Kemp v. Aroma360, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PORSCHE KEMP,
Plaintiff,
v.
AROMA 360, LLC,
Defendant.
Civil Action No.
25-cv-1630-ABA
MEMORANDUM OPINION
Plaintiff Porsche Kemp purchased a large, scented candle (55 oz, four wicks) on
the website aroma360.com. She alleges that it was defective: instead of the wicks
burning like a regular candle, the entire candle itself combusted, and burned her hands
and arms when she tried to extinguish the flames. She has sued Defendant Aroma 360,
LLC (“Aroma 360”) alleging claims of product liability, negligence, and gross negligence.
In response, Aroma 360 filed a motion to stay litigation and compel arbitration. For the
reasons that follow, Aroma 360’s motion will be granted.
I. 	Background1
On or about December 1, 2024, Kemp purchased the candle from Aroma 360
through its online storefront. ECF Nos. 6 ¶¶ 6, 8, 9. Kemp alleges that, when the candle
arrived in the mail, there were no instructions or warning labels on the inside or outside
of the cardboard box that contained the candle. Id. ¶¶ 10–11. Kemp alleges that the only
label was at the bottom of the candle in small text. Id. ¶ 12. Around Christmas 2024,
1 In deciding a motion to compel arbitration, “this Court must consider the facts and all
reasonable inferences in the light most favorable to the nonmoving party.” Caire v.
Conifer Value Based Care, LLC, 982 F. Supp. 2d. 582, 589 (D. Md. 2013) (citing Scott v.
Harris, 550 U.S. 372, 378 (2007)).
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Kemp lit the candle for the first time to test the smell. Id. ¶ 14. After approximately ten
minutes, Kemp smothered the candle to extinguish the flame and trimmed the wicks as
recommended. Id.
On or about February 9, 2025, Kemp lit the candle for a second time. Id. ¶ 15. She
alleges that after about ten to twenty minutes, she heard a fire alarm going off in the
room where the candle was lit. Id. The candle had a flame “over a foot high.” Id. Kemp
alleges that the candle from Aroma 360 did not come with a lid; so, she attempted to use
the lid from a nearby candle to extinguish the flame, but that lid was too small. Id. ¶¶
17–18. Around that time, Kemp’s two-year-old son ran into the room and began
screaming. Id. ¶ 19. In an attempt to get the candle away from her son, Kemp grabbed
the candle to move it to a nearby sink. Id. She alleges that, as soon as she moved the
candle slightly, “it shot up an eruption of flames and melted wax. The wax coated her
arms and caused second degree burns.” Id.
Kemp alleges that Aroma 360 was aware of the danger its candles posed due to
numerous social media posts and prior lawsuits but failed to take action to address any
defects. Id. ¶¶ 21–25.
In its motion to compel arbitration, Aroma 360 alleges that Kemp is subject to an
arbitration clause located within the “Terms of Service” that apply to purchases made
through its website. ECF No. 15-1 at 2. The “Terms of Service” link was posted at the
bottom of Aroma 360’s homepage and on various other pages including on the check-
out page for consumers making purchases through the website. Id. If one were to click
on the “Terms of Service” link, the opening cause directs users to “READ THESE
TERMS OF SERVICE CAREFULLY” and states that “BY ACCESSING, USING,
PURCHASING A PRODUCT ON, OR REGISTERING FOR THIS SITE, YOU AGREE TO
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BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL
TERMS, AGREEMENTS, GUIDELINES, AND DISCLOSURES INCORPORATED BY
REFERENCE.” Id. at 2–3. It further stated, “THESE TERMS OF SERVICE
INCLUDE AN AGREEMENT TO ARBITRATE ALL DISPUTES BETWEEN US.
SEE SECTION 16 BELOW FOR THE DETAILS OF OUR AGREEMENT TO
ARBITRATE.” Id. at 3 (bold in original). It also stated that the policies that customers
were agreeing to included Aroma 360’s “PRIVACY POLICY, COOKIE AND PIXEL
POLICY, SUBSCRIPTION POLICY, RETURN POLICY, AND SHIPPING POLICY.” Id.
And it instructed customers, “IF YOU DO NOT AGREE TO ALL OF THESE TERMS,
PLEASE DO NOT USE THE SITE OR PURCHASE ANY PRODUCTS ON THE SITE.” Id.
at 3.
The arbitration clause within the “Terms of Service,” in turn, reads as follows:
In the event of any dispute (other than one that is limited to
adjudicating small claims) between you and the Company that
relates in any way to or arises out of this or previous versions
of the Terms of Service, your use of or access to the Services,
the actions of the Company or its agents, or any products or
services sold, offered, or purchased through our Services, you
and the Company consent to arbitrate that dispute before a
single arbitrator under the then current rules of the American
Arbitration Association (AAA) in a location near the closest
AAA office to you or remotely if one is not reasonably
convenient to you or the Company, rather than litigate the
dispute in court. You and the Company also agree the Federal
Arbitration 	Act 	governs 	the 	arbitrability 	of 	all 	disputes
between you and the Company. If you do not want to be bound
by this arbitration provision, you must notify the Company in
writing by email to legal@Aroma360.com within 30 days of
the date you first agree to the Terms of Service, stating you do
not want to resolve disputes with the Company by arbitration.
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ECF No. 19 at 7. Aroma 360 contends that, given that Kemp’s complaint alleges
damages in excess of $75,000, the small claims exception (in the parenthetical in the
first sentence) would not apply, and Kemp did not opt out of the arbitration clause. Id.
at 3–4.
Kemp does not dispute the existence of the Terms of Service or the arbitration
agreement. She argues, however, that she should not be bound by the arbitration
agreement for three reasons: (1) the hyperlink to the terms of service was “small and
inconspicuous, and did not provide reasonable notice of a binding and enforceable
arbitration agreement,” (2) even if she was on notice of the arbitration provision she did
not “manifest[] . . . assent” to its terms, and (3) the arbitration provision “is ambiguous
and does not clearly extend to personal injury claims.” ECF No. 17-1 at 3, 5, 6.
In support of the first two arguments, she provided two screenshots of Aroma
360’s checkout page. One of the screenshots, pasted below, shows that the “Terms of
service” link was in gray text over a white background below the “Continue to shipping”
button. Id. at 4. The link was preceded by three links, “A360-Shipping and Returns
Policy,” “Shipping,” and “Privacy policy,” and was followed by one additional link,
“Cancellations.” Id.
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Id. (Fig. 2)
Plaintiff submitted the other screenshot to show that a customer is able to click
the “Continue to shipping” button without necessarily scrolling far enough down the
page to see the links to the shipping, returns, or cancellations policies, or to the link to
the “Terms of service,” which contains the arbitration agreement:
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Id. (Fig. 1).
After Aroma 360’s motion to compel arbitration was fully briefed, the Court
issued an Order noting that the Parties’ briefs appear to assume that Maryland law
applied to the question before the Court despite the fact that Aroma 360’s Terms of
Service appear to include a choice-of-law clause selecting Florida law. ECF No. 22. The
Court ordered supplemental briefing “to address at minimum (a) which state’s law
governs the enforceability or applicability of the Terms of Service, (b) caselaw from that
jurisdiction (if any) bearing on the questions presented by Defendant’s Motion, and (c)
in the absence of guidance from the applicable state’s courts, whether this Court should
certify one or more questions to the highest court of that state, and if so what those
certified question(s) should be.” Id. ¶ 1. In their supplemental briefs, the parties agreed,
although for different reasons, that the Court should apply Maryland law. ECF No. 23 at
3–5; ECF No. 24 at 3–4. In Kemp’s supplemental brief, she raises an additional
argument not raised in her initial response to the motion: that the arbitration agreement
lacked consideration, constituting an independent ground for the lack of an enforceable
agreement. ECF No. 24 at 4–6.
II. 	Standard of Review
“[M]otions to compel arbitration exist in the netherworld between a motion to
dismiss and a motion for summary judgment.” Shaffer v. ACS Gov’t Servs., Inc., 321 F.
Supp. 2d 682, 683 (D. Md. 2004). A motion to compel arbitration is treated as one for
summary judgment where “the formation or validity of the arbitration agreement is in
dispute,” Caire, 982 F. Supp. 2d. at 589, or where “the court must consider documents
outside the pleadings,” Shaffer, 321 F. Supp. 2d at 683–84; accord PC Constr. Co v. City
of Salisbury, 871 F. Supp. 2d 475, 477 (D. Md. 2012). See also Galloway v. Santander
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Consumer USA, Inc., 819 F.3d 79, 85 n.3 (4th Cir. 2016) (quoting Chorley Enters. v.
Dickey’s Barbecue Rests., 807 F.3d 553, 564 (4th Cir. 2015)) (stating that, under the
Federal Arbitration Act, a party seeking a jury trial “must show genuine issues of
material fact regarding the existence of an agreement to arbitrate,” a standard that is
“akin to the burden on summary judgment”).
A defendant who seeks to compel arbitration bears the burden of establishing the
existence of a binding contract to arbitrate the dispute. Minnieland Priv. Day Sch., Inc.
v. Applied Underwriters Captive Risk Assurance Co., Inc., 867 F.3d 449, 456 (4th Cir.
2017). Arbitration is “strictly a matter of consent”; there is no presumption in favor of
arbitration unless the defendant can show that there was an enforceable agreement.
Marshall v. Georgetown Mem’l Hosp., 112 F.4th 211, 217–18 (4th Cir. 2024) (citing
Lamps Plus, Inc. v. Varela, 587 U.S. 176, 184 (2019); Raymond James Fin. Servs. Inc.
v. Cary, 709 F.3d 382, 385–86 (4th Cir. 2013)).
III. 	Discussion
A. 	Choice-of-Law
In their supplemental briefs, both parties agree that the Court is to apply
Maryland law in the consideration of this motion although they reach that conclusion
for different reasons. ECF Nos. 23 & 24. Aroma 360 contends that both parties have
waived the application of the choice-of-law provision to this motion as neither raised it
in the briefing on the motion, neither cited to any Florida law in their briefing, and
Plaintiff filed the action in the state of Maryland rather than Florida. ECF No. 23 at 3–4.
Plaintiff contends that Maryland substantive law applies as questions regarding the
formation of a binding arbitration agreement are to be considered based on the forum
state’s contract principles. ECF No. 24 at 3. As the issue is uncontested and this
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conclusion is supported by law, the Court will apply Maryland principles on contract
formation.2
B. 	Did the parties form an agreement to arbitrate?
“Whether an agreement to arbitrate was formed is . . . a question of ordinary state
contract law principles.” Marshall, 112 F.4th at 218 (quoting Rowland v. Sandy Morris
Fin. & Est. Plan. Servs., LLC, 993 F.3d 253, 258 (4th Cir. 2021)). “[T]here is no question
that the digital age has changed the nature of contract formation. But [t]he fundamental
principles of contract law continue to apply. [T]he person asserting the contract’s
existence must demonstrate that the person alleged to be bound by the contract (1) had
reasonable notice of an offer to enter into the contract and (2) manifested assent to it.”
Dhruva v. CuriosityStream, Inc., 131 F.4th 146, 151 (4th Cir. 2025) (quoting Marshall,
112 F.4th at 218; Naimoli v. Pro-Football, Inc., 120 F.4th 380, 389 (4th Cir. 2024))
(internal quotations and citations omitted). This section first addresses whether the
website put Plaintiff Kemp on notice of “an offer to enter into” an arbitration agreement
and then turns to whether she manifested assent to it.
i. 	Notice
“While notice can be actual or constructive, ‘in the internet context, the
traditional notice inquiry focuses on the design and content of the relevant interface and
asks whether it would put a reasonably prudent user on notice of a contract on offer and
2 “[B]ecause application of a choice-of-law provision presupposes that the parties have
formed a binding arbitration agreement,” in determining whether an arbitration
provision is enforceable, the Court must apply state-law principles on contract
formation rather than a choice-of-law provision. Bailey v. Mercury Fin., LLC, 694 F.
Supp. 3d 613, 621 (D. Md. 2023) (citing Noohi v. Toll Bros., Inc., 708 F.3d 599, 607 (4th
Cir. 2013); Johnson v. Cont’l Fin. Co., LLC, 690 F. Supp. 3d 520, 525 (D. Md. 2023)).
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its terms.’” Naimoli, 120 F.4th at 389 (quoting Marshall, 112 F.4th at 218–19); see
Dhruva, 131 F.4th at 152. When determining whether a website put a user on sufficient
notice that a contract was “on offer,” courts generally consider five elements: “(1) the
simplicity of the screen; (2) the clarity of the disclosure; (3) the size and coloring of the
disclosure’s font; (4) the spatial placement of the hyperlink; and (5) the temporal
relationship to the user’s action.” Domer v. Menard, Inc., 116 F.4th 686, 695 (7th Cir.
2024) (citing Meyer v. Uber Techs., Inc., 868 F.3d 66, 77 (2d Cir. 2017)). “No single
factor is dispositive: the question is whether the website provided reasonable notice ‘in
light of the whole webpage.’” Id. (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220,
237 (2d Cir. 2016)). This is an objective standard; it turns on whether a reasonable user
of the website would have understood that there was “an offer to enter into the
contract,” not whether the plaintiff subjectively understood that fact. Dhruva, 131 F.4th
at 151.
“[C]ourts have rejected constructive notice claims based on information that
‘would have become visible to [users] only if they had scrolled to the next screen.’ Where
a user can complete her business on one screen, ‘there is no reason to assume that [she]
will scroll down to subsequent screens simply because screens are there.’” Marshall, 112
F.4th at 219 (quoting Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019);
Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002)) (internal citations
omitted). In contrast, “when a website provides clear and reasonably conspicuous notice
that there are contract terms available by scrolling down or clicking a hyperlink, the user
is on reasonable notice of those terms even if she never reads them.” Id. at 220.
In Marshall, on which Kemp principally relies in objecting to arbitration, the
plaintiff submitted a job application for a company to which she had applied for a
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different position four years prior and had been rejected. Id. at 214. When she logged
into the application portal, the information from her prior application pre-populated
but the portal allowed her to update certain items as needed. Id. The portal had a
“submit” button at the top of the webpage allowing the plaintiff to submit her updated
application. Id. If the plaintiff were to scroll further down the page, she would have seen
the pre-employment statement containing an arbitration agreement that she had signed
four years prior and did not require a renewed signature for this new application. Id.
The Fourth Circuit affirmed the denial of the defendant’s motion to compel arbitration,
finding that the defendant failed to establish notice or assent. Id. at 218. On the issue of
notice, the court stated that the plaintiff “may well have known that there was
‘unexplored’ territory below the screens on which she was operating” but “without more,
she was not on inquiry notice that this territory included a contract offer and she was
not obliged to go exploring for one.” Id at 219–20 (citing Specht, 306 F.3d at 32). “While
a person signing a physical contract ‘will rarely be unaware of that fact,’ a person using
the internet ‘may not realize that she is agreeing to a contract at all,’ or that contract
terms appear on submerged screens or through hyperlinks.” Id. at 220 (quoting Sgouros
v. TransUnion Corp., 817 F.3d 1029, 1034–35 (7th Cir. 2016)).
In Dhruva, the Fourth Circuit found that notice had been provided where “the
terms of use hyperlink [was] printed in orange on an uncluttered background, close to
the payment tabs that the customer ha[d] to fill out and the button that the customer
ha[d] to click and [n]othing about the website design or layout obscure[d] the
conspicuous location of the Terms of Use hyperlink.” Dhruva, 131 F.4th at 152 (internal
quotations omitted).
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In this case, the link was on an uncluttered screen and in approximately the same
font size as the other text on the checkout page. It was underlined. And, of particular
significance, it was listed among hyperlinks to other documents that contain terms to
which Kemp was agreeing by purchasing the candle, including the “Shipping and
Returns Policy,” the “Shipping” terms, and the “Cancellations” policy. In other words,
Kemp was bound by, for example, the returns policy that a customer would see by
clicking on the “Shipping and Returns Policy.” For the same reason that she was on
sufficient notice of those contractual terms to be bound by them, there is no plausible
way to distinguish between that link and the link to the “Terms of service” document:
both put any reasonable user on notice of the terms contained therein.
To avoid this conclusion, Kemp principally relies on the location of these links:
below the “Continue to shipping” button, as opposed to above them or within the
borders of that button. She correctly observes that this is a weaker form of notice than
in, for example, Dhruva, where above the “Sign up now” button for that smartphone app
the screen stated, “By subscribing to Curiosity Stream, you agree that you’ve read our
Terms of Use and Privacy Policy.” 131 F.4th at 150. But the website here was also
sufficient to put a reasonable user on notice of the Terms of Service. Although Kemp’s
screenshots show an example of how one could possibly click the “Continue to shipping”
button without seeing any of the links on the bottom, the hyperlink here was directly
below the button to place the purchase. The slightest scroll further down would have
revealed the links, which Kemp admits would be an even shorter distance if the website
was accessed on a smartphone rather than a computer. This was not the type of
“unexplored territory” on “subsequent screens” that the Fourth Circuit was concerned
about in Marshall. See ECF No. 17-1 at 3–4. And although the hyperlink was in a gray
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color, rather than orange or blue in other cases, see Dhruva, 131 F.4th at 152; Meyer,
868 F.3d at 78, the font color was still clearly visible on the white background.
Therefore, Aroma 360 has sufficiently shown that the webpage that Kemp used to
purchase the candle put a reasonable user on notice of the Terms of Service.
ii. 	Assent
Having put a reasonable user on notice that there were contractual terms “on
offer” does not necessarily establish that such a user was bound by them. Aroma 360
must also establish that Kemp “assented to those terms and conditions.” Naimoli, 120
F.4th at 389. Although assent to a contract can be manifested through words or conduct,
“that does not mean that every use of a website—every purchase, download, application,
or the like—can reasonably be understood as consent to contractual terms.” Marshall,
112 F.4th at 222. “Instead, courts ‘have emphasized the importance of clearly signaling
to the [user] in some fashion that, by continuing with the transaction or by using a
website, she will be agreeing to the terms contained’ in an accompanying contract.” Id.
(citing Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., 999 F.3d 828, 837 (2d
Cir. 2021)). “But that does not mean the button must be labeled “I accept” or “I agree.””
Dhruva, 131 F.4th at 155 (citing Marshall, 112 F.4th at 222).
In Edmundson v. Klarna, Inc., the Second Circuit articulated three factors as
relevant for determining whether one’s conduct in the context of web-based contracts
constituted assent: “(1) whether the interface clearly warned the user that taking a
specific action would constitute assent to certain terms;” “(2) whether notice of the
contractual terms was presented to the consumer in a location on the interface and at
[a] time when the consumer would expect to receive such terms;” “and (3) the ‘course of
dealing between the parties,’ including whether the contract terms were conspicuously
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presented to the consumer at each use of the offeror’s service and the consumer’s
conduct in response to the repeated presentation of conspicuous terms.” 85 F.4th 695,
704–05 (2d Cir. 2023) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 124, 127 (2d
Cir. 2012)) (collecting cases) (internal citations omitted). Based on these factors, the
court found that the plaintiff had manifested assent where the hyperlink was adjacent to
the “confirm and continue” button, the interface was uncluttered, and the terms were
presented at a time when a reasonable user would expect to receive them. Id. at 707–08.
The Court only has before it screenshots with a button stating “Continue to
shipping,” not the final button before purchase on Aroma 360’s website. Nonetheless,
the Court finds that Kemp manifested her assent through her purchase of the candle.
The Terms of Service hyperlink was clearly conveyed among other hyperlinks relating to
the purchase of the product, as discussed above. Just as a reasonable customer
purchasing a candle from Aroma 360’s website assents to the company’s return and
cancellation policies by proceeding with a purchase, Kemp assented (and manifested
such assent) to the Terms of Service by clicking the “Continue to shipping” button and
purchasing the candle. Aroma 360 has sufficiently shown that Kemp manifested her
assent to the Terms of Service.
iii. 	Conscionability
Given that “[a]n arbitration agreement is ‘valid and enforceable, and is
irrevocable, except upon grounds that exist at law or in equity for the revocation of a
contract,’” under Maryland law “‘contract defenses, such as . . . unconscionability, may
be asserted in court to invalidate an arbitration agreement.’” Rankin v. Brinton Woods
of Frankford, LLC, 241 Md. App. 604, 620–21 (2019) (quoting Md. Code Ann., Cts. &
Jud. Proc. § 3-206; Henry v. Gateway, Inc., 187 Md. App. 647, 658 (2009)). The party
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opposing arbitration has the burden to demonstrate that the arbitration agreement was
unconscionable. Id. at 621 (citing Henry, 187 Md. App. at 658).
“There are two aspects of unconscionability—procedural and substantive—both of
which must exist for a court to decline to enforce an arbitration provision.” Id. at 621–
22 (citing Doyle v. Fin. Am., LLC, 173 Md. App. 370, 383 (2007)). “Procedural
unconscionability ‘concerns the process of making a contract and includes such devices
as the use of fine print and convoluted or unclear language, as well as deficiencies in the
contract formation process, such as deception or a refusal to bargain over contract
terms.’” Id. at 622 (quoting Stewart v. Stewart, 214 Md. App. 458, 477 (2013)).
“Substantive unconscionability, on the other hand, ‘refers to contractual terms that are
unreasonably or grossly favorable to the more powerful party and includes terms that
attempt to alter in an impermissible manner fundamental duties otherwise imposed by
the law.’” Id. (quoting Stewart, 214 Md. App. at 477–78).
Kemp argues that the arbitration clause is procedurally unconscionable because
(a) it was ambiguous with respect to whether it applies to personal injury claims and (b)
it failed to provide consumers with reasonable notice of a right to opt-out. ECF No. 17-1
¶¶ 14–20. As to the first argument, Kemp contends that “[a]rbitration clauses are
typically used in commercial contexts, not for personal injury claims” and thus a
“reasonable consumer would not read this provision as clearly covering such claims.” Id.
¶ 18. As to the second argument, Kemp cites to Mattingly v. Hughes Elec. Corp., 147
Md. App. 624 (2002) and Guanyu Li v. StockX.com, 349 F. Supp. 3d 517 (D. Md. 2018),
to argue that Aroma 360 provided insufficient notice of the opt-out provision based on
the provision being “buried” “within an inconspicuous hyperlink, impairing Plaintiff’s
ability to locate or understand her rights.” ECF No. 17-1 at ¶¶ 19–20.
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Both arguments fail. First, the language of the arbitration provision clearly states
that it applies to “any dispute (other than one that is limited to adjudicating small
claims) between [a consumer] and [Aroma 360] that relates in any way to or arises
out of . . . any products or services sold, offered, or purchased through our Services.”
Id. at 7 (emphases added). This language unambiguously conveys that a personal injury
claim based on the use of a product purchased from Aroma 360, unless adjudicated as a
small claim, would be covered by the arbitration provision.
Second, the opt-out term provides clear instructions for how and when a
consumer can opt-out of the arbitration provision, and the cases cited by Kemp are
inapplicable. The Appellate Court of Maryland in Mattingly held that, without notice of
an amendment to the terms of service to add an arbitration provision that was not
previously in the terms, those amended terms could not apply to the plaintiff. 147 Md.
App. at 636–37. Kemp does not contend that Aroma 360 changed its Terms of Service to
add the arbitration provision after she made her purchase. In Guanyu Li, Judge Bredar
granted the motion to compel arbitration despite noting that, under Michigan law, an
arbitration clause may be unconscionable where it requires the submission of a specific
form in order to opt out of arbitration but the form was not provided within the
agreement; Judge Bredar instead rejected as a matter of law the argument that the
provision was substantively unreasonable. 349 F. Supp. 3d at 523–24. The opt-out
provision here is even clearer than that in Guanyu Li. Aroma 360 provided the exact
means of opting out (a written email), to whom it should be sent
(legal@Aroma360.com), by when it needed to be sent (“within 30 days of the date you
first agree to the Terms of Service”), and what needed to be included in the email (a
statement that “you do not want to resolve disputes with the Company by arbitration”).
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ECF No. 17-1 at 7. Kemp did not send such an email. Kemp’s unconscionability defense
fails as a matter of law.
iv. 	Consideration
After the Court ordered the parties to file supplemental briefs on which state’s
law governs the issues presented by Aroma 360’s motion to compel arbitration, Aroma
360 filed its supplemental brief first (as ordered) and Kemp filed hers second. See ECF
Nos. 22–24. In Kemp’s supplemental brief, she raised for the first time an argument
that the arbitration agreement lacked valid consideration due to its change-of-terms
clause, and cited Trimble v. Entrata, Inc., 791 F. Supp. 3d 615 (D. Md. 2025). During
the motions hearing, Aroma 360 argued that Kemp waived this argument by not raising
it in her response brief to the motion and instead raising it in a supplemental brief to
which Aroma 360 would be unable to respond without leave from the Court. Kemp
argued that under United States v. Henderson, 159 F.4th 213 (4th Cir. 2025) and Patten
Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380 F.3d 200 (4th Cir. 2004), this
Court should hold that, because Kemp raised the argument in response to an order for
supplemental briefing, the argument should not be considered to have been forfeited.
Henderson was considering the Federal Rules of Criminal Procedure, which
explicitly provide that a district court “may, for good cause, allow a party to make a new
objection at any time before sentence is imposed.” Fed. R. Crim. P. 32(i)(1)(D). It was on
the basis of that rule that the Fourth Circuit held that the government’s inclusion of a
request for a sentencing enhancement when the district court requested supplemental
briefing was permitted. Henderson, 159 F.4th at 219. Given that the Federal Rules of
Civil Procedure provides no such “good cause” exception, the Court finds that
Henderson does not apply. See Fed R. Civ. P. 8(d), 15(d). In Patten Grading, the Fourth
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Circuit held that a plaintiff was not prejudiced when a defendant filed a motion to
compel arbitration within four months of the start of litigation despite filing an answer
and beginning discovery. 380 F.3d at 208–09. The filing of a late motion to compel
arbitration for which both parties are still afforded the opportunity to present
arguments on the motion on both procedural and substantive grounds presents a
different scenario from an argument raised in a final supplemental brief to which Aroma
360 would be prejudiced based on its inability to brief this new argument without
further leave from the Court.
Raising a new claim or defense in a reply or supplemental brief based on an
intervening court decision generally is allowable as the failure “reflects not a lack of
diligence, but merely a want of clairvoyance.” Joseph v. United States, 574 U.S. 1038,
1039 (2014) (denying petition for writ of certiorari); see United States v. White, 836
F.3d 437, 443 (4th Cir. 2016). Not only was Trimble published two months prior to the
filing of Kemp’s response brief, but Kemp cited to it in that brief to support her
argument on assent. ECF No. 17-1 ¶ 11. Accordingly, Kemp could have, and should have,
raised the argument on consideration at the time of her response brief. Because the
argument was raised only in supplemental briefing regarding the choice-of-law
provision, the Court will consider that argument to have been forfeited.
IV. 	Conclusion
For the aforementioned reasons, Aroma 360’s motion to compel arbitration will
be granted. A separate order follows.
Date: February 24, 2026 	________________________
Adam B. Abelson
United States District Judge
/s/
Case 1:25-cv-01630-ABA Document 28 Filed 02/24/26 Page 17 of 17