Plaintiff, Youras Ziankovich, respectfully submits this limited surreply to address arguments raised for the first time in Defendant’s Reply and states as follows:
I. INTRODUCTION
Defendant’s Reply does not cure the fundamental defects in its Motion; it confirms them.
Instead of providing account-specific evidence of contract formation, Defendant now relies on a supplemental declaration and revised assertions that were not clearly presented in its opening brief.
This is not a rebuttal. It is a post hoc attempt to repair gaps identified in Plaintiff’s opposition.
Even after this additional submission, Defendant still cannot show that Plaintiff assented to any arbitration agreement.
There is no signed agreement, no record of acceptance, no system logs, and no evidence of what Plaintiff actually saw or agreed to at the time of account creation.
Defendant’s reliance on generalized descriptions of how its platform “typically” operates cannot substitute for proof of assent in this case.
Nor has Defendant identified any operative contract governing Plaintiff’s account at formation.
Defendant acknowledges that its Customer Agreements are regularly updated, yet offers shifting versions of those agreements without establishing which version, if any, was presented to or accepted by Plaintiff.
This evolving record underscores that Defendant is attempting to reconstruct a contract after the fact, rather than prove one existed.
Because Defendant bears the burden of establishing the existence of a valid arbitration agreement, and has failed to provide competent, account-specific evidence of assent or contract formation, its Motion to Compel Arbitration should be denied.
II. DEFENDANT’S SUPPLEMENTAL DECLARATION DOES NOT ESTABLISH ASSENT
A. Conclusory Assertions Do Not Establish Assent
The supplemental declaration asserts that Plaintiff was required to take certain steps and thereby agreed to Defendant’s Terms of Use.
However, this assertion is conclusory and does not constitute evidence of actual assent.
Defendant does not provide any description of the specific user interface presented to Plaintiff, any indication of how terms were displayed, or any evidence that Plaintiff was required to affirmatively manifest assent.
The mere statement that a user must click “Next” does not, without more, establish that a legally sufficient agreement was formed.
Defendant repeatedly asserts that assent was required, yet provides no evidence of any mechanism requiring affirmative agreement.
Courts require evidence of notice and assent, not generalized characterizations of a platform’s operation.
Defendant’s declaration substitutes assertion for proof.
B. The Declaration Lacks Personal Knowledge and Foundation
The declarant does not claim personal knowledge of Plaintiff’s account, registration process, or actions.
The declaration does not identify any review of Plaintiff-specific records, logs, or data confirming that Plaintiff was presented with, or agreed to, any particular set of terms.
Nor does Defendant provide:
- any system logs or timestamps;
- any records of user interaction;
- any screenshots or description of the registration flow; or
- any evidence linking the alleged process to Plaintiff’s account.
Instead, Defendant relies on generalized statements about how its system allegedly operates.
Such statements, without a foundation tied to Plaintiff, are insufficient to establish contract formation.
C. The Supplemental Declaration Reflects a Post Hoc Revision and Undermines the Reliability of Defendant’s Evidence
The supplemental declaration further underscores the unreliability of Defendant’s evidence.
Defendant submitted its initial declaration in support of its Motion, and only after Plaintiff identified deficiencies did Defendant attempt to clarify and expand its account of how assent supposedly occurred.
This unexplained change is particularly significant where Defendant bears the burden of proof.
Critically, the supplemental declaration departs from Defendant’s prior description of the registration process.
In its original submission, Defendant’s evidence indicated that a user could complete registration without necessarily agreeing to the Terms of Use.
In contrast, the supplemental declaration now asserts that agreement was required to complete registration.
Defendant offers no explanation for this change.
This shift is not supported by any newly produced system records, logs, or account-specific data.
Instead, Defendant provides only revised assertions.
Such an evolving description of its own process highlights the absence of a clear, reliable, and contemporaneous record of assent.
Where Defendant bears the burden of establishing the existence of an arbitration agreement, it must do so with consistent, account-specific evidence.
The need to revise and supplement key testimony, without supporting records, demonstrates that Defendant is attempting to reconstruct contract formation after the fact, rather than prove it.
III. DEFENDANT STILL FAILS TO IDENTIFY ANY OPERATIVE CONTRACT
Defendant’s Reply confirms that it cannot identify any specific contract governing Plaintiff’s account at the time of formation.
Instead of producing a single, clearly applicable agreement, Defendant offers shifting documents and generalized assertions, none of which establish the existence of an operative contract binding Plaintiff.
A. Defendant Provides No Agreement Tied to Account Formation
Defendant now submits a Customer Agreement dated August 21, 2025.
However, Defendant offers no evidence that this version was presented to Plaintiff, that Plaintiff assented to it, or that it governed Plaintiff’s account at the time of registration on August 29, 2025.
The mere existence of a document bearing a date proximate to account creation does not establish that it was the operative agreement.
Defendant provides no account-specific evidence linking this document to Plaintiff, including no records showing that Plaintiff was shown, accepted, or otherwise bound by this version.
Absent such evidence, Defendant has not met its burden to establish contract formation.
B. Defendant’s Own Admissions Confirm the Absence of Proof
Defendant acknowledges that it regularly updates its Customer Agreements.
This admission underscores the need for precise, account-specific evidence identifying which version applied to Plaintiff and when.
Yet Defendant provides:
- no version history;
- no change log;
- no effective-date mapping tied to user accounts; and
- no evidence connecting any specific agreement to Plaintiff.
Without such information, the Court cannot determine which agreement, if any, governed Plaintiff’s account at formation.
Defendant’s generalized statements about its updating practices highlight, rather than resolve, the absence of proof.
C. Defendant’s Post Hoc Assembly of Contract Documents Is Insufficient
Defendant’s submissions reflect an evolving attempt to assemble a contractual record after the fact.
In its initial filing, Defendant relied on one version of its Customer Agreement.
In reply, it introduces a different version and supplements its declaration in response to deficiencies identified by Plaintiff.
This sequence does not establish a coherent, contemporaneous record of contract formation.
Instead, it demonstrates that Defendant is attempting to reconstruct which agreement might apply, rather than producing evidence of what actually governed Plaintiff’s account.
Where a party seeks to compel arbitration, it must identify and prove the existence of a specific agreement binding the opposing party.
Defendant’s shifting and unsupported submissions fall short of that requirement.
IV. DEFENDANT’S “MULTIPLE ASSENT” THEORY FAILS
Defendant’s Reply introduces a new theory that Plaintiff assented to the Terms of Use not only at account creation, but also on subsequent occasions when initiating transfers.
This theory fails for lack of evidence and as a matter of law.
A. Defendant Provides No Evidence of Assent at Any Time
Defendant offers no account-specific evidence showing that Plaintiff assented to any terms, either at account creation or during later transactions.
Defendant provides:
- no system logs;
- no timestamps;
- no records of user interaction; and
- no evidence of any affirmative act by Plaintiff manifesting assent.
Instead, Defendant relies solely on generalized assertions that assent occurred.
Such assertions, without supporting records, are insufficient to establish the existence of an agreement.
B. Alleged Later Conduct Cannot Cure the Absence of Contract Formation
Even if Defendant’s assertions were credited, alleged assent during later transactions would not cure the absence of contract formation at the outset.
Arbitration requires the existence of a valid agreement between the parties.
If no agreement was formed when Plaintiff opened his account, Defendant cannot retroactively impose arbitration based on subsequent activity.
Defendant’s attempt to shift from formation to later conduct underscores its inability to establish that any agreement existed at the relevant time.
C. Assertions of “Multiple Assent” Do Not Substitute for Proof
Defendant’s claim that Plaintiff agreed to the Terms of Use on multiple occasions is unsupported by any documentary or technical evidence.
Without logs, records, or account-specific data, this theory remains an unsubstantiated assertion.
Where Defendant bears the burden of proving the existence of an arbitration agreement, such unsupported claims cannot satisfy that burden.
V. DEFENDANT’S EVIDENCE IS NOT ACCOUNT-SPECIFIC
Defendant’s showing fails for a fundamental reason: it is not tied to Plaintiff.
Throughout its Motion and Reply, Defendant relies on generalized descriptions of how its platform allegedly operates, rather than producing evidence of what actually occurred with respect to Plaintiff’s account.
Defendant repeatedly asserts what users typically do, what its system requires, and how its processes generally function.
However, Defendant provides no account-specific evidence demonstrating that Plaintiff was presented with, or agreed to, any particular terms.
There is no:
- record of Plaintiff’s acceptance;
- system log reflecting assent;
- timestamp tied to any agreement; or
- evidence of the user interface shown to Plaintiff.
These omissions are dispositive.
To compel arbitration, Defendant must establish that this Plaintiff agreed to arbitrate.
Generalized descriptions of system design or standard practices cannot substitute for proof of assent in an individual case.
As shown in Exhibits I and J, the registration process allows a user to proceed by simply entering an email address and clicking “Next,” without any checkbox, separate acknowledgment, or required affirmative acceptance of the Terms of Use.
The only reference to the Terms appears as a passive statement that “by registering, you accept,” which does not require any action demonstrating assent.
This interface directly contradicts Defendant’s assertion that agreement was required to complete registration and underscores that Defendant cannot establish that Plaintiff knowingly and affirmatively assented to any arbitration provision.
VI. DEFENDANT’S OVERBROAD DISCLOSURE FURTHER UNDERMINES ITS POSITION
Defendant’s filing also reflects a lack of precision in its presentation of evidence.
In support of its motion, Defendant publicly submitted detailed transaction records, including the identities of third-party recipients who are not parties to this case.
These disclosures are not necessary to resolve the narrow issue of contract formation or arbitrability and are not narrowly tailored to the issues before the Court.
This overinclusive approach mirrors the broader deficiencies in Defendant’s evidentiary showing.
Rather than providing targeted, account-specific proof of assent, Defendant has relied on generalized assertions and unnecessarily expansive disclosures.
This pattern further underscores the absence of focused, reliable evidence supporting Defendant’s request to compel arbitration.
VII. CONCLUSION
Defendant bears the burden of establishing the existence of a valid arbitration agreement.
It has not met that burden.
Despite submitting a supplemental declaration and additional materials, Defendant still offers no account-specific evidence that Plaintiff assented to any agreement.
Defendant has not identified an operative contract governing Plaintiff’s account at formation, has not produced any records of acceptance, and relies instead on generalized assertions and post hoc revisions.
Without proof of contract formation, there is no basis to compel arbitration.
Defendant’s Motion should therefore be denied.
Dated at Baytown, Texas this 14th day of April 2026.
Respectfully submitted,
Youras Ziankovich, Esq.
Plaintiff Pro Se