United States District Court, D. Colorado
JASON TERLIZZI and REBECCA TERLIZZI, individually and on behalf of all others similarly situated, Plaintiffs,
ALTITUDE MARKETING, INC., and GREENSKY, LLC, Defendants.
ORDER GRANTING MOTION TO COMPEL ARBITRATION
William J. Martínez Judge
Jason and Rebecca Terlizzi (“the Terlizzis”)
bring this putative class action against Defendants Altitude
Marketing, Inc. (“Altitude”), and GreenSky, LLC
(“GreenSky”), for claims related to
Defendants' allegedly deceptive marketing and sale of
high-interest financing for rooftop solar power systems. (ECF
No. 1.) Currently before the Court is GreenSky's Motion
to Dismiss or, in the Alternative, to Compel Arbitration and
Stay Proceedings. (ECF No. 86.) Despite its title, this
motion primarily addresses arbitration and, alternatively,
dismissal for failure to state a claim. The Terlizzis respond
that they never entered into an arbitration agreement and
that their claims are sufficiently pleaded.
reasons stated below, the Court finds that an arbitration
agreement exists between the Terlizzis and GreenSky, and that
the arbitration agreement encompasses all of the disputes at
issue here. Accordingly, under the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 1 et
seq., the Court must refer the parties to arbitration.
GreenSky's motion will therefore be granted to that
extent, and is otherwise denied without prejudice. The Court
will stay proceedings between the Terlizzis and GreenSky, and
the Terlizzis will be required to submit an appropriate
filing regarding the current status of Altitude.
CURRENT PROCEDURAL POSTURE
clarification, the Court notes the following:
Terlizzis filed this lawsuit in July 2016. (ECF No. 1.)
GreenSky filed its Motion to Compel in August 2016. (ECF No.
13.) Altitude filed its own similar motion in September 2016.
(ECF No. 23.) The Terlizzis filed a combined response to both
motions in October 2016. (ECF No. 40.) Later than same month,
GreenSky filed its reply brief (ECF No. 45), as did Altitude
(ECF No. 46).
February 2017 (before the Court had ruled on the pending
motions), the parties filed a Joint Motion to Stay Pending
Settlement Discussions. (ECF No. 56.) Rather than simply stay
all deadlines, the Court administratively closed the case and
ordered the parties to file a joint status report, dismissal
papers, or a motion to reopen no later than June 12, 2017.
(ECF No. 57.)
April 2017, Altitude's counsel moved to withdraw. (ECF
No. 58.) The Magistrate Judge granted that motion on May 5,
2017, and ordered Altitude to obtain new counsel by June 2,
2017. (ECF No. 61.) Altitude did not do so by that date, nor
has it done so since.
12, 2017, the Terlizzis and GreenSky filed a Joint Status
Report requesting thirty additional days for settlement
discussions. (ECF No. 65.) In that report, the Terlizzis and
GreenSky announced their understanding that Altitude had
filed for bankruptcy and so the Terlizzis were no longer
actively negotiating with Altitude. (Id. at 1
n.1.) No suggestion of bankruptcy has been
Court entered no order either approving or disapproving of
the extra thirty days. However, the Magistrate Judge held a
status conference on August 23, 2017, and concluded that the
case should remain administratively closed while the
Terlizzis and GreenSky continue to pursue settlement. (ECF
September 26, 2017, the Terlizzis and GreenSky moved to
reopen the case, announcing the failure of their settlement
negotiations. (ECF No. 74.) The Court granted that motion.
(ECF No. 76.) GreenSky then began filing notices of
supplemental authority in support of its Motion to Compel,
which it identified as ECF No. 23. (See ECF Nos.
81-83.) ECF No. 23 was, in fact, Altitude's motion, not
GreenSky's. In any event, the Court responded with the
following text-only order (square-bracketed numerals indicate
This matter is before the Court on the Notices of
Supplemental Authority filed by Defendant GreenSky, LLC ,
, , and the parties' Joint Status Report .
These filings reflect that GreenSky views its
previously-filed Motion to Dismiss  as still pending.
However, under D.C.COLO.LCivR 41.2, “[r]eopening of a
civil action does not reinstate any motion.” Therefore
Defendants' previously-filed motion is not presently
pending as a motion ripe for decision by the Court. GreenSky
is therefore DIRECTED to re-file its motion to dismiss in the
same form and content previously filed as a new docket entry.
The Court will review the previously-filed Response  and
Reply  briefs without requiring re-filing. To the extent
GreenSky wishes the Court to consider authority not cited in
its previously-filed motion, it should file a Motion for
Leave pursuant to WJM Revised Practice Standards III.K. These
same directives shall apply equally to Defendant Altitude
Marketing, Inc., if and when it obtains new counsel to
represent it in this action, although the Court notes that
Altitude was previously ordered to obtain new counsel not
later than June 2, 2017, but has not done so. (See
ECF No. 61.) SO ORDERED[.]
No. 85.) This order should have identified GreenSky's
Motion to Compel as ECF No. 13, rather than 23; and
GreenSky's reply brief as ECF No. 45, not 46. This error
flowed from GreenSky's misidentification of its own
event, GreenSky refiled its own motion, as directed, and that
is the motion currently before the Court. (ECF No. 86.) The
Court has reviewed that motion as well as the Terlizzis'
previously-filed response (ECF No. 40) and GreenSky's
previously-filed reply (ECF No. 45). The Court has also
considered the supplemental authority submitted by GreenSky
at ECF No. 87-1.
to FAA § 3:
If any suit or proceeding be brought in any of the courts of
the United States upon any issue referable to arbitration
under an agreement in writing for such arbitration, the court
in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to
arbitration under such an agreement, shall on application of
one of the parties stay the trial of the action until such
arbitration has been had in accordance with the terms of the
agreement, providing the applicant for the stay is not in
default in proceeding with such arbitration.
9 U.S.C. § 3. Given the Terlizzis' claim that they
never entered into an arbitration agreement, the question
here is whether the Court is “satisfied that the
issue[s] involved” in this dispute are “referable
existence of an agreement to arbitrate is a threshold matter
which must be established before the FAA can be
invoked.” Avedon Eng'g, Inc. v. Seatex,
126 F.3d 1279, 1287 (10th Cir. 1997). When a party raises a
challenge to the existence of an arbitration agreement, this
District has frequently treated such challenges as
“governed by a standard similar to that governing
motions for summary judgment.” Stein v. Burt-Kuni
One, LLC, 396 F.Supp.2d 1211, 1213 (D. Colo. 2005);
see also Goodwin v. H.M. Brown & Assocs., Inc.,
2011 WL 820025, at *3 (D. Colo. Mar. 2, 2011) (citing cases
following Stein). “Under this approach,
” it is said,
the moving party bears the initial burden of presenting
evidence sufficient to demonstrate than an enforceable
arbitration agreement exists. If the moving party satisfies
that burden, the burden then shifts to the party opposing
arbitration, which must show that there is a genuine issue of
material fact as to the making of the agreement, using
evidence comparable to that identified in Fed.R.Civ.P. 56.
Let's Go Aero, Inc. v. Cequent Performance Prod.,
Inc., 78 F.Supp.3d 1363, 1373 (D. Colo. 2015) (citations
and internal quotation marks omitted). If the opponent
“demonstrates a genuine issue of material fact, then a
trial on the existence of the arbitration agreement is
required.” Stein, 396 F.Supp.2d at 1213
(citing, inter alia, 9 U.S.C. § 4).
Terlizzis argue that the Court should apply the foregoing
procedure (see ECF No. 40 at 12-13) and
GreenSky's reply brief contains no counterargument
(see ECF No. 45). GreenSky instead argues that the
question of whether the parties entered into an arbitration
agreement is something that the arbitration clause itself
refers to an arbitrator. (Id. at 2-6.)
is incorrect on this point. Although interpretation of the
scope of an arbitration clause is a matter that the
parties may delegate to an arbitrator, the threshold question
of whether they entered any agreement to arbitrate
is a matter for the Court. See, e.g.,
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 71
(2010) (“If a party challenges the validity . . . of
the precise agreement to arbitrate at issue, the federal
court must consider the challenge before ordering compliance
with that agreement . . . .”); Dumais v. Am. Golf
Corp., 299 F.3d 1216, 1220 (10th Cir. 2002) (“The
presumption in favor of arbitration is properly applied in
interpreting the scope of an arbitration agreement; however,
this presumption disappears when the parties dispute the
existence of a valid arbitration agreement.”).
GreenSky does not challenge the Terlizzis' proffered
procedure for resolving the question of whether an
arbitration agreement exists, the Court therefore deems the
Terlizzis' argument conceded and will apply this
District's typical approach.
following facts are undisputed unless attributed to one party
or another, or otherwise noted.
The Terlizzis' Agreement to Purchase a ...