OPINION & ORDER On February 13, 2019, plaintiff Marcello Porcelli commenced this action in the Supreme Court of New York, County of New York, against JetSmarter, Inc. (“JetSmarter”), a Florida corporation; David Sheridan, a sales agent for JetSmarter; Carla Yerovi, a Supervisor of Member Services for JetSmarter; and John Does 1-5,1 officers or managers of JetSmarter. Dkt. 4-4(“Compl.”)
1-4. The Complaint alleges breach of contract, violation of the covenant of good faith and fair dealing, unfair trade practices under General Business Law §349, respondeat superior liability, and fraud.JetSmarter faces similar complaints brought by JetSmarter members in other jurisdictions. In one such action filed on or about September 5, 2018, plaintiffs brought a demand for class arbitration against JetSmarter with the American Arbitration Association in Fort Lauderdale, Florida.On March 22, 2019, JetSmarter removed this action to federal court pursuant to 28 U.S.C. §1332 based upon complete diversity of citizenship. Dkt. 4. Defendants now move for an order compelling Porcelli to arbitrate his claims or, in the alternative, to stay this action pending resolution of the related certified class action arbitration. For the following reasons, the Court grants defendants’ unopposed motion to compel arbitration and stays the case pending the completion of arbitration.I. Background2A. The PartiesPorcelli has been a subscriber to JetSmarter’s services since on or about November 24, 2015. Compl. 10. JetSmarter is a corporation that provides various forms of air transportation to customers seeking an alternative to commercial airlines and private jet ownership. Id. 2. The remaining defendants are all employees of JetSmarter. John Does 1-5 are officers of JetSmarter who were responsible for developing and approving marketing and sales materials offered by JetSmarter. Id. 4. Sheridan is a sales agent who initially reached out to Porcelli to market JetSmarter’s services. Id. 7. Yerovi is a Supervisor of Member Services. Id. 2.B. The Registration Process and the Membership AgreementPorcelli signed up for JetSmarter’s services through a two-step process. First, on November 13, 2015, Porcelli created a profile on the JetSmarter mobile application. Kirsanov Decl. 5. In the course of creating that profile, Porcelli swiped a button indicating his agreement to the “Terms of Use and Privacy Policy.” Id. 3(e). These policies provided for mandatory binding arbitration of all disputes. Def. Mem. at 4. Second, on November 24, 2015, Porcelli entered into a Membership Agreement (“2015 Agreement”) with JetSmarter and paid the requisite fees. Compl. 10; Kirsanov Decl. 7. Like the Terms of Use, the 2015 Agreement also contained a binding mandatory arbitration clause. Def. Mem. at 1. At the time that he entered into the 2015 Agreement, Porcelli had an opportunity to review both the 2015 Agreement and the Terms of Use. Kirsanov Decl. 8. These materials stated that it was the user’s “sole responsibility to review and abide by all of the terms and conditions of the Membership Agreement and all applicable service terms and conditions, as amended from time to time.” Def. Mem. at 6.In July 2016, Porcelli upgraded to a “Sophisticated Membership.” In signing up for this tier of membership, Porcelli once again had to acknowledge and accept the terms and conditions of a membership agreement, which similarly included a mandatory arbitration clause. Kirsanov Decl.
