UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

 

 :

MATTHEW S. WOLF, on behalf of :

himself and all other similarly:

situated, :

 : Civil Action No.

Plaintiff, : 10-cv-3338 (NLH)(KMW)

 :

v. : OPINION

 :

NISSAN MOTOR ACCEPTANCE :

CORPORATION, :

 :

Defendant. :

 :

APPEARANCES:

Michael John DeBenedictis, Esquire

DeBenedictis & DeBenedictis L.L.C.

20 Brace Road

Suite 350

Cherry Hill, N.J. 08034

and

Thomas T. Booth, Jr., Esquire

Law Offices of Thomas T. Booth, Jr., L.L.C.

129 W. Evesham Road

Voorhees, N.J. 08043

Attorneys for Plaintiff Matthew S. Wolf

William H. Grae, Esquire

The Chartwell Law Offices, L.L.P.

75 Main Street

Suite 201

Millburn, N.J. 07041

Attorney for Defendant Nissan Motor Acceptance Corporation

HILLMAN, District Judge

Plaintiff, Matthew S. Wolf, has brought a putative class

action suit against Defendant, Nissan Motor Acceptance

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Corporation (“Nissan”), alleging, inter alia, violations to the 1

Servicemembers Civil Relief Act, 50 U.S.C. App. §§ 501 et seq.

(or, “SCRA”). Nissan moves to dismiss or stay Wolf’s claims and

compel arbitration, based on a purported arbitration provision

agreed upon by the parties.

For the reasons expressed below, Nissan’s Motion to Dismiss

or Stay is granted.

I. JURISDICTION

The Court may exercise jurisdiction over Plaintiff’s federal

claim pursuant to 28 U.S.C. § 1331, and may exercise supplemental

jurisdiction over Plaintiff’s state law claim under 28 U.S.C. §

1367.

II. BACKGROUND

Matthew S. Wolf is a captain in the Judge Advocate General’s

Corps of the United States Army Reserves. On or around November

25, 2006, Wolf entered into an agreement to lease a 2007 Nissan

Infiniti G35 Sedan for thirty-nine months. Among other things,

the lease contained an arbitration clause mandating that all 

claims are subject to arbitration.

At the inception of his lease, Wolf paid $595 in

Though Wolf names as a defendant the Nissan Motor 1

Acceptance Corporation, the bulk of his allegations involve an

entity known as Nissan Infiniti Leasing. The Court will refer to

the defendant as “Nissan,” recognizing that the entities in this

case are sufficiently related to one another as to constitute a

single defendant for purposes of this matter and that the outcome

is the same regardless of which entity is specifically named.

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“capitalized cost reduction” (“CCR”), an advance toward the

lease’s rent. He also prepaid other items for which,

alternatively, he could have paid on a monthly basis. During the

life of the lease, however, Wolf entered into active military

service. On or around October 30, 2007, he returned his leased

vehicle to Nissan. Moreover, Wolf invoked the SCRA. According

to Wolf’s complaint, the SCRA entitles military service members,

like himself, to a prorated refund of lease payments made in

advance. Despite Wolf’s invocation of the SCRA and his provision

of proper notices, Nissan refused to refund to Wolf any prorated

CCR payments.

In June 2010, Wolf filed a putative class action suit

against Nissan, alleging conversion and violation of the SCRA. 

Several months later, Nissan moved to dismiss or stay Wolf’s

claims and compel arbitration.

III. DISCUSSION

A. Standard for Motion to Dismiss

A motion to compel arbitration may properly be considered as

a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). Palcko v. Airbourne Express, Inc., 372 F.3d 588, 597

(3d Cir. 2004); see also Nationwide Ins. Co. v. Patterson, 953

F.2d 44, 45 n.1 (3d Cir. 1991). When considering a motion to

dismiss a complaint for failure to state a claim upon which

relief can be granted pursuant to Rule 12(b)(6), a court must

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accept all well-pleaded allegations in the complaint as true and

view them in the light most favorable to the plaintiff. Evancho

v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled

that a pleading is sufficient if it contains “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks

“‘not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.’” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting

Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions[.]’”

(citation omitted)). First, under the Twombly/Iqbal standard, a

“district court must accept all of the complaint’s well-pleaded

facts as true, but may disregard any legal conclusions.” Fowler

v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing

Iqbal, 129 S. Ct. at 1950). Second, a district court “must then

determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible claim for

relief.’” Id. at 211 (quoting Iqbal, 129 S. Ct. at 1950). “[A]

complaint must do more than allege the plaintiff’s entitlement to

relief.” Id. The defendant bears the burden of showing that no

claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d

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Cir. 2005).

Moreover, in ruling on a motion to dismiss, a court has

“‘discretion to address evidence outside the complaint . . . .’” 

CitiSteel USA, Inc. v. General Electric Co., 78 F. App’x 832, 835

(3d Cir. 2003) (quoting Pryor v. Nat’l Collegiate Athletic Ass’n,

288 F.3d 548, 559 (3d Cir. 2002)). Thus, the court “‘may

consider an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.’” Id. (quoting PBGC v. White 2

Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

B. Arbitration Agreement

Nissan argues that the parties entered into a broad, legally

binding arbitration agreement as part of their lease contract. 

As such, Nissan asserts that Wolf’s claims, as well as the issue

of arbitrability itself, must be arbitrated in accordance with

their agreement. Further, Nissan defends the validity of the

class action waiver included in the parties’ arbitration clause.

Wolf counters that his suit is on behalf of a specially

protected class, Reserve and National Guard members of the United

States Armed Forces, who before reporting for military duty are

To its motion, Nissan attaches a copy of the parties’ 2

leasing agreement, including the arbitration clause at issue in

this case. Wolf does not challenge the authenticity of that

document or Nissan’s reliance on it. On the contrary, Wolf

acknowledges the existence and relevancy of the agreement, if not

the validity of the arbitration clause itself. 

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afforded protection when resolving their civilian affairs by the

Servicemembers Civil Relief Act, 50 U.S.C. App. §§ 501 et seq.

The SCRA, Wolf surmises, nullifies the parties’ arbitration

clause. Moreover, Wolf posits that under New Jersey law, the

arbitration clause, specifically its class action waiver, are

unconscionable. He also challenges Nissan’s interpretation of

the arbitration clause and its conclusion that the pertinent

issues of arbitrability in this matter must be decided by an

arbitrator instead of this Court.

“Under the [Federal Arbitration Act, or the] FAA,

arbitration agreements are enforceable to the same extent as

other contracts.” Nino v. Jewelry Exch., Inc., 609 F.3d 191, 200

(3d Cir. 2010) (citation and internal quotation marks omitted).

To this end, the FAA provides that arbitration

agreements are “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, and it entitles any

“party aggrieved by the alleged failure,

neglect, or refusal of another to arbitrate

under a written agreement for arbitration” to

obtain a “[court] order directing that such

arbitration proceed in the manner provided for

in such agreement.” 9 U.S.C. § 4[.]

Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 178 (3d Cir. 2010)

(en banc); see also Nino, 609 F.3d at 200 (“A party to a valid

and enforceable arbitration agreement is entitled to a stay of

federal court proceedings pending arbitration as well as an order

compelling such arbitration.” (citation and internal quotation

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marks omitted)). Thus, “[a] motion to compel arbitration calls

for a two step inquiry into (1) whether a valid agreement to

arbitrate exists and (2) whether the particular dispute falls

within the scope of that agreement.” Trippe Mfg. Co. v. Niles

Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005). “When determining

both the existence and the scope of an arbitration agreement,

there is a presumption in favor of arbitrability.” Id.

To determine whether parties agreed to arbitrate, ordinary

state-law principles of contracts apply. Kirleis v. Dickie,

McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009). 

Accordingly, state law defenses to the validity and

enforceability of arbitration clauses, such as the defense of

unconscionability, also are applicable. See Homa v. Am. Express

Co., 558 F.3d 225, 229 (3d Cir. 2009) (quoting Doctor’s Assocs.,

Inc. v. Casarotto, 517 U.S. 681, 686-87 (1996)); see also Parilla

v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269, 276 (3d Cir.

2004). “‘Under New Jersey law, an enforceable contract is

created when two parties ‘agree on essential terms and manifest

an intention to be bound by those terms.’” DirecTech Del., Inc.

v. Allstar Satellite, Inc., 2010 U.S. Dist. LEXIS 44330, at *8

(D.N.J. May 6, 2010) (quoting Barak v. Obioha, 74 F. App’x 164,

166 (3d Cir. 2003)).

In Section 29 of the parties’ lease agreement, it states

“ARBITRATION CLAUSE –- IMPORTANT –- PLEASE REVIEW –- AFFECTS YOUR

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LEGAL RIGHTS.” (Def. Mot., Exh. A, § 29). The arbitration

clause provides:

1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY

DISPUTE, EXCEPT AS STATED BELOW, BETWEEN

US DECIDED BY ARBITRATION AND NOT IN

COURT OR BY JURY TRIAL

2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE

UP YOUR RIGHT TO PARTICIPATE AS A CLASS

REPRESENTATIVE OR A CLASS MEMBER ON ANY

CLASS CLAIM YOU MAY HAVE AGAINST US

INCLUDING ANY RIGHT TO CLASS ARBITRATION

OR ANY CONSOLIDATION OF INDIVIDUAL

ARBITRATIONS

3. DISCOVERY AND RIGHTS TO APPEAL IN

ARBITRATION ARE GENERALLY MORE LIMITED

THAN IN A LAWSUIT, AND OTHER RIGHTS THAT

YOU AND WE WOULD HAVE IN COURT MAY NOT BE

AVAILABLE IN ARBITRATION

Except as otherwise stated below, any claim or

dispute, whether in contract, tort, statute,

or otherwise (including the interpretation and

scope of this clause, and the arbitrability of

the claim or dispute) between you and us or

our employees, agents, successors or assigns,

which arise out of or relate to your credit

application, this Lease or any resulting

transaction or relationship (including any

such relationship with third parties who do

not sign this Lease) shall, at your or our

election, be resolved by neutral, binding

arbitration and not by a court action. The

claim or dispute is to be arbitrated by a

single arbitrator on an individual basis and

not as a class action. You expressly waive

any right you may have to arbitrate a class

action.

(Id.).

With respect to the arbitration clause, the parties first

contest whether the issue of arbitrability –- specifically, the

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unconscionability of the class action waiver provision -- must be

decided by this Court or an arbitrator. “‘The question whether

the parties have submitted a particular dispute to arbitration,

i.e., the question of arbitrability, is an issue for judicial

determination unless the parties clearly and unmistakably provide

otherwise.’” Puleo, 605 F.3d at 178 (quoting Howsam v. Dean

Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). For “a litigant

seeking to prove that the parties intended for the arbitrator to

decide questions of arbitrability,” the burden has been described

as “‘onerous.’” Id. at 187 (quoting Ehleiter v. Grapetree

Shores, Inc., 482 F.3d 207, 221 (3d Cir. 2007)).

Germane to this threshold inquiry, the parties’ arbitration

clause reads: “any claim or dispute, whether in contract, tort,

statute, or otherwise (including the interpretation and scope of

this clause, and the arbitrability of the claim or dispute) . . .

shall, at your or our election, be resolved by neutral, binding

arbitration and not by a court action.” (Def. Mot., Exh. A, §

29) (emphasis added). Though the general breadth of this

arbitration provision is indeed expansive, it lacks sufficient

specificity and clarity required by law to enforce it for the

purposes presented by Nissan in this case. As Wolf points out,

the arbitration provision entrusts an arbitrator with the

authority to determine arbitrability as it relates to a “claim or

dispute,” but the provision does not specify or delineate what

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that term encompasses. Earlier therein, the same provision

identifies its scope as including “any claim or dispute,” but

again, given the burden assigned to a proponent of an arbitration

clause under these circumstances and the presumption favoring

judicial determination of arbitrability, the arbitrability clause

must be clear, precise, and entirely unequivocal, free from

ambiguity or multiple interpretations. Only by holding a

proponent of an arbitration clause to this strict standard will a

court ensure that both parties, including the opponent to the

arbitration clause, receive the benefit of their bargain and, in

accordance with their expectations, be compelled to do what they

have agreed to do. See id. (“‘[G]iven the principle that a party

can be forced to arbitrate only those issues it specifically has

agreed to submit to arbitration, one can understand why courts

might hesitate to interpret silence or ambiguity on the ‘who

should decide arbitrability’ point as giving the arbitrators that

power, for doing so might too often force unwilling parties to

arbitrate a matter they reasonably would have thought a judge,

not an arbitrator, would decide.’” (quoting First Options of

Chicago v. Kaplan, 514 U.S. 938, 945 (1995))).

The Court is not convinced that the relevant portions of the

arbitration clause, without more, would sufficiently inform a

potential customer that even the validity of the arbitration

clause itself must be decided by an arbitrator, contrary to the

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presumption favoring a court’s involvement. The arbitration

clause, so broad and general in its import and susceptible to

misunderstanding, could be read to suggest that only the

arbitrability of the plaintiff’s claim –- in this case, Wolf’s

claims under the SCRA and of conversion –- are subject to the

arbitrator’s review, and not the arbitrability of the clause’s

own validity and reasonableness. Absent any language pertaining

to the unconscionability, voidability, or enforceability of the

arbitration clause itself, the Court is reluctant to force a

plaintiff to arbitrate a matter that he reasonably may have

assumed is reserved for a court’s judgment. Accordingly, the

Court will consider Wolf’s central challenges to the arbitration

clause at issue.

First, Wolf argues that the purposes and policies

underscoring the SCRA invalidate a class action waiver provision

akin to the one contained in the parties’ arbitration agreement. 

For this and other reasons, Wolf concludes that the arbitration

clause is unconscionable.

The SCRA is intended “to provide for, strengthen, and

expedite the national defense through protection extended by [the

SCRA itself] to servicemembers of the United States to enable

such persons to devote their entire energy to the defense needs

of the Nation.” 50 U.S.C. App. § 502(1). Among the

circumstances in which the SCRA protects eligible members of the

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Armed Forces is when a service member terminates a motor vehicle

lease. See id. § 535. In the event that a service member

terminates a motor vehicle lease covered by the SCRA, “[r]ents or

lease amounts paid in advance for a period after the effective

date of the termination of the lease shall be refunded to the

lessee by the lessor (or the lessor’s assignee or the assignee’s

agent) within 30 days of the effective date of the termination of

the lease.” Id. § 535(f). 

Certainly, the SCRA aspires to free members of our Armed

Forces from civilian obligations to the extent that those

obligations may distract or interfere with our service members’

military service and objectives. When an individual or entity

does impose undue hardship upon a service member in violation of

the SCRA, there are remedies to be had. However, the SCRA, by

its own words and provisions, does not bar or otherwise

invalidate a class action or arbitration waiver provision. Wolf

sensibly questions whether such a waiver imposes additional

obligations or burdens upon a service member, but that legitimate

concern does not graft another term or directive onto a clearly

worded statute. Wolf points to no section or subsection within

the SCRA that precludes waivers of class-wide proceedings. 

Absent direct authority of that kind, the Court cannot assume the

SCRA modifies or nullifies a contractual agreement mutually

adopted by private parties to the degree asserted by Wolf. Nor

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may the Court infer without warrant the SCRA’s tacit supersession

or predominance over the FAA, and the latter’s policies favoring

and promoting arbitration –- especially in light of the recent

decision of the Supreme Court of the United States in AT&T

Mobility L.L.C. v. Concepcion, 131 S. Ct. 1740 (2011), to be

discussed infra.

Further, Wolf highlights Section 517 of the SCRA to suggest

that any waiver to his statutorily prescribed protections must

comport with the particular requirements governing waivers as

articulated in that section. But the class action waiver does 3

 Section 517 reads, in part: 3

(a) In general. A servicemember may waive any

of the rights and protections provided by this

Act. Any such waiver that applies to an

action listed in subsection (b) of this

section is effective only if it is in writing

and is executed as an instrument separate from

the obligation or liability to which it

applies. In the case of a waiver that permits

an action described in subsection (b), the

waiver is effective only if made pursuant to a

written agreement of the parties that is

executed during or after the servicemember’s

period of military service. The written

agreement shall specify the legal instrument

to which the waiver applies and, if the

servicemember is not a party to that

instrument, the servicemember concerned.

(b) Actions requiring waivers in writing. The

requirement in subsection (a) for a written

waiver applies to the following:

(1) The modification, termination, or

cancellation of –-

(A) a contract, lease, or bailment;

or

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not deprive Wolf of any SCRA rights or privileges, at least not

as identified by Wolf in his opposition. Should the SCRA

guarantee service members the right to a class-wide proceeding to

vindicate their statutory benefits, then that has not been made

apparent to the Court. The SCRA protects service members in

certain dealings with motor vehicle leases, and private contracts

contravening those protections may have to succumb to the federal

statute. But there is no indication that the SCRA protects

service members from class action or arbitration waivers to which

they assented.

Apart from the SCRA, Wolf also contends that the arbitration

clause is unconscionable under New Jersey law. To determine

whether a contract of adhesion is unconscionable under New Jersey

law, a court, on a case-by-case basis, looks not only to “the

take-it-or-leave it nature or the standardized form of the

document but also to (1) the subject matter of the contract, (2)

the parties’ relative bargaining positions, (3) the degree of

(B) an obligation secured by a

mortgage, trust, deed, lien, or other security

in the nature of a mortgage.

(2) The repossession, retention,

foreclosure, sale, forfeiture, or taking

possession of property that –-

(A) is security for any obligation;

or

(B) was purchased or received under

a contract, lease, or bailment.

50 U.S.C. App. § 517.

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economic compulsion motivating the ‘adhering’ party, and (4) the

public interests affected by the contract.” Muhammad v. Cty Bank

of Rehoboth Beach, 912 A.2d 88, 97 (N.J. 2006) (citation and

other internal quotation marks omitted). However, the

consideration and weighing of the first three factors of the

analysis, as presented by Wolf, do not render the parties’

arbitration clause or its class action waiver unconscionable.

The subject matter of the contract pertains to the leasing

of a motor vehicle. The relative bargaining positions of the

parties favor Nissan, who presumably presents to its potential

customers standardized contracts of adhesion enabling them to

either categorically accept or reject the terms of a lease. 

Consequently, customers, like Wolf, may have no opportunity to

negotiate or modify the terms of the deal. But, such common

circumstances in commercial transactions, alone, need not

invalidate an otherwise legally enforceable contract. Also, it

is important to note that the plaintiff, Wolf, is an attorney

who, presumably, is learned or familiar with contract law. 

Furthermore, given that the lease is a contract of adhesion,

there is some economic compulsion exerted upon Wolf, but he

certainly was able to walk away from Nissan’s offer to pursue a

lease with another company. Again, taken together, those factors

may evince a degree of unconscionability, but do not render the

arbitration clause legally invalid and unenforceable. 

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Perhaps in recognition of this, Wolf focuses on the fourth

factor, the public interest, as the determinative factor. 

Indeed, Wolf relies on Muhammad v. County Bank of Rehoboth Beach

in which the Supreme Court of New Jersey held that, due to the

public interest associated with consumer protection laws, class

arbitration waiver provisions are unconscionable when included in

consumer contracts of adhesion that will often spawn disputes for

small amounts of damages. Muhammad, 912 A.2d at 99-101; see also

Homa, 558 F.3d at 230 (noting that under New Jersey contract law,

“class action waiver becomes ‘problematic when the waiver is

found in a consumer contract of adhesion in a setting in which

disputes between the contracting parties predictably involve

small amounts of damages’” (quoting Muhammad, 912 A.2d at 99)). 

Drawing from Muhammad, Wolf believes the public policies

implicated in this case should trump and render unconscionable

the class action waiver in the parties’ arbitration clause.

Though Wolf’s argument and authority are persuasive, the

Court must take note of the recent decision issued by the Supreme

Court of the United States in AT&T Mobility L.L.C. v. Concepcion,

131 S. Ct. 1740 (2011). In that case, the Supreme Court

addressed a California rule of law that -- like the New Jersey

principles of contract articulated in Muhammad –- deemed as

unconscionable class action and collective arbitration waivers in

consumer contracts of adhesion in which the likely damages would

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be predictably small. Id. at 1746, 1750. The Supreme Court held

that the FAA, with its objective toward encouraging arbitration,

preempted the California rule, because by invalidating portions

of arbitration agreements and imposing class-wide proceedings

where they otherwise have been waived, the California rule

interferes with and stymies arbitration. Id. at 1750-51, 1753.

Based on the United States Supreme Court’s holding and

reasoning in AT&T Mobility, the Court cannot find that any public

interest articulated in this case, either in connection with the

SCRA or New Jersey law, overrides the clear, unambiguous, and

binding class action waiver included in the parties’ arbitration

agreement. New Jersey precedent notwithstanding, the Court is

bound by the controlling authority of the United States Supreme

Court.

Lastly, Wolf asserts that the entire arbitration agreement

is unconscionable on the basis of its fee-shifting provision and

another provision related to the costs of appeals. The feeshifting provision states: “We will advance your filing,

administration, service or case management fee and your

arbitrator or hearing fee all up to a maximum of $1,500, which

may be reimbursed by decision of the arbitrator at the

arbitrator’s discretion.” (Def. Mot., Exh. A, § 29). Further,

the appeals provision reads: “The appealing party requesting new

arbitration shall be responsible for their filing fee and other

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arbitration costs subject to a final determination by the

arbitrators of a fair apportionment of costs.” (Id.).

In Delta Funding Corporation v. Harris, the Supreme Court of

New Jersey held that a cost-shifting provision that endows an

arbitrator with unfettered discretion to allocate the entire cost

of arbitration to a consumer is unconscionable, given its

potential “chilling effect” that may deter consumers from

pursuing their claims. Delta Funding Corp. v. Harris, 912 A.2d

104, 112-13 (N.J. 2006); see also Merrill, Lynch, Pierce, Fenner

& Smith, Inc. v. Clemente, 272 F. App’x 174, 178 (3d Cir. 2008)

(“In Harris, the Supreme Court of New Jersey held that, in a

contract of adhesion, a ‘cost-shifting’ provision that permits

the arbitrator to allocate the entire cost of arbitration to a

consumer would be unconscionable if the arbitrator interprets and

applies the provision in that manner.” (citing Delta Funding

Corp., 912 A.2d at 111-13)). Likewise, the Supreme Court also

concluded that it is unconscionable to require a consumer to bear

the entire cost of appealing the arbitrator’s decision even if

she were to prevail on appeal. Delta Funding Corp., 912 A.2d at

114. 

In accordance with the principles enunciated in Delta

Funding, the cost-shifting provision and the provision pertaining

to the costs of appeals are unconscionable and unenforceable to

the extent they may be construed and applied to require Wolf to

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shoulder the entire financial burden of the arbitration and,

irrespective of the outcome, the appeal of his claims. However,

that narrow, unconscionable interpretation and application of

those provisions do not invalidate the entire arbitration

agreement. Rather, based on the agreement’s severability

provision, the unconscionable portions of the arbitration 4

agreement –- should they be effectuated in an unconscionable

manner -- may be severed and stricken, as necessary, from the

remainder of the parties’ agreement.

Therefore, the arbitration clause agreed upon by the parties

remains valid. For that reason and those stated above, Nissan’s

Motion to Dismiss or Stay is granted. This case shall be stayed

and the parties’ dispute shall be referred to arbitration. 

IV. CONCLUSION

For the foregoing reasons, Nissan’s Motion to Dismiss or

Stay is granted. This matter shall be stayed and referred to

arbitration. An Order consistent with this Opinion will be

entered.

Dated: June 22, 2011 /s/ NOEL L. HILLMAN 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

The parties’ arbitration agreement features a severability 4

provision, which reads: “If any part of this Arbitration Clause,

other than waivers of class action rights, is deemed or found to

be unenforceable for any reason, the remainder shall remain

enforceable.” (Def. Motion, Exh. A, § 29).

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