C. William Threlkeld, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, OK, for Defendant-Appellant.
Tony Gould, Brown & Gould, PLLC, Oklahoma City, OK, for Plaintiff-Appellee.
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
CERTIFICATION OF QUESTION OF STATE LAW
HARTZ, Circuit Judge.
Under Tenth Circuit Rule 27.1 the United States Court of Appeals for the Tenth Circuit submits to the Supreme Court of Oklahoma this request that the court exercise its discretion under Okla. Stat. tit. 20, § 1602 (1997), to accept the following certified question of Oklahoma law:
Does a written consumer contract for the sale of goods incorporate by reference a separate document entitled " Terms of Sale" available on the seller's website, when the contract states that it is " subject to" the seller's " ‘ Terms of Sale’ " but does not specifically reference the website?
The answer to this question should be determinative of the appeal now pending in this court, and it appears that there is no controlling precedent in the Supreme Court of Oklahoma. The Supreme Court of Oklahoma may reformulate the question.
In April 2008 Shannon and Eric Walker requested several samples of hardwood
flooring from BuildDirect.com Technologies, Inc., a Canadian corporation, through BuildDirect's website. The next month they arranged over the telephone to purchase 113 boxes of flooring from BuildDirect for $8,559.70. BuildDirect emailed a two-page document entitled " Quotation" to Ms. Walker, who signed and dated the document and returned it to BuildDirect via fax. Aplt.App. at 33. The Quotation describes the type, amount, and price of the flooring purchased by the Walkers. And it includes 14 bullet points setting forth additional terms. The sixth bullet point states in full, " All orders are subject to BuildDirect's ‘ Terms of Sale.’ " Id.
The Walkers allege that after they installed the flooring, they discovered that their home was infested with nonindigenous wood-boring insects. According to the Walkers, the insects have severely damaged the home, cannot be completely eradicated without destroying the home, and have caused the home to be subject to quarantine and possible destruction by the United States Department of Agriculture.
In July 2011 the Walkers filed suit against BuildDirect and Fuzhou BuildDirect Limited, LLC (a Chinese company, which apparently was never served with process and was later voluntarily dismissed from the action) in the United States District Court for the Western District of Oklahoma, invoking diversity jurisdiction. See 28 U.S.C. § 1332. They alleged that the flooring purchased from BuildDirect had contained the larvae of wood-boring insects that BuildDirect should have exterminated during the manufacturing process. Claiming to represent a class of similarly situated purchasers of BuildDirect's products, they asserted causes of action including fraud, breach of contract, negligence, trespass, breach of implied warranties of merchantability and fitness for a particular use, deceptive trade practices, products liability, and nuisance. They demanded a jury trial.
BuildDirect moved to compel arbitration. It pointed to the bullet point of the Quotation stating that the Walkers' purchase is " subject to BuildDirect's ‘ Terms of Sale.’ " Aplt.App. at 33. It claimed that " Terms of Sale" refers to a specific document bearing that name, which was available on BuildDirect's website. The document could be accessed by clicking on a hyperlink labeled " Terms of Sale" under the heading " Customer Service" near the bottom of each page of the website. The online Terms of Sale contained 15 numbered paragraphs, which provided, among other things, that the customer is responsible for shipping costs, that BuildDirect bears the risk of loss ...