United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendants' Motion to Compel
Arbitration and to Stay Discovery and Rule 26 requirements
(Doc 21). Plaintiff has not filed a response to the motion
and the time within to do so has expired. When a party fails
to respond, that is an indication that the motion is
unopposed. Foster v. The Coca-Cola Co., No.
6:14-cv-2102-Orl-40TBS, 2015 WL 3486008, at *1 (M.D. Fla.
June 2, 2015); Jones v. Bank of Am., N .A., 564
Fed.Appx. 432, 434 (11th Cir. 2014) (citing Kramer v.
Gwinnett Cty., Ga., 306 F.Supp.2d 1219, 1221 (N.D.Ga.
2004); Daisy, Inc. v. Polio Operations, Inc., No.
2:14-cv-564-FtM-38CM, 2015 WL 2342951, at *1 (M.D. Fla. May
14, 2015) (when defendant did not respond court could
consider motion to compel unopposed); Brown v. Platinum
Wrench Auto Repair, Inc., No. 8:10-cv-2168-T-33TGW, 2012
WL 333803, at *1 (M.D. Fla. Feb. 1, 2012) (after party failed
to respond, court treated motion for summary judgment as
unopposed). As Plaintiff has raised no objection to the facts
presented in the motion or the relief sought, and the motion
is otherwise meritorious, it is respectfully
recommended that the motion be
filed in the Southern District of Florida and transferred
here, this is an action for claimed civil rights violations.
Plaintiff alleges that Defendants Southern Technical
Holdings, LLC, and Southern Technical Institute, LLC
collectively operate a for-profit educational institution
known as “Southern Technical College.” (Doc. 1,
¶¶47, 50). Plaintiff was hired by Defendants in
October 2015 and worked for them until her termination on
February 11, 2016 (Doc. 1, ¶¶ 25, 35). She claims
that Defendants terminated her employment because of her
pregnancy, in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq.; Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., as amended by the Pregnancy Discrimination Act of
1978; and the Florida Civil Rights Act, Fla. Stat. §
760.01, et seq.
instant motion seeks to compel arbitration pursuant to
Section 4 of the Federal Arbitration Act, 9 U.S.C. § 4,
and to stay discovery and compliance with Fed.R.Civ.P. 26
requirements. The motion incorporates the Affidavit of Dr.
Lori Moran, with attached exhibits (Doc. 5 at 13-20).
According to Dr. Moran, when Plaintiff was hired, the College
leased its employees from Strategic Outsourcing, Inc.
(“SOI”), which administered the College's
payroll and benefits packages (Doc. 5, p. 14, ¶ 4).
Individuals hired to work for the College were required to
complete SOI New Employee forms and to enter into an
Agreement to Arbitrate disputes arising out of or relating to
their employment or termination of employment.
(Id.). Plaintiff completed an SOI employment
application on or about September 17, 2015, to work for the
College at its Orlando campus (Doc. 5, p. 2, ¶ 5, and p.
17). Just above Plaintiff's signature, the application
I understand that, as a condition of employment I may be
required to sign … an arbitration agreement and I
hereby agree to arbitrate all disputes regarding my
application for employment and any employment related matters
rather than resolving them in court or other forum.
(Doc. 5, p. 2, ¶ 5, and p. 17). Plaintiff also signed an
Agreement to Arbitrate (Doc. 5, p. 18). The Agreement to
Arbitrate is included in an “ASSIGNED EMPLOYEE NOTICE
& ACKNOWLEDGMENTS” form, signed by Plaintiff, which
The organization for which you perform services (Company) has
contracted for SOI to provide services under which you will
be paid through SOI for work you perform for and under the
direction of Company ….
. . . .
I and SOI agree that: Any dispute involving SOI [or] Company
… arising from or relating to my employment,
application for employment, or termination from employment
will be resolved exclusively through binding arbitration
before a neutral arbitrator. … In addition, I AND SOI
MUTUALLY WAIVE ANY RIGHT TO A JURY TRIAL. … . My
agreements to arbitrate, waive jury trials and participate
only in my individual capacity are agreements under the
Federal Arbitration Act and any other laws validating such
agreements and waivers.
(Doc. 5, p. 14, ¶ 6, and p. 18).
Federal Arbitration Act (“FAA”), 9 U.S.C. §
1 et seq., is the substantive law controlling the
validity and enforcement of arbitration agreements. Caley
v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th
Cir. 2005) (noting that the FAA “generally applies to
contracts of employment.”) It preempts state law to the
extent state law treats agreements to arbitrate differently
than other contracts. Id. The FAA “embodies
the national policy favoring arbitration and places
arbitration agreements on equal footing with all other
contracts.” Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006). Under the FAA,
agreements to arbitrate are “valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of the contract.” 9 U.S.C.
the parties entered into an agreement to arbitrate is
ordinarily an issue for judicial determination. Granite
Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287,
288 (2010). In deciding whether the parties agreed to
arbitration, the Court applies state law governing the
formation of contracts, while at the same time considering
the federal policy favoring arbitration. Caley, 428
F.3d at 1367-68. When deciding a motion to compel
arbitration, courts consider three factors: “(1)
whether a valid written agreement to arbitrate exists, (2)
whether an arbitrable issue exists, and (3) whether the right
to arbitration has been waived.” Zahm v. OneWest
Bank, N.A., No. 8:15-cv-765-T-30TBM, 2015 WL 2095644, at
*1 (M.D. Fla. May 5, 2015) (citing Cuningham Hamilton
Quiter, P.A.,776 So.2d 940, 942 (Fla. 3d DCA 2000));
see also Dukes v. Sai Fort Myers B, LLC, No.
2:14-CV-287-FTM-38, 2015 WL 3650804, at *2 (M.D. Fla. June
11, 2015). “‘All questions concerning scope or
waiver of the right to arbitrate under contracts should be