United States District Court, S.D. Florida
ORDER ON DEFENDANTS' MOTION TO COMPEL ARBITRATION
AND STAY PROCEEDINGS
BLOOM, UNITED STATES DISTRICT JUDGE.
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.  (“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.
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.
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.
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. , ¶ 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.  at 6. The primary example of this “active
participation” is the filing of Defendants' Answer.
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.
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).
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.
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.
, 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). “Prejudice ...