United States District Court, M.D. Florida, Tampa Division
ANNETTE GIRAUD and SERA BARR, individually and on behalf of all other persons similarly situated, Plaintiffs,
WOOF GANG BAKERY, etc., et al., Defendants.
RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE.
THE COURT is Defendants' Motion to Dismiss
Claims filed by Plaintiff Annette Giraud and to Compel
Arbitration (Dkt. 22), which was referred to and considered
by the United States Magistrate Judge. Magistrate Judge
Porcelli filed his Report and Recommendation (R & R) on
April 4, 2018 (Dkt. 34). Plaintiff Annette Giraud filed
objections (Dkt. 35), and Defendants filed a response to the
objections (Dkt. 37). The R & R recommends that
Defendants' Motion to Dismiss Claims filed by Plaintiff
Annette Giraud and Compel Arbitration (Dkt. 22) be granted to
the extent Plaintiffs Annette Giraud, Brittany Westley,
Ericka Schumm, and Amanda Stewart's claims occurred
during the life of their respective independent contractor
agreements. The magistrate recommends permitting Plaintiffs
to file an amended complaint to assert any remaining viable
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or
modify, in whole or in part, the magistrate judge's
report and recommendation. 28 U.S.C. § 636(b)(1);
United States v. Powell, 628 F.3d 1254, 1256
(11th Cir. 2010). A district judge “shall
make a de novo determination of those portions of
the report or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1); United States v.
Farias-Gonzalez, 556 F.3d 1181, 1184 n. 1
(11th Cir. 2009) (“A de novo
determination, however, does not mean that a district court
must make a de novo examination of the
witnesses.”) (citation omitted). The proceedings before
the magistrate consisted entirely of argument of counsel.
Porcelli's R & R sets forth a factual background
explaining that four of the Plaintiffs, working as pet
groomers, entered into separate independent contractor
agreements with Woof Gang Bakery. Arguing that the agreements
were misclassified, Plaintiffs seek unpaid overtime and
minimum wages and other related damages. All four independent
contractor agreements contain a broad arbitration provision
for “[a]ny controversy between the parties to this
Agreement involving the construction or application of any of
the terms, provisions, or conditions of this Agreement,
” which the R & R found to include FLSA claims. The
provision provides that the rules of the American Arbitration
Association (AAA) for Commercial Disputes shall govern the
arbitration proceedings unless otherwise stipulated.
According to Plaintiffs, Defendants conceded at the hearing
before the magistrate that the arbitration proceeding would
be governed by the AAA Employment Rules. Each of the four
agreements was executed on different dates between February
2016 and May 2017. In August 2017, however, Plaintiff Giraud
entered into a new commission agreement that did not contain
an arbitration provision. The record is silent as to whether
the other three Plaintiffs signed new commission agreements.
Porcelli reasoned that the independent contractor agreement
does not contain a novation provision that would make the
acceptance of a new agreement terminate the existing
agreement. Neither did the new commission agreement express
the parties' intent to repudiate the independent
contractor agreement. Although Giraud's affidavit asserts
that the parties intended to supersede or repudiate the
independent contractor agreement with the commission
agreement, the language of the agreements evidences a
contrary intent. Both agreements are silent about whether the
arbitration provision in the first agreement will remain in
effect upon the signing of the second agreement.
Consequently, the R & R concludes that the parties are
bound to the arbitration agreement during the life of the
independent contractor agreement.
Court has reviewed the entire file and record and has made a
de novo review of the legal and factual issues
raised in Plaintiffs' objections. The Court finds that
the R & R fully addresses all of the Plaintiffs'
objections. Plaintiffs raise objections to the factual
portion of the R & R insofar as it focuses on only four
Plaintiffs and also overlooks the facts regarding the
parties' intent, which are contained in the declaration
of Giraud. Neither of these grounds have merit.
Plaintiffs have not shown collectively why prejudice would
result from compelling the arbitral claims of the designated
four Plaintiffs. As discussed in the R & R, the language
of the unambiguous agreements expresses the intentions of the
parties without need of relying on the declaration of Giraud.
respect to the objections made to the legal portion of the R
& R, the grounds are also baseless. The arbitration
provision is broad and covers any controversy over the
construction or application of any part of the agreement,
despite its lacking the phrase “arising out of.”
Nothing indicates that FLSA claims would not be covered by
the agreement, or that the agreement is unconscionable. All
other objections made but not specifically addressed here are
upon consideration of the Report and Recommendation,
Plaintiffs objections, and Defendants' Response, in
conjunction with an independent examination of the file, the
Court is of the opinion that the Report and Recommendation
should be adopted, confirmed, and approved in all respects
but the modifications as ordered below. Rather than dismiss
the claims subject to arbitration, the Eleventh Circuit
directs that the district court must stay those claims. 9
U.S.C. § 3; Bender v. A.G. Edwards & Sons,
Inc., 971 F.2d 698 (11th Cir. 1998).
it is ORDERED AND ADJUDGED as follows:
1) The Magistrate Judge's Report and Recommendation (Dkt.
34) is confirmed and adopted as part of this Order but with
the following modifications.
2) Defendants' Motion to Compel Arbitration (Dkt. 22) is
GRANTED. The claims subject to arbitration
are not dismissed but are stayed pending the ...