## Facts

- William S. Klocek, acting pro se, purchased a Gateway computer and a Hewlett-Packard (HP) scanner.
- Klocek alleged Gateway made false promises about technical support and breached warranties regarding compatibility with standard peripherals and internet services.
- Gateway included “Standard Terms and Conditions” inside the computer box; the first page stated that keeping the computer more than five days after delivery constituted acceptance.
- The Standard Terms included a clause requiring final and binding arbitration in Chicago.
- Klocek alleged HP breached a duty to warn about incompatibility between its scanner and Gateway computers.

## Issues

1. Whether the arbitration clause included in Gateway’s in-box Standard Terms became part of the sales contract so as to permit compelling arbitration under the Federal Arbitration Act.
2. Whether the claims against HP satisfied the amount-in-controversy requirement for diversity jurisdiction under 28 U.S.C. § 1332(a).
3. Whether a pro se plaintiff could adequately represent a putative class, and whether plaintiff’s ancillary motions warranted relief.

## Decision

- Gateway’s motion to dismiss (or stay) in favor of arbitration was denied because Gateway did not show Klocek agreed to arbitrate.
- HP’s motion to dismiss was granted for lack of subject-matter jurisdiction because the complaint did not sufficiently allege an amount in controversy exceeding the statutory threshold.
- Plaintiff’s motions, including class certification, sanctions, a “writ of certiorari,” and verification, were denied.

## Legal Principles

- The Federal Arbitration Act makes arbitration agreements enforceable, but whether an arbitration agreement was formed is determined by applicable state contract law.
- In a sale-of-goods transaction, in-the-box terms presented after the buyer’s order may be treated as proposed additional terms governed by U.C.C. § 2-207.
- For a non-merchant buyer, additional terms do not become part of the contract absent the buyer’s express agreement.
- A seller’s statement that the buyer accepts terms by retaining the goods for a specified period, without more, may be insufficient to establish the required express assent by a consumer.
- Diversity jurisdiction requires a good-faith allegation that the amount in controversy exceeds the statutory minimum; inadequate allegations require dismissal for lack of subject-matter jurisdiction.

## Conclusion

The court declined to compel arbitration because the seller failed to prove that a consumer expressly agreed to arbitration terms inserted in the product box, dismissed the claims against the scanner manufacturer for failure to satisfy the diversity amount-in-controversy requirement, and denied the pro se plaintiff’s class-certification and related motions.


Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan. 2000)