Hills v. Match Group, Inc

majority opinion

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Electronically Filed

Intermediate Court of Appeals

CAAP-XX-XXXXXXX

10-AUG-2026

08:02 AM

Dkt. 36 OP

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

---o0o---OSCAR HILLS IV, Plaintiff-Appellant,

MATCH GROUP, INC., PLENTY OF FISH, TINDER, BERNARD KIM, et al.,

Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CCV-XX-XXXXXXX)

AUGUST 10, 2026

WADSWORTH, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.

OPINION OF THE COURT BY MCCULLEN, J.

Self-represented Plaintiff-Appellant Oscar Hills IV

appeals from the Circuit Court of the First Circuit's 1

November 25, 2024 "Order Granting in Part and Denying in Part

1 The Honorable Shirley M. Kawamura presided until September 30, 2024, when the case was assigned to the Honorable Jordon J. Kimura.

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Defendant[-Appellee] Match Group, Inc.'s [(Match Group)] Motion

to Stay the Action Pending Arbitration" (Stay Order), staying

proceedings and compelling arbitration consistent with a

mandatory arbitration clause contained in the Terms of Use

governing the dispute.

We hold that the appealability of the Stay Order is

governed by the Terms of Use's valid choice-of-law provision.

Because the Terms of Use selects Texas substantive law and the

Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et. seq., under

which an order staying proceedings and compelling arbitration is

not an appealable order, Hills may not seek interlocutory review

of the Stay Order. Accordingly, we dismiss this appeal for lack

of appellate jurisdiction.

I. BACKGROUND

Hills joined Plenty of Fish, an online dating platform

owned by Match Group, in March 2021. In order to create an

account, Hills was required to accept Plenty of Fish's Terms of

Use. At the time of the account creation, the Terms of Use

contained a "Dispute Resolution" provision that included

mandatory arbitration and choice-of-law provisions: 2

2 The "Dispute Resolution" provision also included a venue provision designating the state and federal courts of Dallas County, Texas:

(continued . . .)

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15. DISPUTE RESOLUTION

In the unlikely event that we have a legal dispute, here is

what you need to know.

If you are dissatisfied with our Services for any reason,

please contact POF Customer Service first so that we can

try to resolve your concerns without the need of outside

assistance. If you choose to pursue a claim against POF,

these terms will apply.

15a. ARBITRATION, CLASS-ACTION WAIVER, AND JURY WAIVER

If you pursue a legal claim against POF, you agree to

arbitration (with limited exceptions).

Except for users residing within the EU or European

Economic Area, and where prohibited by law:

1. The exclusive means of resolving any dispute or claim

arising out of or relating to this Agreement

(including any alleged breach thereof) or our

Services shall be BINDING ARBITRATION administered by

JAMS under the JAMS Streamlined Arbitration Rules &

Procedures, except as modified by our Arbitration

Procedures. The one exception to the exclusivity of

arbitration is that either party has the right to

(. . . continued)

15c. VENUE

Any claims that are not submitted to arbitration for any

reason must be litigated in Dallas County, Texas (except

for claims brought in small claims court, and in the EU or

where prohibited by law).

Except for users residing in the EU or European Economic

Area, who may bring claims in their country of residence in

accordance with applicable law, and except for claims that

may be properly brought in a small claims court of

competent jurisdiction in the county or other jurisdiction

in which you reside or in Dallas County, Texas, all claims

arising out of or relating to this Agreement, to our

Services, or to your relationship with POF that for

whatever reason are not submitted to arbitration will be

litigated exclusively in the federal or state courts of

Dallas County, Texas, U.S.A. You and POF consent to the

exercise of personal jurisdiction of courts in the State of

Texas and waive any claim that such courts constitute an

inconvenient forum.

(Underlined emphasis added.)

However, venue was not an issue raised below or before this court.

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bring an individual claim against the other in a

small-claims court of competent jurisdiction, or, if

filed in arbitration, the responding party may

request that the dispute proceed in small claims

court if the party's claim is within the jurisdiction

of the small claims court. If the responding party

requests to proceed in small claims court before the

appointment of the arbitrator, the arbitration shall

be administratively closed, and if requested after

the appointment of the arbitrator, the arbitrator

shall determine if the dispute should be decided in

arbitration or if the arbitration should be

administratively closed and decided in small claims

court. Whether you choose arbitration or smallclaims court, you may not under any circumstances

commence or maintain against the Company any class

action, class arbitration, or other representative

action or proceeding.

2. By using our Services in any manner, you agree to the

above arbitration agreement. In doing so, YOU GIVE

UP YOUR RIGHT TO GO TO COURT to assert or defend any

claims between you and the Company (except for

matters that may be taken to small-claims court).

YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS

ACTION OR OTHER CLASS PROCEEDING. Your rights will

be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR

JURY, and the arbitrator shall determine all issues

regarding the arbitrability of the dispute. You are

entitled to a fair hearing before the arbitrator.

The arbitrator can grant any relief that a court can,

but you should note that arbitration proceedings are

usually simpler and more streamlined than trials and

other judicial proceedings. Decisions by the

arbitrator are enforceable in court and may be

overturned by a court only for very limited reasons.

For details on the arbitration process, see our

Arbitration Procedures.

3. Any proceeding to enforce this arbitration agreement,

including any proceeding to confirm, modify, or

vacate an arbitration award, may be commenced in any

court of competent jurisdiction. In the event that

this arbitration agreement is for any reason held to

be unenforceable, any litigation against the Company

(except for small-claims court actions) may be

commenced only in the federal or state courts located

in Dallas County, Texas. You hereby irrevocably

consent to the jurisdiction of those courts for such

purposes.

4. The online dispute settlement platform of the

European Commission is available under

http://ec.europa.eu/odr. POF does not take part in

dispute settlement procedures in front of a consumer

arbitration entity for users residing in the EU or

European Economic Area.

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15b. GOVERNING LAW

Texas law and the Federal Arbitration Act will apply if

there is a dispute (except in the EU and where prohibited

by law).

Except for users residing in the EU or European Economic

Area or elsewhere where our arbitration agreement is

prohibited by law, the laws of Texas, U.S.A., excluding

Texas's conflict of laws rules, will apply to any disputes

arising out of or relating to this Agreement or our

Services. Notwithstanding the foregoing, the Arbitration

Agreement in Section 15a above shall be governed by the

Federal Arbitration Act. For the avoidance of doubt, the

choice of Texas governing law shall not supersede any

mandatory consumer protection legislation in such

jurisdictions.

(Underlined emphases added.)

In July 2024, Hills filed a civil complaint in Hawaiʻi

circuit court, asserting various claims and alleging that he was

wrongfully banned from Plenty of Fish and other Match Group

online dating platforms following allegations of sexual assault

by another user. No criminal charges appear to have been filed

against Hills as a result of those allegations.

Match Group responded by moving to stay the

proceedings and compel arbitration (Motion to Compel

Arbitration), arguing that, because Hills's claims arose from

his alleged ban from the Plenty of Fish online dating platform,

his claims were subject to the Terms of Use's mandatory

arbitration provision.

Hills opposed the Motion to Compel Arbitration but

made no discernible argument as to why his claims were not

governed by the Terms of Use's mandatory arbitration provision.

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After an October 23, 2024 hearing, 3 the circuit court

entered a minute order granting in part and denying in part

Match Group's Motion to Compel Arbitration. The circuit court

concluded that under both Hawaiʻi and Texas law, Hills and Match

Group "are compelled to arbitrate this matter" because neither

party contested the existence of a valid arbitration agreement

and because, under the terms of that arbitration agreement, the

determination of arbitrability was expressly reserved to the

arbitrator. Therefore, the circuit court stayed the action

pending completion of the arbitration.

The circuit court entered its written Stay Order, and

Hills timely appealed.

On appeal, Hills raises two points of error:

(1) whether the provision mandating arbitration between Hills

and Match Group was voidable at Hills's election under the

Ending Forced Arbitration of Sexual Assault and Sexual

Harassment Act (EFAA), 9 U.S.C. § 402(a), and (2) whether Match

3 No transcript of the October 23, 2024 hearing on Match Group's Motion to Compel Arbitration appears in the record.

Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 10(b) requires an appellant to request transcripts of court proceedings "[w]hen an appellant desires to raise any point on appeal that requires consideration of the oral proceedings before the court appealed from."

HRAP Rule 11(a) requires "each appellant to provide a record, as defined in Rule 10 of these Rules and the Hawaiʻi Court Records Rules, that is sufficient to review the points asserted and to pursue appropriate proceedings in the court or agency appealed from to correct any omission."

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Group's Motion to Compel Arbitration amounted to abuse of

process. 4

Match Group challenges this court's jurisdiction. As

discussed below, we lack jurisdiction over this appeal.

II. DISCUSSION

In his Opening Brief, Hills contends this court has

jurisdiction, because "[u]nder Hawaiʻi law, a circuit court order

compelling arbitration and staying proceedings is an appealable

order over which our appellate courts have jurisdiction." Hills

relies on: Gabriel v. Island Pacific Academy, Inc., 140 Hawaiʻi

325, 400 P.3d 526 (2017); County of Hawaiʻi v. UNIDEV, LLC, 129

4 Hills's points of error, as stated in the Opening Brief, are:

A. Did the Court err in granting Defendants-Appellees'

Motion to Stay the Action Pending Arbitration in a

case involving a sexual assault claim? . . . .

B. Whether Defendant-Appellees' malicious abuse of

process, aimed at avoiding liability, effectively

voided the court's jurisdiction over a claim

involving sexual assault, in violation of the

applicable laws governing the enforceability of

arbitration agreements and the court's authority to

hear such claims.

(Formatting altered.)

It appears that Hills raises his argument under the EFAA for the first time on appeal. Hills did not raise the argument that the arbitration agreement was voidable under the EFAA in his opposition to Match Group's Motion to Compel Arbitration. Neither the minutes from the October 23, 2024 hearing on the Motion to Compel Arbitration nor the circuit court's Minute Order show Hills raised an argument under the EFAA at the hearing, and no transcript of the hearing appears in the record. See HRAP Rules 10(b), 11(a). "Legal issues not raised in the trial court are ordinarily deemed waived on appeal." Ass'n of Apartment Owners of Wailea Elua v. Wailea Resort Co., 100 Hawaiʻi 97, 107, 58 P.3d 608, 618 (2002).

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Hawaiʻi 378, 301 P.3d 588 (2013); and Association of Owners of

Kukui Plaza v. Swinerton & Walberg Co. (Kukui Plaza), 68 Haw.

98, 705 P.2d 28 (1985).

In its Answering Brief, Match Group argues this court

lacks jurisdiction, because Texas law and the FAA govern — not

Hawaiʻi law. 5 Match Group asserts that under 9 U.S.C. § 16 and

Texas Civil Practice and Remedial Code § 51.016, an order

staying proceedings and compelling arbitration is not a final,

appealable order.

"A court always has jurisdiction to determine whether

it has jurisdiction over a particular case. Appellate courts

have an independent obligation to ensure they have jurisdiction

to hear and determine each case." Nordic PCL Constr., Inc. v.

LPIHGC, LLC, 156 Hawaiʻi 325, 333, 574 P.3d 1273, 1281 (2025)

(citations omitted).

5 Match Group also contested jurisdiction in its Counterstatement of Jurisdiction, arguing that "there is significant case law suggesting that, in the absence of a final judgment, there is no right to appeal." Match Group cited five unpublished appellate orders dismissing appeals from orders compelling arbitration for lack of jurisdiction: In re Hawaii Government Employees Association, AFSCME, Local 152, AFL-CIO ex rel. Jolly, No. 29661, 2009 WL 1879223 (App. June 29, 2009); Shelton v. Kaiser Foundation Health Plan, Inc., No. 29754, 2009 WL 1805047 (App. June 23, 2009); Clever Construction, Inc. v. Alcone, No. 29320, 2008 WL 5049906 (App. Nov. 21, 2008); Williams v. State, Department of Land & Natural Resources, No. 29209, 2008 WL 4649397 (App. Oct. 17, 2008); and Brown v. Hawaii Medical Service Association, No. 29117, 2008 WL 3148577 (App. Aug. 1, 2008). The orders cited by Match Group lack precedential value pursuant to HRAP Rule 35(c), and, as discussed below, are inconsistent with subsequent binding precedent expressly holding the contrary. E.g., UNIDEV, 129 Hawaiʻi at 392, 301 P.3d at 602.

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We first address the appealability of an order staying

proceedings and compelling arbitration under Hawaiʻi law, Texas

law, and the FAA, before turning to what effect the Terms of

Use's choice-of-law provision has on the selection of

controlling law.

A. Appealability

The Stay Order is an appealable order only if this

dispute is governed by Hawaiʻi procedural law. See Gabriel, 140

Hawaii at 333-34, 400 P.3d at 534-35. If the FAA or Texas law

governs the dispute, the Stay Order is not appealable, and this

court would lack jurisdiction to entertain the appeal. See

Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1020 (9th Cir.

2014); Gathe v. Cigna Healthplan of Tex., Inc., 879 S.W.2d 360,

362 (Tex. App. 1994).

1. Hawaiʻi Law

"There is no common law right to appeal. 'The right

to appeal is purely statutory, and exists only when given by

some constitutional or statutory provision.'" Greer v. Baker,

137 Hawaiʻi 249, 252, 369 P.3d 832, 835 (2016) (quoting Lingle v.

Hawaiʻi Gov't Emps. Ass'n, 107 Hawaiʻi 178, 184, 111 P.3d 587,

593 (2005)).

In 2001, Hawaiʻi adopted the Uniform Arbitration Act

(UAA) as chapter 658A of the Hawaiʻi Revised Statutes (HRS).

2001 Haw. Sess. Laws Act 265, § 1 at 810-19. Under the UAA, an

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order granting stay and compelling arbitration is not

appealable. See HRS § 658A-28 (2016). 6 However, the Hawaiʻi

Supreme Court held that "after Hawaiʻi's adoption of HRS § 658A28, orders compelling arbitration remain appealable under

Hawaiʻi's final judgment statute, HRS § 641-1." UNIDEV, 129

Hawaiʻi at 392, 301 P.3d at 602.

HRS § 641-1(a) (2016) provides for appeals "in civil

matters from all final judgments, orders, or decrees of circuit

and district courts and the land court to the intermediate

appellate court, subject to chapter 602." It is well-settled

law that "orders granting stays and compelling arbitration are

appealable" under HRS § 641-1(a). Kukui Plaza, 68 Haw. at 107,

6 HRS § 658A-28, "Appeals," provides:

(a) An appeal may be taken from:

(1) An order denying a motion to compel

arbitration;

(2) An order granting a motion to stay arbitration;

(3) An order confirming or denying confirmation of

an award;

(4) An order modifying or correcting an award;

(5) An order vacating an award without directing a

rehearing; or

(6) A final judgment entered pursuant to this

chapter.

(b) An appeal under this section shall be taken as

from an order or a judgment in a civil action.

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705 P.2d at 35 (overruling Pfaeltzer v. Patterson, 49 Haw. 59,

60, 410 P.2d 974, 974 (1966)). 7

Based on the foregoing, if Hawaiʻi procedural law

controls, the Stay Order is appealable, and this court has

jurisdiction to consider the merits of the appeal.

2. The Federal Arbitration Act

"It is well established that § 16(b) [of the FAA] bars

appeals of interlocutory orders compelling arbitration and

staying judicial proceedings." Johnson, 745 F.3d at 1021

(citing Green Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 86–

88 & n.2 (2000) ("contrasting a dismissal with prejudice,

appealable under § 16(a)(3), with a stay that 'would not be

appealable'")).

Indeed, under the express terms of the FAA, appeals

may not be taken from interlocutory orders granting a stay and

compelling arbitration:

7 In Kukui Plaza, the Hawaiʻi Supreme Court held that an order denying a motion to compel arbitration fell "in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." 68 Haw. at 105-06, 705 P.2d at 34 (quoting Coen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). The court further stated in dicta, "By the same token, orders granting stays and compelling arbitration are appealable too[.]" Id. at 107, 705 P.2d at 35. As discussed, that dicta has subsequently been affirmed by the Hawaiʻi Supreme Court. E.g., UNIDEV, 129 Hawaiʻi at 392, 301 P.3d at 602.

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[A]n appeal may not be taken from an interlocutory

order--(1) granting a stay of any action under section 3

of this title; [or]

(3) compelling arbitration under section 206 of

this title[.]

9 U.S.C. § 16(b) (formatting altered).

Based on the foregoing, if the FAA controls, the Stay

Order is not appealable, and this court lacks jurisdiction to

consider the merits of the appeal.

3. Texas Law

Although the FAA governs the dispute, "federal

procedure does not apply in Texas courts, even when Texas

courts apply the [FAA]." Jack B. Anglin Co., Inc. v.

Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).

Because appellate jurisdiction is procedural, we look to

Texas procedural law to determine whether the court of

appeals has jurisdiction over the interlocutory appeal in

this case.

Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585

(Tex. 2012).

"Unless specifically authorized by statute, Texas

appellate courts only have jurisdiction to review final

judgments." Id. (citing Tex. Civ. Prac. & Rem. Code § 51.014

(2012)). Texas courts "strictly construe statutes authorizing

interlocutory appeals because they are a narrow exception to the

general rule that interlocutory orders are not immediately

appealable." SK Plymouth, LLC v. Simmons, 605 S.W.3d 706, 713

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(Tex. App. 2020) (citing CMH Homes v. Perez, 340 S.W.3d 444, 447

(Tex. 2011)).

An order granting stay and compelling arbitration is

not an independently appealable order under the Texas statute

authorizing interlocutory appeals. See Tex. Civ. Prac. & Rem.

Code § 51.014 (2023) (listing seventeen independent grounds for

interlocutory appeal). Nor is such an order appealable under

the Texas General Arbitration Act (TAA). See Tex. Civ. Prac. &

Rem. Code § 171.098 (1997). 8

Instead, Texas courts have recognized that although

Texas law permits an interlocutory appeal from an order denying

a motion to compel arbitration, there is no statutory authority

permitting an interlocutory appeal from an order staying

8 The 1997 version of section 171.098 of the TAA, "Appeal," provided:

(a) A party may appeal a judgment or decree entered

under this chapter or an order:

(1) denying an application to compel arbitration

made under Section 171.021;

(2) granting an application to stay arbitration

made under Section 171.023;

(3) confirming or denying confirmation of an award;

(4) modifying or correcting an award; or

(5) vacating an award without directing a

rehearing.

(b) The appeal shall be taken in the manner and to

the same extent as an appeal from an order or judgment in a

civil action.

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proceedings and compelling arbitration. See, e.g., Chambers v.

O'Quinn, 242 S.W.3d 30, 31-32 (Tex. 2007) ("Under the TAA, a

party can appeal an order or judgment that either: (1) denies

an application to compel arbitration made under section 171.021,

or (2) grants an application to stay arbitration under section

171.023. Tex. Civ. Prac. & Rem. Code § 171.098(a)(1), (2). The

Act is one-sided, allowing interlocutory appeals solely from

orders that deny arbitration. Similarly, the [FAA] makes no

provision for an interlocutory appeal from an order compelling

arbitration. 9 U.S.C. § 16."). 9

This is consistent with Texas Civil Practice and

Remedies Code § 51.016 (2009), which makes the appealability of

an interlocutory order subject to the FAA coextensive with the

FAA:

In a matter subject to the Federal Arbitration Act

(9 U.S.C. Section 1 et seq.), a person may take an appeal

or writ of error to the court of appeals from the judgment

or interlocutory order of a district court, county court at

law, or county court under the same circumstances that an

appeal from a federal district court's order or decision

would be permitted by 9 U.S.C. Section 16.

Based on the foregoing, if Texas law controls, the

Stay Order is not appealable, and this court lacks jurisdiction

to consider the merits of the appeal.

9 The Texas Supreme Court stated in Anglin, 842 S.W.2d at 271-72 & n.10, "Both the Texas and Federal Acts permit a party to appeal from an interlocutory order granting or denying a request to compel arbitration." Subsequent Texas appellate courts addressing the appealability of orders compelling arbitration have rejected Anglin as dicta. E.g., Gathe, 879 S.W.2d at 362.

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B. Choice of Law

We now turn to what effect the Terms of Use's choiceof-law provision has on the selection of procedural law

governing the appealability of the Stay Order.

"When the arbitration clause is clear and unambiguous

its interpretation is a question of law which may be made by the

appellate court. Consequently, we are free to interpret the

arbitration clause and apply the correct law to its

enforcement." Brown v. KFC Nat'l Mgmt. Co., 82 Hawaiʻi 226, 244,

921 P.2d 146, 164 (1996) (citation modified).

Choice-of-law provisions are generally enforceable in

Hawaiʻi courts, provided "the chosen law has some nexus with the

parties or the contract." Airgo, Inc. v. Horizon Cargo Transp.,

Inc., 66 Haw. 590, 595, 670 P.2d 1277, 1281 (1983). Hawaiʻi

courts have held that the domicile of a contracting party is a

sufficient nexus for enforcement of a choice-of-law provision

selecting the domicile state's substantive law and that it is

error to not give effect to the parties' justified expectations.

Id. ("We conclude that in accordance with the parties'

expectations, the substantive law of Texas should have been

applied in the present case.").

Here, the Terms of Use's "Governing Law" provision

contained two choice-of-law clauses. The first choice-of-law

clause designated Texas substantive law to govern disputes

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arising from the Terms of Use or from Plenty of Fish's services:

"[T]he laws of Texas, U.S.A., excluding Texas's conflict of laws

rules, will apply to any disputes arising out of or relating to

this Agreement or our Services." The second choice-of-law

clause designated the FAA to govern the mandatory arbitration

agreement provided for in the Terms of Use: "Notwithstanding

the foregoing, the Arbitration Agreement in Section 15a above

shall be governed by the Federal Arbitration Act."

Match Group is a Delaware corporation with its

principal executive offices in Dallas, Texas. Thus, there is

"some nexus" between the chosen law and the parties to the

contract. See id. The Terms of Use's choice-of-law provision

is therefore enforceable consistent with the contracting

parties' justified expectations. See id.

Application of the contracting parties' choice of

state law is consistent with controlling precedent. For

example, in Volt Information Sciences, Inc. v. Board of Trustees

of Leland Stanford Junior University, 489 U.S. 468, 470-72

(1989), the United States Supreme Court upheld a California

court's order staying arbitration under California law pending

resolution of litigation involving third parties not bound by

the arbitration agreement when such a stay was not provided for

under the FAA. The Volt majority held that "application of the

California statute is not pre-empted by the [FAA] in a case

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where the parties have agreed that their arbitration agreement

will be governed by the law of California." Id. at 470.

In reaching its conclusion, the Court rejected the

argument that the FAA requires a preference for federal

procedure:

There is no federal policy favoring arbitration under a

certain set of procedural rules; the federal policy is

simply to ensure the enforceability, according to their

terms, of private agreements to arbitrate. Interpreting a

choice-of-law clause to make applicable state rules

governing the conduct of arbitration--rules which are

manifestly designed to encourage resort to the arbitral

process--simply does not offend the rule of liberal

construction set forth in Moses H. Cone[ Memorial Hospital

v. Mercury Construction Corporation, 460 U.S. 1 (1983) 10],

nor does it offend any other policy embodied in the FAA.

Id. at 476.

The Court concluded that "[t]he FAA contains no

express pre-emptive provision, nor does it reflect a

congressional intent to occupy the entire field of arbitration,"

and application of the California statute would not "undermine

the goals and policies of the FAA." Id. at 477-78. The Court

explained that although state laws requiring a judicial forum

for claims the parties contracted to arbitrate were preempted by

10 The U.S. Supreme Court held in Moses H. Cone:

The Arbitration Act establishes that, as a matter of

federal law, any doubts concerning the scope of arbitrable

issues should be resolved in favor of arbitration, whether

the problem at hand is the construction of the contract

language itself or an allegation of waiver, delay, or a

like defense to arbitrability.

460 U.S. at 24-25.

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the FAA, Southland Corp. v. Keating, 465 U.S. 1, 10 (1984), "it

does not follow that the FAA prevents the enforcement of

agreements to arbitrate under different rules than those set

forth in the [FAA] itself," Volt, 489 U.S. at 478-79. Instead,

the Court recognized that "parties are generally free to

structure their arbitration agreements as they see fit,"

including by "specify[ing] by contract the rules under which

that arbitration will be conducted." Volt, 489 U.S. at 479.

Accordingly, the U.S. Supreme Court concluded in Volt that

enforcing a choice-of-law provision in an arbitration agreement

is "fully consistent" with the FAA:

Where, as here, the parties have agreed to abide by state

rules of arbitration, enforcing those rules according to

the terms of the agreement is fully consistent with the

goals of the FAA, even if the result is that arbitration is

stayed where the [FAA] would otherwise permit it to go

forward.

Id.

Similarly, in Gabriel, the Hawaiʻi Supreme Court held

that an appeal from an order granting a motion to compel

arbitration was an appealable order, "consistent with the

parties' expectations under the arbitration agreement," because

the parties had selected Hawaiʻi law to govern the arbitration.

140 Hawaiʻi at 331-33, 400 P.3d at 532-34.

Relying on the U.S. Supreme Court's opinion in Volt,

the Gabriel court explained that "[t]he FAA's purpose is simply

to require courts to enforce privately negotiated agreements to

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arbitrate, like other contracts, in accordance with their terms"

and that "[s]o long as the state procedural rule does not 'stand

as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress' in enacting the FAA, it

does not conflict with the FAA, and the FAA will not preempt

it." Gabriel, 140 Hawaiʻi at 334, 400 P.3d at 535 (first

quotation modified) (quoting Volt, 489 U.S. at 478, 477).

The Hawaiʻi Supreme Court further noted that the

majority of jurisdictions that had examined the issue had found

that state procedural law is not preempted by the FAA:

For those jurisdictions that have examined whether

the FAA's appeal provisions preempt state appeal provisions

(where those state appeal provisions are based on the

Uniform Arbitration Act, as Hawaii's arbitration appeal

provisions are), a majority rule has emerged: the FAA's

appeal provisions do not preempt state appeal provisions

because (1) state appeal provisions are procedural rather

than substantive; (2) procedural provisions should not be

preempted unless they stand as an obstacle to the full

purposes and objectives of the FAA; and (3) the state

procedural rules do not impede the FAA's objective of

ensuring the enforceability of arbitration agreements in

private contracts.

Id. (citing Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 606

(Tenn. 2013) (collecting cases)).

Accordingly, the court determined that because Hawaiʻi

procedural law was not preempted by the FAA and the application

of Hawaiʻi law was "consistent with the parties' expectations

under the arbitration agreement," the order was an appealable

order and, thus, the court had jurisdiction to reach the merits

of the case. Id. at 333-34, 400 P.3d at 534-35.

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We note that, after recognizing that the underlying

order in Gabriel would not have been appealable under 9 U.S.C.

§ 16(b) had it been issued by a federal district court, the

Hawaiʻi Supreme Court stated, "This order, however, was issued in

our state circuit court. Under Hawaiʻi law, a circuit court

order compelling arbitration and staying proceedings is an

appealable final order over which our appellate courts have

jurisdiction." Id. at 333, 400 P.3d at 534 (first citing Kukui

Plaza, 68 Haw. at 107, 705 P.2d at 35; then citing UNIDEV, 129

Hawaiʻi at 392, 301 P.3d at 602).

However, reading this statement in context of the

Hawaiʻi Supreme Court's reasoning and holding, we do not

interpret Gabriel as standing for the proposition that Hawaiʻi

courts will apply Hawaiʻi procedural law merely because the case

was brought in a Hawaiʻi circuit court. Instead, as discussed

above, we conclude that the court's rationale for applying

Hawaiʻi procedural law turned on enforcing the parties' justified

expectations under the terms of the governing arbitration

agreement. See id. at 333-34, 400 P.3d at 534-35. This

interpretation of Gabriel is consistent with Volt and the public

policy animating the FAA. See Volt, 489 U.S. at 478

(recognizing "Congress' principal purpose" in enacting the FAA

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as "ensuring that private arbitration agreements are enforced

according to their terms").

In sum, the Gabriel court applied Hawaiʻi law

"consistent with the parties' expectations under the arbitration

agreement" because the arbitration agreement contained a choiceof-law provision selecting Hawaiʻi law. 140 Hawaiʻi at 333-34,

400 P.3d at 534-35. In this regard, Gabriel is distinguishable

from the instant case; here, the Terms of Use provide for

application of Texas law and the FAA, not Hawaiʻi law. See id.

In providing for the application of Texas law and the

FAA, the parties selected Texas law to "apply to any disputes

arising out of or relating to this Agreement or our Services,"

except that "the Arbitration Agreement in Section 15a . . .

shall be governed by the [FAA]." There is no mention of Hawaiʻi

law as governing either the Terms of Use or the arbitration.

See id.

"[N]ormally the designation of a locale will be

considered to be consent to the procedural law of the state, and

in particular its arbitration statute; an important exception to

this rule occurs when arbitration is held pursuant to the

[FAA]." 1 Domke on Commercial Arbitration § 20:1, at 616

(Jay E. Grenig ed., 2025).

For example, in Ercevik v. Don Wood Hyundai LLC, 265

N.E.3d 644, 646 (Ohio Ct. App. 2025), the Court of Appeals of

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Ohio considered whether it had jurisdiction over an appeal from

a state trial court's order staying proceedings and compelling

arbitration. The order at issue in Ercevik was not appealable

under the FAA, 9 U.S.C. § 16(b), but would have been appealable

under state law, Ohio Rev. Code § 2711.02(C) (2000) ("[A]n order

. . . that grants or denies a stay of a trial of any action

pending arbitration . . . is a final order and may be reviewed,

affirmed, modified, or reversed on appeal.").

Relying on state law, the Court of Appeals of Ohio

explained that "[a]n arbitration clause in a contract is

generally viewed as an expression that the parties agree to

arbitrate disagreements within the scope of the arbitration

clause, and, with limited exceptions, an arbitration clause is

to be upheld just as any other provision in a contract should be

respected." Ercevik, 265 N.E.3d at 648 (citation omitted).

There, the parties had agreed that the FAA, and not state law,

would govern the mandatory arbitration. Id. at 647. Indeed,

the parties expressly contracted that appealability was governed

by the FAA: "The arbitrator's decision is final and binding,

except for any right of appeal provided by the [FAA]. . . .

This Arbitration Clause is governed by the FAA and not by any

state arbitration law." Id. at 647.

The Ercevik court then distinguished cases where "the

parties have either made no specific choice of law or have

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specified that a state law governs their arbitration,"

explaining that "[i]n those cases, courts generally hold that

the appealability of an order compelling arbitration is governed

by state law, not the [FAA]." Id. at 650 (citing Wells v. Chevy

Chase Bank, F.S.B., 768 A.2d 620 (Md. 2001)).

Ultimately, the court concluded that "where the

parties have agreed to have the [FAA] govern their arbitration,

the federal preemption doctrine has no application and the

appealability of an arbitration order is governed by 9 U.S.C.

§ 16." Id. at 651. Accordingly, the appeal was dismissed for

lack of jurisdiction. Id.

Turning back to the instant case, we conclude that

giving full effect to Hills and Match Group's justified

expectations under the Terms of Use is consistent with Volt,

Gabriel, and Ercevik, as well as the legislative intent and

public policy animating the FAA. See Volt, 489 U.S. at 479;

Gabriel, 140 Hawaiʻi at 333, 400 P.3d at 534; Ercevik, 265 N.E.3d

at 651. Under the Terms of Use, Texas law and the FAA

exclusively govern any disputes arising between the parties,

including with regard to the appealability of the Stay Order.

See Airgo, 66 Haw. at 595, 670 P.2d at 1281.

Despite the apparent contradiction created by Texas

law's refusal to apply federal procedure when the FAA governs a

dispute, see Bison Bldg. Materials, 422 S.W.3d at 585 (quoting

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Anglin, 842 S.W.2d at 272), and the Terms of Use's exclusion of

Texas's conflict of laws rules when adopting Texas substantive

law to govern disputes arising from the Terms of Use and Plenty

of Fish's services, we need not conclusively decide whether the

FAA or Texas law governs the appealability of the Stay Order

because the FAA and Texas law are coextensive in that regard.

See 9 U.S.C. § 16(b); Tex. Civ. Prac. & Rem. Code § 51.016. In

either case, whether Texas law or the FAA provides the

procedural law governing this dispute is immaterial as the

outcome is the same: interlocutory appeal may not be taken from

an order staying proceedings and compelling arbitration. See

Johnson, 745 F.3d at 1020; Gathe, 879 S.W.2d at 362.

III. CONCLUSION

For the foregoing reasons, the Stay Order is not an

appealable order. Accordingly, we dismiss the appeal for lack

of appellate jurisdiction. No judgment will be entered in this

case.

On the briefs: /s/ Clyde J. Wadsworth

Presiding Judge

Oscar Hills IV,

Self-represented /s/ Sonja M.P. McCullen Plaintiff-Appellant. Associate Judge

Scott I. Batterman, /s/ Kimbery T. Guidry (Clay Iwamura Pulice & Associate Judge

Nervell),

for Defendant-Appellee.

Hills v. Match Group, Inc

Authorities cited

Opinion · public domain