court declines to adopt 

Magistrate Judge Harvey’s R&R. Accordingly, the Court DENIES 

eBay’s motion to compel arbitration and stay the litigation. 

 

3 Mr. Daniel also argues that the arbitration agreement is 

unenforceable because it is unconscionable and illusory. Pl.’s 

Objections, ECF No. 17 at 5-6, 10-12. He also contends that any 

arbitration agreement does not fully encompass his claim. Id. at 

9-10. Because the Court finds that eBay did not establish mutual 

assent to arbitrate, it need not reach these arguments.
18 

Pursuant to the Court’s September 30, 2015 Minute Order, eBay 

is directed to file its answer to Mr. Daniel’s complaint by no 

later than August 27, 2018. Within thirty days after eBay has 

filed it answer, the parties shall meet and confer as required 

by Federal Rule of Civil Procedure 26(f). See Court’s Standing 

Order ¶ 9. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 July 26, 2018