MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Procedural History

Presently before the Court is a Motion to Compel Arbitration in an underlying state action arising from the death of federal Defendant’s husband. (See generally Pl.’s Mot. to Compel Arb., Doc. 2; see also Am. Compl., Doc. 11, Ex. J (underlying state complaint).)

According to Plaintiffs uncontradicted representations, on January 26, 2012, John Batz “became a resident of Tremont Health and Rehabilitation Center.” (Brief in Supp. of Mot. to Compel Arb., Doc. 3, at 1.) Upon his admission to the Center, John’s wife, Faith Batz, signed certain documents related to his admission, one of which was an Alternative Dispute Resolution (“ADR”) Agreement. {Id. at 2.) The Agreement provided in relevant part that “[t]he Parties voluntarily agree that any disputes covered by this Agreement (herein after referred to as “Covered Disputes”) that may arise between the Parties shall be resolved exclusively by an ADR process that shall include mediation and, where mediation does not successfully resolve the dispute, binding arbitration.” (Def.’s Resp. to Mot. to Compel Arb., Doc. 7, Ex. A., at 1 (Alternative Dispute Resolution Agreement).) Covered Disputes are defined as “any and all disputes arising out of or in any way related to this Agreement or to the Resident’s stay at the Center that would constitute a legally cognizable cause of action in a court of law sitting in the Commonwealth of Pennsylvania, including but not limited to “tort; ... negligence; gross negligence; malpractice; death or wrongful death and any alleged *488departure from any applicable federal, state, or local medical, health care, consumer or safety standards.” (Id., Ex. A, at 2.) The Agreement further emphasized, in a paragraph requiring separate acknowledgment:

THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT BY ENTERING INTO THIS AGREEMENT THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTE DECIDED BY A COURT OF LAW OR TO APPEAL ANY DECISION OR AWARD OF DAMAGES RESULTING FROM THE ADR PROCESS EXCEPT AS PROVIDED HEREIN. THIS AGREEMENT GOVERNS IMPORTANT LEGAL RIGHTS. YOUR SIGNATURE BELOW INDICATES YOUR UNDERSTANDING OF AND AGREEMENT TO THE TERMS SET OUT ABOVE. PLEASE READ IT COMPLETELY, THOROUGHLY AND CAREFULLY BEFORE SIGNING.

(Id., Ex. A, at 4.) This paragraph was individually initialed by Faith Batz and by a representative of the Tremont Center, (see id., Ex. A), and the full agreement was signed by the same, (see id., Ex. A, at 5.)

In mid-February, while at the Tremont Center, John Batz allegedly suffered a deep tissue injury which deteriorated into “necrotizing fasciitis with Fourniers gangrene,” requiring transfer to a hospital and multiple operations. (Doc. 11, Ex. J, at ¶¶ 21-26.) “By March 5, 2012, [Batz] had developed a large open wound that extended from his sacrum to his perineum.” (Id., Ex. J, at ¶ 28.) At this point, Mr. Batz “was discharged from [the hospital] to home hospice where he died 8 days later on or about March 24, 2012.” (Id., Ex. J, at ¶ 29.) His wife then filed a state court action individually and as administra-trix of his Estate.

The Tremont Center in turn filed this federal action to stay the state court proceedings and to compel Mrs. Batz to arbitrate. (Id. at 8.) Tremont argued that by bringing an action in state court, Mrs. Batz “ignored the valid and enforceable ADR Agreement she executed on behalf of her husband, which obligated her, as the Administratrix of her husband’s estate, to resolve any disputes she had with the Center by using the ADR process in accordance with that ADR Agreement.” (Doc. 3 at 3.)

On the basis of the memoranda that the parties have filed so far, there are two unresolved disputes concerning the Motion to Compel, to wit:

a. Whether ADR Agreement was properly executed when it was signed by Faith Batz, rather than John Batz, and

b. Whether the ADR Agreement is enforceable through a federal action to compel arbitration, either (i) according to its written terms or (ii) under the Pennsylvania Superior Court’s recent decision in Pisano v. Exten-dicare Homes, Inc., 77 A.3d 651 (Pa.Super.Ct.2013).

II. Analysis

a. Validity of Faith Batz’s Signature1

As an initial matter, it is indisputable that John Batz did not sign the ADR *489Agreement, even though- he is named as a party to it. (See Doc. 7, Ex. A, at 1 (“This Alternative Dispute Resolution ... Agreement ... is entered into by Extendicare Health Services, Inc. on behalf of its parents, affiliates, and subsidiaries including Tremont Health & Rehab Center ..., a nursing facility, and John Bate, a Resident at the Center[.]”).) The signature page clearly bears the signature of Faith Bate, above the signature lines “Legal Representative for Healthcare Decisions” and “Legal Representative for Financial Decisions,” respectively. (Id., Ex. A, at 5.)

Under well-known agency principles, an agency relationship “arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) of Agency § 1.01. “There are four grounds upon which a [factfinder] can conclude that an agency relationship exists and that the principal is bound by a particular act of the agent and liable to third parties on the basis thereof.” Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215, 1221 (1987). That is, an agency relationship can be based on (1) express authority, (2) implied authority, (3) apparent authority, or (4) authority that the principal is estopped from denying. Id. Indeed, the signature page of the ADR Agreement that Faith Batz signed in the spaces providing for execution by a “Legal Representative” expressly states that, if the Agreement is signed by a Legal Representative, “the representative certifies that the Center may reasonably rely upon the validity and authority of the Representative’s signature based upon actual, implied or apparent authority to execute this Agreement as granted by the Resident.” (Doc. 7, Ex. A, at 5.)

“Whether an agency relationship exists is a question of fact” that will vary from case to case. Bolus, 525 A.2d at 1221. Thus, even though Defendant cites cases where a principal did not grant authority to a purported agent sufficient to create an agency relationship, (see Def.’s Resp. to Mot. to Compel Arb., Doc 7-1, at 24), such factual contingencies are not binding in the instant case.

On the contrary, in the instant case the Court has evidence of the following facts, from the sworn Affidavit of Nurse Jayne Kintzel, which Plaintiff provided in its Reply Brief to the Motion to Compel Arbitration. (See generally Affidavit of Jayne Kintzel, LPN, Doc. 13, Ex. A.) Nurse Kintzel testifies that, upon meeting John Batz before his admission to the Tremont Center, she “noticed that Mr. Batz was blind.” (Id., Ex. A, at ¶ p.) Subsequently, when she “attempted to present the [intake] documents, including the ADR Agreement, to Mr. Batz for his signature, he said that, since he cannot see, that his wife should sign for him.” (Id., Ex. A, at ¶ 8.) Mrs. Batz subsequently reviewed and signed the documents. (See id. at ¶¶ 9-11.) Moreover, because Mr. Batz was present throughout the entire time required for his wife to review and sign all of the intake documents, Nurse Kintzel believed that “Mr. Batz knew that his wife *490signed the paperwork related to his admission to Tremont for him and, to [Kintzel’s] knowledge, he did nothing after she signed the documents on his behalf to indicate that she did not have his authority to do so.” (Id., Ex. A, at ¶ 15.)2

Because Kintzel’s testimony was first raised in a reply brief, and because Defendant never sought leave to file a sur-reply, the Court ordered a conference call with counsel on January 22, 2014 to determine to what extent Kintzel’s statements were in dispute. Counsel for the Defendant informed the Court that Defendant does not dispute the following facts; that John Batz was blind and had no other mental infirmities, (see Unofficial Tr., Jan. 22, 2014, at 3:5-6); that John told Kintzel that his wife should sign the Agreement, (see id. at 3:10-11); that Faith Batz had the opportunity to read and review the documents related to her husband’s admission, and signed all such documents, (see id. at 3:14, 19-21); that John was present throughout this entire process, (see id. at 4:5-8); and that John took no further action after his wife signed the documents, (see id. at 4:9-12).3

On the basis of the undisputed factual portions of Kintzel’s testimony, the Court finds sufficient evidence to establish that Faith Batz had express authority to sign these documents on her husband’s behalf. “Express authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters.” Walton v. Johnson, 66 A.3d 782, 786 (Pa.Super.Ct.2013). John Batz’s grant of authority could not be any more deliberate or specific than requesting his wife to sign documents for him, in the presence of third parties, and then waiting for her to fulfill his request. There is, moreover, no evidence that such statements were not made willfully, knowingly, or intelligently. Accordingly, Defendant’s claim that Faith Batz’s signature invalidates the Agreement is unavailing. She may not avoid arbitration on this basis.

b. Enforceability of the ADR Agreement

i. Whether the Agreement Requires an Initial Submission to State Court

Next, Defendant argues that, under the terms of the ADR Agreement, the case must proceed to a Pennsylvania state court before proceeding to arbitration. (Def.’s Mem. of Law Contra Interstate Commerce Nexus, Doc. 22, at 2.) This is based on a paragraph in the Agreement that states as follows:

*4915. Governing Law. Except as may be otherwise provided herein, this Agreement shall be governed by the terms of the Pennsylvania Uniform Arbitration Act which is set forth at 42 Pa. Cons.Stat. §§ 7301 et seq. If for any reason there is a finding that Pennsylvania law cannot support the enforcement of this Agreement, then the parties agree to resolve their disputes by arbitration (and not by recourse to a court of law) pursuant to the Federal Arbitration Act (9 U.S.C. Sections 1-16) and the Federal Arbitration Act shall apply to this Agreement and all arbitration proceedings arising out of this Agreement, including any action to compel, enforce, vacate, or confirm any proceeding and award or order of an arbitrator. The mediation and/or arbitration location shall occur in the Commonwealth of Pennsylvania, in the county in which the Center is located unless otherwise agreed by the Parties.

(Doc. 7, Ex. A, at 2.)

Defendant’s argument is somewhat difficult to follow, but appears to essentially allege that the above clause “does not even invoke the FAA” but relies only on Pennsylvania law via its references to the Pennsylvania Uniform Arbitration Act (PUAA). (Doc. 22 at 1.) Defendant then interprets the clause as requiring that a state court must first make a determination as to whether Pennsylvania law supports the enforcement of the arbitration agreement. (Id. at 2.) “Before the FAA can be even invoked by Plaintiff, there must be such a finding according to the terms and conditions of the agreement itself.” (Id.) However, according to the Defendant, even if Pennsylvania law would allow arbitration, the Agreement is still not necessarily subject to arbitration, because a court could still “enforce the agreement” while — for some unexplained reason- — -ignoring the arbitration clause and submitting the case to a jury trial instead. (Id.) This outcome purportedly arises from an ambiguity in the phrase “enforcement of this agreement,” although Defendant does not explain just what this ambiguity is. (See id.)

Defendant’s argument, however, runs directly contrary to the purpose of the Federal Arbitration Act, as interpreted by clear and binding Supreme Court precedent. The FAA provides, in pertinent part, that a

written provision in ... a contract evidencing a transaction involving commerce4 to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

The Supreme Court has “held that the FAA pre-empts state laws which ‘require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.’ ” Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984)). “The preeminent concern of Congress in passing the [FAA] was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate....” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, *492105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985).

Moreover, agreeing to abide by the PUAA’s arbitration procedures should not be interpreted as contractual bypass of the FAA or as a requirement that a dispute subject to an arbitration agreement be submitted first to state court. As the Third Circuit held while upholding the enforceability of a very similar5 arbitration agreement, “parties may contract to arbitrate pursuant to arbitration rules or procedures borrowed from state law, and the federal policy [under the FAA] is satisfied so long as their agreement is enforced.” Ario, 618 F.3d at 288 (internal alterations omitted) (quoting Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 292 (3d Cir.2001)).

Indeed, [preventing the enforcement of agreements to arbitrate under different rules than those set forth in the FAA itself] would be quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which arbitration may be conducted. 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 ...

Volt, 489 U.S. at 479, 109 S.Ct. 1248 (internal citations omitted).

Under this clear precedent, the Court can find no support for Defendant’s argument that this case should proceed in state court. Nor is there any ambiguity in the agreement that could justify nullifying the arbitration clauses. Read in the context of the full agreement, which, as discussed above, is a clear waiver of trial rights and an agreement to arbitrate, the “Governing Law” clause simply establishes that the rules enumerated in the PUAA or, failing that, the FAA, will govern any arbitration proceeding. The Defendant’s conclusory allegations of “ambiguity” cannot negate the clear meaning of the Agreement or undercut Congress’s “principal purpose [in enacting the FAA] of ensuring that private arbitration agreements are enforced according to their terms.” Id.

ii. Applicability of Pisano v. Extendicare Homes

However, this does not end the inquiry. While Plaintiffs Motion remained pending before the Court, the Pennsylvania Superior Court decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super.Ct.2013). Defendants first brought the case to the Court’s attention in a reply to a request for briefing on an unrelated issue, (see Doc. 22 at 3), and the issue was then extensively briefed by both parties, (see Docs. 25, 28, 29).

In Pisano, the Superior Court held that a wrongful death claim may not be sent to arbitration on the basis of an ADR agreement signed by the decedent or his agent, even if the agreement at issue called for wrongful death claims to be submitted to arbitration, and even if a survival claim arising out of the same occurrence must be sent to arbitration under the terms of the agreement, because wrongful death claims, *493unlike survival claims, are not “derivative of the rights of the decedent.” Pisano, 77 A.3d at 663. The court held that, under Pennsylvania law, a wrongful death claim “shall exist only for the benefit of the spouse, children or parents of the deceased.” Id. at 656 (quoting 42 Pa. Cons.Stat. Ann. § 8301(b)). This is different from a survival action, where “[t]he recovery of damages stems from the rights of action possessed by the decedent at the time of death.” Id. at 658 (quoting Moyer v. Rubright, 438 Pa.Super. 154, 651 A.2d 1139, 1141 (1994)). Thus, whereas the decedent can contract away his own right to recover in court under a survival action and thereby limit such an action to arbitration, he cannot so alienate the rights of third parties to recover in their own wrongful death actions. Id. at 661 (“In the case sub judice, Appellee does not have an agreement with Belair to arbitrate. Belair’s agreement is between it and Decedent alone. Regardless of Belair’s intent, Pennsylvania’s wrongful death statute ... does not characterize Appellee and other wrongful death claimants as third-party beneficiaries. It is, therefore, clear under relevant contract law that the trial court herein properly refused to compel arbitration [Hjolding otherwise would operate against the principles of Pennsylvania contract law and the FAA.”).

Thus, according to the Pisano court, even though it is true that both Pennsylvania and the FAA favor agreements to arbitrate, this “liberal federal policy favoring arbitration” was “not intended to render arbitration agreements more enforceable than other contracts.” Id. at 660-61. Allowing the decedent to contract away the rights of third parties who are not the beneficiaries of an arbitration agreement would indeed undo traditional contract principles and make arbitration agreements much more powerful than other agreements, solely by virtue of the fact that they concern arbitration.

1. Faith Batz’s Signature is Irrelevant under Pisano

Plaintiff seeks to avoid Pisano first by arguing that “it has no application in the instant case because the ADR agreement was not signed by the decedent but by his wife.” (Pl.’s Supp. Brief in Resp. to Def.’s Mem. of Law Contra Interstate Commerce Nexus, Doc. 25, at 5-6.) This argument fails for two reasons.

First, the Pisano court made no distinction as to who signed the contract, as long as the person signing it was acting as an agent. Its opinion indicates that the ADR agreement at issue was signed by “Jamie Pisano, the decedent’s daughter” on the decedent’s behalf (i.e., as his agent). Pisano, 77 A.3d at 653. The fact that the decedent did not physically sign the document played no role in the court’s analysis.

Second, even if the Pisano facts were otherwise, the clear message of the decision is that a party can only alienate the rights it actually possesses. As discussed above, Plaintiff has already argued — and the Court agrees—that Faith Batz was acting as her husband’s agent when she signed the ADR Agreement. All that she was doing was to assist John Batz in the exercise of his own rights, not to exercise any of her own. Because she was acting on John’s behalf — and not her own — when she signed the' agreement, the fact that she put her own signature on paper can have no legal significance. Nor is it significant that Mrs. Batz later filed the state action both individually and as administratrix of her husband’s estate, as Plaintiff insinuates. (Doc. 25 at 6.) Clearly, the individual claims are severable from those of the estate, and under Pisano they must be so severed.

*4942. Pisano Represents the Law of Pennsylvania

The next issue to resolve is whether Pisano is properly binding on this Court as the law of Pennsylvania. “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The scope of state contract law is obviously the type of matter in which the federal court must apply the law of the state. However, the analysis is somewhat complicated by the fact that “when, as here, the highest state court has not yet authoritatively addressed the critical issue our disposition of such cases must be governed by a prediction of how the state’s highest court would decide were it confronted with the problem.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661 (3d Cir.1980). In making such a prediction, decisions of lower state courts “should be accorded ‘proper regard,’ of course, but not conclusive effect.” Id. at 662. Accordingly, this Court is not automatically bound by the Pisano opinion if there is reason to predict that the Pennsylvania Supreme Court would interpret the law differently.

In the case of Grbac v. Reading Fair Co., 688 F.2d 215 (3d Cir.1982), the Third Circuit came to the opposite conclusion as Pisano and held that “the wrongful death action is purely derivative,” meaning that the Pennsylvania Wrongful Death Act does not create “a separate claim on behalf of the surviving spouse and children which is not affected by the decedent’s execution of a pre-mortem release.” See id. at 216-17. The Circuit concluded that a nineteenth-century Pennsylvania Supreme Court case, Hill v. Pennsylvania R.R. Co., 178 Pa. 223, 35 A. 997 (1896), “is still the controlling law of Pennsylvania” and prevents recovery for wrongful death claims when a decedent had executed a pre-mortem release for his own personal injuries and death. Grbac, 688 F.2d at 217. In Hill, the Pennsylvania Supreme Court held that, in a wrongful death claim, “the right of action conferred is for the death of the party injured” and that the decedent’s representative brings the legal claim only as a matter of obvious practical necessity, rather than because wrongful death is the representative’s own cause of action. Hill, 35 A. at 998.

However, as pointed out in Pisano, though Hill correctly interpreted the Pennsylvania Wrongful Death Act at the time of it decision, the Act was subsequently amended in 1911 to distinguish between wrongful death actions and survival actions. Pisano, 77 A.3d at 656. Thus, in Hill, the Court represented the relevant statute as follows:

Sec. 18. That no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction. Sec. 19. That whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for, and recover damages for, the death thus occasioned.

Hill, 35 A. at 998. Conversely, the modern Wrongful Death Act reads as follows:

(a) General rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful vio*495lence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

(b) Beneficiaries. — Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.

42 Pa. Cons.Stat. Ann. § 8301(a)-(b).

The juxtaposition of the two statutes indicates a shift from vesting statutory rights in the decedent to vesting them in the decedent’s statutorily enumerated beneficiaries. See also Frey v. Pa. Elec. Co., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992) (“In contrast [to a survival action], wrongful death is not the deceased’s cause of action.... Wrongful death damages are implemented to compensate the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.”). The Pennsylvania Supreme Court has repeatedly emphasized the same, in the context of issues closely related to the one at hand. See, e.g., Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181, 185 (1981) (“As distinguished from the wrongful death statutes, the survival statutes do not create a new cause of action; they simply permit a personal representative to enforce a cause of action which had already accrued to the deceased before his death.”); Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942) (“[Survival and wrongful death actions] are entirely dissimilar in nature. The one represents a cause of action unknown to the common law and is for the benefit of certain enumerated relatives of the person killed by another’s negligence The other is not a new cause of action at all, but merely continues in his personal representative the right of action which accrued to the deceased at common law because of the tort”); see also Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992) (holding, on the basis of Pezzulli, supra, that, because “the two actions are designed to compensate two different categories of claimants,” bringing “the two causes of action by one named person, the administrator herein” does not subject “the respective parties to the $250,000.00 aggregate damage limitation cap”); Keystone Aerial Surveys, Inc. v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 574 Pa. 147, 829 A.2d 297, 301-02 (2003) (agreeing with the interpretation that Tulewicz, supra, construed the damage limitation cap as a “ ‘per-plaintiff cap,” and thereby reaffirming the independence of each claim).

In light of the foregoing, the Court finds the Pisano decision to be a more persuasive interpretation of Pennsylvania law than the Grbac decision. Though this Court is normally bound by all precedential decisions from the Third Circuit, this is not the case when it interprets the law of a sovereign state under Erie. In such situations, Third Circuit decisions that do not constitute the law of the instant case carry only persuasive value. See Aceto v. Zurich Ins. Co., 440 F.2d 1320, 1321-22 (3d Cir.1971) (“The matter in dispute is the correct interpretation of Pennsylvania law. While this court must *496often undertake such interpretation, final authority upon all such matters is vested in the highest court of the Commonwealth. No one may properly rely upon what we have held as more than persuasive on a question of Pennsylvania law so long as the Pennsylvania Supreme Court has not ruled upon that legal question.”) (emphasis added); Hittle v. Scripto-Tokai Corp., 166 F.Supp.2d 159, 162 (M.D.Pa.2001) (summarizing relevant case law and then “assuming] without deciding that we are not strictly bound by [Third Circuit predictions of state law] and that we are free to make a contrary prediction”). Here, because the Hill case on which Grbac relied has been plainly superseded by later amendments to the wrongful death statute and because a review of Pennsylvania Supreme Court ease law discloses that, over the past half century, it has consistently treated wrongful death claims as independent claims derived from the rights of a different plaintiff than the decedent, the Court predicts that the Pennsylvania Supreme Court would not adopt Grbac as state law. Rather, the Court predicts that the Pennsylvania Supreme Court would adopt Pisano as Pennsylvania’s state law, when given the chance.

Finally, Plaintiff objects that Pisano cannot accurately state the law of Pennsylvania because it represents a radical departure from “100 years of jurisprudence” that would have the effect of invalidating a host of arbitration, settlement, and liability release agreements as they relate to wrongful death claims. (See Doc. 25 at 11-12.)

This argument must fail also, as it overlooks the fact that Pisano is ultimately a case about contract law, not arbitration. It is hard to imagine a principle better established through hundreds of years of common law than the principle that a party may only alienate through contract his rights to those things within his lawful control. Just as, absent an agency relationship, a person may not sign a contract to sell his neighbor’s house, so he may not sign a contract to waive his neighbor’s trial rights. See also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 (2002) (“The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it does not require parties to arbitrate when they have not agreed to do so It goes without saying that a contract cannot bind a nonparty. Accordingly, the proarbitration goals of the FAA do not require the agency to [arbitrate] if it has not agreed to do so.”).6 Therefore, even if it is true that many existing Pennsylvania agreements submit wrongful death claims to arbitration, such agreements have always been in conflict with established contract law. Pi-sano may, arguably, be belated in explicitly making this point. But even if it is, belatedness cannot be conflated with radicalism.

iii. The FAA Requires Bifurcation

The FAA “requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (1983). Accordingly, the United States Supreme Court has held that, when a defendant has two substantive disputes with separate plaintiffs arising from the same incident, and only one of those plaintiffs is subject to an arbitration agreement, then, as a matter of law under the FAA, the two claims must be heard in separate forums. Id. at 19-20, 103 S.Ct. 927.

Under the Arbitration Act, an arbitration agreement must be enforced not*497withstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement. If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital’s two disputes will be resolved separately — one in arbitration, and the other (if at all) in state-court litigation.

Id. at 20, 103 S.Ct. 927. Such piecemeal litigation is required “irrespective of any concomitant decline in judicial efficiency.” Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 309 (3d Cir.2009).

Defendant notes these precedents but argues that the Court should decline to compel arbitration anyway, citing the inefficiency rationale that both the Supreme Court and Third Circuit have explicitly rejected. {See Doc. 29 at 2.) As the Supreme Court and Third Circuit precedents make clear, the policy of the FAA is not efficiency per se, but rather the promotion of arbitration, from which an incidental benefit is often — but not necessarily always — efficiency. See, e.g., Volt, 489 U.S. at 478, 109 S.Ct. 1248 (“The FAA was designed to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.”) (internal quotations and citations omitted).

Therefore, it is necessary to divide the Complaint for resolution. The Wrongful Death claims (Counts I and III) cannot be arbitrated under Pennsylvania law as stated in Pisano v. Extendicare Homes. On the other hand, as Defendant has provided no colorable reason why the Survival Action claims (Counts II and IV) cannot be arbitrated, the Court shall compel arbitration as to these latter claims.

III. Conclusion

Based on the foregoing considerations, Plaintiffs Motion to Compel Arbitration (Doc. 2) is GRANTED as to the Survival Action claims only. A separate Order follows.

ORDER

AND NOW, THIS 23RD DAY OF JANUARY, 2014, in accordance with the Court’s Memorandum Opinion, IT IS HEREBY ORDERED THAT:

1. Plaintiffs Motion to Compel Arbitration (Doc. 2) is GRANTED IN PART AND DENIED IN PART, to wit:

a. The Motion is GRANTED as to the Survival Action Claims (Counts II and IV).

b. The Motion is DENIED as to the Wrongful Death Claims (Counts I and III).

2. The state-court action is STAYED and arbitration is COMÍPELLED as to the Survival Action claims.

3. The Clerk of Court is DIRECTED to close the case.

OPINION

PAEZ, Circuit Judge:

Plaintiff Mavrix; Photographs (“Mav-rix”) appeals the district court’s summary judgment in favor of Defendant LiveJour-nal. Mavrix sued LiveJournal for posting twenty of its copyrighted photographs online. The district court held that the Digital Millennium Copyright Act’s (“DMCA”) § 512(c) safe harbor protected LiveJournal from liability because Mavrix’s photographs were stored at the direction of the user. 17 U.S.C. § 512(c).

To be eligible at the threshold for the § 512(c) safe harbor, LiveJournal must show that the photographs were stored at the direction of the user. Although users submitted Mavrix’s photographs to LiveJournal, LiveJournal posted the pho*1049tographs after a team of volunteer moderators led by a LiveJournal employee reviewed and approved them. Whether these photographs were truly stored at the direction of the user, or instead whether LiveJournal is responsible for the photographs, depends on whether the acts of the moderators can be attributed to LiveJournal. The issue we must decide is whether the common law of agency applies to LiveJournal’s safe harbor defense. The district court ruled that the common law of agency does not apply to this analysis. We disagree and conclude that it does. As there are genuine factual disputes regarding whether the moderators are LiveJournal’s agents, we reverse the district court’s summary judgment and remand for trial.

Because the district court ruled on the remaining elements of the safe harbor, we also proceed to discuss those elements in order to provide guidance to the district court and parties on remand. Finally, we vacate the district court’s order denying discovery of the moderators’ identities because the agency determination may affect this analysis.

I.

LiveJournal1

LiveJournal is a social media platform. Among other services, it allows users to create and run thematic “communities” in which they post and comment on content related to the theme. LiveJournal communities can create their own rules for submitting and commenting on posts.

LiveJournal set up three types of unpaid administrator roles to run its communities. “Moderators” review posts submitted by users to ensure compliance with the rules.2 “Maintainers” review and delete posts and have the authority to remove moderators and users from the community. Each community also has one “owner” who has the authority of a maintainer, but can also remove maintainers.

LiveJournal protects against copyright infringement in its communities through various mechanisms. LiveJournal follows the formal notice and takedown procedures outlined in the DMCA by designating an agent and form to report infringement, and by promptly removing infringing posts and prohibiting repeat abusers from the community. 17 U.S.C. § 512(c)(1)(C). LiveJournal’s Terms of Service instructs users not to “[u]pload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret,' copyright or other proprietary rights.”

Oh No They Didn’t! (“ONTD”)

ONTD is a popular LiveJournal community which features up-to-date celebrity news. Users submit posts containing photographs, videos, links, and gossip about celebrities’ lives. ONTD moderators review and publicly post some of the submissions. Other users engage in conversations about the celebrity news in the comments section of each post. For example, one of the ONTD posts at issue contained photographs that Mavrix had taken which appeared to show that super-celebrity Bey-oncé was pregnant. Users speculated in the comments section of that post that Beyoncé was indeed pregnant.3

*1050Like other LiveJournal communities, ONTD created rules for submitting and commenting on posts. ONTD’s rules pertain to both potential copyright infringement and substantive guidance for users. For example, one rule, instructs users to “[i]nclude the article and picture(s) in your post, do not simply refer us off to another site for the goods.” Another rule provides “Keep 'it recent. We don’t need a post in 2010 about Britney Spears shaving her head.” ONTD’s rules also include a list of sources from which users should not copy material. The sources on the list have informally requested that ONTD stop posting infringing material. ONTD has also automatically blocked all material from one source that sent ONTD a cease and desist letter.

ONTD has nine moderators, six maintainers, and one owner. ONTD users submit proposed posts containing celebrity news to an internal queue. Moderators review the submissions and publicly post approximately one-third of them. Moderators review for substance, approving only those submissions relevant to new and exciting celebrity news. Moderators also review for copyright infringement, pornography, and harassment.

When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. Li-veJournal was not involved in the day-today operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJour-nal’s attention. By a significant margin, ONTD is LiveJournal’s most popular com-ihunity and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it.4

As the “primary leader,” Delzer instructs ONTD moderators on the content they should approve and selects and removes moderators on the basis of their performance. Delzer also continues to perform moderator work, reviewing and approving posts alongside the other moderators whom he oversees. While Delzer is paid and expected to work full timé, the other moderators are “free to leave and go and volunteer’ their time- in any way they see fit.” In his deposition, Mark Ferrell, the General Manager of LiveJournal’s U.S. office, explained that Delzer “acts in some capacities as a sort of head maintainer” and serves in an “elevated status” to the other modferators. Delzer, on the other hand, testified at his deposition that he does not serve as head moderator and that ONTD has no “primary leader.”

Mavrix

Mavrix is a celebrity photography company specializing in candid photographs of celebrities in tropical locations. The company sells ' its photographs to celebrity magazines. According to Mavrix, infringement of its photographs is particularly devastáting to its business model. Since Mavrix’s photographs break celebrity news, such as the pregnancy of Beyoneé, infringing posts on sites like ONTD pre*1051vent Mavrix from profiting from the sale of the photographs to celebrity magazines.

Procedural History

Mavrix filed an action for damages and injunctive relief against LiveJournal alleging copyright infringement on the basis of twenty Mavrix photographs posted on ONTD. ONTD posted the photographs in seven separate posts between 2010 and 2014. Some of these photographs contained either a generic watermark or a specific watermark featuring Mavrix’s website “Mavrixonline.com.” To the best of his recollection, Delzer did not personally. approve the seven posts. LiveJournal has no technological means of determining which moderator approved any given post. Mav-rix did not utilize LiveJoumal’s notice and takedown procedure to notify LiveJournal of the infringements. When Mavrix filed this lawsuit, LiveJournal removed the posts.5

During discovery, Mavrix filed two motions to compel responses to its interrogatories seeking the identity of the ONTD moderators. The magistrate judge denied the first motion, finding that Mavrix had not met and conferred with LiveJournal in good faith. The magistrate judge denied the second motion to compel because Mav-rix failed to notify the anonymous monitors of the pending motion. Mavrix moved the district court for review of the magistrate judge’s order, which the district court denied on the basis of the moderators’ First Amendment right to anonymous internet speech.

LiveJournal moved for summary judgment on the basis of the § 512(c) safe harbor. The district court granted LiveJ-ournal’s motion and denied Mavrix’s cross-motion for partial summary judgment, concluding that the § 512(c) safe harbor shielded LiveJournal from- .liability for copyright infringement. Mavrix timely appealed.

II.

We review de novo a district court’s grant of summary judgment. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014) (citing Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013)). We must determine, “viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id.

The district court’s denial of a motion to reconsider a magistrate judge’s pretrial discovery order under Federal Rule of Civil Procedure 72(a) will be reversed only if “clearly erroneous or contrary to law.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (citing Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002)).

III.

A.

The DMCA strikes a balance between the interests of “copyright holders in benefitting from their labor; ... entrepreneurs in having the latitude to invent new technologies without fear of being held liable if their innovations are used by others in unintended infringing ways; and those of the public iii having access [to] both .... ” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1037 (9th Cir. 2013). The DMCA balances these interests by requiring , service providers to take down infringing materials when copyright *1052holders notify them of the infringement and by limiting service providers’ liability for unintentional infringement through several safe harbors. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).

The DMCA established four safe harbors to “provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” Id. at 1076-77 (citing 17 U.S.C. § 512(a)-(d)). LiveJournal claimed protection from damages under the § 512(c) safe harbor for “infringement of copyright by reason of the storage [of material] at the direction of a user.” 17 U.S.C. § 512(c)(1). To be eligible at the threshold for the § 512(c) safe harbor, a service provider must show that the infringing material was stored “at the direction of the user.” 17 U.S.C. § 512(c)(1).6 If it meets that threshold requirement, the service provider must then show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not receive a “financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” Id. 7 Because the § 512(c) safe harbor is an affirmative defense, LiveJournal must establish “beyond controversy every essential element,” and failure to do so will render LiveJournal ineligible for the § 512(c) safe harbor’s protection. See S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003); see also UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1013 (9th Cir. 2013).

B.

1.

LiveJournal must make a threshold showing that Mavrix’s photographs were stored at the direction of the user. “Storage,” in this context, has a unique meaning. Congress explained that “[e]xamples of such storage include providing server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users.” S. Rep. 105-190, at 43 (1998). We have held that storage “encompasses the access-facilitating processes” in addition to storage itself. Shelter Capital, 718 F.3d at 1016 (rejecting a claim that the safe harbor addresses mere storage lockers). We reasoned that rather than requiring “that the infringing conduct be storage,” the statutory language allows for infringement “by reason *1053 of the storage at the direction of a user.” Id. (emphasis added). The district court held that although moderators screened and publicly posted all of the ONTD posts, the posts were at the direction of the user. The district court focused on the users’ submission of infringing photographs to LiveJournal rather than LiveJoumal’s screening and public posting of the photographs. A different safe harbor, § 512(a), protects service providers from liability for the passive role they play when users submit infringing material to them. 17 U.S.C. § 512(a); see, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1116 (9th Cir. 2007) (describing infringing material passively and temporarily placed on a computer server as within the § 512(a) safe harbor). The § 512(c) safe harbor focuses on the service provider’s role in making material stored by a user publicly accessible on its site. See Shelter Capital, 718 F.3d at 1018; S. Rep. No. 105-190, at 43-44 (1998). Contrary to the district court’s view, public accessibility is the critical inquiry. In the context of this case, that inquiry turns on the role of the moderators in screening and posting users’ submissions and whether their acts may be attributed to LiveJ-ournal.

2.

Mavrix, relying on the common law of agency, argues that the moderators are LiveJournal’s agents, making LiveJournal hable for the moderators’ acts. The district court erred in rejecting this argument.

“[Statutes are presumed not to disturb the common law, ‘unless the language of a statute [isj clear and explicit for this purpose.’ ” State Eng’r of Nev. v. S. Fork Band of Te-Moak Tribe of W. Shoshone Indians of Nev., 339 F.3d 804, 814 (9th Cir. 2003) (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983)). Pursuant to this principle, the Supreme Court and this court have applied common law in cases involving federal copyright law, including the DMCA. The Supreme Court has applied the common law of agency in interpreting the Copyright Act. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). We have applied the common law of vicarious liability in analyzing the DMCA, reasoning that Congress intended that the DMCA’s “limitations of liability” be interpreted “under existing principles of law.” Ellison, 357 F.3d at 1076-77 (quoting S. Rep. 105-190, at 19 (1998)). We have also applied the common law of agency to determine a service provider’s intent to infringe under the DMCA. Fung, 710 F.3d at 1038.

Along with other courts, we have applied agency law to questions much like the question of LiveJournal’s liability for the moderators’ acts. We applied agency law to determine whether a service provider was responsible under the DMCA for copyright infringement by its employees. Fung, 710 F.3d at 1038. The Tenth Circuit applied agency law to determine whether a service provider was responsible under the DMCA for copyright infringement by its contractors. See BWP Media USA, Inc. v. Clarity Dig. Grp., LLC, 820 F.3d 1175, 1180 (10th Cir. 2016).8 Finally, a district *1054court applied agency, law to determine whether a service provider was responsible under the DMCA for the acts of moderators. Columbia Pictures Indus., Inc. v. Fung, No. CV 06-5578 SVW(), 2009 WL 6355911, at *13 n.21 (C.D. Cal. Dec. 21, 2009), aff'd in part, 710 F.3d 1020 (9th Cir. 2013).9 We therefore have little difficulty holding that common law agency principles apply to the analysis of whether a service provider like .LiveJournal is liable for the acts .of the ONTD moderators.

3.

In light of the summary judgment record, we conclude that there are genuine issues of material fact as to whether the moderators are LiveJournal’s agents. The factual dispute' is evident when we apply common law agency principles to the evi-dentiary record.-

“Agéncy is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third). Of Agency § 1.01 (Am. Law Inst. 2006). For an agency relationship to exist, an agent must have authority to act on'behalf of the principal and “[t]he person represented [must have] a right to control the actions of the agent.” Restatement (Third) Of Agency § 1.01, cmt. c (Am. Law Inst. 2006).

An agency relationship may be created through actual or apparent authority. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 878 (9th Cir. 2014) (citing Restatement (Third) of Agency §§ 2.01, 2.03, 4.01 (Am. Law Inst. 2006)), cert. granted, — U.S. —, 135 S.Ct. 2311, (191 L,Ed.2d 977, 2015), and aff'd, — U.S. —, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016). Actual authority arises through “the principal’s assent that the agent take action on the principal’s behalf.” Restatement (Third) of Agency § 3.01 (Am. Law Inst. 2006). LiveJournal argues that it did not assent to the moderators acting on its behalf. Mavrix, however, presented .evidence'that LiveJournal- gave its moderators explicit and varying levels of authority to screen posts. Although LiveJournal calls the moderators “volunteers,” the moderators performed a vital function in LiveJ-ournal’s business model.10 There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users, may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model. LiveJournal also provides three different levels of authority: moderators review posts to ensure they contain celebrity gossip arid not pornography or harassment, maintainers delete posts and can remove moderators, and owners can remove maintainers. Genuine *1055issues of material fact therefore exist regarding whether the moderators had actual authority.

Apparent authority arises by “a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, when a third party reasonably believes the actor to be authorized and the belief is traceable to the manifestation.” Restatement (Third) of Agency § 3.03 (Am. Law Inst. 2006); see also Hawaiian Paradise Park Corp. v. Friendly Broad. Co., 414 F.2d 750, 756 (9th Cir. 1969). “The principal’s manifestations giving rise to apparent authority may consist of direct statements to the third person, directions to the agent to tell something to the third person, or the granting of permission to the agent to perform acts ... under circumstances which create in him a reputation of authority.” Hawaiian Paradise Park, 414 F.2d at 756.

LiveJournal selected moderators and provided them with specific directions. Mavrix presented evidence that LiveJour-nal users may have reasonably believed that the moderators had authority to act for LiveJournal. One user whose post was removed pursuant to a DMCA notice complained to LiveJournal “I’m sure my entry does not violate any sort of copyright law. ... I followed [ONTD’s] formatting standards and the moderators checked and approved my post.” The user relied on the moderators’ approval as a manifestation that the post complied with copyright law, and the user appeared to believe the moderators acted on behalf of LiveJournal. Such reliance is likely traceable to LiveJ-ournal’s policy of providing explicit roles and authority to the moderators. Accordingly, genuine issues of material fact exist regarding whether there was an apparent authority relationship.

Whether an agency relationship exists also depends on the level of control a principal exerts over the agent. See Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 2657-58, 186 L.Ed.2d 768 (2013) (referring to control as one of “the basic features of an agency relationship”); United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010) (explaining that the “the extent of control exercised by the employer” is the “essential ingredient” in determining an agency relationship) (quoting NLRB v. Friendly Cab Co., 512 F.3d 1090, 1096 (9th Cir. 2008).) Evidence presented by Mavrix shows that LiveJournal maintains significant control over ONTD and its moderators. Delzer gives the moderators substantive supervision and selects and removes moderators on- the basis of their performance, thus demonstrating control. Delzer also exercises control over the moderators’ work schedule. For example, he added a moderator from Europe so that there would be a moderator who could work while other moderators slept. Further demonstrating LiveJournal’s control over the moderators, the moderators’ screening criteria derivé from rules ratified by LiveJournal.11

On the other hand, ONTD moderators “are free to leave and go and volunteer their time in any way they see fit.” In addition, the moderators can reject submissions for reasons other than those provided by the rules, which calls into question the level of control that LiveJournal exerts over their conduct. This evidence raises genuine issues .of material-fact re*1056garding the level of control Live Journal exercised over the moderators. From the evidence currently in the record, reasonable jurors could conclude that an agency relationship existed.

4.

We turn briefly to a related issue that the fact finder must resolve in the event there is a finding that the moderators are agents of LiveJournal. In that event, the fact finder must assess whether Mavrix’s photographs were indeed stored at the direction of the users in light of the moderators’ role in screening and posting the photographs. Infringing material is stored at the direction of the user if the service provider played no role in making that infringing material accessible on its site or if the service provider carried out activities that were “narrowly directed” towards enhancing the accessibility of the posts. See UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F.Supp.2d 1081, 1092 (C.D. Cal. 2008); see also Shelter Capital, 718 F.3d at 1018. Accessibility-enhancing activities include automatic processes, for example, to reformat posts or perform some technological change. Shelter Capital, 718 F.3d at 1020 (referring to accessibility-enhancing activities as those where the service provider did “not actively participate in or supervise file uploading”). Some manual service provider activities that screen for infringement or other harmful material like pornography can also be accessibility-enhancing. Id. at 1012 n.2. Indeed, § 512(m) of the DMCA provides that no liability will arise from “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity.” Id. at 1022 (quoting 17 U.S.C. § 512(m)).12

The ONTD moderators manually review submissions and publicly post only about one-third of submissions. The moderators review the substance of posts; only those posts relevant to new and exciting celebrity gossip are approved. The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing.

* ¾? #

Because the district court focused on the users’ submission of Mavrix’s photographs rather than on ONTD’s role in making those photographs publicly accessible and rejected Mavrix’s argument that unpaid moderators could be agents of LiveJour-*1057nalr the district court erred in granting summary judgment to LiveJournal. Genuine issues of material fact exist as to whether the moderators were LiveJour-nal’s agents. Accordingly, remand is warranted. In assessing Live Journal’s threshold eligibility for the § 512(c) safe harbor, the fact finder must resolve the factual dispute regarding the moderators’ status as LiveJournal’s agents and in light of that determination, whether LiveJournal showed that Mavrix’s photographs were stored at the direction of the users.

C.

Once the district court concluded that the moderators were not LiveJournal’s agents (except for its employee Delzer), it proceeded to address the two remaining disputed requirements for establishing the § 512(c) safe harbor defense-lack of knowledge of infringements and lack of any financial benefit from infringement that it had the right and ability to control. Because these issues may be contested on remand, we proceed to address them to provide guidance to the district court.

1.

If LiveJournal shows that it meets the threshold requirement for the § 512(c) safe harbor because the photographs were stored at the direction of the user, LiveJ-ournal must then show that it lacked both actual and red flag knowledge of the infringements. See 17 U.S.C. § 512(c)(1)(A). Actual knowledge refers to whether the service provider had subjective knowledge, while red flag knowledge turns on whether a reasonable person would objectively know of the infringements. Shelter Capital, 718 F.3d at 1025 (quoting YouTube, Inc., 676 F.3d at 31). Both actual and red flag knowledge refer to knowledge of the specific infringement alleged. Id. at 1023, 1025.

On remand, the fact finder must first determine whether LiveJournal had actual knowledge of the infringements. A copyright holder’s failure to notify the service provider of infringement through the notice and takedown procedure, as Mavrix failed to do here, “strip[s] it of the most powerful evidence of [actual] knowledge.” Id. at 1020 (quoting Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1107 (W.D. Wash. 2004)). Such evidence is powerful, but - not conclusive, towards showing that a Service provider lacked actual knowledge. Id. at’ 1021. The district court held that LiveJournal lacked actual knowledge of the infringing nature of Mav-rix’s photographs solely on the basis of Mavrix’s failure to notify LiveJournal of the infringements. This was an incomplete assessment of the issue. To fully assess actual knowledge, the fact finder should also assess a service provider’s subjective knowledge of the infringing nature of the posts. See, e.g., id. at 1025 (continuing to assess knowledge). Delzer testified that he did not remember approving the posts, and Mavrix did not establish that he had actual knowledge of them, but Mavrix has not had the ■ opportunity to depose the moderators. On remand, the fact finder should determine whether LiveJournal, through its agents, had actual knowledge of the infringing nature of the posts.

In the event the fact finder determines that LiveJournal lacked actual knowledge of the infringements, it must then assess whether LiveJournal lacked red flag knowledge. Red -flag knowledge arises when a service provider is “aware of facts that would have made the specific infringement ‘objectively’ obvious to a reasonable person.” Fung, 710 F.3d at 1043 (quoting YouTube, 676 F.3d at 31); see also UMG Recordings, Inc. v. Veoh Networks Inc., 665 F.Supp.2d 1099, 1111 (C.D. Cal. 2009) (describing red flag knowledge *1058as a “high bar”). The infringement must be immediately apparent to a non-expert. See Veoh Networks Inc., 665 F.Supp.2d at 1108; H.R. Rep. 105-551, pt. 2 at 58- (1998) (explaining that infringements must be “apparent from even a brief and casual viewing”). Some of the photographs at issue in this, case contained either a generic watermark13 or a watermark containing Mavrix’s website, “Mavrixonline.com.”14 To determine whether LiveJournal had red flag knowledge, the fact finder should assess if it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a sendee provider’s website was infringing.

2.

Finally, if 'the fact finder determines that LiveJournal met the § 512(c) safe harbor threshold requirement (i.e., that the photographs were stored at the direction of the user, see 17 U.S.C. § 512(c)(1)), and that LiveJournal lacked knowledge of the infringements (see 17 U.S.C. § 512(c)(1)(A)), then the fact finder should determine whether LiveJournal showed that it did not financially benefit from infringements that it had the right and ability to' control. See 17 U.S.C. § 512(c)(1)(B).

We agree with the district court in Io Group, Inc. v. Veoh Networks, Inc. that the fact finder should consider the service provider’s procedures that existed at the time of the infringements when assessing the service provider’s right and ability to control the infringements. 586 F.Supp.2d 1132, 1153 (N.D. Cal. 2008). The fact finder should consider the service provider’s general practices, not its conduct with' respect to the specific infringements.15 See Shelter Capital, 718 F.3d at 1023, 1030.

“Right and ability to control” involves “something more than the ability to remove or block access to materials posted on a service provider’s website.” Id. (quoting YouTube, Inc., 676 F.3d at 38). The service provider does “something more” when it exerts “high levels of control over activities of users.” Id. The service provider exerts “high levels of control,” for example, when it, “prescreens sites, gives them extensive advice, prohibits the proliferation of identical sites,” provides “detailed instructions regarding] issues of layout, appearance, and content,” and ensures “that celebrity images do not over-saturate the content.” Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1173, 1182 (C.D. Cal. 2002); see also Shelter Capital, 718 F.3d at 1030, cited *1059 with approval in Perfect 10, 213 F.Supp.2d 1146.16

The district court concluded that LiveJ-ournal did not have high levels of control such that it had “something more” than the right and ability to remove or block access to material posted on ONTD. LiveJ-ournafs rules instruct users on the substance and infringement of their posts. The moderators screen for content and other guidelines such as infringement. Nearly two-thirds of submitted posts are rejected, including on substantive grounds. In determining whether LiveJournal had the right and ability to control infringements, the fact finder must assess whether LiveJour-nal’s extensive review process constituted high levels of control to show “something more.”

LiveJournal must also show that it did not derive a financial benefit from infringement that it had the right and ability to control. See 17 U.S.C. § 512(c)(1)(B). “In determining whether the financial benefit criterion is satisfied, courts should take a common-sense, fact-based approach, not a formalistic one.” S. Rep. No. 105-190, at 44 (1998). The financial benefit need not be substantial or a large proportion of the service provider’s revenue. Ellison, 357 F.3d at 1079. In Fung, we held that a financial benefit was shown when “there was a vast amount of infringing material on [the service provider’s] websites ... supporting an inference that [the service provider’s] revenue stream is predicated on the broad availability of infringing materials for [its] users, thereby attracting advertisers.” 710 F.3d at 1045. On the other hand, the service provider in that case, “promoted advertising by pointing to infringing activity” and “attracted primarily visitors who were seeking to engage in infringing activity, as that is mostly what occurred on [the service provider’s] sites.” Id. . .

LiveJournal derives revenue from advertising based on the number of views ONTD receives. Mavrix presented evidence showing that approximately 84% of posts on ONTD contain infringing material, although LiveJournal contested the validity of this evidence. The fact- finder should determine whether LiveJournal financially benefitted from infringement that it had the right and ability to control.

D.

Mavrix also challenges the denial of its motions to compel responses to interrogatories seeking the identities 'of the moderators. The magistrate judge denied both of Mavrix’s motions, and on review, the district" court upheld the denial, reasoning that the moderators had a First Amendment interest in internet anonymity. When a district court denies reconsideration of a pretrial discovery order under Federal Rules of Civil Procedure 72(a), our review is deferential. Upon review of such a ruling we will disturb it only if the complaining party shows clear legal error and actual and substantial prejudice. See Arizona v. City of Tucson, 761 F.3d 1005, 1009 n.2 (9th Cir. 2014); In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (describing the standard as “highly deferential”). In determining whether First Amendment protections for anonymous speech outweigh the need for discovery, we have applied a multi-factor balancing test. See, e.g., In re Anonymous Online Speakers, 661 F.3d at 1174-76 (describing balancing factors).

Notwithstanding the. deferential standard of review and complex issues of law that govern this discovery, ruling, we vacate the district court’s order denying the *1060motion and remand for further consideration. Whether the moderators are agents should inform the district court’s analysis of whether Mavrix’s need for discovery outweighs the moderators’ interest in anonymous internet speech. Given the importance of the agency analysis to the ultimate outcome of the case, and the importance of discovering the moderators’ roles to that agency analysis, the district court should also consider alternative means by which Mavrix could formally notify or serve the moderators with process requesting that they appear for their deposition at a date and time certain.

IV.

For the foregoing reasons, we reverse the district court’s grant of summary judgment to LiveJournal, vacate its order denying discovery, and remand for further proceedings consistent with this opinion.

REVERSED, VACATED and REMANDED.

ORDER GRANTING MOTIONS TO DISMISS

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this putative class action, defendants have filed motions to dismiss all of plaintiffs’ claims. Plaintiffs allege claims for violations of California’s unfair competition law, breach of contract, breach of fiduciary duty, unjust enrichment and restitution, and accounting. Defendants have shown that plaintiffs failed to plead injury in fact, so they lack standing to pursue claims under California’s unfair competition law. Plaintiffs have failed to allege the terms of the contract on which they base their claims for breach of contract, and what terms within those contracts defendants allegedly breached. Plaintiffs have also not pleaded a claim for breach of fiduciary duty, and have failed to plead facts to support their claim for unjust enrichment. Because plaintiffs’ other claims fail, so too does their claim for an accounting. Accordingly, defendants’ motions to dismiss are GraNted. Plaintiffs will be allowed to file a motion for leave to file a third amended complaint.

STATEMENT

Plaintiffs Bernard Paul Parrish, Herbert Anthony Adderley, and Walter Roberts III are retired professional football players (Second Amd. Compl. ¶¶ 4-6). Parrish resides in Florida, Adderley resides in New Jersey, and Roberts resides in California {ibid.). Plaintiffs purport to bring this action on behalf of a class of retired National Football League players.

Defendant National Football League Players Association is a Virginia corporation that acts as a union for NFL players {id. at ¶ 7). Allegedly, nearly all active NFL players give the NFLPA the right to market their names and images pursuant to the NFLPA’s collective bargaining agreement {id. at ¶ 9). National Football League Players Incorporated, doing business as Players Inc., is a subsidiary of the NFLPA that is responsible for marketing and licensing {id. at ¶ 8). Players Inc. purports to market active and retired players by licensing them images for purposes such as trading cards, video games, television and radio programming, personal appearances, autograph signings, internet sites, and events {ibid.). The NFLPA owns approximately 79% of Players Inc. {id. at ¶ 10, Exh. A).

Retired NFL players, such as plaintiffs, are given the opportunity to join the NFLPA by paying annual dues {id. at ¶ 9). The complaint contains no allegation that plaintiffs paid dues to the NFLPA within the statute of limitations. Later-filed declarations show that Adderley and Parrish did pay dues (Collins Dec!. ¶¶2-3). The NFLPA allegedly promotes a “Retired Players Group Licensing Program” in which the NFLPA offers third parties the right to license the images, likenesses, and names of retired players in groups of six or more {ibid.). Plaintiffs allege that the number of retired players represented by NFLPA is not known {id. at 1Í12).

Allegedly, to participate in the NFLPA’s Retired Players Group Licensing Program, retired players are given the opportunity to sign group licensing agreements, or GLAs, with the NFLPA {id. at ¶ 17). These agreements are then assigned to Players Inc., however, plaintiffs allege that some retired NFL players have signed GLAs directly with Players Inc. {ibid.). Parrish and Adderley allege that they have signed a number of GLAs with the NFLPA {id. at ¶¶4-5). Plaintiffs do not *1087specifically identify when Parrish or Adderley signed GLAs, although a GLA signed by Parrish in 1998 is attached to the complaint as an example agreement (id. at ¶ 16, Exh. D). Parrish alleges that he “has copies of the GLAs he signed in 1997 and 1998 and believes, and therefore alleges, that he signed GLAs in recent years” (Comply 54). Nowhere in the complaint does Roberts allege that he ever signed a GLA.

Plaintiffs plead that defendants have unfairly competed and wrongfully interfered with retired players’ licensing opportunities. They allege that the NFLPA and Players Inc. dominate the market for licensing the names and likenesses of current and former NFL players, and that the NFLPA’s licensing agreements, including one with Topps for trading cards, require exclusive dealing with the NFLPA (id. at ¶ 30). Plaintiffs allege that the NFLPA has another exclusive licensing deal with Electronic Arts, producer of a professional football-themed videogame (id. at ¶32). Defendants allegedly held themselves out as the only avenue for licensing the names and images of retired NFL players (id. at ¶ 35).

Only 358 out of 3,500 retired players received payments from Players Inc. in 2005 (id. at ¶ 20). Plaintiffs allege that a substantial portion of the revenue received from licensing the names, likenesses and images of retired NFL players was diverted from the players themselves (id. at ¶ 2 1). Defendants have revealed very little information to plaintiffs about their licensing practices and the fate of any revenue that defendants receive (id. at ¶ 27). A change in government-mandated labor reporting practices has made defendants release more information about licensing starting in 2005 (ibid.). Plaintiffs also allege that Players Inc. has diverted licensing revenue to the NFLPA, and that defendants have not distributed revenue from licensing in an equitable manner (ibid.).

This action was filed on February 14, 2007, by plaintiffs Parrish and Adderley against Players Inc. Defendant NFLPA was not originally a party to this action. A first amended complaint was filed on February 23, 2007, adding Roberts as a plaintiff. Players Inc. answered on April 2, 2007. Thereafter, Players Inc. filed a motion to transfer venue, a motion for judgment on the pleadings, and a motion for sanctions against plaintiffs. At the same time, plaintiffs filed a motion to appoint interim class counsel. An order dated June 4, 2007, denied defendant’s motion for judgment on the pleadings without prejudice, denied defendant’s motion to transfer venue, and denied defendant’s motion for sanctions. Plaintiffs’ motion to appoint interim counsel was also denied. Plaintiffs were given leave to amend their complaint, but were counseled to plead their best case and take nothing for granted in their amended pleading.

Plaintiffs filed their amended complaint on June 21, 2007, adding NFLPA as a defendant. The complaint alleges claims of (1) breach of contract; (2) breach of fiduciary duty; (3) unjust enrichment and restitution; (4) unfair competition under California Business and Professions Code § 17200; and (5) accounting. Both defendants filed motions to dismiss on July 6, 2007. A hearing on this motion was held on August 30, 2007. Thereafter, parties were asked to submit additional information regarding GLAs and dues paid to the NFLPA.

ANALYSIS

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual *1088allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (May 21, 2007). “All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996).

It is worthwhile to note that there are major differences between what plaintiffs argued in opposing these motions and what plaintiffs actually plead in the complaint. Time and again in the briefs and at the hearing, plaintiffs argued that they had alleged a key element. On examining the complaint, however, the actual allegations did not go nearly so far. Sometimes those key elements were absent altogether. Plaintiffs’ smoke-and-mirrors approach to pleading is unconvincing. The complaint itself controls, not any arguments made by counsel.

1. Statute of Limitations.

Defendants first argue that plaintiffs’ claims are barred by the applicable statutes of limitations. The statute of limitations for plaintiffs’ breach of contract, breach of fiduciary duty, unjust enrichment, and Section 17200 claims is four years. CaLCode Civ. Proc. §§ 337, 339; Cal. Bus. & Prof.Code § 17208. The statute of limitations for a claim of unjust enrichment is two years. CaLCode Civ. Proc. § 339.

A. Operation of the Statute of Limitations.

To the extent that plaintiffs’ claims rely on GLAs, defendants contend that none of the plaintiffs signed GLAs within the four-year statute of limitations. Roberts never alleges that he even signed a GLA. The last identified GLA signed by Parrish expired in 1998. Plaintiffs argue in response that they have alleged that Parrish and Adderley signed GLAs within the statute of limitations, because Parrish and Adderley “believe” that they did so. Moreover, they note that Players Inc. has produced two GLAs signed by Adderley that were effective within the statute of limitations (Hilbert Decl. Exhs. 3, 4). Parrish’s vague allegations that he believes he signed GLAs at some point within the statute of limitations are simply insufficient. Accordingly, Parrish has not pleaded that he signed a GLA within the statute of limitations. Any claims by Parrish based on the GLAs are barred by the statute of limitations. Adderley can sustain a claim provided he amends his allegations to specify that he signed GLAs within the statute of limitations.

As to the portions of the plaintiffs’ claims not premised on signing GLAs, plaintiffs contend that any claims based on payments due to them within the last four years are not barred by the statute of limitations. They also note that the agreement with Electronic Arts was signed in 2004, and the agreement with Topps trading card company was signed on March 1, 2007. Insofar as plaintiffs can plead claims that are not based on signing GLAs, these claims survive, at least as to injuries accruing after February 14, 2005, for the unjust enrichment claim and after February 14, 2003, for the other claims.

B. Discovery Rule and Equitable Es-toppel.

Plaintiffs next argue that their claims that predate the statute of limita*1089tions should not be barred because plaintiffs could not have known of their existence. Plaintiffs rely on the application of the discovery rule and the doctrine of equitable estoppel. They specifically concede in their opposition that fraudulent concealment does not apply to this action (Opp. at 41).

Generally, a claim accrues at the time the injury occurs. An exception to this is the discovery rule which postpones accrual of a claim until the plaintiff discovers or has reason to discover the injury. “A plaintiff has reason to discover a cause of action when he or she ‘has reason to suspect a factual basis for its elements.’ Under the discovery rule, suspicions of one or more of the elements of a cause of action, coupled with the knowledge of any remaining elements, will generally trigger the statute of limitations period.” Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623, 634, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (2007) (quoting Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806-07, 27 Cal.Rptr.3d 661, 110 P.3d 914 (2005)). To rely on the discovery rule, a plaintiff must plead specific facts describing the time and manner of discovery and the inability to have discovered the claim earlier despite due diligence. Id. at 638, 54 Cal.Rptr.3d 735, 151 P.3d 1151.

Plaintiffs point out that until 2006, they had only the barest information regarding Players Inc.’s licensing practices. Adderley allegedly made requests for this information as far back as 1994 (Comply 27). These requests were rebuffed until only recently (id. at ¶ 17). Plaintiffs claim that they were only able to get information from defendants in 2006 because of a change in Department of Labor disclosure regulations. They also argue, without pleading supporting facts, that they could not have gotten information about their claims despite exercising diligence.

Adderley’s allegations that he inquired into defendants’ licensing practices show that he at least had reason to suspect the existence of his claims as far back as 1994. He wrote several letters and emails to various officials asking about licensing practices for retired players and how any resulting revenues were split up (id. at ¶ 27, Exh. I). Moreover, plaintiffs have not pleaded facts that describe the time and manner of their discovery or their due diligence. They attempt to rely on eonclu-sory allegations that defendants had better information about their claims. They do not allege what triggered discovery of their claims, or why they could not have filed them earlier. Plaintiffs point to increased disclosure requirements starting in 2006, but fail to plead why those disclosures made them aware of their claims, or what information they received because of the disclosures. Plaintiffs also do not plead facts as to their diligence in pursuing their claims, or why they could not have discovered their claims at an earlier time. Accordingly, plaintiffs may not rely on the discovery rule to toll the statute of limitations.

Plaintiffs also point to equitable estoppel to toll their claims. “Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir.2000). As with the discovery rule, plaintiffs have not pleaded that they could not obtain vital information bearing on their claim. They only allege that better information was available as of 2006, even though Parrish inquired into defendants’ licensing practices as far back as 1994. They do not plead facts that would lead to the conclusion that the information available in 2006 enabled them to plead their claims. Additionally, they do not plead diligence; plain*1090tiffs offer no details as to how they pursued their claims or what information they lacked. Accordingly, equitable estoppel does not apply. The statute of limitations for plaintiffs’ claims is not tolled.

2. Section 17200.

Under Section 17200, the plaintiff must assert an “unlawful, unfair or fraudulent business act or practice.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999). Thus, Section 17200 establishes three alternative theories for finding illegal conduct: (1) unlawful, (2) unfair and deceptive, or (3) fraudulent. See ibid. Since Section 17200 is written in the disjunctive, the plaintiff may allege only one of the three theories to properly plead a claim. For example, the plaintiff may allege unlawful business practices without alleging unfair or fraudulent business practices. Plaintiffs here base their claims on both the unlawful and fraudulent prongs of the statute. As to the unlawful prong, they allege that defendants’ conduct was unlawful because it threatened an antitrust violation or violated the spirit and policy of the antitrust laws.

A. Injury In Fact.

A Section 17200 claim may be brought by “any person who has suffered injury in fact and has lost money or property as a result of such unfair competition.” Cal. Bus. & Prof.Code § 17204. Relief is limited to injunctive relief and restitution; damages are not available under the unfair competition law. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003); Deitz v. Comcast Corp., 2006 WL 3782902, *5 (N.D.Cal. Dec. 21, 2006) (Alsup, J.).

Plaintiffs allege that class members “have suffered injury in fact, and have lost money or property (including but not limited to dues payments to the NFLPA) as a result of Defendants’ unfair competition” (Comply 79). To summarize, they allege that they and class members have suffered two kinds of harm: (1) lost dues; and (2) lost licensing opportunities.

There are a number of references to dues in plaintiffs’ complaint. Specifically, they allege that “dues payments to the NFLPA entitle retired players, among other things, to licensing opportunities that generate guaranteed minimum payments” and that “the NFLPA does not provide ‘extensive’ services and benefits to retired players, even to those retired players who have chosen to pay the $100 annual fee to join the NFLPA’s retired member program” (id. at ¶¶ 72, 24). Significantly absent from the complaint is any allegation that Parrish, Adderley, or Roberts ever paid dues to the NFLPA. Section 17200 makes clear that each individual plaintiff must establish injury in fact. See Meyer v. Sprint Spectrum L.P., 59 Cal.Rptr.3d 309, 313 (2007).

At the hearing on this motion, parties were asked to submit a declaration telling which, if any, of plaintiffs paid dues to the NFLPA during the statute of limitations. Defendants presented the declaration of Andre Collins, Director of the NFLPA, Retired Players Department. Collins declared that according to the NFLPA’s records, Adderley paid dues in the amount of $50 in each of 2003, 2004, and 2005, and Parrish paid dues in the amount of $50 in 2005 (Collins Decl. ¶¶ 2-3). Although no such allegation ever appears in this version of the complaint, it appears that plaintiffs could amend consistent with their obligations under Rule 11, at least as to Adderley and Parrish. They must do so to be able to plead lost dues as an injury.

Defendants still maintain that lost dues are not sufficient to show an injury in fact because plaintiffs cannot show a causal *1091nexus to alleged violations of Section 17200. Plaintiffs allege that in contravention to its promises and policies, “the NFLPA does not provide ‘extensive’ services and benefits to retired players, even to those retired players who have chosen to pay the $100 annual fee to join the NFLPA’s retired member program. As a result, any purported benefits to the retired players have not been actualized” (Comply 24). Elsewhere in the complaint, plaintiffs allege that some retired players had seen the NFLPA’s representations on its website and may have believed that paying dues would have entitled them to licensing opportunities or other benefits. Plaintiffs never allege that they themselves saw or relied on any such representations in paying dues. Plaintiffs also never allege that they expected to receive any benefits by paying dues. Perhaps these deficiencies could be remedied by replead-ing, however, as described below, plaintiffs must explain that any such amendments are in good faith and remedy the deficiencies in their complaint.

Turning to the lost licensing opportunities, defendants argue that plaintiffs have not pleaded any causal nexus between the licensing agreements and the alleged harms. Defendants point out that plaintiffs have only pleaded in cursory fashion that they are in competition with defendants to license their names, images, and likenesses — they have not pleaded that they actually attempted to enter into any license in competition with Players Inc. Moreover, all GLAs govern licensing for groups of six or more players. Plaintiffs’ bare assertion that they are in competition with defendants and that they have suffered harm is simply not sufficient. Nor have they alleged that they were unable to license their names, images, or likenesses because of any deal that defendants had with any third-party licensee. Accordingly, plaintiffs have failed to plead injury in fact for their unfair competition claim. To the extent that plaintiffs’ claims are based on unfair competition and antitrust violations, plaintiffs cannot maintain a claim under the “unfair” prong.

Turning to plaintiffs’ allegations that defendants engaged in fraudulent business practices, plaintiffs identify the same two harms — lost dues and lost licensing opportunities. As above, plaintiffs may not rely on lost dues because they never alleged that they paid dues. If plaintiffs can, in good faith, plead that they believed that paying dues would have actually entitled them to receive licensing revenue, they be able to remedy this problem by repleading.

Plaintiffs allege that “[b]y purporting either to represent or to control access to the rights of all retired players, by making exclusive arrangements and by its advertising ... Defendants have either effectively cut off any avenues for retired NFL players to deal directly with licensees or sponsors such as TOPPS and Electronic Arts ...” (CompU 35). According to plaintiffs, defendants led retired players, including plaintiffs, to believe that defendants would pursue licensing opportunities on their behalf. The retired players then declined to pursue licensing and marketing opportunities on their own. Defendants failed to generate revenue from licensing for the retired players or diverted the revenue for other purposes, so they suffered injury in the form of lost revenue. These allegations, if taken true, are sufficient to show that plaintiffs could have suffered injury from defendants’ fraudulent business practices. Plaintiffs have failed to plead that they suffered injury in fact from defendants’ alleged unfair business practices. Plaintiffs have, however, successfully pleaded that they suffered injury in fact from defendants’ alleged fraudulent business practices. This order now addresses the acts of unfair competition alleged by plaintiffs.

*1092B. Unfair Business Practices.

Plaintiffs identify three ways in which defendants engaged in unfair business practices: (1) unfairly dominating and controlling licensing opportunities for NFL player rights; (2) which enabled defendants to enter into exclusive dealing arrangements with licensees that prevented them from seeking rights from anywhere else; and (3) unreasonably restraining competition for licensing or marketing NFL player rights in products (ComplJ 74). They plead that defendants were able to exclude competition by holding themselves out as the only source for the rights to images of current and former NFL players (id. at ¶ 76). Such practices allegedly threaten an incipient violation of the Sherman Act and California’s Cartwright Act and violate the spirit and policy of the antitrust laws, at least according to plaintiffs (id. at ¶ 77).

The scope of Section 17200 is broad, and it borrows violations of other laws and treats them as independently actionable unfair practices. Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999). Unfair business practices are defined under Section 17200 as follows:

When a plaintiff who claims to have suffered injury from a direct competitor’s “unfair” act or practice invokes section 17200, the word “unfair” in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as violation of the law, or otherwise significantly threatens or harms competition.

Id. at 187, 83 Cal.Rptr.2d 548, 973 P.2d 527. The Cel-Tech court held that it was appropriate to borrow standards from Section 5 of the Federal Trade Commission Act which prohibits unfair methods of competition and unfair or deceptive acts or practices. Id. at 186, 83 Cal.Rptr.2d 548, 973 P.2d 527. The Federal Trade Commission Act can prohibit practices “which conflict with the basic policies of the Sherman and Clayton Acts even though such practices may not actually violate these laws.” FTC v. Brown Shoe Co., 384 U.S. 316, 321, 86 S.Ct. 1501, 16 L.Ed.2d 587 (1966). Although Section 17200 is broad, unfair practices under California’s unfair competition law must still at least threaten significant harm to competition because of a violation of a recognized policy of antitrust law. See Cel-Tech, 20 Cal.4th at 186-87, 83 Cal.Rptr.2d 548, 973 P.2d 527.

Plaintiffs have failed to plead sufficient facts to show an incipient antitrust violation or harm to competition because of defendants’ actions. Plaintiffs’ claim rests on the theory that the NFLPA and Players Inc. entered into exclusive deals with licensees, thereby foreclosing their opportunities to enter into direct licenses. Exclusive deals are not per se illegal and do not always pose a significant threat to competition. Because they can have economic benefits, they are judged by the rule of reason under both the Sherman Act and the Cartwright Act. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 18-19, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984) (holding that an exclusive dealing arrangement between hospitals and anesthesiologists was not per se illegal); Redding v. St. Francis Med. Ctr., 208 Cal.App.3d 98, 107, 255 Cal.Rptr. 806 (1989) (holding that an exclusive deal between a surgeon and hospital was not sufficient, by itself, to form the basis of a Section 17200 claim). The mere existence of an exclusive deal between the NFLPA and its licensees does not violate the antitrust laws or significantly threaten competition.

Plaintiffs and defendants differ over what plaintiffs must allege to show an *1093incipient antitrust violation. Defendants contend that plaintiffs must establish a relevant product or geographic market, while plaintiffs argue that this is not necessary. It remains, however, that plaintiffs have made no allegations that, even if true, would show harm to competition in the market for licensing retired players’ images. The complaint excerpts some popular press articles that argue that the exclusive license between the NFLPA and EA Sports spells the end of consumer choice in video games. Since only EA Sports has a license for NFL players’ images, its “Madden” series of games is now the only licensed professional football-themed game. Predictions in news articles are not enough to plead a violation of antitrust law or policy. Moreover, the articles appear to be discussing the market for video games using active players. It is not clear how decreased competition in the market for video games featuring active players would cause harm to these plaintiffs. They argue at the hearing and in their opposition that this license has harmed them in some nebulous way, but they simply do not allege that they could have received anything from the license with EA Sports. Accordingly, plaintiffs have failed to plead that defendants engaged in unfair business practices.

C. Fraudulent Business Practices.

Defendants allegedly engaged in fraudulent business practices by making statements on their website and in promotional materials that Players Inc.’s activities benefited all retired players by giving each of them a minimum payment, that the GLAs were not exclusive (i.e. that retired players were not foreclosed from pursuing licensing opportunities on their own), that Players Inc. represented a certain number of former NFL players, and that dues paid by former players to Players Inc. would entitle them to licensing opportunities (Comply 72). Plaintiffs allege that these representations deceived the public and former players which cut off other licensing opportunities for retired players (id. at ¶ 73).

Section 17200 claims that are grounded in fraud must satisfy the particularity requirements of Rule 9(b). Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1103 (9th Cir.2003) (applying Rule 9(b)’s pleading requirements for claims based in fraud to a Section 17200 claim). Even if plaintiffs had alleged injury in fact, they fall short of satisfying Rule 9(b). Plaintiffs allege that they did not pursue licensing opportunities on their own because defendants led them to falsely believe that they were working to create licensing deals on their behalf. Plaintiffs identify statements defendants supposedly made regarding licensing. First, defendants “informed a number of retired NFL players that the only opportunity to get paid for marketing or licensing opportunities was to enter into a Group Licensing Agreement with PLAYERS INC and/or the NFLPA” (ComplJ 75). Appended to the complaint is a letter to that effect with the date and recipient redacted (id. at Exh. B). Plaintiffs never allege having received that letter; they merely allege that some retired players received it. If they never received it, plaintiffs could never have relied on it. Again, an allegation that some retired players may have received the letter does nothing for these plaintiffs.

Next, NFLPA allegedly stated that they would provide services and benefits to retired players. Plaintiffs identify some statements on the NFLPA website that indicate that retired players should receive benefits from licensing and other programs (CompLExh. F). Here, however, plaintiffs have not alleged that they ever saw or relied on defendants’ representations. At best, they have pleaded that some members of the putative class may *1094have relied on defendants’ representations. Plaintiffs have not alleged that they themselves, and not putative class members, ever saw, heard or relied on defendants’ statements, so they fall well short of satisfying Rule 9(b).

Plaintiffs also seem to argue that members of the public were likely to be deceived. See, e.g., Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 35 Cal.3d 197, 211, 197 Cal.Rptr. 783, 673 P.2d 660 (1983). Perhaps plaintiffs could prevail if they allege that defendants falsely stated that third parties could only license plaintiffs’ names and images from them, and from no other source. Members of the public, including potential licensees, could be deceived into believing that they could not deal directly with retired players to license their images. Such allegations do not appear in the complaint. Plaintiffs only allege that defendants made those statements; they stop far short of alleging that any third party relied on them in negotiating a license (Compl. ¶ 35). Accordingly, plaintiffs have failed to plead with particularity that either they or members of the public were deceived. Defendants’ motion to dismiss plaintiffs’ Section 17200 must be Granted. This order need not reach defendants’ arguments about preemption under federal labor law, choice of law under the GLAs, and Parrish and Adderley’s standing as non-California residents. In asking leave to amend their complaint, however, plaintiffs should not take these issues for granted, particularly the issue of Parrish and Adderley’s residency and standing to bring a Section 17200 claim.

3. Breach of Contract Claims.

Plaintiffs argue that they have sufficiently alleged a claim for breach of contract “on behalf of the GLA class” (Opp. at 5-6). “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co., 116 Cal.App.4th 1375, n. 6, 11 Cal.Rptr.3d 412 (2004) (citation omitted).

A. Existence of a Contract.

Defendants argue that plaintiffs have failed to plead the first element. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” Construction Protective Servs., Inc. v. TIG Specialty Ins. Co., 29 Cal.4th 189, 198-99, 126 Cal.Rptr.2d 908, 57 P.3d 372 (2002). To plead the legal effect of a contract, plaintiffs must “ ‘allege the substance of its relevant terms.’ This is more difficult [than pleading the precise language], for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1489, 49 Cal.Rptr.3d 227 (2006) (quoting 4 Within Cal. Proe. Pleading § 480 (4th ed., 1997)).

Defendants first argue that plaintiffs lack standing because they have not alleged that they signed GLAs within the limitations period. Defendants note that plaintiffs attempt to rely on allegations of the GLA class, or a class of retired players who signed GLAs within the applicable statute of limitations. A named plaintiff must himself plead that he has suffered injury in order to represent the class; he may not rely on the alleged injuries of others. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Plaintiffs cannot defeat this motion to dismiss by relying on class allegations. They must each show that they have satisfied the pleading requirements for a breach of contract claim.

*1095Turning to named plaintiffs’ allegations, Roberts does not allege that he ever signed a GLA, thus he cannot maintain this claim. Parrish alleges that he signed GLAs in 1997 and 1998. A copy of the 1998 GLA signed by Parrish is appended to the complaint (Compl.Exh. D). As described above, this is several years outside the statute of limitations period. Parrish “believes, and therefore alleges that he signed GLAs in recent years” (Compl.l 54). Adderley alleges that the last GLA he .signed expired in 2005, but he did not attach a copy of this agreement to the complaint. Copies of any agreements actually signed by plaintiffs, or recitations of terms contained therein, are conspicuously absent from the complaint.

In opposing these motions to dismiss, plaintiffs referred to three different GLAs, none of which they allege to be the contract between themselves and the NFLPA. First, plaintiffs attached a copy to the complaint of a GLA that Parrish signed in 1998, long outside the statute of limitations (Compl.Exh. D). Second, plaintiffs attached to the complaint a copy of a licensing agreement between Topps and the NFLPA for trading cards (id. at Exh. C). A proposed GLA specimen is attached to that agreement. Plaintiffs, however, never alleged that any of them signed that particular form of agreement. At most, they alleged that some other retired players may have signed that agreement. That is not sufficient. To sustain a claim for breach of contract, plaintiffs must plead that they signed the GLA. Third, plaintiffs attached copies of two GLAs signed by Adderley (Hilbert Decl. Exhs. 3, 4). One was dated November 22, 2002, and expired at the end of 2005, and the other was dated May 1, 2001, and expired at the end of 2003 (ibid.). The complaint never specifically refers to these GLAs. Both GLAs were in effect during the statute of limitations and could in theory form the basis of breach of contract claim, if plaintiffs should so amend.

In the alternative, plaintiffs argue that they have alleged the legal effect of the GLAs. They allege that under the GLAs, all players who signed them, including plaintiffs, were entitled to payments from the licenses, regardless of whether any particular former player’s name or likeness was actually used by a third party. Plaintiffs do not say where the funds should come from or how the amounts should be calculated. Likewise, at the hearing, plaintiffs’ counsel maintained that the act of signing a GLA itself entitled plaintiffs to receive at least some licensing revenues, regardless of whether or not those particular players’ images were ever used. Plaintiffs’ counsel pointed out at the hearing that the GLA specimen made part of the agreement between Topps and the NFLPA contains a “best efforts” clause. It stated that the NFLPA will “use the revenues it receives from group licensing programs to support the objectives as set forth in the By-laws of the NFLPA .... The NFLPA makes no representations regarding licensing other than those expressed herein” (CompLExh. C). The bylaws of the NFLPA were not attached to the complaint or presented as an attachment. This simply does not support the allegation that all players who signed GLAs were automatically entitled to at least some licensing revenues whether or not their images were used. Plaintiffs also point to statements on the NFLPA’s website that indicate that the NFLPA’s goal was to help retired players through licensing efforts, and that if a particular player were singled out in a licensing deal, he would receive additional fees (Comply 21). These statements were not part of any contracts and plaintiffs cannot rely on them to allege the terms of any contract.

*1096B. Defendants’ Alleged Breach.

Even if plaintiffs had pleaded the existence or legal effect of a contract, they have failed to allege what provision of the relevant GLAs was breached by defendants. They first plead that each player who signed a GLA was entitled to royalty payments under the agreements, but they fail to identify the terms in the contract that would entitle them to such payments. Looking at the GLA signed by Parrish in 1998, it stated that “monies generated by such licensing of retired player group rights will be divided among the player, the Players Assistance Trust, and, to the extent necessary, may be used to cover the cost of administering the Retired Player Group Licensing” (Compl.Exh. D). Even if this contract had been signed within the statute of limitations, this does not support plaintiffs’ allegation. Likewise, the 2005 GLA signed by Adderley reads “the moneys generated by such licensing of retired player group rights will be divided between the player and an escrow account for all eligible NFLPA members who have signed a group licensing authorization form” (Hilbert Decl. Exh. 4). Again, this contract was not pleaded in the complaint, and plaintiffs never allege entitlement to the escrowed funds under the contract.

At the hearing on these motions, plaintiffs’ counsel argued that defendants diverted licensing revenues from plaintiffs for overhead and other expenses for the NFLPA. When asked where this allegation appears in the complaint, they pointed to paragraph 21. It, however, reads:

Although it is to be expected that some better-known players will or may receive additional payments, each represented player should have received some payment as a result of signing a GLA. PLAYERS INC’S website as of February 6, 2007, states: “Any players who are singled out to promote licensed products are paid additional fees for being highlighted on product packaging, point of sale, print ads or other collateral material, for autographs, appearances, product endorsements and commercials.” (emphasis added). Instead of providing payments to all retired players who signed a GLA, PLAYERS INC has, on information and belief, diverted millions of dollars from PLAYERS INC to the NFLPA in order to support the overhead, substantial salaries and perquisites of NFLPA management and employees. Plaintiffs have an ownership interest in these funds.

This paragraph of the complaint does allege that funds were diverted from “all retired players.” In quoting the NFLPA website, plaintiffs are begging the question: what provision in the actual contracts was violated?

Nor do any of the plaintiffs allege that the NFLPA failed to pay them licensing revenue that they were personally owed under the contracts for the use of their names or images. At best, they allege that some funds were diverted from unknown persons and used for overhead at the NFLPA. This is insufficient to plead breach because plaintiffs never alleged that they personally lost funds because a provision of the contract was breached.

Plaintiffs also argue that the 2007 GLA specimen appended to the Topps agreement contained a “best efforts” clause. It stated “[t]he NFLPA further agrees to use its best efforts to promote the use of the NFL player image [sic] in group licensing programs, to provide group licensing opportunities to all NFL players and to ensure that no entity engages in a group licensing program without first obtaining a license from the NFLPA” (Compl.Exh. C). None of the plaintiffs alleged that they signed this agreement, however, it is merely attached to the complaint by way of example. At best, plaintiffs allege that *1097some unknown members of the putative class may have signed such a GLA. Neither the GLAs signed by Adderley or the, GLAs signed by Parrish outside of the statute of limitations contains such a provision. Accordingly, plaintiffs have failed to plead the existence of a contract between themselves and the NFLPA, and have also failed to plead what provision defendants breached. Defendants’ motion to dismiss the claims for breach of contract is Granted. Plaintiffs may be able to remedy some of these defects by repleading, but they must be able to demonstrate that they can do so in good faith.

4. Breach of Fiduciary Duty.

Plaintiffs allege that “[defendants have a fiduciary duty to the retired players that at any time signed a GLA with the NFLPA ...” (Comply 62). “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” Slovensky v. Friedman, 142 Cal.App.4th 1518, 1534, 49 Cal.Rptr.3d 60 (2006). “A fiduciary relationship is a recognized legal relationship such as a guardian and ward, trustee and beneficiary, agent and principal, or attorney and client.” Richelle L. v. Roman Catholic Archbishop, 106 Cal.App.4th 257, 271, 130 Cal.Rptr.2d 601 (2003). “Before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or enter into a relationship which imposes that undertaking as a matter of law.” Comm. on Children’s Television v. Gen. Foods Corp., 35 Cal.3d 197, 221, 197 Cal.Rptr. 783, 673 P.2d 660 (1983).

Agency relationships may be inferred or implied from the conduct of parties and circumstances surrounding the events. Michelson v. Hamada, 29 Cal. App.4th 1566, 1579-80, 36 Cal.Rptr.2d 343 (1994). Under principles of agency by es-toppel, “when one assumes to act as an agent for another, he may not, when challenged for these acts, deny his agency .... ” People v. Robertson, 6 Cal.App. 514, 517, 92 P. 498 (1907). Mere contractual relationships, without more, do not give rise to fiduciary relationships. Oakland Raiders v. Nat’l Football League, 131 Cal. App.4th 621, 633-34, 32 Cal.Rptr.3d 266 (2005).

A. Fiduciary Relationship.

Defendants argue that plaintiffs have not adequately alleged a fiduciary relationship. Plaintiffs contend that based on confidential relationships between parties and based on the GLAs, there was a fiduciary relationship. As an initial matter, it is worth noting that plaintiffs plead that defendants had a fiduciary relationship with those retired players who signed GLAs. It appears that only Adderley can plead that he signed a GLA within the statute of limitations. Parrish and Roberts may not base their fiduciary duty claims on signing a GLA.

Plaintiffs first argue that a fiduciary duty arose out of a confidential relationship between plaintiffs and defendants. Such a confidential relationship can occur where “(1) the vulnerability of one party to the other, (2) results in the empowerment of the stronger party by the weaker which (3) empowerment has been solicited or accepted by the stronger party and (4) prevents the weaker party from effectively protecting itself.” Richelle L., 106 Cal.App.4th at 272, 130 Cal.Rptr.2d 601. “The vulnerability that is the necessary predicate of a confidential relation ... usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity.” Id. at 273, 130 Cal.Rptr.2d 601.

Plaintiffs plead that “[t]hose retired players who have signed GLAs for *1098any given year are all, as individuals, vulnerable to the size and economic power of Defendants” and alleged that many retired NFL players “suffer from mental or physical disabilities as a result of their careers” (Comply 23). Missing is any allegation that plaintiffs have suffered disability. Plaintiffs argue that defendants’ mere economic power alone created a fiduciary duty. In support, they cite Beery v. State Bar, 43 Cal.3d 802, 813, 239 Cal.Rptr. 121, 739 P.2d 1289 (1987), for the proposition that the essence of a confidential relationship is that the parties do not deal with one another on equal terms because of the trust and confidence that one party reposed in the other. Mere difference in economic power and size and access to information is not sufficient to show vulnerability to establish a fiduciary relationship.* See Wolf v. Superior Court, 107 Cal.App.4th 25, 30-32, 106 Cal.App.4th 625, 130 Cal.Rptr.2d 860 (2003).

At the hearing on this motion, plaintiffs argued that the GLAs created a fiduciary relationship between plaintiffs and defendants because the GLAs are exclusive and defendants are obligated under the contracts to use their best efforts to promote licensing opportunities for retired players. In determining whether a contract could give rise to a fiduciary duty, mere sharing of profits does not give rise to a fiduciary relationship. Wolf, 107 Cal.App.4th at 32-33, 130 Cal.Rptr.2d 860. In Wolf, an author granted rights to a company to develop his work into a movie on his behalf, and the author and the company were to share the profits under the contract. Even though both parties stood to benefit from developing the work, the development deal was only a contract that did not give rise to a fiduciary duty. Ibid. The presence of a “best efforts” clause may give plaintiffs a better argument that the author had in Wolf, but again, plaintiffs did not plead that any of them were a party to a contract containing such a term. Accordingly, plaintiffs have failed to plead that the GLA itself created a fiduciary relationship.

B. Agency by Estoppel.

Plaintiffs also argue that they have pleaded the existence of a fiduciary relationship based on agency by estoppel. Plaintiffs specifically disavow any argument that there was a direct agency relationship, either from the contract or implied through representation. Plaintiffs admit that they cannot plead, either by implication or by contract, that they had the ability to control the actions of defendants (Opp. at 13). An implied agency relationship can arise when one party holds itself out to be acting as the agent for another. See Carpenter Foundation v. Oakes, 26 Cal.App.3d 784, 791-92, 103 Cal.Rptr. 368 (1972). The Restatement (Third) of Agency describes an agency by estoppel relationship as follows:

The agency-law doctrines of actual authority and apparent authority attribute the legal consequences of an actor’s actions to a person when the person has *1099made a manifestation of authority ... thereby creating apparent authority .... Estoppel links the legal consequences of the actor’s actions to the person estopped on different bases. These are the third party’s justifiable and detrimental change in position and the third party’s belief in the actor’s relationship to the person estopped, which induced the change in position for which the person estopped is held responsible.

* * * * * *

Apparent authority is not present unless the third party’s belief is traceable to the principal’s own manifestations, which may include placing the agent in a position that leads third parties to believe that the agent has authority consistent with the position. Estoppel does not require as close a fit between affirmative acts of the principal and the third party’s belief. Instead, it protects third parties who reasonably believe an actor to be authorized as an agent when the belief cannot be shown to follow directly or indirectly from the principal’s own manifestations.

Restatement (Third) of Agency § 2.05, cmt. d (2006).

Plaintiffs allege that defendants sought to obtain the exclusive rights to negotiate with and enter into licensing agreements to license the names, images, and likenesses of retired players. Defendants “purport to have sole and exclusive control over licensing contracts with vendors” and defendants are allegedly the only source from which to obtain licenses from retired professional football players who have signed GLAs (Comply 25). Essentially, the NFLPA and Players Inc. held themselves out to be agents of the players who signed GLAs for purposes of licensing and marketing.

Plaintiffs’ allegations and arguments are weakened by the documents they append to their complaint. Plaintiffs allege that “[b]y purporting either to represent or to control access to the rights of all retired players ... Defendants have either effectively cut off any avenues for retired NFL players to deal directly with licensees or sponsors such as TOPPS and Electronic Arts ...” (Comply35). The GLAs themselves, however, make clear that retired players are granting the rights to the NFLPA only for the purpose of licenses for groups of six or more. The GLAs are silent on licensing for individual players. Still, assuming the pleaded facts to be true, plaintiffs have sufficiently alleged that there was an agency by estoppel relationship between Adderley and defendants. Looking at the issues of breach and damages, however, Adderley has failed to plead that defendants breached the duty and that Adderley was damaged as a result.

C. Breach and Damages.

Detrimental reliance on some action taken by the defendant is required if estoppel is to apply. Robinson v. Fair Employment & Hous. Comm’n, 2 Cal.4th 226, 244-45, 5 Cal.Rptr.2d 782, 825 P.2d 767 (1992). As to breach and damages, plaintiffs allege that the NFLPA and Players Inc. failed to give plaintiffs information regarding licensing activities and revenues earned, failed to maximize revenues, and failed to remit revenues to some players who signed GLAs. They do not, however, allege that Adderley’s image was ever licensed without his permission or that he did not receive licensing royalties owed to him. Nor do they allege that Adderley relied to his detriment on specific information released or withheld by the NFLPA or Players Inc. They also do not allege that Adderley failed to pursue individual, non-group licensing opportunities on his own because he believed that Players Inc. was representing him. Nor do they allege that Adderley himself lost money because *1100defendants failed to pursue licensing opportunities on Ms behalf. Plaintiffs make many allegations regarding what members of the putative class may have done or believed, but their claims are not before us at this time. Accordingly, plaintiffs have failed to plead detrimental reliance. Defendants’ motion to dismiss plaintiffs’ claim for breach of fiduciary duty is Granted, and this claim must be dismissed.

5. Unjust Enrichment and Restitution.

A claim for unjust enrichment requires pleading “the receipt of a benefit and the unjust retention of the benefit at the expense of another.” Lectrodryer v. Seoulbank, 77 Cal.App.4th 723, 726, 91 Cal.Rptr.2d 881 (2000). California courts appear to be split on whether unjust enrichment can be an independent claim or merely an equitable remedy. “The phrase ‘unjust enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” Melchior v. New Line Productions, Inc., 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347 (2003) (quoting Lauriedale Assocs. Ltd. v. Wilson, 7 Cal.App.4th 1439, 1448, 9 Cal.Rptr.2d 774 (1992)). Other California courts, however, have held that a plaintiff may state a claim for unjust enrichment, particularly where their claim seeks restitution where other remedies are inadequate. See Ghirardo v. Antonioli, 14 Cal.4th 39, 50, 57 Cal.Rptr.2d 687, 924 P.2d 996 (1996).

Assuming that unjust enrichment is a claim that can stand on its own, plaintiffs still have not pleaded that they conferred a benefit on defendants which they unjustly retained. Plaintiffs allege that defendants benefited in some manner from plaintiffs’ status as retired NFL players. They do not, however, allege that defendants received anything from plaintiffs’ status. Defendants may have been able to generate licensing revenues for those players who signed GLAs, but not for those players who never signed GLAs. For those plaintiffs who signed GLAs, plaintiffs granted defendants the rights to use their names, images, and likenesses in group licenses of six or more players. Specifically, they did not allege that the NFLPA licensed plaintiffs’ names, images, or likenesses without their permission. Accordingly, defendants’ motion to dismiss is Granted.

6. Accounting.

An accounting is available where the nature of the relationship requires an accounting, a balance is due to the plaintiffs, and there is no other adequate remedy at law. See 1 Cal. Jur.3d Accounts & Accounting § 77. As with plaintiffs’ claim for unjust enrichment, they have failed to plead that a balance is due to them. Additionally, plaintiffs fail to plead that there is no adequate remedy at law. Defendants’ motion to dismiss plaintiffs’ claim for an accounting is Granted.

CONCLUSION

The defense motion to dismiss is Granted. In the prior order on defendants’ motion for judgment on the pleadings, plaintiffs expressed a desire to amend their complaint. They were given leave to do so, but were warned then that they should plead their best case and to take nothing for granted. In our current round of motion practice, it seems evident that Parrish may not be able to plead that he signed a GLA during the statute of limitations period (O’Kelly Deck Exh. A).

On the other hand, it seems possible that at least some of the shortfalls could be cured by amendment. Leave to amend will be allowed but only via the following procedure. Plaintiffs may file a motion for leave to file a third amended complaint no later than September 27, 2007. The motion should be accompanied by a copy of the proposed amended pleading and a dec*1101laration that explains how the amended complaint is different from prior complaints and the good-faith basis on which the amendments were made. The motion itself should specifically address why the amended pleading cures problems discussed in this order. Defendants should file an opposition to the motion for leave no later than October 11, 2007. Plaintiffs reply will be due no later than October 18, 2007. The Court will then determine if a hearing on the motion is necessary. Please do not ask for extensions.

At the hearing on these motions to dismiss, defendants raised the issue of staying discovery if their motions to dismiss were granted. This order has granted their motions to dismiss, and it is unclear at this time whether or not plaintiffs will be allowed to replead. Accordingly, effective as to all discovery due beginning Monday, September 10, 2007, discovery is Stayed pending further order.

IT IS SO ORDERED.

DECISION & ORDER

MARIAN W. PAYSON, United States Magistrate Judge.

PRELIMINARY STATEMENT

Plaintiff, Ads Plus Advertising, Inc. (“Ads Plus”), has sued defendants Alan Ault, Robert Ault and Professional Auto Retailers, Inc. (“PAR”) (collectively, “defendants”) for breach of contract and unjust enrichment arising out of defendants’ alleged failure to compensate Ads Plus for services rendered by it. (Docket # 1). Ads Plus contends that defendants engaged it to perform direct mail advertising, that it performed the work, but that defendants failed to compensate it fully for those services. (Id. at ¶ 7). Robert Ault has answered the Complaint; Alan Ault and PAR have neither answered nor appeared in this action. (Docket # 3).

Currently pending before this Court is Robert Ault’s motion for summary judgment dismissing the action against him. (Docket # 20). According to him, the evidence establishes that Ads Plus contracted with PAR through its principal Alan Ault. (Docket #20-9 at 1, 5-6). Robert Ault further maintains that no evidence exists to warrant piercing PAR’s corporate veil and holding Robert Ault personally liable on its contract with Ads Plus. (Id. at 7-9).

Ads Plus opposes the motion on the grounds that the evidence demonstrates, or at least raises a genuine issue of disputed fact, that it entered into a contract with Alan and Robert Ault and not with PAR. (Docket #27 at 4-6). According to Ads Plus, Alan Ault never disclosed that he was acting as an agent of PAR, rather than in his individual capacity. (Id.). Ads Plus further contends that Robert Ault represented to its president that he was Alan Ault’s partner and would be handling all of the finances and, in fact, participated in certain of the payment transactions. (Docket # 26 at ¶¶ 7,13-14,17-22). These facts, Ads Plus maintains, are adequate to establish Robert Ault’s liability for the amounts due under the contract or, alternatively, to raise disputed issues of material fact that preclude summary judgment. (Docket # 27 at 4-6).

For the reasons set forth below, Robert Ault’s motion for summary judgment is denied.

BACKGROUND

A. The Formation of PAR and Robert Ault’s Involvement in the Business

The following is a summary of the undisputed facts in this matter, except where *686otherwise noted. Robert and Alan Ault are brothers. (Docket # 20-3 at ¶ 2). According to Robert Ault, in January 2007, he loaned Alan Ault $140,000 to start a business known as Professional Auto Retailers, Inc., which was incorporated in Delaware the following month. (Id. at ¶¶ 3-4). No documentary evidence exists in the record, however, that PAR was in fact incorporated, and Robert Ault concedes that “to the best of [his] knowledge, no shares of stock in [PAR] were ever issued, no directors were ever elected, and no corporate meetings were ever held.” (Id. at ¶ 8).

Robert Ault was associated with several of PAR’s financial accounts. For example, Robert and Alan Ault opened a Bank of America bank account in the name “Robert and Alan Ault, Professional Auto Retailers Inc.”; according to Robert Ault, the purpose of the account “was to receive payments directed to PAR, which were in turn to be transferred to [Robert Ault] in repayment of [the loan].” (Id. at ¶ 15). The account statements were mailed to Robert Ault at his residence in Palm Desert, California. (Docket #29 at Exhibits (“Ex.”) B and C). Robert Ault was also listed as a co-signer on an American Express credit account in the corporate name, although he claims he did not authorize his association with the account. (Docket # 20-3 at ¶ 10). Robert Ault also allowed Alan Ault to use Robert’s personal American Express account for a single charge relating to the initiation of the business. (Id. at ¶ 12).

Robert Ault maintains that he was never involved in the operation or management, and has never been a shareholder or director, of PAR. (Id. at ¶¶ 8-9). On February 1, 2008, Robert Ault signed a letter formally resigning any association with PAR; he contends that the purpose of the letter was “to make it absolutely clear that [he] was in no way connected or involved” in the company.1 (Id. at ¶ 20). According to Robert Ault, he never received any funds from the Bank of America bank account, nor issued any checks on the account. (Id. at ¶¶ 16-17). In addition, Robert asserts that Alan Ault repeatedly used Robert’s personal American Express account to make payments on behalf of PAR without his consent or knowledge. (Id. at ¶¶ 13-14).

B. Contractual Work Performed by Ads Plus

The pending lawsuit arises out of a series of transactions in which Ads Plus was engaged by one or more of the defendants to prepare direct mail advertising material. (Docket # 26 at ¶¶ 4-5). No written agreements were ever signed between the parties. Rather, the parties’ contractual relationship was established principally as a result of phone calls and email communications. (Docket # 20-8 at 6).

According to Ads Plus, its first transaction with defendants occurred in May 2007 during a telephone conference between its president, Joanne Cook (“Cook”), and Alan Ault, during which Alan Ault engaged Ads Plus to “design, print and mail” advertisements for one of Alan Ault’s customers. (Id. at 5). Ads Plus asserts that Robert Ault “participated in the transaction.” (Id. at 6). Specifically, the documentary evidence establishes that on May 15, 2007, Robert Ault wired $21,155 from his personal bank account to Ads Plus. (Docket # 26 at ¶¶ 18-19; # 20-4 at 22). According to Ads Plus, it was engaged by defendants to provide similar services for nineteen subsequent advertising projects. (Docket # 20-8 at 6).

Documents submitted in support of the motion reveal that Cook and Alan Ault *687frequently communicated about payment for the services rendered by Ads Plus. (Docket #20-7 at 9-76). Emails on the subject suggest that Ads Plus began to encounter difficulty in obtaining payment beginning in April 2008. (Id.). In response to Cook’s requests for payment, Alan Ault generally either authorized payment through a credit card2 or represented that he had mailed a check to Ads Plus. (See, e.g., id. at 13, 22, 27, 37, 44). Most of the emails sent by Alan Ault were sent from the address “ault@snet.net,” although some were sent from “PAR@snet. net.”

The financial relationship between the parties deteriorated over time. By June 17, 2008, according to an invoice Cook emailed to Alan Ault, approximately $103,495.55 was owed to Ads Plus. (Id. at 48). Alan Ault did not dispute the invoiced amount, but emphasized that he was having financial difficulties. (Id. at 63, 66, 71, 74).

C. The Pending Lawsuit

Ads Plus commenced this action on October 9, 2009, after its unsuccessful attempts to collect on the outstanding invoices. (Docket # 1). The Complaint alleges that defendants owe Ads Plus $120,512 for advertising projects completed by Ads Plus between April and June 2008. (Id. at ¶ 10, Ex. A at 5). In support of its claims, copies of three checks that were returned for insufficient funds are attached to the Complaint. (Id. at ¶ 7 and Ex. A at 6-10). The checks were drawn on three different bank accounts, and each was signed by Alan Ault. (Id.). The first two checks, dated June 4 and 17, 2008, list the account holder as “Professional Auto Retailers Inc.,” with an address located in Houston, Texas. (Id. at 6-7). The last check was dated June 27, 2008, in the name of “Robert & Alan Ault, Professional Auto Retailers Inc.,” with a printed address of Robert Ault’s residence in Palm Desert, California. (Id. at 8; Docket #29 at Ex. C).

The parties do not dispute that Ads Plus provided the direct mail advertising materials requested by Alan Ault, nor do they dispute that Ads Plus was not fully compensated for its services. Rather, they dispute whether the contractual relationship was between Ads Plus and the individual defendants, as Ads Plus maintains (Docket #27 at 1-6) — or between Ads Plus and PAR, as Robert Ault maintains (Docket #20-9 at 4, 6). According to Robert Ault, the contractual relationship with the corporate defendant is evidenced by the fact that Ads Plus was consistently paid by checks issued on PAR’S accounts. (Docket # 20 at 5-6, ¶ 3; # 1 at Ex. A at 6-10). In addition, Robert Ault also emphasizes that Ads Plus hired an attorney to perform a credit check on PAR, rather than on the individual defendants.3 (Docket # 20 at 6, ¶ 3; # 20-7 at 5; # 20-9 at 6).

In opposition, Ads Plus asserts that neither Robert Ault nor Alan Ault ever informed it that they were acting as agents for PAR. (Docket # 27 at 3, 5). According to Cook (the president of Ads Plus), Robert and Alan Ault led her to believe that they were business partners. (Id. at ¶¶ 10, 13). Cook affirms that she never received any correspondence or written agreement indicating that the contractual relationship was with PAR and believed that she was contracting with Alan and Robert Ault in *688their individual capacities. (Id. at ¶¶ 9, 13).

The parties also dispute Robert Ault’s level of involvement in the transactions. Robert Ault asserts that he was not personally involved in any of the transactions between Ads Plus and Alan Ault, other than a single telephone conversation he had with Cook, during which he authorized the use of his personal American Express credit card to pay Ads Plus approximately $20,000. (Docket # 20-3 at ¶ 21). According to Robert Ault, he first learned that Alan Ault was doing business with Ads Plus when American Express contacted him as co-signor on the corporate American Express account that had been used to charge approximately $84,000 in payments to Ads Plus. (Id. at ¶¶ 9-10).

Cook counters that she “had numerous conversations and transactions with Robert Ault.” (Docket # 26 at ¶¶ 6, 11). Cook further states that she first spoke with Robert Ault in May 2008, after Ads Plus began experiencing difficulty obtaining payment from Alan Ault. (Id. at ¶ 12; # 20-7 at 9-76). Cook contends that Robert Ault told her that he was Alan Ault’s partner and would be handling all of the finances and that Alan Ault confirmed the representation. (Docket # 26 at ¶¶ 14-15). According to Cook, Robert Ault advised her that Ads Plus would be paid through the use of Robert’s American Express account, and payments were in fact made in that manner. (Id. at ¶¶ 21-22).

In addition to the use of his personal American Express card, Robert Ault also wired $25,155 from his personal bank account to Ads Plus on May 15, 2007. (Id. at ¶¶ 18-19; # 20^4 at 22). Cook further alleges that on another occasion, Robert Ault sent Ads Plus a check in the amount of $30,000 to hold as a “good faith deposit on the work [Ads Plus] was performing for [defendants.” (Docket # 26 at ¶ 17).

DISCUSSION

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In reaching this determination, the court must assess whether there are any disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coach Leatherware Co. v. Ann-Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A fact is “material” only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.2000). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Konikoff v. Prudential Ins. Co. of Am., 234 F.3d at 97.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, after which the non-moving party must come forward with sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based upon conjecture, surmise or the existence of “metaphysical doubt” concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party seeking to avoid summary judgment “must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 ..., that there are specific factual issues that *689can only be resolved at trial.” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995); see also Driscoll v. Townsend, 60 F.Supp.2d 78, 80 (W.D.N.Y.1999).

As the Second Circuit has explained: [T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution .... [I]t must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute.

Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

Robert Ault contends that he is entitled to summary judgment on the grounds that Ads Plus cannot establish that he is individually hable for the amounts due under the contract because the contract was formed between Ads Plus and PAR, a corporate entity. (Docket # 20-9 at 6-7). He further maintains that no evidence exists to justify piercing the corporate veil. (Id. at 7-9). Ads Plus opposes the motion on the grounds that it formed the contract with Robert and Alan Ault in their individual capacities. (Docket # 27 at 4-6).

A. Individual Liability for a Contract Entered into on Behalf of Corporate Entity

Under New York Law,4 “[a]n agent who signs an agreement on behalf of a disclosed principal will not be held liable for its performance unless the agent clearly and explicitly intended to substitute his personal liability for that of his principal.” Yellow Book Sales & Distribution Co. v. Mantini, 85 A.D.3d 1019, 925 N.Y.S.2d 646, 648 (2d Dep’t 2011); see also In re Estate of Gifford, 144 A.D.2d 742, 535 N.Y.S.2d 154, 156 (3d Dep’t 1988) (“an individual who signs a corporate contract and indicates the name of the corporation and the nature of his representative capacity on the contract is generally not subject to personal liability”); Rick v. Richmond Sec. Servs., Inc., 28 Misc.3d 1238(A), 958 N.Y.S.2d 63, 63, 2010 WL 3666992 (N.Y.Civ.Ct.2010) (“[w]hen a corporate officer signs an agreement in his or her corporate capacity, the corporate officer will not be held personally liable on the contract unless he or she personally binds him or herself’). In contrast, “an individual who signs a contract as an agent for an entity will be held personally liable on the contract if the agency relationship is not disclosed.” DeAngelis v. Timberpeg E., Inc., 51 A.D.3d 1175, 858 N.Y.S.2d 410, 416 (3d Dep’t 2008) (citing McClure v. Cent. Trust Co. of New York, 165 N.Y. 108, 128, 58 N.E. 777 (N.Y.1900)); see Argersinger v. MacNaughton, 114 N.Y. 535, 539, 21 N.E. 1022 (1889) (“an agent contracting in his own name, and failing to disclose the name of his principal at the time of making a contract ... is personally liable for whatever obligation may arise out of the contract”).

*690“The purpose of this doctrine is to make sure a party entering a contract knows precisely with whom it is dealing; it protects a party from ‘unknowingly being required to do business with an entity incapable of meeting its contractual obligations.’ ” Deutsche Bank Sec., Inc. v. Rhodes, 578 F.Supp.2d 652, 666 (S.D.N.Y. 2008) (quoting UBS Sec., Inc. v. Tsoukanelis, 852 F.Supp. 244, 247-48 (S.D.N.Y. 1994)). Accordingly, “[t]he agent must disclose his principal at or before the time when the contractual agreement is made final.” Orient Mid-East Lines v. Albert E. Bowen, Inc., 458 F.2d 572, 576 (2d Cir.1972) (internal quotation omitted).

“A principal is considered to be ‘disclosed’ if, at the time of a transaction conducted by an agent, the other party to the contract had notice that the agent was acting for the principal and of the principal’s identity.” Safety Envtl., Inc. v. Barberry Rose Mgmt. Co., 94 A.D.3d 969, 942 N.Y.S.2d 200, 202 (2d Dep’t 2012). “Knowledge of the real principal is the test, and this means actual knowledge, not suspicion.” Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 397, 160 N.E. 651 (N.Y.1928). Further, an agent will not be relieved of liability simply because the contracting party had the means of ascertaining that the agent was acting on behalf of a principal; instead, the test is whether “a reasonable person in light of the surrounding circumstances would have understood that the agent was acting for a principal.” See Instituto Cubano De Estabilizacion Del Azucar v. SS Theotokos, 155 F.Supp. 945, 948 (S.D.N.Y.1957); see Unger v. Travel Arrangements, Inc., 25 A.D.2d 40, 266 N.Y.S.2d 715, 723 (1st Dep’t 1966) (“[i]t is not important how the customer acquired knowledge of the agency and of the existence of the principal; if he in fact knew thereof or in view of the facts known to him he should have known thereof without investigation, he may not hold the agent responsible as a principal”). In other words, a party to a contract has no duty to investigate whether he is in fact dealing with an agent for an undisclosed principal. See Safety Envtl., Inc. v. Barberry Rose Mgmt. Co., 942 N.Y.S.2d at 202 (“while each of the documents generated and maintained by the parties contained a corporate name in addition to the defendant’s, they did not include or make clear that ... the defendant was acting in the capacity of agent ... [and] plaintiff did not have a duty to investigate whether the defendant was acting as agent”); Tarolli Lumber Co. v. Andreassi, 59 A.D.2d 1011, 399 N.Y.S.2d 739, 740 (4th Dep’t 1977) (“[t]he mere fact that the plaintiff had reason to suppose that defendants were acting as agents will not reheve them from liability ... [because] [t]here is no requirement that the plaintiff, as a third party, make an investigation to obtain actual knowledge whether the defendants with whom it was dealing were, in fact, agents for an undisclosed corporate principal”).

“The defense of agency in avoidance of contractual liability is an affirmative defense and the burden of establishing the disclosure of the agency relationship and the corporate existence and identity of the principle is upon he who asserts an agency relationship.” Courthouse Corporate Ctr. LLC v. Schulman, 74 A.D.3d 725, 902 N.Y.S.2d 160, 162 (2d Dep’t 2010) (internal quotations omitted); see Judith Garden, Inc. v. Mapel, 73 Misc.2d 810, 342 N.Y.S.2d 486, 489 (N.Y.Civ.Ct.1973) (“defendant’s contention that she acted as an agent for a disclosed principal is an affirmative defense ... and this places the burden upon her to establish she so acted in making the contract sued upon”) (internal citation omitted), aff'd, 75 Misc.2d 558, 348 N.Y.S.2d 975 (1st Dep’t 1973); see Rick v. Richmond Sec. Servs. Inc., 958 N.Y.S.2d at 63 (party challenging individu*691al liability “bears the burden of showing he was protected by his corporate status”).

No genuine dispute exists in this matter that during the period 2007 through 2008 Ads Plus provided direct mail advertising services at the request of Alan Ault. As the communications between Cook and Alan Ault establish, Alan Ault agreed to pay for the services rendered by Ads Plus, and various payments were made to Ads Plus. Those payments constitute implicit admissions of the existence of a contractual relationship. See Harris Corp. v. McBride & Assocs., Inc., 2002 WL 1677695, *4 (W.D.N.Y.2002) (defendant’s payments to reduce amounts owed constitute implicit admissions of contractual obligation; granting summary judgment regarding existence of contract where plaintiff proffered evidence of purchase orders, invoices and partial payments); Bank of Am., N.A. v. Farley, 2002 WL 5586, *5 (S.D.N.Y. 2002) (defendant’s conduct in accordance with terms of agreement, including payments to reduce debt under agreement, establishes existence of contract between the parties); see also Diversified Application Distribution Elec. Corp. v. A.C. Green Elec. Contractor, Inc., 227 A.D.2d 517, 643 N.Y.S.2d 385, 385 (2d Dep’t 1996) (summary judgment appropriate where affidavit and invoices sent to defendant established “prima facie case that the defendant had failed to pay for goods it purchased from the plaintiff’).

Although Robert Ault concedes the existence of a contract with Ads Plus (Docket # 20 at 5-6, ¶ 3 (“[t]he documents disclosed by plaintiff demonstrate that it entered into an agreement with [PAR]”)), he denies that he may be held liable on the contract because he claims that Alan Ault was acting solely as an agent of PAR when he contracted with Ads Plus. As the party seeking to avoid individual liability on the contract, Robert has the burden to prove that Ads Plus knew or was informed that Alan Ault was acting as agent for PAR. See Courthouse Corporate Ctr. LLC v. Schulman, 902 N.Y.S.2d at 162; see Judith Garden, Inc. v. Mapel, 342 N.Y.S.2d at 489.

The record before the Court fails to establish that Alan Ault disclosed to Ads Plus that he was contracting with it in his corporate capacity as principal for PAR. As an initial matter, there is no evidence before the Court that even establishes the corporate existence of PAR or whether it was a viable entity during the relevant time period. See, e.g., Rick, 958 N.Y.S.2d at 63 (“a person who ‘purport[s] to act on behalf of a corporation which [has] neither a de jure nor a de facto existence [is] personally responsible for the obligations which he incur[s]’ ”) (alteration in original) (quoting Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 537 N.Y.S.2d 177, 178 (2d Dep’t 1989)). Second, Robert Ault has failed to adduce any evidence that Alan Ault informed Ads Plus that he was acting on behalf of PAR. Instead, Robert Ault asserts that use of the corporate checks to remit payments to Ads Plus constituted notice to it that it was dealing solely with a corporate entity. To the contrary, the use of corporate checks is insufficient to establish the required disclosure. See Ardwin v. Englert, 81 A.D.2d 960, 439 N.Y.S.2d 720, 721 (3d Dep’t 1981) (“defendants are plainly not relieved of their individual liability to plaintiff merely because they used corporate checks ... to make some payments to plaintiff on the contract”), aff'd, 56 N.Y.2d 936, 453 N.Y.S.2d 608, 439 N.E.2d 324 (N.Y.1982); see Tarolli Lumber Co. v. Andreassi, 399 N.Y.S.2d at 740 (“use by defendants of corporate checks to pay on the accounts billed to them as individuals does not charge the plaintiff with the required ‘actual knowledge’ ”).

In addition to the use of corporate checks, Robert Ault contends that the fact *692that Ads Plus requested the credit history of PAR proves that Ads Plus knew it was contracting with PAR and not Alan Ault. At best, such evidence creates a question of fact as to whether Ads Plus understood that Alan Ault was acting as a corporate agent for PAR. Cook asserts that she never received any correspondence indicating that Alan Ault was acting as an agent of PAR and, in fact, believed that she was transacting business with Alan Ault in his individual capacity. No documentation exists in the record on this motion refuting that sworn assertion. In sum, disputes of material facts plainly exist regarding whether Alan Ault was acting solely as an agent for PAR, and, if so, whether Ads Plus knew that fact. Such disputes cannot be resolved at this stage and must be determined by a jury.5

B. Liability of Individual that Represents Himself as a Partner

Of course, even if Ads Plus had contracted with Alan Ault in his personal capacity, it still must establish a basis to hold Robert Ault liable on the contract. Robert Ault contends that evidence of his liability is lacking because all of the transactions occurred between Alan Ault and Ads Plus. Ads Plus counters that Robert Ault was “part and parcel of many of the transactions giving rise to this case” (Docket # 26 at ¶ 6), including the wiring of funds to Ads Plus as early as May 2007. Two other transactions, the dates of which are unclear, involved Robert’s authorization of the use of his credit card to make a payment to Ads Plus and his issuance of a check in the amount of $30,000 to hold as a “good faith” deposit. Although Cook concedes that she did not speak with Robert Ault for the first time until May 2008, she claims that he represented that he was Alan Ault’s partner and would be handling the finances. Significantly, according to the invoice attached to the Complaint, the projects for which Ads Plus claims it has not been fully compensated were performed between April 30 through June 2008.

Under New York law, the doctrine of partnership by estoppel provides that a party who holds himself out to be a partner may be held liable by any party who relies upon that representation. N.Y. P’ship Law § 27 (McKinney). Specifically, New York Partnership Law Section 27 provides:

When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership.

Id. “[Partnership by estoppel should not be lightly invoked and generally presents issues of fact.” Royal Bank & Trust Co. v. Weintraub, Gold & Alper, 68 N.Y.2d 124, 129, 506 N.Y.S.2d 151, 497 N.E.2d 289 (N.Y.1986). Two elements are required to establish partnership by estoppel: first, that “sufficient indicia of partnership be presented to the injured party to constitute a representation that the partnership exists,” First Am. Corp. v. Price Waterhouse LLP, 988 F.Supp. 353, 358 (S.D.N.Y.1997) (citing Royal Bank & Trust Co. v. Weintraub, Gold & Alper, 68 N.Y.2d at 129, 506 N.Y.S.2d 151, 497 N.E.2d 289), reconsidered in part on other grounds 1998 WL 148421 (S.D.N.Y.), aff'd, *693154 F.3d 16 (2d Cir.1998); second, that the injured party “relied on this representation to his or her detriment.” Id. (citing Milano v. Freed, 64 F.3d 91, 98 (2d Cir. 1995)); see Staples, Inc. v. W.J.R. Assocs., 2007 WL 3046352, *3 (E.D.N.Y.2007) (“[cjourts have construed ‘given credit’ [in N.Y. P’ship Law § 27] to mean that a party has relied on another party’s representation regarding the existence of a partnership”). Application of the doctrine forecloses the party who has represented himself as a partner from denying the existence of the partnership for the purpose of avoiding the partnership’s liability to the injured party. See JLG Architectural Prods., LLC v. WDF, Inc., 87 A.D.3d 681, 928 N.Y.S.2d 750, 752 (2d Dep’t) (plaintiff estopped from denying existence of partnership to defeat defendant’s claims where plaintiff had represented that it was a partner and defendant had relied on that representation), Iv. to appeal dismissed, 18 N.Y.3d 854, 938 N.Y.S.2d 844, 962 N.E.2d 266 (2011); Hartford Accident & Indem. Co. v. Oles, 152 Misc. 876, 274 N.Y.S. 349, 353-54 (N.Y.Sup.Ct.1934).

Ads Plus contends that Robert Ault represented to Cook, its president, that he was Alan Ault’s partner and would be handling the finances. This contention, if true, satisfies the first element necessary to estop Robert from denying the existence of a partnership between Alan Ault and himself. See JLG Architectural Prods., LLC v. WDF, Inc., 928 N.Y.S.2d at 752 (written representation of partnership establishes prima facie showing of partnership by estoppel); First Nationwide Bank v. Brookhaven Realty Assocs., 223 A.D.2d 618, 637 N.Y.S.2d 418, 422 (2d Dep’t 1996) (written representation of partnership establishes prima facie showing of partnership); Mulvey v. Hamilton, 57 A.D.2d 995, 394 N.Y.S.2d 318, 319 (3d Dep’t 1977) (evidence that party held himself out to be a partner and that plaintiff performed services in reliance on that representation sufficient to hold party liable to plaintiff). Even if Robert Ault disputes that he made this representation, such a dispute simply creates a question of fact to be resolved by a jury. See Sitchenko v. DiResta, 512 F.Supp. 758, 762 (E.D.N.Y.1981) (conflicting affidavits of parties regarding whether defendant represented that partnership existed created question of fact precluding summary judgment).

In order to estop Robert Ault from denying the existence of a partnership, Ads Plus also must establish that there is at least a question of fact as to whether it relied upon Robert Ault’s status as a partner when it undertook its contractual obligations. Cf. Milano v. Freed, 64 F.3d at 98 (no issue of fact where plaintiffs did not allege that they relied upon representation that doctor was partner in medical group when deciding to take child to medical group for treatment); Stochastic Decisions, Inc. v. DiDomenico, 995 F.2d 1158, 1169 (2d Cir.) (no partnership by estoppel where plaintiff failed to allege that he “gave credit” to defendant on the basis of partnership representation), cert. denied, 510 U.S. 945, 114 S.Ct. 385, 126 L.Ed.2d 334 (1993); White v. E. Nassau Med. Grp., 253 A.D.2d 812, 678 N.Y.S.2d 110, 110 (2d Dep’t 1998) (“plaintiffs failed to submit evidence to establish that they knew of or relied on the appellant’s purported public indicia of partnership when they sought treatment for the infant plaintiff’); Ranieri v. Leavy, 180 A.D.2d 723, 580 N.Y.S.2d 366, 367 (2d Dep’t 1992) (“conduct or representations ... that were not concurrent with or prior to the execution of the contract have no bearing on the issue of whether the defendants held themselves out as a partnership”). Although Robert Ault’s representation, assuming it was made, occurred no earlier than May 2008, the projects for which Ads Plus al*694legedly has not been paid were performed in or after May 2008.

Thus, genuine issues of material fact exist as to Robert Ault’s liability for any amounts due Ads Plus for work performed after May 2008. See, e.g., Four Star Capital Corp. v. Nynex Corp., 183 F.R.D. 91, 105-106 (S.D.N.Y.1997) (issue of fact as to whether party represented itself as a partner and therefore could be liable for breach of contract); Sitchenko v. DiResta, 512 F.Supp. at 761-62 (issue of fact as to whether party held itself out as a partner and therefore could be liable for services performed by plaintiff in reliance). Cook asserts that she first spoke to Robert in May 2008 about difficulties in obtaining payments. Subsequent email communications between Alan Ault and Cook reveal that Cook expressed hesitancy to complete additional projects until the outstanding invoices were paid; she also advised Alan Ault that she was “overextended at the bank” due to Alan Ault’s failure to pay the outstanding invoices. (Docket #20-7 at 40-42, 44, 46, 52). These allegations, coupled with Cook’s assertions that Robert assured her that, as Alan’s partner, he would be responsible for the finances and provided her with a $30,000 check to hold in “good faith,” could lead a jury to conclude that Ads Plus relied upon Robert Ault’s representation in continuing its contractual work with defendants. Accordingly, summary judgment is inappropriate.

CONCLUSION

For the reasons discussed above, Robert Ault’s motion for summary judgment (Docket # 20) is DENIED.

IT IS SO ORDERED.

ORDER

ROBERT W. PRATT, Judge, U.S. DISTRICT COURT

Plaintiffs filed a petition against Defendants in the Iowa District Court for Polk County on January 31, 2016. Clerk’s No. 1-1. Defendants removed the action to this Court on April 14, 2016, on the basis of diversity jurisdiction. Clerk’s No. 1. On April 22, 2016, Defendants filed a Motion to Transfer Venue. Clerk’s No. 3. Plaintiffs filed a resistance to the Motion on May 4, 2016. Clerk’s No. 6. Plaintiffs filed an Amended Complaint on May 9, 2016. Clerk’s No. 10. Plaintiffs filed a Second Amended Complaint on May 23, 2016. Clerk’s No. 20. Plaintiffs filed a supplemental resistance to Defendants’ Motion to Transfer Venue on May 25, 2016. Clerk’s No. 21. Defendants filed a Reply in support of their Motion on May 25, 2016. Clerk’s No. 22. Plaintiffs filed a sur-reply on June 2, 2016. Clerk’s No. 28. The Court also held a hearing on the Motion to Transfer Venue on June 2, 2016. Clerk’s No. 27. The matter is fully submitted.

I. FACTUAL BACKGROUND

Plaintiff Michael J. Witt (“Witt”) is the owner of a seven-year old male thoroughbred horse named Sebastian and also known as Purity Express. Second Am. Compl. ¶ 6. Witt purchased the horse intending it to be used by his daughter, Caroline M. Witt (“Caroline”). Id. ¶8. In May 2015, Sebastian was transported to a stable in Bethel, Pennsylvania so that he could undergo further training with instructor Lisa Bishop (“Bishop”), who along with other professionals, believed that Sebastian had potential to be a champion jumper. Id. ¶ 9-11.

In late summer 2015, Witt decided to return Sebastian to Des Moines for further boarding and training at Valley Park Stables. Id. ¶ 14. On or about August 18, 2015,1 Witt contacted Nation-Wide Horse *1148Transportation, Inc. (“NHT”) about the transport, and explained that Sebastian had special attributes and a high value.2 Id. ¶ 15. Witt also contacted three other equine transportation services, but ultimately made the decision to hire NHT because it had “promised the trip back to Iowa would take no more than two, or possibly two and a half, days, which was the shortest travel time offered by all of the interviewed transportation services.” Id. ¶ 16.

Witt asked Caroline to go on NHT’s website and determine what needed to be done to hire NHT for the transport of Sebastian. Clerk’s No. 6-1 (Caroline’s Certification) ¶ 4; Clerk’s No. 6-2 (Witt’s Certification) ¶ 4. On August 20, 2015, Caroline went to NHT’s website and saw there was an “authorization form” to be filled out. Id. Caroline told Witt about the form and, without looking at it himself, Witt told her to fill it out and submit it. Clerk’s No. 6-1 ¶ 5; Clerk’s No. 6-2 ¶ 5. Caroline observed that there was writing on the form submission page, which she later realized was NHT’s legal terms and conditions, but she did not read it before filling in the form and submitting it. Clerk’s No. 6-1 ¶ 6-7. In particular, when Caroline clicked on the “authorization form” tab, on the website, she was presented with the following pertinent language, which is all in the same font size, and which appears above the spaces to fill in the relevant information for the Sebastian’s transport;

Please read the terms and conditions before filling out the form at the bottom of this page.

The following Terms and Conditions govern the transportation of all horses by Nation-Wide Horse Transportation, Inc. (“Transporter”) and you (“Shipper”) pursuant to oral or written communications ....

Transporter will use reasonable efforts in accordance with industry standards to safely transport, feed and care for the shipped horse(s), but makes no guarantees as to the health or physical condition of the horse(s) upon departure or arrival. Transporter will make commercially reasonable efforts to deliver the horse(s) at or about the requested delivery date but is not responsible for delays due to inclement weather, road closures, mechanical failures, or other acts of force majeure whether or not of a class or kind mentioned herein and not reasonably within Transporter’s control ....

Transporter will provide, at no additional charge to Shipper, one thousand dollars ($1,000) of limited accidental collision mortality insurance per horse transported ... Shipper understands and acknowledges that the only insurance provided to the Shipper by Transporter is one thousand dollars ($1,000) of limited accidental mortality insurance per horse transporter. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRANSPORTER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, RELIANCE, INCIDENTAL, SPECIAL, DIRECT OR INDIRECT DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST *1149PROFITS OR FUTURE BREEDING VALUE, PERSONAL INJURY OR ANY OTHER LOSSES UNDER ANY LEGAL THEORY INCLUDING CONTRACT AND TORT, ARISING .FROM, OR IN CONNECTION WITH, THIS AGREEMENT.... The rate quoted is for stated delivery and care of the horse(s)....

This sale shall be deemed to have been made in the State of Colorado and shall be governed by the laws of Colorado notwithstanding any conflict-of-laws doctrines. Any claim related to this Agreement must be brought in the courts of El Paso County, Colorado or the tenth federal district courts in Denver, Colorado. The Parties stipulate that venue is proper therein, waive any other jurisdiction and venue whether by virtue of domicile or otherwise, and consent to the in personam jurisdiction of said courts....

This Agreement shall bind and inure to the benefit of the parties and their respective principals, agents,! heirs, successors, and permitted assigns. The parties agree that the terms and conditions stated herein shall set forth the entire agreement between the Shipper and the Transporter_

Clerk’s No. 8-3 at 1-2. Underneath this language was a form to fill in details of the requested transport. Id. at 3. In the section titled “Owner Information,” Caroline listed herself as “owner” of the horse, with no reference to Witt. Clerks’ No. 3-5 at 1. The transport was to cost $770, with half payable as a deposit and the balance due upon delivery of Sebastian to the stable in Des Moines. Id. at 2; Second Am. Compl. ¶ 20. Witt contacted NHT by telephone on August 31, 2015, and paid the deposit with his credit card. Clerk’s No. 3-2 (Aff. of NHT owner Brenda Steele) ¶ 8; Pis.’ Sur-Reply Br. at 6 (“On August 31, 2015 ... Witt had another telephone call with a man at [NHT]. in order to firm up the contract and make the required down payment, on his Visa® credit card.”).

Robert- Owens (“Owens”) "and Travis Turlo (“Turlo”), employees of NHT, picked up Sebastian in Pennsylvania at approximately 11:00 p.m. on September 4, 2015. Second Am. Compl. ¶ 21. Although expected earlier, Sebastian did not arrive in Des Moines until about 3:00 a.m. on September 9, 2016. Id. ¶ 29. Caroline and an employee of Valley Park Stables were present when the truck arrived. Id. ¶ 28. When the trailer door was opened, they observed that Sebastian was “shaking and the ribs on both sides of his body were jutting out, thus showing that he was underfed, undernourished, dehydrated and/or not given sufficient water during the trip.” Id. 1Í30. Sebastian was uncooperative when Owens and Turlo attempted to lead him out of the trailer. Id. ¶ 31. In an effort to remove Sebastian, they “pushed him violently against a wall and hé fell to the floor.” Id. ¶ 32. Thereafter, they “proceéded' to grab the struggling, prostate Sebastian by his two front legs and yank him out of the trailer, sliding him down the ramp on his buttocks with his two hind leg[s] caught underneath him.” Id. ¶ 34. Plaintiffs allege that Owens’s and Turlo’s reckless treatment of Sebastian has caused lasting harm in the -form of pain and suffering to Sebastian, a reduction in his market value, and a corresponding monetary loss to Witt. Id. ¶ 43. In particular, they claim Sebastian’s jumping height has been dramatically reduced and he now exhibits an aggressive and wild streak that was not present prior to his transport. Id. ¶¶ 36-39. Witt thus asserts causes of action against Defendants for: (1) tortious conduct; (2) violation of Iowa Code § 717B; and (3) breach of warranty, breach of contract, and restitution. Second Am. Compl. ¶¶ 1-58. Caroline also asserts a cause of action for tortious *1150conduct against Defendants. Id. ¶ 59-61. Although there is no dispute that Witt is Sebastian’s owner, Caroline claims she has been personally harmed because: (1) Witt purchased Sebastian for her use and enjoyment; (2) she had an agreement with Witt that if Sebastian became a champion jumper, the two would share in his upside market value; and (3) she spent substantial sums of money improving Sebastian’s jumping skills prior to his transport and for his rehabilitation after the transport. Id.

II. LAW AND ANALYSIS

A. Venue Generally

Jurisdiction of the federal court in this matter is premised on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiffs are citizens of Iowa, NHT and Owens are citizens of Colorado, and Turlo is a citizen of New Hampshire. The amount in controversy, as detailed in Defendants’ Notice of Removal, exceeds the jurisdictional requisite of $75,000.00. See Clerk’s No. 1 at 5-12. Pursuant to 28 U.S.C. § 1391(a), when jurisdiction is founded on diversity of citizenship, a civil action may be brought in:

(1) a judicial district where any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action’.

28 U.S.C. § 1391(a). Venue is clearly proper in Iowa pursuant to § 1391 because a substantial part of the events or omissions giving rise to the claim occurred here. In particular, Plaintiffs allege that the bulk of injury to Sebastian occurred when he was being removed from the transport trailer in Des Moines, Iowa.

B. Impact of Forum Selection Clause

Despite the fact that venue is proper in Iowa, Defendants assert that the case must be transferred to Colorado pursuant to 28 U.S.C. § 1404(a). This section provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a) (emphasis added). According to Defendants, all parties in this case agreed in the contract governing Sebastian’s transport that “[a]ny claim related to this Agreement must be brought in the courts of El Paso County, Colorado or the tenth federal district courts in Denver, Colorado.” Clerk’s No. 3-4 at 1. “[I]t is settled ... that parties to a contract may agree in advance to submit to the jurisdiction of a given court....” Nat. Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964).

In determining whether to exercise its discretion to transfer an action pursuant to § 1404(a), the Court ordinarily considers a myriad of factors related to the parties’ private interests, such as convenience of the parties and witnesses, access to sources of proof and evidence, the availability of compulsory process for attendance of unwilling witnesses, the cost of obtaining witness attendance, the possibility of viewing relevant premises, and other practicalities related to ensuring expedient and inexpensive trials. Atl. Marine Const. Co., Inc. v. United States Dist. Court for the W. Dist. of Tex., — U.S. -, 134 *1151S.Ct. 568, 581 & n. 6, 187 L.Ed.2d 487 (2013). As well, the Court considers various public-interest factors, such as administrative difficulties related to court congestion, local interests in having localized controversies decided at home, and the interest of having diversity cases determined by a court familiar with the applicable law. Id.; see Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.1997). Typically, the burden is upon the party seeking transfer to “make a clear showing that the balance of interests weighs in favor of the proposed transfer, and unless that balance is strongly in favor of the moving party, the plaintiffs choice of forum should not be disturbed.” Medicap Pharm., Inc. v. Faidley, 416 F.Supp.2d 678, 686 (S.D.Iowa 2006) (citations omitted)).

This “typical” § 1404(a) analysis, however, does not apply in this case due to the presence of a valid forum selection clause.3 In Atlantic Marine, the United States Supreme Court held that “[w]hen the parties have agreed to a valid forum-selection clause, a district should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied.” Atl. Marine, 134 S.Ct. at 581 (finding that enforcement of valid forum selection clauses protects parties’ legitimate expectations and “furthers vital interests of the justice system” (citation omitted)). In particular, the Court held when there is a valid forum selection clause, the § 1404(a) analysis must be altered in three ways:

First, the plaintiffs choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the partes bargained is unwarranted.... Second, a court evaluating a defendant’s § 1404(a) motion to transfer based on a forum-section clause should not consider arguments about the parties’ private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum.

As a consequence, a district court may consider arguments about public-interest factors only. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Although it is conceivable in a particular case that the district court would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause, such cases will not be common.

Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules—a factor that in some circumstances may affect public-interest considerations. A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits. However, we previously identified an exception to that principle [known as the Van Dusen rule] for § 1404(a) transfers, requiring that the *1152state law applicable in the original court also apply in the transferee court.... Not only would it be inequitable to allow the plaintiff to fasten its choice of substantive law to the venue transfer, but it would also encourage gamesmanship. Because § 1404(a) should not create or multiply opportunities for forum shopping, we will not apply the Van Dusen rule when a transfer stems from enforcement of a forum-selection clause: The court in the contractually selected venue should not apply the law of the transferor venue to which the parties waived their right.

When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations .... In all but the most unusual cases, therefore, “the interest of justice” is served by holding parties to their bargain.

Id. at 581-83.

C. Do Extraordinary Circumstances Exist?

Pursuant to Atlantic Marine, it is clear that the Court should enforce the forum selection clause and transfer the case to the United States District Court for Colorado unless Plaintiffs satisfy their burden to show that this case presents extraordinary circumstances such that the forum selection clause should not enforced. To this end, Plaintiffs make five separate arguments. Specifically, they argue that the forum selection clause is inapplicable because it is unconscionable; because it was not freely negotiated; because it does not embrace the claims asserted; because Caroline never consented to the forum selection clause; and because the public interest factors weigh in favor of maintaining the case in Iowa. The Court will address each argument in turn.

1. Unconscionable and not freely negotiated.

In M/S Bremen v. Zapata OffShore Co., the Supreme Court found forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen, 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). The Supreme Court concluded that a forum selection clause “should control absent a strong showing that it should be set aside.” Id. at 15, 92 S.Ct. 1907. Factors important in determining the reasonableness of a forum selection clause are whether the clause was the result of an arm’s-length transaction, the experience and sophistication of the parties involved in the negotiation, the comparative bargaining positions of the parties, and representation of the parties by legal counsel. See id. at 12, 92 S.Ct. 1907; Terra Int’l, Inc. v. Miss. Chem. Corp., 922 F.Supp. 1334, 1344 (N.D.Iowa 1996); see also Med, Legal Consulting Serv. v. Covarrubias, 648 F.Supp. 153, 156 (D.Md.1986) (listing nine factors that have been considered by courts in determining the reasonableness of a forum selection clause). Other reasons for invalidating a forum selection clause include fraud or overreaching, duress, illegality, and other conventional grounds for invalidating a contract. See N.W. Nat’l Ins. Co. v. Donovan, 916 F.2d 372, 376-77 (7th Cir.1990).

Generally, a forum selection clause may be deemed unreasonable, unconscionable, or unjust where it is demonstrated “that the forum thus selected is ‘so gravely difficult and inconvenient that [the defendant] will for all practical purposes be deprived of his day in court.’ ” Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1219 (3d Cir.1991) (quoting M/S Bremen, 407 U.S. at 18, 92 S.Ct. 1907); see also RK *1153 Dixon Co. v. Dealer Mktg. Servs., Inc., 284 F.Supp.2d 1204, 1209 (S.D.Iowa 2003). Here, Plaintiffs argue that the forum selection clause should not be enforced because it is procedurally and substantively unconscionable. Pis.’ Br. at 17-18. Specifically, they urge that the clause is substantively unconscionable because “no man in his right mind would ever knowingly and willingly agree that an intentional tort committed against his valuable, beloved horse in his own Iowa community must be adjudicated in a foreign state by disinterested jurors.” Id. at 17, 92 S.Ct. 1907. Plaintiffs cite no case law in support of this argument and the Court finds nothing conscience shocking about the forum selection clause under the circumstances of this case. Cf. Comb v. PayPal, Inc., 218 F.Supp.2d 1165, 1176-77 (N.D.Cal.2002) (finding a forum selection clause in an arbitration agreement unconscionable where millions of PayPal consumers, with average' transaction amounts of a mere $55.00 would be required to travel to California for arbitration and where the evidence supported a conclusion that the clause was intended to “shield PayPal from liability instead of providing a neutral forum in which to arbitrate disputes”). Plaintiffs also argue that the forum selection clause is procedurally unconscionable because it was not sufficiently conspicuous in that it was “written in the same small font used for all other provisions of the form.” Id. at 17, 92 S.Ct. 1907 (urging that a “good contracts attorney” will ensure that terms in a form contract affecting important rights of the consumer will be emphasized in some way), ^he Court also rejects this argument. See, e.g., Krenkel v. Kenner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir.2009) (finding forum selection clause enforceable where it was “in legible type in the same font and type size as the surrounding paragraphs”); General Mills Operations, LLC v. Five Star Custom Foods, Ltd., 789 F.Supp.2d 1148, 1158 (D.Minn.2011) (“[T]he fact print is small and boilerplate is not enough to render the contract unenforceable.”). In short, there is nothing in the record supporting a belief that the forum selection clause is unconscionable in this case or that Colorado would be such an inconvenient forum that Plaintiffs would essentially be deprived of their day in court by being forced to litigate there.

Plaintiffs next contend that the forum selection clause should hot be enforced because it was “part of a ‘click on submit’ electronic acknowledgment form transmitted over the Internet.” Pis.’ Resistance Br; at 16. The Court sees no inherent problem in the fact that the contract in this case was entered into through the internet with the use of so-called “clickwrap” or “scroll-wrap” terms and conditions.4 See Berkson *1154 v. Gogo LLC, 97 F.Supp.3d 359, 395 (E.D.N.Y.2015) (“Clickivrap refers to the assent process by which a user must click ‘I agree’,’ but not necessarily view the contract to which he or she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate ‘I agree’ button in order to assent to the terms and conditions of the host website.”). Indeed, courts have routinely upheld the use of electronic agreements such as the one on NHT’s website. See, e.g., Mark A. Lemley, Terms of Use, 91 Minn. L. Rev. 459, 459 (Dec.2006) (collecting cases and finding: “Every court to consider the issue has found 'click-wrap’ licenses, in which an online user clicks T agree’ to standard form terms, enforceable.”); Burcham v. Expedia, Inc., No. 4:07CV1963CDP, 20009 WL 586513, at *3 (E.D.Mo. Mar. 6, 2009) (collecting cases and stating that clickwrap agreements “have been routinely upheld by circuit and district courts”); Siebert v. Amateur Athletic Union of U.S., Inc., 422 F.Supp.2d 1033, 1040 (D.Minn.2006) (“Most courts which have considered the issue have upheld arbitration and forum selection clauses in so-called ‘clickwrap’ or ‘shrinkwrap’ form contracts.”).

Finally, Plaintiffs argue that the forum selection clause is unenforceable because “[njeither Witt nor Caroline read the Authorization Form, much less the forum selection clause. There was absolutely no discussion or negotiation of the terms of the form.” Pis.’ Resistance Br. at 16. Plaintiffs argue that a forum selection clause can only be considered to be freely negotiated if there is “real, active ‘negotiation,’ ” such as when commercial entities exchange formal, hard-copy contracts and there are “active negotiations or at least ample opportunity to negotiate the clause.” Id. at 16-17. Plaintiffs’ arguments are unavailing. It is well settled that a party’s failure to read the terms of an agreement will not operate to make such agreement void or unenforceable. See 17A Am. Jur. 2d, Contracts § 210 (July 2016) (“A party who voluntarily executes a document without reading it is bound by its terms unless the failure to read the contract is justified by special circumstances, such as fraudulent inducement or mutual mistake of fact.”). Case law also makes clear that forum selection clauses are not unenforceable merely because the parties did not engage in actual negotiations concerning the clause.5 See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (rejecting the proposition that “a nonnegotiated forum-selection clause in a form ticket contract is never enforceable simply because it is not the subject of bargaining”); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 753 (8th Cir.1999) (“The fact that the contract was a form contract and that the individual clauses were not actually negotiated does not render the [forum selection] clause per se unenforceable.”).

At best, Plaintiffs have made a “bare assertion” that the contract here was offered on a “take it or leave it” basis; such an allegation, however, is insufficient as a *1155matter of law to establish that a contract is one of adhesion.6 Dominmm Austin Partners, L.L.C. v, Emerson, 248 F.3d 720, 726 (8th Cir.2001). Indeed, even if a contract falls under the rubric of the adhesion doctrine, any particular term sought to be invalidated must also be unconscionable. See e.g., Webb v. R. Rowland & Co., 800 F.2d 803, 807 (8th Cir.1986) (“The use of a standard form contract between two parties of admittedly unequal bargaining power does not invalidate an otherwise valid contractual provision. To be invalid, the provision at issue must be unconscionable.”); Surman v. Merrill, Lynch, Pierce, Fenner & Smith, 733 F.2d 59, 61 n. 2 (8th Cir.1984) (noting that standardized contracts of adhesion are not per se unenforceable, but courts must determine whether a particular clause is unconscionable) (citing 6A A. Corbin, Contracts § 1376, at 20-22 (1962)). As the Court concluded supra, however, the forum selection clause in this case is not unconscionable.

2. Scope of contract.

The forum selection clause provides that “[a]ny claim related to this agreement” shall be brought in Colorado. Clerk’s No. 3-3 at 2. Plaintiffs argue that their tort claims and Iowa Code chapter 717B claim are not subject to the forum selection clause because they are insufficiently “related to” the agreement to transport Sebastian. Plaintiffs cite Farmland Industries, Inc. v. Frazier-Parrott Commodities, Inc., in support of their argument. See 806 F.2d 848 (8th Cir.1986). In that case, Farmland Industries opened two commodities futures trading accounts with Heinold Commodities. 806 F.2d at 849. The agreement included the following forum selection clause:

The undersigned (“Customer”) agrees to bring any judicial action, including any complaint, counterclaim, cross-claim or third party complaint, arising directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or any transaction covered hereby or otherwise arising in connection -with the relationship between the parties including any action by Customer against Heinold or any person who is an officer, agent, employee or associated person of Heinold at the time the cause of action arises, only in courts located within Cook County, Illinois, unless Hei-nold voluntarily in writing expressly submits to another jurisdiction....

Id. In a suit by Farmland against Heinold, Farmland alleged that one of Heinold’s employees engaged in a kickback scheme with another commodities brokerage firm. Id. The Eighth Circuit affirmed the district court’s conclusion that Farmland’s claims were broader than the forum selection clause because Farmland had “alleged an elaborate scheme of fraud involving not only Heinold and individuals associated with Heinold, but also involving other individuals outside the securities brokerages, sham corporations, and other matters not subject to the agreement between plaintiff and Heinold.” Id. at 852 (quoting district court decision). The Eighth Circuit agreed that under these circumstances, “Farmland could not have anticipated having to litigate these claims” in the jurisdiction specified in the forum selection clause.” Id.

Plaintiffs urge the Court to follow Farmland because the “fraud alleged in *1156 Farmland is a tort, a ‘bad’ tort,” and the “gravamen of [Plaintiffs’] Amended Complaint is tort, including intentional or ‘bad’ tort and criminal animal abuse, committed by two co-defendants who were not parties to the Authorization Form.” Pis.’ Resistance Br. at 16. The present case, however, is readily distinguishable from Farmland. First, there is no dispute that, at the time of Sebastian’s alleged injuries, Owens and Turlo were employees of NHT who were carrying out NHT’s contractual obligation to transport Sebastian from Pennsylvania to Iowa. Thus, there is no merit in Plaintiffs’ assertion that Owens and Turlo were “not parties to the Authorization Form” because the contract terms clearly provide that the agreement “bind[s] and inure[s] to the benefit of the parties and their respective ... employees.” Clerk’s No. 3-3 at 2. Second, in Terra International, Inc. v. Mississippi Chemical Corporation, the Eighth Circuit emphasized that the applicability of forum selection clauses to tort claims “depends on the intention of the parties reflected in the wording of particular clauses and the facts of each case.” 119 F.3d 688, 693 (8th Cir.1997) (quoting Berrett v. Life Ins. Co. of the SW, 623 F.Supp. 946, 948-49 (D.Utah 1985)). Thus, it explicitly stated that the Farmland decision was “limited to its facts, because the ‘directly’ or ‘indirectly’ language was contained in the specific forum selection clause at issue in that case.” Id. at 694.

The Terra Court held that, in evaluating whether a contractual clause applies to tort claims, the following general principles from the Third, First, and Ninth Circuits are particularly useful: (1) “where tort claims ‘ultimately depend on the existence of a contractual relationship’ between the parties, such claims are covered by a contractually-based forum selection clause”; (2) “‘[w]hether a forum selection clause applies to tort claims depends on whether resolution of the claims relates to interpretation of the contract’ and (3) “ ‘contract-related tort claims involving the same operative facts as a parallel claim for breach of contract should be heard in the forum selected by the contracting parties.’” Id. at 694 (quoting Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 203 (3d Cir.1983); Lambert v. Kysar, 983 F.2d 1110, 1121-22 (1st Cir.1993); Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir.1988)). Here, as in Terra, the non-contract claims “involve the same operative facts as would a parallel claim for breach of contract.” Terra, 119 F.3d at 695. Indeed, both the tort claims and the Iowa Code claim are premised on Owens’s and Turlo’s alleged mistreatment of Sebastian while he was being transported from Pennsylvania to Iowa. This fundamental claim can be, and in fact is, also asserted as a breach of contract claim in this case. In particular, Plaintiffs allege in the contract count of the Second Amended Complaint that these same facts demonstrate a breach of the contracts’ express warranty terms—specifically those that require NHT to “use reasonable efforts ... to safely. transport, feed and care for the shipped horse”—and also a breach of the implied warranty that the transport would be conducted in a “professional and workmanlike manner.” Clerk’s No. 20 at 8 (also alleging that these breaches of the contract “resulted in great physical harm to, and great pain and suffering, of Sebastian; a great diminution in Sebastian’s market value; and in great monetary damage to Plaintiffls].”).

As well, Plaintiffs non-contract claims ultimately depend on the existence of a contractual relationship between the parties. Indeed, Plaintiffs contracted with NHT to transport a horse from one location to another. Without this contract, neither Owens nor Turlo would have had any interaction at all with Sebastian. It is simply not reasonable to believe that injuries *1157to a horse during the course of a contractual transport from one location to another somehow become “unrelated” to the contract for transportation merely because such injuries are alleged to have been intentionally inflicted during the contractual transport See Terra, 119 F.3d at 694 (noting that while the alleged tort claims “do not center around a disagreement over the specific terms of the license agreement, one could argue that they ‘relate’ to the agreement’s interpretation because the tort claims directly involve the entire subject matter of the license agreement”). Finally, the forum selection clause in this case also appears applicable to Plaintiffs’ non-contract claims because' their resolution will, in fact, require some interpretation of the contract. Specifically, the reviewing court will be required to evaluate whether such claims can stand in the face of contractual language limiting NHT’s liability. See Clerk’s No. 3-8 at 1 (providing a limitation of NHT’s liability in relation to “any consequential, reliance, incidental, special, direct or indirect damages whatsoever, including without limitation damages for lost profits or future breeding value, personal injury or any other losses under any legal theory including contract and tort, arising from, or in connection with, this agreement_ (capitalization modified from original)). For all of these reasons, the Court concludes that all of Plaintiffs’ claims fall within the scope of the forum selection clause.

3. Caroline’s status.

Plaintiffs next assert that transfer to Colorado is not warranted because § 1404(a) permits transfer to another district only when “all parties have consented.” See generally Pis.’ Sur-Reply Br. They claim that even though Caroline listed herself as Sebastian’s owner on the Authorization Form, she was merely acting as an agent for Witt, Sebastian’s actual owner. Id. Thus, they argue, Caroline is not personally bound by the forum selection clause, and the case cannot be transferred pursuant to § 1404(a) because Caroline did not consent to the exclusive jurisdiction of Colorado courts.7

Given that Caroline has no ownership interest in Sebastian, the Court is dubious that she possesses adequate standing to assert any freestanding claims related to or arising out of Sebastian’s transport and injuries. Assuming that she does possess standing, however, the Court finds she is bound by the forum selection clause. General principles of agency law provide that an “agent does not become a party to a contract made on behalf of a disclosed principal unless the agent and the third party so agree.” Restatement (Third) of Agency § 6.01(a) (emphasis added). “A principal is disclosed if, when an agent and a third party interact, the third party has notice that the agent is acting for a principal and has notice of the principal’s identity.” Id. § 1.04(2)(a).

In this case, Caroline filled out the Authorization Form and listed herself as Sebastian’s owner. She did not note anywhere on the form, or otherwise communicate to NHT in any way, that she was *1158acting as Witt’s agent rather than on her own behalf. Plaintiffs nonetheless contend that NHT was aware that Caroline was Witt’s agent because of the following:

As stated in greater detail in Michael Witt’s Supplemental Certification submitted herewith, just days before Caroline Witt submitted the online click-wrap contract, Michael Witt had a telephone call with [NHT’s] representative in which he identified himself as ‘Mike Witt’ and explained he might consider hiring [NHT] to transport his horse from Pennsylvania to Iowa. Other matters were discussed; suffice it to say, this was no short, unimpressionable phone call. On August 31, 2015, prior to the transportation of the horse, Michael Witt had another telephone call with a man at [NHT] in order to firm up the contract and make the required down payment on his Visa® credit card. The [NHT] representative asked Michael Witt to state his name, exactly as imprinted on the credit card, and his billing address. That address is the same address stated in the online contract; and surely, before quoting the exact amount due that day (i.e., half the contract price), the [NHT] representative had to have matched up the credit card transaction with the contract. All of this demonstrates that Michael Witt was a disclosed principal— Caroline’s innocent misstatement on ownership is a fact without consequence.

Pis.’ Sur-Reply Br. at 6.

Plaintiffs’ claim that they disclosed Caroline’s agency is unconvincing. First, although Witt contends the call was neither short nor unimpressionable, he admits the call lasted a mere five to ten minutes. Clerk’s No. 19-2 (Witt’s Supp. Certification) ¶ 5. While the Court does not doubt that the call was significant to Witt, it was likely far less significant to NHT, a company engaged in the business of transporting horses from one location to another throughout the United States that almost certainly fields calls such as Witt’s on a regular basis. Second, Witt contends that he contacted NHT about “possibly hiring Defendant corporation to transport Sebastian back to Iowa” and that he spent significant time explaining to NHT “the special attributes and high value of Sebastian.” Second Am. Compl. ¶ 16. Plaintiffs, however, make no assertion that Witt disclosed to NHT any identifying physical characteristics about Sebastian that could be matched up with Caroline’s submission, or even that he disclosed Sebastian’s name during this phone call.8 Third, and perhaps most significantly, Plaintiffs make no allegation that Witt ever informed NHT that Caroline existed, let alone that she would be serving as his agent in actually executing the Authorization Form. Rather than fulfilling their own burden to “fully disclose” the agency relationship, Plaintiffs attempt to place the onus on NHT, essentially arguing that it should have “connected the dots” because Witt engaged in a 5-10 minute phone call with an unidentified NHT representative several days before Caroline submitted a form online listing herself as the “owner” of a horse to be transported. Even assuming that NHT should have realized that Witt’s phone call had some connection with Caroline’s submission, Plaintiff makes no attempt to explain why NHT should have presumed an agency relationship. Indeed, it would have been *1159equally logical for NHT to assume that Caroline was Witt’s wife and a co-owner of the horse. Finally, the fact that Witt used his own credit card adds little to the analysis. The contract contained no requirement that the sole owner of Sebastian make payment for the transport and Plaintiffs recount nothing about the payment itself that necessitates a conclusion that NHT should have realized that Caroline was Witt’s agent. Accordingly, because neither Witt nor Caroline disclosed the agency relationship, and because Caroline listed herself as “owner” and indicated that she consented to “be bound by [the contract’s] terms in its entirety,” Caroline is personally bound and cannot avoid the applicability of the forum selection clause to her claims.

4. Public interest factors.

Finally, Plaintiffs argue that the Court should decline to transfer the case pursuant to § 1404(a) because the public interest considerations are sufficiently extraordinary to warrant non-enforcement of the forum selection clause. In particular, Plaintiffs point out that citizens in an unrelated forum should not be burdened with jury duty and that Iowa has a significant interest in having “localized controversies decided at home.” Pis.’ Resistance Br. at 19-20. The Court has evaluated Plaintiffs’ arguments in this regard and finds them unconvincing. While the case arguably has a stronger connection to Iowa, Colorado is far from a stranger; both NHT and Owens are citizens, NHT maintains its principal place of business there, and the terms of the contract provide that the agreement “shall be deemed to have been made in the State of Colorado.” Clerks’ No. 3-3 at 2. Moreover, Plaintiffs’ arguments are significantly undermined by the fact that the contract at issue contains a choice of law provision, providing that the agreement “shall be governed by the laws of Colorado notwithstanding any eonflict-of-laws doctrines.” Clerk’s No. 3-3 at 2. Certainly Colorado courts are in the best position to apply Colorado law. Under the circumstances, the public policy considerations cited simply do not constitute sufficiently “extraordinary circumstances” to warrant nonenforcement of a valid forum selection clause. Atl. Marine, 134 S.Ct. at 575.

III. CONCLUSION

For the reasons stated herein, Defendant’s Motion to Change Venue (Clerk’s No. 3) is GRANTED. The Clerk of Court shall transfer this case to the United States District Court for the District of Colorado.

IT IS SO ORDERED.

LOVETT, District Judge.

Mrs. Amy Meeks, wife of S. A. Meeks, seeks to cancel an oil and gas lease on certain farming lands she claims to own in Coffee county, Georgia, and on which she resides. The lease purports to have been signed by “Mrs. S. A. Meeks”: Alleging she did not sign it, that it is not her act or deed, she wants it removed as a cloud on the title of her lands.

The defendants are the Adams Louisiana Company, the named lessee, a foreign corporation, and other non-resident persons who claim fractional interests in the leasehold through assignments from the lessee. Admitting the plaintiff’s title and not asserting that she personally executed the lease, the defendants set up in their answer that she authorized its execution in her name by her husband, that later she ratified his act in her behalf and that she is now estopped by her conduct from attacking the validity of the lease.

The case was brought in the state court on July 31, 1941, and removed to this court because of the diversity of citizenship of the parties. The requisite jurisdictional amount in controversy seems to be conceded by all parties.

*492Facts.

The facts, many of which are not in dispute, as I find them, are as follows:

Mr. and Mrs. Meeks, husband and wife, live together on a farm. They control three separate parcels of land, operated by one or the other or both of them in the usual manner Georgia farms are conducted. Before April 14, 1937, the date of the oil lease in controversy, Mr. Meeks owned two of the parcels of land, one consisting of 245 acres and the other of 8 acres. Mrs. Meeks owned the other parcel of 106 acres, which had been purchased with funds she received as an inheritance from her father and which had always been her separate estate. Becoming involved financially and, as I interpret the testimony, for the purpose of putting the property beyond the reach of his creditors, Mr. Meeks conveyed the two parcels he owned to his wife and the deed of conveyance was duly recorded. The exact date of the conveyance has not been shown, but it antedated the oil lease in controversy. At all times subsequently the wife continued to treat the land formerly owned by her husband as his property. He managed and controlled it; he conducted the farming operations, giving crop mortgages at will and apparently without consultation with his wife. Mrs. Meeks testified: “In a way I considered that his land and permitted him to handle it”. Mr. Meeks testified that after he conveyed his land to his wife he continued to operate it “about the. same way” he operated it before the conveyance, and “she operated the 106 acres before and since”. The evidence discloses that the husband always regarded the land he formerly owned as his own and the wife regarded the parcel purchased with her funds as her separate estate. Outside of the presumption of the delivery of the deed from the husband to the wife which the recordation creates there is no positive evidence that the deed was ever delivered to the wife or that it has ever been in her custody or control.

During the year 1937 explorations for the discovery of oil were made in the territory where the farm of Mr. and Mrs. Meeks was located. Leases were taken in the conventional form on many thousands of acres of land in that territory. This lease— as well as the leases usually taken in the community — recites a cash consideration of $1 in hand paid and contains a promise by the lessee to pay to the lessor a royalty of one-eighth of the oil produced and saved from the land. There are other provisions for royalties on gas and other minerals. The primary term of the lease is 10 years but under certain conditions it may be extended. The lease contains further provisions to the effect that if operations for drilling are not commenced on the land within two years the lease shall terminate unless on or before that time the lessee pays or tenders to the lessor, or places to the credit of the lessor in a named bank, the sum of 5‡ per acre as in the nature of rental for continuation of the lease for a period of 12 months. Successive tenders for each additional 12 months of the term, under like conditions, are also provided for in the lease. The lessor warranted the title to be good.

The lessee engaged a local representative, its counsel in the county, to procure leases for it and on or about April 14, 1937 he drove to the home of Mr. and Mrs. Meeks in an automobile and there he was greeted by Mr. Meeks. Then and there and for the first time he discussed with Mr. Meeks a proposition with respect to an oil lease, and Mr. Meeks accepted the proposition. There were certain printed terms of the lease which Mr. Meeks thought should be modified, and after the two had discussed the subject and the lawyer for the lessee, who was also the scrivener, had been provided with a description of the land and certain insertions were made with respect to damage to timber and growing crops, the lessee’s counsel was informed by Mr. Meeks that Mrs. Meeks owned the land. Counsel then informed Mr. Meeks that she should sign the lease and Mr. Meeks replied that would be agreeable. Counsel then gave Mr. Meeks $1 in coin and a receipt therefor and the original lease to be signed by Mrs. Meeks. This conversation took place outside of the residence at the automobile of lessee’s counsel, and he did not enter the home for the purpose of having or seeing Mrs. Meeks execute the lease. Instead, Mr. Meeks took the lease into the home, and on finding that his wife was not there he signed her name to the lease and to the receipt, returning within a few minutes and delivering the lease and the receipt to lessee’s counsel. There is no dispute about the fact that Mr. Meeks actually signed the name “Mrs. S. A. Meeks” to the lease, though he did not inform lessee’s counsel of that fact at that time, nor did lessee’s counsel inquire about it. Upon returning to his office, lessee’s *493counsel and a notary public in his office attested the signature of Mrs. S. A. Meeks to the lease, though admittedly neither of them saw her sign it, and the notary public was not even present at the Meeks’ farm when Mr. Meeks signed it. The lease was promptly recorded in the office of the clerk of the superior court of the county in which the land was situate. Some three .or four weeks later Mrs. Meeks learned from her husband that an oil lease had been executed by him, and she expressed disapproval of his action, though apparently at that time she did not clearly understand that the land she had always regarded as her separate estate was included in the lease. Several months later, perhaps almost as much as a year, learning definitely that the parcel of land purchased with her own funds had been included in the lease, she disavowed her husband’s act and so informed a representative of the lessee.

Pursuant to the several leases obtained from many landowners in that section the lessee and its associates did considerable geophysical and geological investigation and exploration in the territory at considerable expense, digging test holes of shallow depths in the ground, exploding dynamite, etc., though it appears none of these tests were actually made on the land occupied by Mr. and Mrs. Meeks. These investigations and explorations have continued, and a well to be sunk some 4,500 feet is now being drilled on lands close by the lands in controversy. The success of the undertaking is not yet assured, though, as often happens, the mere sinking of a deep well for oil has caused much excitement in the community, and has brought about speculative trading in leases, royalties and the like.

On May 29, 1941 Mr. and Mrs. Meeks obtained a loan of $1,200 from the Federal Land Bank Commissioner, giving him as security therefor a deed to secure debt on the two parcels of land conveyed by Mr. Meeks to Mrs. Meeks. In that deed there is a recital that it is made subject to certain oil leases, especially the one of April 14, 1937, from Mrs. Meeks to the Adams Louisiana Company, reference being made to the book and page where recorded. The deed also contains a recital that the borrowers specially assign and transfer to the land bank commissioner “all the rights, royalties, bonuses, dividends and other income that may accrue” to them by reason of the oil lease. This loan was paid by the borrowers on September 18, 1942, and on that date the deed given to secure debt was marked canceled and satisfied.

Within the two year period allowed for the commencement of drilling operations, and subsequently, plaintiff repudiated the lease and so notified the lessee. Also within that period the bank named as the depository in which funds might be placed to plaintiff’s credit to obtain an extension of the time for drilling a well declined to act in that capacity. Plaintiff refused when requested to name another substitute bank for the purpose, although the lease if binding required her to do so. Lessee being in doubt as to the proper person to receive the money required to be paid to obtain the extension, on April 13, 1942, filed an amendment to its answer and asked to be allowed to pay the money into the registry of the court, and also sought to have the Federal Farm Mortgage Corporation (alleged assignee of the land bank commissioner) made a party to the cause. The money was so paid under an appropriate order of the court but no new parties were made, as the debt owing by the plaintiff to the Land Bank Commissioner was paid before a hearing on the rule nisi, although the mortgage corporation filed an answer in this court.

Opinion.

This case is in equity. Its disposition should be governed by equitable considerations. The plain equities at once suggest that a distinction should be made between the lease of the lands always owned by the wife and the lease of the lands conveyed to her by her husband. He controlled and managed the latter; she, the former. He signed the lease. She did not. The lessee was wholly lacking in dilgence in obtaining the lease. It not only failed to see to its proper execution or attestation, but its representative improperly made himself an attesting witness and then caused an official witness to attest the signature of the purported lessor in violation of his duty as an officer.

1. Ownership of the 8 and the 245 acre tracts.

The suit seeks to cancel the lease as a whole. However, the two tracts of land at one time owned by the Husband are separately described in the lease. Title to them is either in husband or wife and as I view the evidence it is of no consequence in so far as these tracts are concerned whether he or she be treated as their real *494owner, for in neither event can she cancel. If there was a valid constructive delivery through recordation of the deed, title is in Mrs. Meeks, Wellborn v. Weaver, 17 Ga. 267(13), 63 Am.Dec. 235; Daniel v. Stinson, 179 Ga. 701, 177 S.E. 590, and were this a proper case and collusion against creditors involved, Mrs. Meeks would be estopped from having the deed to her canceled. Bowen v. Bowen, 182 Ga. 299, 185 S.E. 312; Clowers v. Clemons, 185 Ga. 567, 570, 196 S.E. 28. The estoppel of the grantor to assert title in such instances is equally complete. Ellis v. Rudeseal, 56 Ga.App. 210, 192 S.E. 554; Id., 184 Ga. 519, 191 S.E. 913.

Treating Mrs. Meeks as the true owner of the two tracts, it is clear that she ratified the lease of those parcels to the oil company by her husband when she joined in the execution of a security deed conveying them subject to, and assigning royalties under, such lease. Armour Fertilizer Works v. Maddox, 168 Ga. 429(2), 148 S.E. 152; Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626. On the other hand, if being undelivered his deed did not operate to divest Mr. Meeks of title or if the parties were permitted inter se to regard such a conveyance as inoperative, the result is the same. In that event the lease of the two tracts would he valid as against Mr. Meeks since an agent impliedly warrants his authority and is personally obligated under a contract made in the name of a non-existent principal. Restatement, Agency, Sec. 329; 2 Am.Jur., Agency, Secs. 322, 316; Hagan v. Asa G. Candler, Inc., 59 Ga.App. 587, 1 S.E.2d 693; Id., 189 Ga. 250, 5 S.E.2d 739, 126 A.L.R. 108.

This preliminary discussion is necessary to an understanding and determination of the vital question of the validity of the lease as it affects the status of the tract of 106 acres purchased originally by Mrs. Meeks with her own funds and always treated as her own separate estate.

2. Validity of Lease of 106 Acre Tract.

The evidence is convincing that Mrs. Meeks did not authorize her husband, expressly or by implication, to lease this tract. More than mere verbal authority would be necessary, in all events, to satisfy the Statute of Frauds where as here the term of the lease is over one year. Ga. Code, Secs. 61-102, 20-401(4); Baxley Hdw. Co. v. Morris, 165 Ga. 359(1) (6), 140 S.E. 869; Byrd v. Piha, 165 Ga. 397(2), 141 S.E. 48. To bind the principal by such a contract an agent’s authority must be clothed with like t formality. Ga. Code, Sec. 4-105; Pollard v. Gibbs, 55 Ga. 45, 46; Byrd v. Piha, supra; Blanchard & Calhoun Realty Co. v. Comer, 185 Ga. 448, 451(1), 195 S.E. 420.

Undoubtedly there may be conduct by the parties or by the principal himself of a sort that will dispense with the requirement of the Statute of Frauds and of the rule that the authority of the agent must be in the same form as the contract itself. Morris v. Battey, 28 Ga.App. 90, 110 S.E. 342; Lynch v. Poole, 138 Ga. 303, 75 S.E. 158; Baxley Hdw. Co. v. Morris, supra.1 This case might very properly be disposed of at this point by deciding whether it is one of exception or rule. However, I shall proceed for the present as though the question of formality of ratification is not involved, examining the facts in the light of the general law governing ratification of unauthorized acts of another.

3. Ratification.

Ratification of an agent’s unauthorized act may be effected in a number-of ways. Failure to repudiate within a reasonable time is one. Brooke & Co. v. Cunningham Bros., 19 Ga.App. 21, 22(5), 90 S.E. 1037; Mendel v. Converse & Co., 30 Ga.App. 549, 556(30) 118 S.E. 586. Acquiescence or silence implying consent is another. Ga.Code, Sec. 4-303; Owsley v. Woolhopter, 14 Ga. 124(4). Ratification may also be inferred from the principal’s acceptance of benefits of the unauthorized act. Armour Fertilizer Works v. Maddox, supra; Restatement, Agency, Georgia Annotations, Secs. 98 and 99.

The evidence, however, impels to none of these conclusions. Unquestionably Mrs. Meeks repudiated so much of the lease as affected her own land. From the start she expressed disapproval of her husband’s act in connection with the tracts which were regarded as his and within what I. deem and hold to be a reasonable time after becoming definitely apprised of her husband’s action in leasing her own land she disavowed the lease and so informed the lessee. Unless joining with her husband in a security deed upon the *495lands he formerly owned requires a contrary view, I can not see any conduct on the part of Mrs. Meeks after the lease was entered into which can be considered as constituting a ratification of her husband’s act in signing her name to the lease.

4. Part Ratification.

It is insisted by the lessee that by ratifying the lease of the 245 and 8 acre tracts Mrs. Meeks perforce ratified the whole, including her own tract.

Beginning with Hodnett v. Tatum, 9 Ga. 70, numerous decisions in Georgia affirm the rule that one can not ratify a contract in part and disavow it in part, ratification of the part being ratification of the whole. The principle is codified as Sec. 4-302 of the Code of Georgia.

The argument that ratification of Meeks’ act in leasing the 106 acre tract followed ratification by Mrs. Meeks of the lease of the «other two parcels is necessarily based on the premise that title to the latter tracts was in her rather than in him. I am not at all sure that this does not assume too much. While the paper title was in the wife both Mr. and Mrs. Meeks regarded the land as his. The record title apparently did not induce the lessee to make the contract in the wife’s name. The evidence suggests the lessee did not know who was the owner until the husband informed its representative that title was in the wife. If title was in her husband, then Mrs. Meeks’ action in executing the security deed subject to the oil lease could have no significance as far as ratification is concerned, for she could not ratify an act in which she was not the principal. Under this view of the case there would be no occasion to apply the “part ratification” doctrine.

But even if we assume that the legal title to the 245 and 8 acre tracts vested in Mrs. Meeks under the deed from her husband, I do not see how things stand differently. The rule of part ratification is founded upon the sound doctrine that one ought not to be permitted to elect to enjoy the benefits of an unauthorized act by an agent and at the same time renounce its asperities. In ratification the good and the bad are inseparable.

But where has Mrs. Meeks enjoyed any benefit, at least up to now, from her husband’s act in executing the lease of the two tracts? Except as she now seeks to cancel the lease in its entirety she asserts no title. She has consistently indicated that she had no interest in the lease of the two tracts by Mr. Meeks. Neither royalties nor rent have come to her from the lease. The rule of part ratification- if applied here would be a mere mechanical process of law unrelated to the realities of the situation. I do not doubt that in executing the deed to secure debt conveying the two tracts to the Land Bank Commissioner subject to the oil lease Mrs. Meeks was utterly unaware that she was doing anything which might or ought to affect the 106 acre tract. Cf. Delray, Inc. v. Reddick, 194 Ga. 676, 22 S.E.2d 599(7), 603. Knowledge of all the facts in part ratification appears necessary if it is to constitute ratification of the whole. Mechem on Agency (2d ed.) 1, p. 301, Secs. 409, 410; 2 C.J.S., Agency, § 42, page 1081; 2 Am.Jur., Agency, p. 179, Sec. 224; 1 Am. and Eng. Enc. of Law, p. 1193.

But the rule mentioned is by no means an unbending one. It is not to be applied where the contract is severable or divisible. Mechem on Agency, 1, p. 308, Sec. 415; 2 C.J. Agency, p. 484, § 100; 2 C.J.S., Agency, p. 1145, § 66, note 97. The contract here purported to lease three separate parcels, having different lot numbers — not one tract composed of several parcels. The distinct identity and separate ownership of the three tracts was far from fictional. It was preserved by the method of farming operations, in the conception of ownership by the Meeks, and in the manner of obtaining loans on the property. Since the paid consideration of the lease was only One Dollar — and that never reached Mrs. Meeks — no question of severability of the rental arises. Under the circumstances, were a decision on this question inescapable, I would be loath to hold that a purely constructive and technical ratification of an agent’s act as to two tracts (which the alleged principal regarded as the agent’s own) was an irrevocable ratification of the lease as it affected the third tract (which admittedly was always hers).

In .the Restatement of the Law of Agency, 1, Sec. 96, after stating the general rule, it is said:

“Comment:

“b. The rule stated in this Section applies only where the purported agent has entered into a single transaction; it has no application where he has conducted several in*496dependent transactions at approximately the same time or during the same general course of conduct.”

“Illustrations:

“4. Purporting to act for P but without power to bind him, A sells a horse for $200, and then sells a cow for $60. On learning tb,e facts, P writes the purchaser: ‘You may keep the horse, but the cow went too cheaply’. There is ratification of the sale of the horse but not of the cow.

“5. Without power to bind P, A takes the place of P’s clerk and delivers goods to T, B, and C. P affirms the delivery to T. He does not thereby ratify the delivery either to B or to C.”

“Comment:

“c. Where a person affirms acts done on his account by one intending to act as his servant, he may affirm the entire conduct of the purported servant or only portions of it; he may not, however, affirm a part of a transaction without affirming that which is incidental to it.”

I think the lease of the three distinct parcels of land should be looked upon as independent transactions, and for that reason, among others, the rigid rule of part ratification should not be applied. In a case of this kind to hold the rule inflexible is to make it inequitable. This I am unwilling to do.

5. Estoppel.

So much as to ratification. It remains to be seen whether any estoppel has interposed itself as the only answer the lessee can make to the otherwise fatal want of authority to Mr. Meeks to lease the 106 acre tract. Estoppel differs from ratification in that in the former there is an inducement to a person to act to his prejudice, wanting in the other. 2 Am.Jur., Agency, p. 172, Sec. 214.

To assert an estoppel in pais one must show that he has lost or the other party gained something which makes it unjust for the latter to insist upon preexistent rights. Southern Mfg. Co. v. R. L. Moss Mfg. Co., 13 Ga.App. 847, 848(3), 858, 81 S.E. 263. There must be inducement by which one changes his position for the worse. Kennedy v. Manry, 6 Ga.App. 816(3), 66 S.E. 29. Injury is its essence. Ga.Code Sec. 38-116; Lynch v. Poole, supra; Baxley Hdw. Co. v. Morris, supra, indicates the conduct which estops a lessor to deny authority of the agent.

The evidence here supplies none of these things. If the lessee were misled by Mr. Meeks, it was through the fault of its representative who did not have the lease properly executed or attested. Mrs. Meeks misled nobody. She had nothing to do with her husband’s signing her name to the lease. Within a reasonable time after learning of his act she disaffirmed it. During the interim the oil company undertook nothing upon the strength of the lease. The fact that the lease included the 106 acre tract caused the oil company to do nothing, so far as the evidence discloses, which it would not have done otherwise. There was no special expenditure by the lessee in reliance upon the inclusion of this tract in the lease. Indeed, for aught that appears, the same outlays would have been made by the lessee because of the other leases covering thousands of acres of land it had obtained from other landowners in the community, if there had been no lease from the Meeks family at all. Mrs. Meeks neither misled nor suffered the lessee to be misled as to ownership. The oil company lost nothing; Mrs. Meeks gained nothing, and the two do not add up to estoppel.

6. Breach by Lessee.

There remains the final urge that the whole lease has terminated by its terms. To keep the lease alive the lessee was obligated to commence drilling operations within twenty four months from the date of the lease or pay or tender to the lessor certain named rentals, and it is said neither has been done. As a general rule where one party renounces an executory contract and refuses to perform there is a tender of breach, and the other party, accepting, may have a cause of action at once. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953; Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co., 20 Ga.App. 660, 661, 93 S. E. 532; Borochoff v. William Muirhead Const. Co., 56 Ga.App. 519, 523, 193 S.E. 118. In some circumstances such anticipatory breach may excuse a tender of performance that would be an idle act. 17 C.J.S., Contracts, § 472, note 92; Edgar & Son v. Grocers’ Wholesale Co., 8 Cir., 298 F. 878, 882. But if it can be said that the lessee did not accept the tender of the breach made by the lessor’s disaffirmance and, therefore, was under the duty of paying the stipulated rentals of five cents per acre to keep the contract of force, the answer is that the les*497sor herself prevented. When the named depositary refused to accept a deposit of the rentals she, having repudiated the contract, declined to name another hank, and by the terms of the lease the lessee was not to be held in default until thirty days had elapsed after she named another. See Ansley v. Hightower, 120 Ga. 719(3), 48 S.E. 197. Lastly, the lessee did all that was possible under the circumstances. The rentals were placed in the registry of the court under an appropriate order. That was sufficient. The lease in so far as it is valid, has not terminated.

Conclusions of Law.

1. The plaintiff is entitled to a decree cancelling the lease as to the 106 acre tract of land, always her separate estate.

2. No relief should be granted to her as to the other two tracts of land.

3. Costs should be equally divided.

Let a decree be presented.

Me. Special Justice F. T. FancheR

delivered tbe opinion of tbe Court.

This suit for damages for personal injuries was brought in tbe circuit court of Lake county by Evans Terrett, by his next friend, J. E. Terrett. Plaintiff dismissed bis suit against Delmas Wray.

Tbe case is here appealed from the judgment of the court, below sustaining a demurrer to tbe declaration.

*450Delmas Wray was a schoolboy at Tiptonville. The defendant, Mrs. Wray, had other children in the same school. Mrs. Wray, who owned an automobile, sent her son, Delmas, to the sclioolhouse after the children. Before he came home with the children he rigged up a wire connecting one of the handles of the door of the car to a battery, so that one, by grasping the handle of the door, would receive an electric shock. After taking the children in the car and having started on his way home with them, the boy, Delmas Wray, invited Evans Terrett in the car to take a ride, and when the plaintiff took hold of the handle to open the door of the car he received a shock of electricity from which he alleges he suffered divers injuries.

It is further alleged that the action of Delmas Wray, in attaching the battery to the door handle, was done wantonly and willfully while he was in charge of the automobile which was used fo'r the family purpose and while in charge of same at the request of and under the instructions of his mother, and while in the pursuance of his duties of conveying the children of the defendant. The different grounds of demurrer, with implications, state the legal proposition that, before a parent may be held liable for the tort of the child, it must appear that such tort was committed under the direct orders of the parent or be ratified by the parent, or was done within the scope of the child’s authority or employment. The demurrer was sustained in general terms by the court. It is said that there was no causal relation shown to exist between the alleged tort and the service the son was employed to render.

The case must be considered under the general principles governing the liability of master for the acts of his *451servant, or of the principal for the acts of the agent. We do not consider it useful here to discuss the family purpose doctrine.

The act or negligence complained of must have been with reference to an act or matter within the scope of the authority, in the case of an agent, or within the course of the employment, in the case of a servant. Whether a case falls within the rule of liability under these general well-settled'principles affords great variety of application, considered in its surroundings and with its background of time, place, and circumstance.

The act of the servant, to make the master liable, must be within the course of the employment when he is doing for the master, either the main act itself or some other act which can fairly and reasonably be deemed to be a proper means of doing the main act, or an ordinary and natural incident or a natural, direct, and logical result of it. Extraordinary, extreme, or prankish acts rarely can be attributed to the master as means or methods of carrying out an ordinary employment. There must be negligence of the servant within the course of employment and not aside from it to make the master liable. Was the prank of this boy, in attaching the battery to the door handle for the purpose of playing jokes, such a use or misuse of the oar, while using it for his mother, as to make her liable?

The mother did not authorize the boy to do anything except to use the car to bring the children home from school. While so using it and performing that duty, he made use of the car for an entirely different purpose. The only connection the playing of the prank had with his bringing the children home was the use of the same instrument in carrying out the wholly different purpose.

*452A number of analogous cases in this state are cited in defendant’s brief, illustrating the well-settled rule that, when the servant or agent, aside from the scope of employment, does an act, having no causal relation between the service to be rendered and the injury sustained by the plaintiff, the defendant is not to be held responsible for the resulting injury.

This is not a case of a master confiding to his servant’s use a dangerous -instrumentality, which furnishes ground of liability, independent of the ordinary rules of respondeat superior. These dangerous in-strumentalities are such as poisons, high explosives, spring guns, and the like. Railway locomotives with steam up, out upon the track, have -frequently been so designated, but not an automobile. Even where the instrumentality is inherently dangerous, while some cases treat the liability as absolute, a greater number of au-. thorities regard it as a situation wherein a high degree of care is required, but not imposing liability for a willful or wanton act such as playing pranks and practical jokes with the thing in question by the servant to whom it was confided. Mechera, Outlines of Agency, section 543, pp. 361, 362.

The following case well illustrates the governing principle. A father directed his minor son to get out the garden hose and sprinkle the lawn. While doing so, the boy, in a spirit of mischief, turned the hose ofif the lawn and sent a stream of water against a hprse standing on the opposite side of the street, causing it to run away and injure the plaintiff. It was said by the court:

“If the act of the defendant’s son in throwing water upon the plaintiff’s horse was hot the result of his careless handling of the garden hose while sprinkling his *453father’s lawn, but was deliberately done by bim, purely out of a spirit of mischief, for the purpose of frightening the animal, the fact that he used the tool supplied to him for the doing of his father’s work for the accomplishment of his own mischievous purpose did not make it an act within the scope of his employment, and did not render the defendant liable for the injury resulting therefrom.” Evers v. Krouse, 70 N. J. Law, 653, 58 A., 181, 182, 66 L. R. A., 592.

The four cases chiefly relied upon by plaintiff, viz., Deihl & Lord v. Ottenville, 82 Tenn. (14 Lea), 191; Luttrell v. Hazen, 35 Tenn. (3 Sneed), 20, 25; Nashville & C. R. Co. v. Starnes, 56 Tenn. (9 Heisk.), 52, 54, 24 Am. Rep., 296, and Borden Mills v. McGaha, 161 Tenn., 376, 379, 32 S. W. (2d), 1039, fail to sustain his contention. These cases do hold that a master may be liable though the act of the servant was not necessary for the proper performance of his master’s .orders, or even contrary thereto, so long as the servant was acting in substantial execution of the master’s orders. They also sustain plaintiff’s contention that it is not necessary that the principal should expressly direct or have knowledge of the act done, if the agent was acting in the business of his superior.

And the opinion in Nashville & C. R. Co. v. Starnes held the company liable when the engineer, through sport, blew the whistle of the engine and made the team run away. The engineer was using the whistle provided for him in the cab. But this was distinguished from the general rule, and the court held that the established doctrine of the common law had been modified as applied to railroad companies out of absolute necessity for more stringent rules for protection of life and property. Cer*454tainly there can he no such reason in the present case to hold the ordinary owner of an automobile for the separate tort of a son while using the car for the mother. The act complained of had no connection with,his authorized and directed use of the car, but was the distinct tort of the son and not in the scope of authority or course of employment.

The judgment of the trial court must be affirmed.

Lanphier.J.

The appellant, Carla Fitzpatrick, initiated this action in Douglas County District Court to recover damages for personal injuries sustained in an explosion which occurred on June 17, 1989, in an underground vault she was working in. At the time of the accident, she was employed by the Omaha Public Power District (OPPD), which was hired by appellee U S West, Inc., to reconnect electrical service to a building near the vault. U S West was the owner of the real estate where the vault was *227located, but OPPD had been granted an exclusive easement to the vault and had sole access to the vault in which electrical equipment and connections were located. Fitzpatrick named as defendants the following: U S West, Inc., and Northwestern Bell Telephone Company (collectively U S West); AT&T, Inc., and AT&T Communications of the Midwest, Inc. (collectively AT&T); National Electric Company, Inc.; and OPPD. According to Fitzpatrick’s third amended petition, OPPD was named as a defendant solely for the purpose of preserving its subrogation interest for amounts paid under the Nebraska Workers’ Compensation Act pursuant to Neb. Rev. Stat. § 48-118 (Reissue 1988). The order Fitzpatrick appeals from did not address OPPD as a defendant, and consequently there are no issues involving OPPD as a defendant before us. Fitzpatrick filed a motion for partial summary judgment, and each of the defendants, except OPPD, filed a motion for summary judgment. The district court granted those defendants’ motions for summary judgment. The grant of summary judgment in favor of National Electric Company was not appealed, and on January 12, 1993, Fitzpatrick and AT&T filed a stipulation dismissing AT&T from this action. Thus, the appeal concerns only the grant of summary judgment rendered in favor of U S West. Fitzpatrick appealed the district court’s order to the Court of Appeals. We, however, removed the case to this court on our own motion in order to regulate the caseloads of the appellate courts.

The argument underlying Fitzpatrick’s appeal is that the trial court erroneously analyzed this case on the theory of premises liability. Fitzpatrick states that “this action was brought under the dangerous instrumentality rule whereunder liability may be imposed on the employer of an independent contractor whose negligence causes injury.” Brief for appellant at 2. Even when analyzed on this basis, Fitzpatrick’s claim must fail. Contrary to what Fitzpatrick asserts, U S West did not have a nondelegable duty to protect Fitzpatrick from harm. Although U S West employed OPPD, a public utility, it had no control over OPPD’s operations. U S West, as the employer of an independent contractor, had no control over the independent contractor herein, OPPD, and no legal basis for imposing *228liability exists. We, therefore, affirm the judgment of the district court.

BACKGROUND

On June 17,1989, Fitzpatrick, then employed by OPPD as a cable splicer, was one member of a crew reconnecting electrical service to a building owned by U S West. Reconnecting the electrical service to the building, located in downtown Omaha, required that certain operations be performed in underground cable vaults nearby. In order to reconnect the electrical service, Fitzpatrick was required to go inside the vault containing circuit No. 27. The crew foreman decided not to shut down circuit No. 27, and Fitzpatrick knew that circuit No. 27 had not been shut down. Inside the vault was a transformer. The transformer was used to convert, or step down, the 14,100 volts coming in through the primary cables to a lesser voltage, referred to as the secondary voltage. Here, the lesser, secondary voltage was directed to the building owned by U S West. Attached to the transformer was a network protector. The network protector, according to Fitzpatrick, acts as a circuit breaker. When reconnecting electrical service, the network protector must be grounded. Having tested a portion of the network protector to assure that it was deenergized, Fitzpatrick went about grounding the network protector. She had just finished attaching an uninsulated grounding cable when she saw a “big ball of fire.” Before she was able to get out of the vault, she sustained serious burns.

U S West concedes that it requested and paid OPPD to disconnect and reconnect electrical power to its building located in downtown Omaha, near 19th and Douglas Streets. Although U S West owned the vault, it had granted OPPD an easement to build, maintain, and repair the underground utility vault. All the equipment within the vault was owned by OPPD. U S West did not have access to the vault, nor control over the activities that went on there. The vault was under the exclusive control of OPPD.

STANDARD OF REVIEW

In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom *229the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994). Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Id.

ASSIGNMENTS OF ERROR

Fitzpatrick asserts that the trial court erred (1) in sustaining the defendants’ motions for summary judgment and dismissing the case using theories of premises liability, (2) in failing to apply the appropriate law imposing liability upon employers of independent contractors under certain and limited circumstances, and (3) in overruling her motion for partial summary judgment seeking a determination of the duties owed her. Nowhere does Fitzpatrick argue that genuine issues of material fact exist; rather, Fitzpatrick’s argument seems to be that, given the facts of the case, U S West was not entitled to judgment as a matter of law.

THEORY OF RECOVERY PLED

Fitzpatrick first assigns as error the fact that the trial court’s ruling was based upon premises liability. The third amended petition sounds in negligence. Although it would appear from the petition that Fitzpatrick may have wished to proceed on the basis of premises liability, it also appears that she may have wished to proceed in the context of employer and independent contractor. Although a petition should not leave uncertainty as to the theory on which the pleader wishes to proceed, we have held that in actions not involving extraordinary remedies, general pleadings are to be liberally construed in favor of the pleader. Hutmacher v. City of Mead, 230 Neb. 78, 430 N.W.2d 276 (1988). Thus, since Fitzpatrick stated the theory of employer and independent contractor liability as the theory upon which she wishes to proceed, and since her pleadings support her contention, we shall proceed on that basis.

*230INDEPENDENT CONTRACTOR

Fitzpatrick asserts this case should have been analyzed under the “nondelegable duty” exception to the general rule that the employer of an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or his servants. Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993).

Of course, underlying Fitzpatrick’s assertion is the assumption that the relationship between U S West and OPPD was that of employer and independent contractor. Thus, we are confronted with the threshold question of how to characterize U S West’s relationship with OPPD. U S West has conceded that it requested and paid OPPD to disconnect and reconnect electrical power to its building; however, U S West points out that it was not subcontracting work which it could otherwise perform. OPPD has a sanctioned monopoly on the transmission of electrical power. As U S West points out, Neb. Rev. Stat. § 86-304 (Reissue 1987) makes it unlawful to “interfere with the transmission of... light, heat and power in this state.” Moreover, it is undisputed that U S West did not have access to the underground vault in which the necessary work was to be done.

U S West argues that the relationship was not that of employer and independent contractor, nor that of principal and agent either. U S West asks that we recognize a new category for public utilities and their customers. However, U S West cites no authority, and we can find none, to support recognition of this third type of relationship, customer and public utility. Neither are we persuaded that such a category is necessary or beneficial to the resolution of this case.

In Nebraska, one acting on behalf of another may do so as an agent or an independent contractor. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993). The factors to be considered in distinguishing between the two are (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or *231by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and place of work for the one doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is a part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. Id. See, also, Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983).

With regard to those factors, it is clear that OPPD was an independent contractor. OPPD admits that employees of U S West generally had no right or authority to control the manner in which OPPD’s representatives, including Fitzpatrick, performed repairs or services within the cable vault. OPPD admits that on the date of the incident, no employee of U S West made any attempt to control the manner in which OPPD’s representatives performed services or repairs within the cable vault. OPPD was the sole possessor and in exclusive control of the cable vault. No representatives of U S West were consulted on the decision to use an uninsulated jumper cable or on the decision to not deenergize circuit No. 27. OPPD was being paid $1,067.90 for the disconnection and reconnection of electrical service to the building. Thus, OPPD was the independent contractor of its employer, U S West.

THEORIES OF RECOVERY

Having concluded that OPPD was U S West’s independent contractor, we now move on to Fitzpatrick’s proposed theories of recovery. Fitzpatrick states that “this action was brought under the dangerous instrumentality rule whereunder liability may be imposed on the employer of an independent contractor whose negligence causes injury.” Brief for appellant at 2.

Negligence

For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from the undischarged duty. Schmidt v. Omaha Pub. *232 Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994).

“ ‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk....

“A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.”

Id. at786, 515 N.W.2d at 763.

The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation. Id. Thus, the core issue of this appeal, given the facts as contained in the pleadings, depositions, admissions, stipulations, and affidavits in the record, is whether U S West owed a duty to Fitzpatrick.

Fitzpatrick acknowledges the general rule with regard to the liability of an employer of an independent contractor: “[T]he employer of an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or his servants.” Erickson v. Monarch Indus., 216 Neb. 875, 879, 347 N.W.2d 99, 105 (1984). See, also, Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993). However, Fitzpatrick asserts that U S West should be held liable under an exception to the general rule. We have stated that the employer of an independent contractor may be liable (1) if the employer retains control over the contractor’s work or (2) if, by rule of law or statute, the employer has a nondelegable duty to protect another from harm caused by the contractor. Id. As a result of a nondelegable duty, the responsibility or ultimate liability for proper performance of a duty cannot be delegated, although actual performance of the task required by a nondelegable duty may be done by another. Foltz v. Northwestern Bell Tel. Co., 221 Neb. 201, 376 N.W.2d 301 (1985).

Fitzpatrick argues that there are five common-law doctrines which impose nondelegable duties upon U S West as the employer of an independent contractor. As Fitzpatrick *233describes them, the doctrines are (1) a duty to provide for the taking of precautions against dangerous conditions involved in work entrusted to a contractor, as described in the Restatement (Second) of Torts § 413 (1965); (2) a duty to take “special precautions” against recognizable peculiar risks of physical harm, described more fully in the Restatement, supra, § 416; (3) from the Restatement, supra, § 427, the rule that the employer of an independent contractor is liable for the negligence of the contractor in doing work which is inherently dangerous; (4) from McKinstry v. County of Cass, 228 Neb. 733, 424 N.W.2d 322 (1988); Foltz v. Northwestern Bell Tel. Co., supra; and Erickson v. Monarch Indus., supra, a nondelegable duty to use due care to protect persons against injury from the hazards or risks which inhere in the work to be undertaken; and (5) from the Restatement (Second) of Torts §§ 519 and 520 (1977), the rule that one who carries on an abnormally dangerous activity is strictly liable for harm resulting from the activity, although the utmost care has been taken to prevent the harm.

We will first discuss the first four asserted bases for the existence of a nondelegable duty. The fifth and last asserted basis will be discussed below in the subsection entitled “Strict Liability.”

A careful review of the law cited by Fitzpatrick reveals that she is concentrating on U S West’s position as the employer of an independent contractor to the exclusion of another pertinent fact — that the employer in this case has no authority over the independent contractor, which is a public utility. The existence of the employer-independent contractor relationship alone is insufficient to establish a duty owed by U S West to Fitzpatrick given the unique fact that U S West could not exercise any control over the operations of OPPD. Fitzpatrick has not cited any cases, and we have been unable to find any, in which the employer of an independent contractor was held liable for the negligence of the independent contractor where the employer could not exercise any authority over the operations of the independent contractor.

However, in Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), the Supreme Court of North Carolina held *234that neither the owner nor the occupier of land upon which a power company had placed a transformer pursuant to an easement had a duty to make the transformer safe for children playing in the vicinity because the landowner had no control over the transformer or authority over the power company. In support of its holding, the court in Green stated:

In instant case, neither the owner nor the occupier of the property . . . had the right to deny access to the transformer or to remedy the dangerous condition of the device. The transformer was the sole property of appellant Duke Power. It was placed on the premises pursuant to a valid easement .... Any interference or tampering with Duke’s transformer would clearly encroach upon the rights granted to Duke by the easement. Likewise, locking or fencing the transformer would impair Duke’s access to it and would be inconsistent with the terms of the easement. It was not reasonably practical for the owner of the realty... or the occupier ... to prevent access to the transformer or to render it harmless.

Id. at 611, 290 S.E.2d at 598.

In another similar case, Mark v. Pacific Gas and Electric Company, 7 Cal. 3d 170, 496 P.2d 1276, 101 Cal. Rptr. 908 (1972), the Supreme Court of California held that a landlord breached no duty of care owed to a college student who was electrocuted while attempting to remove a light bulb from a street lamp located outside his bedroom window, in view of the fact that the landlord possessed no control or authority over the street lamp.

Absence of control over the utility was the determinative issue in the two cases above. In the case at hand, U S West did not and could not exercise any control over how OPPD conducted its operations. OPPD has stated that employees of U S West had no right or authority to control the manner in which OPPD’s representatives, including Fitzpatrick, performed repairs or services within the cable vault. OPPD stated that on the date of the incident, no employee of U S West made any attempt to control the manner in which OPPD’s representatives performed services or repairs within the cable vault. OPPD was *235the sole possessor and in exclusive control of the cable vault. No representatives of U S West were consulted on the decision to use an uninsulated jumper cable or on the decision to not deenergize circuit No. 27.

It is important to note that U S West could not control OPPD’s operations. This is not a case where U S West relinquished control or refused to exercise control it possessed. It simply had none. It would be futile to impose a duty to prevent harm upon one who has neither the opportunity nor the ability to reduce the risk of harm. Under these facts, as a matter of law, U S West had no legal duty to protect Fitzpatrick from the hazard of an explosion and fire in the underground cable vault.

Strict Liability

There is an inherent inconsistency with respect to Fitzpatrick’s last urged common-law basis for U S West’s having a nondelegable duty. The following is Fitzpatrick’s stated theory of recovery: “[T]his action was brought under the dangerous instrumentality rule whereunder liability may be imposed on the employer of an independent contractor whose negligence causes injury.” Brief for appellant at 2. Clearly, Fitzpatrick’s theory is based on negligence principles. However, she relies upon §§519 and 520 of the Restatement, supra, to establish a common-law basis for the existence of a nondelegable duty. Those sections of the Restatement concern strict liability. Strict liability is a doctrine that imposes liability without regard to breach of a duty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 75 (5th ed. 1984). To hold U S West strictly liable for the harm caused Fitzpatrick, it would be unnecessary to establish that U S West owed her a nondelegable duty. Thus, those sections of the Restatement are inconsistent with and irrelevant to Fitzpatrick’s stated theory of recovery.

Even if we give Fitzpatrick the benefit of the doubt and presume that she wished to state an alternative theory of recovery based upon principles of strict liability, her claim must fail. Fitzpatrick would have us hold that reconnecting electricity to a building is an ultrahazardous activity. The *236activity being an ultrahazardous one, Fitzpatrick would then hold the owner of the building strictly liable for any harm proximately caused by its performance. We decline to do so. Fitzpatrick cites no authority in support of her position, and as far as we can determine, such a holding would be unprecedented. According to Prosser and Keeton in their oft-cited treatise on tort law, strict liability has been applied to the following “abnormally dangerous” or ultrahazardous activities, the terms generally being considered synonymous:

water collected in quantity in a dangerous place, or allowed to percolate; explosives or inflammable liquids stored in quantity in the midst of a city; blasting; pile driving; crop dusting; the fumigation of part of a building with cyanide gas; drilling oil wells or operating refineries in thickly settled communities; an excavation letting in the sea; factories emitting smoke, dust or noxious gases in the midst of a town; roofs so constructed as to shed snow into a highway; and a dangerous party wall.

Id. at 549-50.

Things and activities not considered abnormally dangerous or ultrahazardous include:

water in household pipes, the tank of a humidity system, or authorized utility mains; gas in a meter, electric wiring in a machine shop, and gasoline in a filling station; a dam in the natural bed of a stream; ordinary steam boilers; an ordinary fire in a factory; an automobile; Bermuda grass on a railroad right of way; a small quantity of dynamite kept for sale in a Texas hardware store; barnyard spray in a farmhouse; a division fence; the wall of a house left standing after a fire; coal mining operations regarded as usual and normal; vibrations from ordinary building construction; earth moving operations in grading a hillside; the construction of a railroad tunnel; and even a runaway horse.

Id. at 550-51.

Additionally, there is no basis in reason or logic for such a holding. Building owners and homeowners have no direct authority over how a public utility conducts its operations, even, as here, where the operations concern the owner’s own *237piece of property. It is best that building owners and homeowners have no direct authority, as employees of a public utility will presumably almost always be better qualified to determine how an operation should be conducted and what safety precautions should be taken. Absent negligence, we do not even hold power companies engaged in the transmission of high voltage electricity liable for the harm caused those who inadvertently come into contact with electrical lines. Engleman v. Nebraska Public Power Dist., 228 Neb. 788, 424 N.W.2d 596 (1988). See, also, Lorence v. Omaha P. P. Dist., 191 Neb. 68, 214 N.W.2d 238 (1974); Gillotte v. Omaha Public Power Dist., 185 Neb. 296, 176 N.W.2d 24 (1970). We, therefore, refuse to rule as a matter of law that the connection of electricity to a building is an abnormally dangerous or ultrahazardous activity. Thus, U S West could not be held strictly liable for the harm caused Fitzpatrick.

CONCLUSION

In this appeal from the district court’s order granting U S West summary judgment, Fitzpatrick did not assert that there was a genuine issue of material fact to prevent summary judgment. Rather, she essentially argued that under the facts presented, U S West was not entitled to judgment as a matter of law. She contended that U S West as the employer of an independent contractor owed her a number of nondelegable duties which U S West breached. However, U S West, even as the employer of an independent contractor, could not control or have any authority over the operations conducted by its independent contractor, OPPD, a public utility. We determine that under the facts presented, U S West, as a matter of law, had no legal duty to protect Fitzpatrick from the hazard of an explosion and fire in the underground cable vault. Neither does the doctrine of strict liability impose liability on U S West. There being no genuine issue of material fact, we find that the grant of summary judgment by the district court was appropriate, and we affirm that court’s decision.

Affirmed.