IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

DAWN GUIDOTTI, on behalf of 

herself and other class 

members similarly situated, 

 Plaintiff, 

 v. 

GLOBAL CLIENT SOLUTIONS, LLC 

and ROCKY MOUNTAIN BANK & 

TRUST OF COLORADO SPRINGS, 

COLORADO, 

 Defendants. 

 

HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 11-1219 (JBS/KMW) 

MEMORANDUM OPINION

 

SIMANDLE, Chief Judge: 

 Presently before the Court are the two remaining submotions to the First Motion in limine by Plaintiff Dawn Guidotti 

(hereinafter “Plaintiff”)[Docket Item 249] regarding the 

upcoming jury trial1 on the narrow issue of whether Plaintiff 

agreed to arbitrate with Defendant Global Client Solutions, LLC.2

For the following reasons, the Court denies both sub-motions. 

 

1 This case is scheduled for a jury trial before the undersigned 

beginning on May 1, 2017. 

2 Plaintiff submitted a motion in limine “to limit the issue set 

forth in the Joint Final Pretrial Order that are to be submitted 

to the jury,” but this motion included five submotions. [Docket 

Item 249.] This Memorandum Opinion only concerns the second and 

fifth submotions. Plaintiff’s remaining three submotions, as 

well as the other outstanding motions in limine, were addressed 

at the April 24, 2017 telephone conference. [Docket Item 269.] 
2

1. Assent by Conduct. First, Plaintiff requests that 

Defendants’ Issues #3 and #4, as well as Plaintiff’s Issue #4 

set forth in the Joint Final Pretrial Order (“JFPTO”) are issues 

of law for the Court to decide, not factual issues for the jury. 

Defendants’ Issue #3 states: 

Whether Guidotti accepted and assented to the arbitration 

agreement when she used her Special Purpose Account (SPA) 

after receiving the [Account Agreement and Disclosure 

Statement] AADS which contained the arbitration agreement. 

Defendants’ Issue #4 states: 

Whether Guidotti ratified the AADS, including the 

arbitration provision contained therein, by her use of the 

SPA. 

Finally, Plaintiff’s Issue #3 states: 

Whether Plaintiff’s actions in reference to the SPA after 

receiving the AADS manifested assent by plaintiff to the 

terms and provisions of the AADS and whether Global and 

Rocky could unilaterally amend the terms thereof. 

At oral argument, the Court rephrased these issues as 

“whether Ms. Guidotti assented to the arbitration agreement 

through her performance under the party’s contract.” (4/24/17 

Tr. at 4:9-11.) Plaintiff argues that there is nothing here for 

the jury to determine because the Court must decide whether a 

contract was formed, regardless of how Defendants characterize 

the timeline in this case. Defendants respond that Plaintiff is 

“effectively seeking to re-hash the arguments made at the 

summary judgment stage of this case and have the Court determine 

as a matter of law issues the Third Circuit clearly stated must 
3

be determined by the factfinder, a jury in this case.”3 The 

Court agrees with Defendants, as the jury alone must determine 

whether Plaintiff agreed to arbitrate with Defendants, not the 

Court. 

2. Additionally, Plaintiff has failed to explain why 

these issues of assent also appear in its “Contested Facts” 

portion of the JFPTO. See, e.g., Docket Item 199 at 3 

(“Plaintiff did not manifest any clear intention by her actions 

after receiving the AADS to accept the terms of the AADS and 

neither the SPAA or AADS permitted unilateral amendment of their 

terms.”); Id. (“The arbitration clause in the AADS was not 

sufficiently clear to manifest an assent to arbitration.”). The 

Court therefore agrees with Defendants that “the jury cannot 

decide whether the agreement between Guidotti and Defendants 

contains an arbitration provision without making factual 

determinations about whether Guidotti manifested her assent to 

the terms of the Account Agreement and Disclosure Statement.” 

(Opp’n at 9.) If the Court were to take away these issues from 

 

3 Defendants point to language in Guidotti v. Legal Helpers Debt 

Resolutions, L.L.C., 639 F. App’x 824, 827 (3d Cir. 2016) 

stating: “[T]he resolution of this question [of preemption] is 

unnecessary if Guidotti never received the AADS or otherwise 

failed to assent to arbitrate her claims. Accordingly, we will 

vacate the District Court’s order denying Global and RMBT’s 

motion and remand with instructions to resolve this factual 

dispute.” 

 
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the jury, it would be unclear what else would be left for the 

jury to decide. This contradicts the letter and the spirit of 

the Third Circuit’s instructions in this matter; thus, the Court 

denies Plaintiff’s motion in limine to the extent it seeks to 

keep issues of assent from the jury. 

3. Incorporation by Reference. Next, Plaintiff argues 

that the issue of whether the Account Agreement and Disclosure 

Statement was incorporated by reference into the SPAA is a 

question of law for the Court, not a question of fact for the 

jury. Courts generally hold that incorporation by reference is a 

question of law. See, e.g., Northrop Grumman Info. Tech, Inc. v. 

United States, 535 F.3d 1139, 1343 (Fed Cir. 2008); see also 11 

Richard A. Lord, Williston on Contracts § 30:25 (4th ed. 

1999)(observing that terms of a contract may be expressed in 

separate documents and the determination of which terms are 

incorporated into the contract is a question of law).4 Defendants 

respond that whether the SPAA incorporated the AADS by reference 

is a factual issue because “in order for the jury to make a 

determination whether the SPAA incorporated the AADS by 

 

4 Under New Jersey law,“[i]n order for there to be a proper and 

enforceable incorporation by reference of a separate document, 

the document to be incorporated must be described in such terms 

that its identity may be ascertained beyond doubt and the party 

to be bound by the terms must have had ‘knowledge of and 

assented to the incorporated terms.’” Alpert v. Quinn, 410 N.J. 

Super. 510, 533 (App. Div. 2009). 
5

reference the jury will have to make a threshold factual finding 

[that] the SPAA referenced the AADS, a determination driven by 

documentary evidence and testimony about the respective parties’ 

actions.” (Opp’n at 13.) In Safeway, Inc. v. Nordic PCL Const., 

Inc., 312 P.3d 1224, 1236 (Haw. App. 2013), which the parties 

discussed at the April 24th hearing, the court concluded as a 

matter of law that the relevant documents were incorporated by 

reference, but acknowledged that “[i]f, however, because of the 

existence of genuine issues of material fact, it could not 

conclude either way as a matter of law, then it would remain to 

resolve those factual issues in order to answer the question of 

incorporation.” Id. at 1235. 

4. Here, whether Plaintiff had knowledge and assented to 

the AADS incorporation are factual questions that the jury must 

decide in order to determine whether Plaintiff agreed to 

arbitrate with Defendant. While the Court understands that 

incorporation by reference is generally a question of law where 

the answer is to be provided by construction of the contract’s 

terms, such is not the circumstance here; given the unique 

procedural posture of this case, the Court finds that there are 

factual issues precluding a determination by this Court that the 

SPAA incorporated the AADS as a matter of law, if the AADS was 

unknown to Plaintiff at the time she accepted the SPAA’s terms. 

When the acceptance occurred, and whether Plaintiff had 
6

knowledge of the provisions of the AADS, are matters in factual 

dispute, as the Third Circuit’s opinion recognizes. Therefore, 

the Court denies Plaintiff’s motion in limine regarding 

incorporation by reference. 

5. The accompanying Order will be entered. 

April 26, 2017 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge