United States District Court, D. Colorado
BIGBEN 1613, LLC, a Florida limited liability company, Plaintiff,
BELCARO GROUP, INC., d/b/a ShopAtHome.com, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Belcaro Group,
Inc.'s Motion to Compel Arbitration and Dismiss the
Complaint Under Federal Rules of Civil Procedure 9(b) and
12(b)(6) [Docket No. 24]. The Court has jurisdiction pursuant
to 28 U.S.C. § 1332.
operates ShopAtHome.com, a website that provides consumers
with cash back on qualifying purchases made through
participating online retailers. Docket No. 1 at 2-3,
¶¶ 10-12. In order to take advantage of
defendant's cash-back portal, an individual must create
an account on ShopAtHome.com and “purchase items by
linking through [defendant's] website to the applicable
online store.” Id. at 3, ¶ 13.
has held an account on ShopAtHome.com since late 2014.
Id. at 4, ¶ 21. On Friday, November 25, 2016,
ShopAtHome.com advertised twelve percent cash back on online
purchases from Walmart made via ShopAtHome.com. Id.
at 4, ¶ 22. Relying on this cash back offer, plaintiff
purchased approximately $5, 400, 000 in products from
www.Walmart.com through the ShopAtHome.com website.
Id., ¶ 23. Shortly thereafter, defendant froze
plaintiff's ShopAtHome.com account. Id. at 4-5,
¶ 24. Defendant sent plaintiff an email stating that
defendant would seize the unpaid balance in plaintiff's
cash back account because plaintiff had violated
www.Walmart.com's prohibition against
“purchases made for resale or commercial use of any
kind.” Id. at 5, ¶ 26.
filed this lawsuit on January 27, 2017 asserting Colorado
state law claims for unjust enrichment, conversion, civil
theft, and violation of the Colorado Consumer Protection Act,
Colo. Rev. Stat. § 6-1-101 et seq. Id. at 6-8.
On March 8, 2017, defendant moved to compel arbitration or,
alternatively, to dismiss the complaint under Federal Rules
of Civil Procedure 9(b) and 12(b)(6). Docket No. 24.
Plaintiff filed a response to the motion on March 29, 2017,
Docket No. 28, to which defendant replied on April 12, 2017.
Docket No. 31.
moves to compel arbitration pursuant to an arbitration
provision on the Terms and Conditions (“T&C”)
page of the ShopAtHome.com website. See Docket No.
24 at 6. The Federal Arbitration Act (“FAA”)
“manifests a liberal federal policy favoring
arbitration.” Comanche Indian Tribe v. 49,
L.L.C., 391 F.3d 1129, 1131 (10th Cir. 2004) (quoting
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 25 (1991)). Consequently, the Court must
“resolve ‘any doubts concerning the scope of
arbitrable issues . . . in favor of arbitration.'”
P & P Industries, Inc. v. Sutter Corp., 179 F.3d
861, 866 (10th Cir. 1999) (quoting Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
24-25 (1983)). “In addition, this liberal policy
‘covers more than simply the substantive scope of the
arbitration clause,' and ‘encompasses an
expectation that [arbitration] procedures will be
binding.'” Id. (citation omitted).
the presence of an arbitration clause generally creates a
presumption in favor of arbitration, this presumption
disappears when the parties dispute the existence of a valid
arbitration agreement.” Bellman v. i3Carbon,
LLC, 563 Fed.Appx. 608, 613 (10th Cir. 2014) (unpublished)
(citations omitted). Determining whether a dispute is subject
to arbitration “is similar to summary judgment
practice.” Id. at 612 (quoting Hancock v.
Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir.
2012)). The party moving to compel arbitration must present
“evidence sufficient to demonstrate the existence of an
enforceable agreement.” Id. The burden then
shifts to the nonmoving party “to raise a genuine
dispute of material fact regarding the existence of an
also moves to dismiss plaintiff's claims under Federal
Rules of Civil Procedure 9(b) and 12(b)(6). See
Docket No. 24 at 9. To survive a motion to dismiss under Rule
12(b)(6), a complaint must allege enough factual matter that,
taken as true, makes the plaintiff's “claim to
relief . . . plausible on its face.” Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
shown-that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(internal quotation marks and alteration marks omitted);
see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from
conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
Court begins by considering whether plaintiff's claims
are subject to arbitration. To meet its initial burden of
demonstrating an enforceable arbitration agreement, defendant
has attached copies of the Terms and Conditions from the
ShopAtHome.com website, Docket Nos. 24-2, 31-2, along with
declarations from defense counsel Luke Connelly and Belcaro
Group's Chief Financial Officer, Rebecca L. Shepherd,
attesting to the copies' authenticity. Docket Nos. 24-1,
31-1. Defendant argues that plaintiff consented to the Terms
and Conditions when it registered an account on the
ShopAtHome.com website. Docket No. 24 at 6-8; Docket No. 24-2
at 1 (“By using the ShopAtHome.com Site . . ., you
agree that you have read and you understand, and consent to
the following Terms and Conditions . . . .”); see
also Docket No. 1 at 4, ¶ 21 (alleging that
plaintiff has maintained an account on
www.shopathome.com since late 2014).
opposes defendant's motion to compel arbitration on two
grounds. First, plaintiff argues that the motion is
procedurally defective because it relies on extrinsic
evidence that was not properly authenticated or referenced in
the complaint. Docket No. 28 at 3-7. Second, plaintiff
contends that the arbitration agreement is unenforceable.
Id. at 7.