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Pierre-Louis v. CC Solutions, LLC

United States District Court, S.D. Florida

October 25, 2017




         THIS CAUSE is before the Court upon Defendants' CC Solutions, LLC a/k/a CCS LLC and Dino Avdic (“Defendants”) Motion to Compel Arbitration and Stay Proceedings, ECF No. [29] (“Motion to Compel”). The Court has reviewed the Motion, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is granted.

         I. BACKGROUND

         Plaintiff Benedict Pierre-Louis claims that he is entitled to certain wages for work performed while employed as a field tech cable installer by Defendants, CC Solutions, LLC and Dino Avdic, who are engaged in the field of cable installation services for Comcast. He filed this action seeking wages and liquidated damages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Defendant now moves to compel Plaintiff to arbitrate the claims presented in this case pursuant to the Federal Arbitration Act, 9 U.S.C. §1 et seq. (“FAA”). Plaintiff, on the other hand, asserts that Defendants have waived any right to arbitration.

         The parties do not dispute that on August 18, 2016, Plaintiff signed an Acknowledgement Regarding Arbitration and the Entire Manual form, which was attached to the last page of Defendant CC Solutions, LLC's Employee Manual (“Employee Manual”). See ECF No. [29-1]. The Employee Manual contains an arbitration policy that specifically applies to claims arising under the FLSA. In relevant part, the policy states:

Except as it otherwise provides, this Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims.

ECF No. [29-1] at 23.

         On June 29, 2017, Defendants answered the Complaint but failed to assert the agreed upon arbitration policy in the Employee Manual. On August 4, 2017, Defendants filed the Motion to Compel, asserting that “the Acknowledgement Regarding Arbitration and the Entire Manual form was located upon review of Plaintiff's file in preparation for discovery in this matter and was immediately provided to his counsel by email, on July 19, 2017.” ECF No. [29], ¶ 5; see also ECF No. [45-1] (copy of July 19, 2017 e-mail from Defendants' counsel to Plaintiff's counsel). Plaintiff responds to the Motion with the sole argument that Defendants waived the arbitration right by “actively participat[ing] in this lawsuit.” ECF No. [40] at 6. The primary example of this “active participation” is the filing of Defendants' Answer. Id.


         The presence of a valid arbitration provision raises a strong presumption of enforcement. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 630-31 (1985). Indeed, the FAA “embodies a ‘liberal federal policy favoring arbitration agreements.'” Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1366 (11th Cir. 2008) (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Accordingly, the FAA requires courts to “rigorously enforce agreements to arbitrate, ” including those contained in employment contracts. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111 (2001); Hemispherx, 553 F.3d at 1366; Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1357-58 (11th Cir. 2002), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Engineers & Participating Employers, 134 S.Ct. 773 (2014) (quoting Mitsubishi Motors, 473 U.S. at 625-26). Under the FAA, a written agreement to arbitrate is “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

         Despite the Courts' proclivity for enforcement, a party will not be required to arbitrate if the party has not agreed to do so. Nat'l Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F.Supp.2d 1318, 1322 (S.D. Fla. 2010) aff'd, 433 F. App'x 842 (11th Cir. 2011) (citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). It is axiomatic that the determination of whether parties have agreed to submit a dispute to arbitration is an issue of law subject to judicial resolution. See Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010). Generally, this determination requires the district court to apply standard principles of contract garnered from the applicable state law. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 939 (1995) (citation omitted); see also P & S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003). When presented with a motion to compel arbitration, a district court will consider three factors: (1) whether a valid agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived. Nat'l Auto Lenders, 686 F.Supp.2d at 1322 (citation omitted).

         Here, Plaintiff's only quarrel with enforcement of the arbitration policy in the Employee Manual concerns waiver. Accordingly, the Court need not address whether a valid arbitration agreement exists or whether the Complaint presents an arbitrable issue and instead focuses its analysis on whether Defendants waived the right to arbitrate.


         At the outset, it is important to note that federal law governs the Court's determination of this dispute. S&H Contractors, Inc. v. A.J. Taft Coal Co., Inc., 906 F.2d 1407 (11th Cir. 1990) (“Our determination of whether S&H waived it right to arbitration, as opposed to whether the contract is void under Alabama law, is controlled solely by federal law.”); see also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011). In its Response in Opposition to Defendant's Motion to Compel, ECF No. [40], Plaintiff exclusively relies on Florida state court cases analyzing waiver, while Defendant relies on cases from the Eleventh Circuit and other federal jurisdictions. Florida law treats waiver similar to federal law, but there are some distinctions. In Florida, “waiver may occur as the result of active participation in a lawsuit.” Hill v. Ray Carter Auto Sales, Inc., 745 So.2d 1136, 1138 (Fla. 1st DCA 1999). However, federal law utilizes a two-part test to analyze waiver. “Waiver occurs when both: (1) the party seeking arbitration substantially participates in litigation to a point inconsistent with an intent to arbitrate; and (2) this participation results in prejudice to the opposing party.” In re CheckingAccount Overdraft Litig., 754 F.3d 1290, 1294 (11th Cir. 2014) (internal quotations omitted, emphasis added); see Morewitz v. W. of England Ship Owners Mut. Prot. & Indem. Ass'n (Luxembourg), 62 F.3d 1356, 1366 (11th Cir. 1995). ‚ÄúPrejudice ...

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