22-98-cv
Aleksanian v. Uber Technologies Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 14th day of November, two thousand twenty-three.
PRESENT: WILLIAM J. NARDINI,
SARAH A. L. MERRIAM,
Circuit Judges. *
__________________________________________
LEVON ALEKSANIAN, individually, on
behalf of all others similarly situated, and as
Class Representatives; SONAM LAMA,
individually, on behalf of all others similarly
situated, and as Class Representatives;
HARJIT KHATRA, individually, on behalf of
all others similarly situated, and as Class
Representatives,
Plaintiffs-Appellants,
v. No. 22-98-cv
*
Senior Circuit Judge Rosemary S. Pooler, originally a member of this panel, passed
away on August 10, 2023. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. §46(d); 2d Cir. IOP E(b); United
States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
UBER TECHNOLOGIES INC., jointly and
severally; UBER LOGISTIK, LLC, jointly and
severally; UBER USA LLC,
Defendants-Appellees.
__________________________________________
FOR PLAINTIFFS-APPELLANTS: ZUBIN SOLEIMANY, New York Taxi Workers
Alliance, Long Island City, NY (Jeanne E. Mirer,
Julien Mirer & Singla, PLLC, New York, NY, on
the brief).
FOR DEFENDANTS-APPELLEES: ADAM G. UNIKOWSKY, Jenner & Block LLP,
Washington, D.C. (Jeremy Micah Creelan,
Jenner & Block LLP, New York, NY, on the
brief).
Appeal from a judgment of the United States District Court for the Southern
District of New York (Carter, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED, and this matter
is REMANDED for further proceedings consistent with this order.
Plaintiffs-appellants Levon Aleksanian, Sonam Lama, and Harjit Khatra,
individually and as class representatives of all others similarly situated (collectively, the
“Drivers”), appeal from the December 29, 2021, judgment of the District Court (Carter,
J.) denying the Drivers’ motion for limited discovery; granting the motion to compel
arbitration filed by defendants-appellees Uber Technologies Inc., Uber Logistik, LLC,
and Uber USA LLC (collectively, “Uber”); and dismissing the case. We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on appeal,
2
and recite them herein only as necessary.
I. Background
A. The Federal Arbitration Act
The Federal Arbitration Act (“FAA”) provides: “A written provision in any . . .
contract evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction, . . . shall be valid,
irrevocable, and enforceable . . . .” 9 U.S.C. §2. Under the FAA, litigants can petition a
United States district court “for an order directing that . . . arbitration proceed in the
manner provided for in [the arbitration] agreement.” 9 U.S.C. §4. However, the FAA’s
authority to compel arbitration “doesn’t extend to all private contracts, no matter how
emphatically they may express a preference for arbitration.” New Prime Inc. v. Oliveira,
586 U.S. ---, 139 S. Ct. 532, 537 (2019). As relevant here, Section 1 of the FAA sets forth
an exemption, providing that “nothing [within the FAA] shall apply to contracts of
employment of seamen, railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” 9 U.S.C. §1.
B. Factual Background and Procedural History
The Drivers are current and former rideshare drivers who contracted with Uber to
drive cars as part of Uber’s New York City fleet. On November 6, 2019, the Drivers filed
a class-action complaint against Uber, alleging that Uber breached its contracts with the
Drivers by unlawfully deducting certain amounts from the Drivers’ earnings. In response,
on May 1, 2020, Uber moved to compel arbitration pursuant to the arbitration agreements
3
contained in the Software License Agreement and the Technology Services Agreement 1
that the Drivers accepted, and did not opt out of, when they agreed to download the driver
version of the Uber app and drive for Uber. 2 The Drivers opposed Uber’s motion to
compel arbitration on the grounds that they belong to a class of workers that was engaged
in interstate commerce and are thus exempt from the FAA, and moved to allow limited
discovery on that issue to rebut statistics and data relied upon by Uber in support of its
motion to compel arbitration.
On March 8, 2021, the District Court denied the Drivers’ motion to allow
discovery, granted Uber’s motion to compel arbitration, and dismissed the case. The
District Court denied the motion for limited discovery because it “conclude[d] that this
issue can be decided on the face of the complaint . . . .” Aleksanian v. Uber Techs. Inc.,
524 F. Supp. 3d 251, 258 (S.D.N.Y. 2021), reconsideration denied, No.
1:19CV10308(ALC), 2021 WL 6137095 (S.D.N.Y. Dec. 29, 2021). The District Court
found that the Drivers were not exempt from arbitration under Section 1 of the FAA
because they did not belong to a “class of workers engaged in . . . interstate commerce.”
1
We agree with the District Court that these agreements are “integral” to the Complaint
because the Complaint references them several times. See Aleksanian v. Uber Techs.
Inc., 524 F. Supp. 3d 251, 254 n.3 (S.D.N.Y. 2021), reconsideration denied, No.
1:19CV10308(ALC), 2021 WL 6137095 (S.D.N.Y. Dec. 29, 2021).
2
As the District Court correctly noted, while Appellant Aleksanian accepted the Software
License Agreement, and Appellants Lama and Khatra accepted the Technology Services
Agreement, “the agreements are substantially similar in regard to the relevant provisions .
. . .” Aleksanian, 524 F. Supp. 3d at 255 n.4. On appeal, the parties focus their attention
on the language of the Technology Services Agreement.
4
Id. at 259 (quoting 9 U.S.C. §1). The Drivers moved for reconsideration under Federal
Rule of Civil Procedure 59(e); the District Court denied that motion, and the Drivers
timely appealed.
II. Standard of Review
“We review de novo the district court’s order compelling arbitration.” Bissonnette
v. LePage Bakeries Park St., LLC, 49 F.4th 655, 659 (2d Cir. 2022), cert. granted sub
nom. Bissonnette v. LePage Bakeries Park St., No. 23-51, 2023 WL 6319660 (U.S.
Sept. 29, 2023). Ordinarily, “[c]ourts deciding motions to compel [arbitration] apply a
standard similar to that applicable for a motion for summary judgment.” Meyer v. Uber
Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017) (citation and quotations omitted). However,
“where the issue of whether the residual clause of §1 of the FAA applies arises in a
motion to compel arbitration, the motion to dismiss standard applies if the complaint and
incorporated documents provide a sufficient factual basis for deciding the issue.” Singh v.
Uber Techs. Inc., 939 F.3d 210, 218 (3d Cir. 2019) (Singh I); see also Moss v. BMO
Harris Bank, N.A., 24 F. Supp. 3d 281, 285 (E.D.N.Y. 2014) (“[W]hen a court considers
the motion to compel before discovery has taken place, and in the context of a motion to
dismiss, it treats the allegations in plaintiffs’ complaint as true.” (citing Lismore v.
Societe Generale Energy Corp., No. 1:11CV06705(AJN), 2012 WL 3577833, at *1
(S.D.N.Y. Aug. 17, 2012))).
If the complaint and incorporated documents fail to provide an adequate basis for
deciding whether Section 1 of the FAA applies, “the parties should be entitled to
5
discovery on the question of arbitrability before a court entertains further briefing, with
an application of the summary judgment standard to follow.” Singh I, 939 F.3d at 218
(citation and quotation marks omitted); see also Golightly v. Uber Techs., Inc., No.
1:21CV03005(LJL), 2021 WL 3539146, at *2-4, 6 (S.D.N.Y. Aug. 11, 2021) (relying on
Singh I and allowing limited discovery because the question of whether the FAA applied
could not be answered from the face of the complaint).
III. Additional Information Is Needed to Evaluate the Applicability of the FAA
Section 1 Exemption.
The District Court concluded that it could determine whether the Drivers belonged
to a class of workers engaged in interstate commerce under Section 1 of the FAA based
solely on the Complaint and the incorporated arbitration agreements. Aleksanian, 524 F.
Supp. 3d at 254 n.3, 258. We disagree. Because “the complaint and incorporated
documents [do not] provide a sufficient factual basis for deciding the issue . . . the parties
should be entitled to discovery on the question of arbitrability,” after which the District
Court should entertain additional briefing on the issue and apply the summary judgment
standard in ruling on the issue. Singh I, 939 F.3d at 218 (citation and quotation marks
omitted).
Each party advocates for a different test 3 to determine whether the “class of
3
Other Courts of Appeals and district courts within our Circuit have articulated a variety
of tests and relied on a variety of factors in examining Section 1 of the FAA. See, e.g.,
Capriole v. Uber Techs., Inc., 7 F.4th 854, 866 (9th Cir. 2021) (considering “whether the
trips form part of a single, unbroken stream of interstate commerce that renders interstate
travel a ‘central part’ of a rideshare driver’s job description”); Cunningham v. Lyft, Inc.,
17 F.4th 244, 252-53 (1st Cir. 2021) (analyzing (1) whether the class of workers “as a
6
workers” are “engaged in . . . interstate commerce” within the meaning of the statute. 9
U.S.C. §1. The Drivers, relying on Morris v. McComb, 332 U.S. 422 (1947), ask us to
evaluate whether “interstate trips are a natural, integral, and inseparable part of their
work.” Appellants’ Br. at 23 (quotation marks omitted); see also id. at 21-23. Conversely,
Uber points to language in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), and
asks us to evaluate whether “engaging in interstate commerce is work that the members
of the class, as a whole, typically carry out.” Appellees’ Br. at 14 (citation and quotation
marks omitted).
However the test is properly framed, the Complaint does not provide a sufficient
factual record on which to evaluate the applicability of the Section 1 exemption. The
Complaint provides some statistics pertaining to the interstate trips of plaintiffs-
appellants Aleksanian and Lama, and states that “on information and belief, given his
long history with Uber,” plaintiff-appellant Khatra’s statistics would be similar. Joint
whole” engages in interstate commerce, (2) whether the class of workers is “primarily
devoted to the movement of goods and people beyond state boundaries,” and (3) “the
nature of the business for which a class of workers perform their activities” (citation and
quotation marks omitted)); Singh v. Uber Techs., Inc., 67 F.4th 550, 560 (3d Cir. 2023),
as amended (May 4, 2023) (Singh II) (“[T]o be central to a class of workers’ job
description, engagement with interstate commerce must be typical of the work that class
members generally do.”), as amended (May 4, 2023); Islam v. Lyft, Inc., 524 F. Supp. 3d
338, 351 (S.D.N.Y. 2021) (noting that “a class of transportation workers must perform
more than a de minimis amount of interstate transportation” but that interstate travel need
not be “the primary, daily function”), reconsideration denied, motion to certify appeal
granted, No. 1:20CV03004(RA), 2021 WL 2651653 (S.D.N.Y. June 28, 2021), motion to
certify appeal denied, No. 1:20CV03004(RA), 2021 WL 5762211 (S.D.N.Y. Dec. 3,
2021), and appeal withdrawn, No. 21-1772, 2021 WL 6520224 (2d Cir. Nov. 8, 2021).
7
App’x at 6; see also id. at 4-5. The Complaint makes some factual allegations that might
impact this question, including Uber’s imposition of a surcharge on trips between New
York City and New Jersey, Uber’s advertising of flat rates for trips between Manhattan
and Newark International Airport, and Uber’s maintenance of a deactivation policy that
could terminate drivers’ accounts for excessive cancellations. See id. at 10.
But the information in the Complaint “say[s] little about whether the class of
transportation workers to which [Appellants Aleksanian, Lama, and Khatra] belong[ed]
are engaged in interstate commerce or sufficiently related work.” Singh I, 939 F.3d at
226. Because the issue cannot “be decided on the face of the complaint,” Aleksanian, 524
F. Supp. 3d at 258, discovery is required, see Nicosia v. Amazon.com, Inc., 834 F.3d 220,
229 (2d Cir. 2016) (In ruling on a motion to compel arbitration, a court applies the
“summary judgment standard” and must “consider all relevant, admissible evidence
submitted by the parties and contained in pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits.” (emphasis added)
(citation and quotation marks omitted)); Singh I, 939 F.3d at 218.
Uber provided some potentially relevant information in affidavits submitted in
support of its motion to compel arbitration, but the affidavits are neither incorporated into
nor integral to the Complaint. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111
(2d Cir. 2010). The District Court does not appear to have considered these affidavits,
and our consideration of them, without allowing the Drivers to conduct discovery, would
be improper. See Lismore, 2012 WL 3577833, at *1 (Because “the Court permitted
8
Defendant to move for dismissal in favor of arbitration prior to the taking of any
discovery . . . . the Court does not look beyond the allegations in the Complaint and
exhibits attached thereto by Plaintiff . . . .”). And even if we were to consider Uber’s
affidavits, the information therein would be insufficient to resolve the inquiry in this
case. 4
As such, the District Court should permit the parties to conduct limited discovery
addressing the question of whether the Drivers belong to a “class of workers engaged in
foreign or interstate commerce.” 9 U.S.C. §1. Such discovery is necessary under
whatever test is adopted. The decisions of other courts suggest that information relevant
to the Section 1 inquiry might include: Uber’s policies regarding interstate trips; the
potential penalties and costs of declining interstate trips; Uber’s revenue from interstate
trips; the average number of interstate trips Uber drivers take over various time periods
(such as a week, a month, or a year); the median number of interstate trips for Uber
drivers over various time periods; what percentage of Uber drivers take interstate trips
over various time periods; how often Uber drivers decline interstate trips; and any other
relevant information. Cf. Singh I, 939 F.3d at 227-28 (remanding for additional discovery
regarding “the contents of the parties’ agreement(s), information regarding the industry in
which the class of workers is engaged, information regarding the work performed by
4
One of Uber’s affidavits is included in the Joint Appendix; it provides some limited
statistics regarding the percentage of Uber trips that are interstate; the average distances
and durations of interstate Uber trips; and some statistics about trips beginning and
ending in the states of New York, California, and Massachusetts.
9
those workers, and various texts — i.e., other laws, dictionaries, and documents — that
discuss the parties and the work,” among other things); Singh II, 67 F.4th at 560
(evaluating the statistics and evidence made available “[t]hrough discovery” before
concluding that “Uber drivers are not a class of workers engaged in interstate
commerce”).
Therefore, we remand to the District Court with the direction that it allow
discovery before ruling on this question. After the parties have conducted appropriate
discovery, the District Court should accept additional briefing and apply the summary
judgment standard to determine whether the Drivers are exempt from the FAA under
Section 1. 5
IV. Conclusion
For the reasons stated, the judgment of the District Court is VACATED, and this
matter is REMANDED for further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5
Uber also argues that even if the Drivers are exempt from the FAA, they should be
compelled to arbitrate because the arbitration agreement is enforceable under New York
state law. See generally Appellees’ Br. at 43-57. The District Court may choose to
address this question as a preliminary matter on remand, as appropriate.
10