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41
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2026-04-06 |
MINUTE entry before the Honorable Franklin U. Valderrama: Before the Court is Defendant's motion challenging service of process and motion to compel arbitration [24], in which Defendant requests that he be properly served under the Hague Convention before holding a hearing on a preliminary injunction, or that this case is sent to arbitration. The Court agrees with Plaintiff that service under the Hague Convention is not necessary before entering a preliminary injunction. As the Seventh Circuit has held, "because formal service of process under the Hague Convention or other provisions of law can take months, acceptance of [the defendant's] argument [as to service] would have the unfortunate effect of immunizing most foreign defendants from needed emergency injunctive relief. There is a reason Rule 65 allows emergency injunctive relief before service of process, and this case provides a good example." H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 842 (7th Cir. 2012). As to arbitration, the Court finds that the record does not yet support a finding that there is a binding arbitration agreement. "To compel arbitration, a party must show (1) an agreement to arbitrate, (2) a dispute within the scope of the arbitration agreement, and (3) a refusal by the opposing party to proceed to arbitration." Kass v. PayPal Inc., 75 F.4th 693, 700 (7th Cir. 2023). "[I]f the party opposing arbitration identifies a genuine dispute of material fact regarding whether the parties agreed to arbitrate in the first place, there must be a trial on that issue." Id. Plaintiff argues that Defendant has not admitted that he has assented to the arbitration clause, and in fact takes positions that indicate that he disputes that he assented. Defendant replies that this foundational questionthat is, whether or not he agreed to an arbitration clause in the first placeneeds to be sent to an arbitrator due to the "delegation clause" in the terms of service, so the Court need not make a finding on this point. But the Seventh Circuit has held that "[e]ven the most sweeping delegation cannot send the contract-formation issue to the arbitrator, because, until the court rules that a contract exists, there is simply no agreement to arbitrate." K.F.C. v. Snap Inc., 29 F.4th 835, 837 (7th Cir. 2022). Defendant has not admitted that he assented to the terms of service. Rather, he appears to preserve the argument that he has not in fact assented to the terms of service. Accordingly, it is disputed whether there is a binding agreement to arbitrate. For the reasons stated, the motion challenging service of process for the purposes of a preliminary injunction and the motion to compel arbitration are denied without prejudice at this time [24]. Mailed notice. |
