United States District Court, M.D. Florida, Orlando Division
ANTOON II, UNITED STATES DISTRICT JUDGE
case is before the Court on: the Petition to Compel
Arbitration in Accordance With Agreement (Doc. 1) filed by
CFL Pizza LLC; the Motion to Dismiss (Doc. 6) filed by Walter
Hammack; and the Motion to Compel Single Claimant Arbitration
(Doc. 31) filed by CFL Pizza. As explained below, the petition
and both motions are denied.
Factual and Procedural Background
formerly worked for CFL Pizza as a delivery driver in Volusia
County, Florida. In connection with that employment, Hammack
signed an Agreement to Arbitrate providing that "CFL
Pizza and I agree to use confidential binding arbitration
instead of going to court for any claims that arise between
me and CFL Pizza, " including, without limitation, any
claims "concerning compensation, employment, ... or
termination of employment." (Doc. 1-1 at 1). The
Agreement to Arbitrate further provides that "[i]n any
arbitration, the then prevailing employment dispute
resolution rules of the American Arbitration Association will
apply"; that "any and all claims subject to
arbitration shall be instituted only in an individual
capacity, and not as a representative plaintiff on behalf of
any purported class, collective or consolidated action";
and that "[i]t is the parties' intent to the fullest
extent permitted by law to waive any and all rights to the
application of class or collective action procedures or
remedies to arbitration proceedings conducted under this
April 6, 2016, Hammack filed a Statement of Claim with the
American Arbitration Association "individually and on
behalf of all other similarly situated persons, "
seeking unpaid minimum wages under the Fair Labor Standards
Act. (Doc. 1 ¶ 12). Two months later, CFL Pizza filed in
this Court its Petition to Compel Arbitration in Accordance
With Agreement (Doc. 1), arguing that Hammack "intends
to pursue a collective action with the arbitrator" and
that "Hammack's efforts to pursue arbitration on a
collective basis amount to an effort to deprive CFL Pizza
of its contractual rights under the Agreement to
Arbitrate." (Doc. 1 ¶¶ 16 & 19). CFL Pizza
seeks "an order compelling Hammack to submit his . . .
claims to single-claimant arbitration in accordance with the
terms provided for in the Agreement to Arbitrate."
(Id. ¶ 21).
then moved to dismiss CFL Pizza's petition for failure to
state a claim on which relief can be granted, and after CFL
Pizza responded and Hammack replied, CFL Pizza filed a Motion
to Compel Single Claimant Arbitration (Doc. 31). In that
motion, CFL Pizza asserts that Hammack intends "to seek
a ruling from the arbitrator permitting [him] to pursue a
class or collective action" and argues that "the
court, not the arbitrator, should decide whether an express
class/collective action waiver in an arbitration agreement is
enforceable and whether a claimant must proceed with
single-claimant arbitration." (Doc. 31 at 3). Hammack
has responded to that motion, (Doc. 32), and ail of these
filings are now before the Court, 
Hammack's Motion to Dismiss (Doc. 6)
Petition (Doc. 1), CFL Pizza cites section 4 of the Federal
Arbitration Act, which provides that "[a] party
aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for
arbitration may petition any United States district court...
for an order directing that such arbitration proceed in the
manner provided for in such agreement." 9 U.S.C. §
Hammack asserts in his motion to dismiss that CFL Pizza's
claim to enforce arbitration "is not cognizable"
for various reasons, citing Federal Rule of Civil Procedure
12(b)(6) and standards governing Rule 12(b)(6) motions to
dismiss. This motion must be denied.
Federal Arbitration Act provides that "[a]ny application
to the court hereunder shall be made and heard in the manner
provided by law for the making and hearing of motions, except
as otherwise herein expressly provided." 9 U.S.C. §
6. The Federal Rules of Civil Procedure apply to proceedings
under the Federal Arbitration Act "except as [the
Federal Arbitration Act] provide[s] for other
procedures." Fed.R.Civ.P. 81(a)(6)(B). Because CFL
Pizza's petition is to be heard as a motion,
Hammack's 12(b)(6) motion to dismiss is not the
appropriate vehicle for attacking it. Cf. O.R. Sec, Inc.
v. Profl Planning Assocs., Inc., 857 F.2d 742, 745 (11th
Cir. 1988) (noting that the plaintiff "misconstrue[d]
the procedures which the district courts must follow when
considering a request to vacate an arbitration award"
and explaining that "[t]he manner in which an action to
vacate an arbitration award is made is obviously important,
for the nature of the proceeding affects the burdens of the
various parties as well as the rule of decision to be
applied"). CFL's petition, along with its Motion to
Compel Single Claimant Arbitration (Doc. 31), will be
resolved on the merits, with all of the parties' filings
construed as briefing on the issues . raised. See
Id. at 746 ("The fact that this motion [to
vacate arbitration award] came before the district court on
[a motion to dismiss a complaint] does not affect our
disposition of the case.... The memoranda of both parties
submitted to the district court adequately briefed the issue
of whether the arbitration award in question should have been
CFL Pizza's Petition (Doc. 1) and Motion (Doc.
Pizza seeks two rulings in its filings: first, that the
court, not the arbitrator, should decide whether the
class/collective action waiver in the Agreement to Arbitrate
is enforceable, and second, that the waiver is indeed
enforceable. Because, under the circumstances of this case,
the Court disagrees with CFL Pizza's position on the
first issue, the Court does not reach the second question.
Here, the parties' agreement, by its own terms,
forecloses the relief sought by CFL Pizza.
[Federal Arbitration Act] reflects the fundamental principle
that arbitration is a matter of contract."
Rent-A-Center. W.. inc. v. Jackson, 561 U.S. 63, 67
(2010). Consistent with the Act, "courts must
'rigorously enforce' arbitration agreements according
to their terms, including terms that 'specify with whom
[the parties] choose to arbitrate their disputes' and
'the rules under which that arbitration will be
conducted.'" Am. Express Co. v. Italian Colors
Rest.. 133 S.Ct. 2304, 2309 (2013) (alteration in
original) (citations and emphasis omitted).
questions which grow out of the dispute and bear on its final
disposition' are presumptively not for the
judge, but for an arbitrator, to decide." Howsam v.
Dean Witter Reynolds, Inc.. 537 U.S. 79, 84 (2002)
(quoting John Wiley & Sons. Inc. v. Livingston.
376 U.S. 543, 557 (1964)). On the other hand, questions of
"arbitrability"- "which 'include certain
gateway matters, such as whether parties have a valid
arbitration agreement at all or whether a concededly binding
arbitration clause applies to a certain type of
controversy-are presumptively for courts, " rather than
arbitrators, to decide. Oxford Health Plans LLC v.
Sutter. 133 S.Ct. 2064, 2068 n.2 (2013) (quoting
Green Tree Fin. Corp. v. Bazzle. 539 U.S. 444, 452
(2003)). But, even gateway questions of arbitrability are for
the arbitrator and not the court where the parties
"clearly and unmistakably [so] provide" in their
agreement. AT & T Techs., Inc. v. Commc'ns
Workers of Am., 475 U.S. 643, 649 (1986). This is so,
again, because arbitration is a matter of contract; [j]ust as
the arbitrability of the merits of a dispute depends upon
whether the parties ...