COOK v. NORDSTROM, INC., No. 1:2013cv05402 - Document 5 (D.N.J. 2013)

Court Description: MEMORANDUM OPINION AND ORDER: ORDERED that Defendant's Motion to Stay Judicial Proceedings Pending Arbitration 4 is GRANTED; ORDERED that this matter is ADMINISTRATIVELY TERMINATED without prejudice. Signed by Magistrate Judge Ann Marie Donio on 12/17/2014. (tf, )

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[Doc. No. 4] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE MICAH COOK, Plaintiff, Civil No. 13-5402 (RBK/AMD) v. NORDSTROM, INC., Defendant. MEMORANDUM OPINION AND ORDER In this employment discrimination action, Defendant Nordstrom, Inc., seeks a stay pending arbitration pursuant to the terms of a Dispute Resolution Agreement signed by Plaintiff Micah Cook. Plaintiff Micah Cook has not filed any opposition to the motion. The Court has considered this matter pursuant to Federal Rule of Civil Procedure 78(b), and for the reasons set forth herein, grants the motion. 1 1 28 U.S.C. § 636(b)(1)(A) generally sets forth the magistrate judge s authority to decide non-dispositive matters. See 28 U.S.C. § 636(b)(1)(A). A number of district courts that have considered the nature of a stay pending arbitration have found such relief non-dispositive. Schmidt v. Wine, No. 13-1237, 2013 WL 3991808, at *1-*2 (D. Kan. Aug. 5, 2013) (collecting cases and finding that a motion to compel arbitration is nondispositive ). This Court agrees, and finds that a ruling on a motion to stay litigation pending arbitration is not dispositive because the [C]ourt still retains authority to dissolve the stay or, after the arbitration has run its course, to make orders with respect to the arbitral award. PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (finding On July 30, 2013, Plaintiff filed a complaint in New Jersey state court alleging sexual orientation harassment, hostile work environment, race discrimination, and retaliation in violation of the New Jersey Law Against Discrimination. at ¶ 1.) (Id. Specifically, Plaintiff alleges that he was hired by Defendant as a Housekeeper[,] and that Defendant s employees constantly subjected Plaintiff to a litany of harassing conduct due to Plaintiff s race and alleged sexual orientation. (Notice of Removal [Doc. No. 1], Ex. A, ¶¶ 8, 10.) Plaintiff further alleges that Defendant s management failed to address the harassment despite Plaintiff s complaints. (Id. at ¶ 12.) Defendant terminated Plaintiff s employment on or about May 10, 2013. (See generally id. at ¶¶ 30-40.) filing of the complaint, Defendant Following Plaintiff s removed this action on September 11, 2013 (see Notice of Removal [Doc. No. 1]), and thereafter filed the pending motion to stay. Stay Judicial Proceedings Pending (See Motion to Arbitration (hereinafter, Def. s Mot. ) [Doc. No. 4].) In support of the pending motion, Defendant asserts that, as a condition of [Plaintiff s] employment with Defendant and in accordance with the Federal Arbitration Action (Brief in Proceedings Support Pending of Defendant s Arbitration Motion to (hereinafter, Stay Judicial Def. s Br. ) that a federal court s ruling on a motion to stay litigation pending arbitration is not dispositive ). 2 [Doc. No. 4-1], 2), Plaintiff expressly agreed to arbitrate any and all disputes regarding the employment relationship ... termination, discrimination, retaliation ... or harassment and claims arising under ... state and local statutes. (internal citation omitted).) Plaintiff s Enforceable employment Agreement Defendant further asserts that agreement to (Id. at 6 constitutes Arbitrate[,] a by supported Valid, effective consideration, and that the claims alleged by Plaintiff fall[] within the scope of the Agreement. (Id. at 5-7.) Consequently, Defendant asserts that the circumstances warrant a stay of this judicial action and that the parties should be ordered to arbitrate. (Id. at 7.) Before turning to the issue of whether the Dispute Resolution Agreement constitutes a binding agreement to arbitrate, the Court must first decide the standard applicable to the resolution of the pending motion. Where arbitrability is apparent, based on the face of a complaint, and documents relied upon in the complaint that certain of a party s claims are subject to an enforceable arbitration clause, a motion to compel arbitration should be considered under a Rule 12(b)(6) standard without discovery s delay. Debt Resolution, (quoting Somerset L.L.C., 716 Consulting, F.3d LLC Guidotti v. Legal Helpers 764, v. 774 United (3d Capital LLC, 832 F. Supp. 2d 474, 482 (E.D. Pa. 2011)). 3 Cir. 2013) Lenders, [A] Rule 12(b)(6) standard is inappropriate[, however,] when either the motion to compel arbitration does not have as its predicate a complaint with the requisite clarity to establish on its face that the parties agreed to arbitrate, Somerset, 832 F. Supp. 2d at 482, or the opposing party has come forth with reliable evidence that [amounts to] more than a naked assertion ... that [the opposing party] did not intend to be bound by the arbitration agreement, even though on the face of the pleadings it appears that it did. Id. (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 55 (3d Cir. 1980)). Here, Plaintiff s complaint (see Notice of Removal [Doc. No. 1], Ex. A) contains no reference to the arbitration agreement placed in issue by Defendant s motion. Mot. [Doc. No. 4].) Nor has Plaintiff filed (See Def. s an opposition contesting the existence, enforceability, and/or applicability of the arbitration agreement. Rather, the certification of counsel in support of Defendant s motion appends a true and correct copy of [Defendant s] Dispute Resolution Program, signed by Plaintiff[,] Plaintiff s and claims contends in this that the action Agreement to subjects arbitration. (Certification of Leigh Ann Bigley in Support of Defendant s Motion to Stay Judicial Proceedings Pending Arbitration [Doc. No. 4-2], 1.) Though the Agreement arguably envelops Plaintiff s claims in this action, the Agreement itself (though 4 uncontested) does not constitute a document referred to in Plaintiff s complaint or central to Plaintiff s claims. Mathai v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., No. 12-2778, 2013 WL 3776580, at *3 (E.D. La. July 17, 2013) (considering, under a Rule 12(b)(6) standard, documents referred to in the complaint and []central to the claims in the case). document, Rather, which may the have Agreement an impact constitutes on the an external litigation of Plaintiff s claims, but otherwise concerns issues separate and distinct from Plaintiff s complaint. Therefore, because the Court must delve beyond the pleadings to resolve the pending motion, the Court must instead determine whether a factual dispute exists as to the validity of the agreement. Estate of Hodges v. Meadows, No. 12-1698, 2013 WL 1294480, at *2 (E.D. Pa. Mar. 29, 2013) (quoting Hopkins v. New Day Fin., 643 F. Supp. 2d 704, 714 (E.D. Pa. 2009)) ( applying the standard of review for summary judgment to a motion to compel arbitration ); see also FED. R. CIV. P. 56. In so determining, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party[,] Down to Earth Landscaping v. New Jersey Building Laborers District Council Local 595, No. 06-578, 2006 WL 1373169, at *2 (D.N.J. May 17, 2006) (citations omitted), and must determine documents, whether electronically the record, stored 5 including information, depositions, affidavits or declarations, together with answers to interrogatories, and admissions on file, if any, show that there is no genuine issue of material fact. FED. R. CIV. P. 56(c)(1)(A). Therefore, the Court must discern the existence of a factual dispute, if any, solely from the information proffered by Plaintiff s complaint and Defendant s submission. Mindful of this standard, the Court must next consider whether the Dispute Resolution agreement to arbitrate. Agreement constitutes a valid Such an inquiry is required because in order to compel arbitration, a court must determine that (1) a valid agreement to arbitrate exists, and (2) the dispute falls within the scope of that agreement. particular Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009) (citing Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005)). the parties agreed to Consequently, [t]o determine whether arbitrate, [courts] turn to ordinary state-law principles that govern the formation of contracts. Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 160 (3d Cir. 2009) (quoting First Options of Chic., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)); see also Bourgeois v. Nordstrom, Inc., No. 11-2442, 2012 WL 42917, at *2 (D.N.J. Jan. 9, 2012) (evaluating the validity of an arbitration agreement using the principals of New Jersey contract law ). asserts that New Jersey law applies 6 with Here, Defendant respect to the consideration contract. of whether the parties entered (Def. s Br. [Doc. No. 4-1], 5.) into a valid Consequently, the Court turns to New Jersey law, which requires that, [f]or an arbitration agreement to be enforceable in the employment context it must reflect that an employee has agreed clearly and unambiguously to arbitrate the disputed claim[,] Bourgeois, 2012 WL 42917, at *3 (quoting Leodori v. CIGNA Corp., 814 A.2d 1098, 1104 (N.J. 2003), cert. denied, 540 U.S. 938 (2003)), in addition to demonstrating consideration[.] [t]he essential requirement of Martindale v. Sandvik, Inc., 800 A.2d 872, 878 (N.J. 2002) (quoting Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 383-84 (N.J. 1988)). Defendant acknowledged, Resolution and asserts agreed Agreement on that to be bound December [Doc. No. 4-2], Ex. B, 5.) Plaintiff 7, by 2011. received, Defendant s (See Dispute Def. s Mot. The Dispute Resolution Agreement explicitly provides that Plaintiff understand[s] and agree[s] to the terms of the agreement. Ex. B, 5.) Moreover, the See Def. s Mot. [Doc. No. 4-2], Dispute Resolution Agreement and accompanying signed acknowledgment clearly reflect an agreement by Plaintiff to arbitrate all disputes regarding the employment relationship, including arising the under claims Americans of With harassment[,] Disabilities claims Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair 7 Labor Standards Act, and other state and local statutes, addressing the same or similar subject matters. (Id. at 2.) Such specific language easily satisfies the requirement that [the arbitration] clause[] provide an unmistakable expression of an employee s remedies. willingness to waive his or her statutory Leodori, 814 A.2d at 1105 (finding a provision which listed numerous federal statutes by name[,] in addition to any other federal, common-law doctrine, conditions of state, sufficient or regarding employment, to local constitute or an statute, regulation, employment discrimination, termination unmistakable or of employment expression of an employee s willingness to waive his or her statutory remedies ). Plaintiff s complaint does not reference the Dispute Resolution Agreement. However, in addressing the bargained- for nature of the Agreement, Defendant asserts that Plaintiff agreed to arbitrate and Defendant, in return, continued to employ[] him. Jersey law, (Def. s Br. [Doc. No. 4-1], 5.) continued consideration agreements[,] employee s Quigley v. to employment support Martindale, submission KPMG Peat to certain 800 an A.2d at employer s Marwick, Super. Ct. App. Div. 2000). constitutes LLP, 749 Under New sufficient employment-related 879, demand A.2d including to 405, an arbitrate. 413 (N.J. Consequently, on this record, the Court finds no genuine dispute with respect to the validity of 8 the agreement to arbitrate. See Bourgeois, 2012 WL 42917, at *4 (finding that, pursuant to the terms of a similar agreement, the parties Therefore, entered the into Court a valid concludes agreement that the to arbitrate ). Dispute Resolution Agreement constitutes a valid agreement to arbitrate. The Court next considers whether federal or state law governs the arbitrability question that is, whether Plaintiff s claims fall within the arbitration clause. In that regard, Defendant asserts that the Federal Arbitration Act (hereinafter, the FAA ), 9 U.S.C. § 1, et seq., governs this question. Therefore, in order to apply the FAA, the Court must find that the contract containing the arbitration provision evidenc[es] a transaction involving commerce. Sys. (Voorhees Div.), 847 (quoting 9 U.S.C. § 2). require a rigorous F. Crawford v. W. Jersey Health Supp. 1232, 1240 (D.N.J. 1994) This determination, however, does not inquiry[.] Id. Rather, the contract need have only the slightest nexus with interstate commerce. Id. (quoting Maxus, Inc. v. Sciacca, 598 So.2d 1376 (Ala. 1992); citing Snyder v. Smith, 736 F.2d 409, 417 (7th Cir. 1984), cert. denied, 469 U.S. 1037 (1984) ( involving commerce requirement must be construed broadly )). Defendant s Dispute Resolution Agreement expressly provides that it evidences a transaction involving commerce, (See Def. s Mot. [Doc. No. 4-2], Ex. B, 5), but Defendant does not set forth, with specificity, the basis 9 for that conclusion. (Def. s Br. [Doc. No. 4-1], 2.) However, the Court need not engage in any protracted inquiry because the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32 sets forth near-identical provisions to its federal counterpart, 9 U.S.C.A. § 2 of the Federal Arbitration Act[.] 2 Levonas v. Regency Heritage Nursing & Rehab. Ctr., No. L-7610-09, 2013 WL 4554509, at *3 (N.J. Super. Ct. App. Div. Aug. 29, 2013); see also N.J.S.A. 2A:23B-6(b) ( The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate. ). Consequently, the resolution of the pending motion is the same whether the Court applies federal or state law, and for the reasons that follow, arbitration shall be compelled. In determining whether the particular dispute falls within a valid presumption of arbitration agreement s arbitrability[:] an scope, order to there is arbitrate a the particular grievance should not be denied unless it may be said with positive susceptible dispute. Lloyd s, assurance of an Century London, that the interpretation Indem. Subscribing Co. to 2 arbitration that v. clause covers Certain Retrocessional the is not asserted Underwriters Agreement at Nos. N.J.S.A. 2A:23B-7 further provides that, [o]n filing a summary action with the court by a person showing an agreement to arbitrate and alleging another person s refusal to arbitrate pursuant to that agreement: (1) if the refusing party does not appear or does not oppose the summary action, the court shall order the parties to arbitrate[.] N.J.S.A. 2A:23B-7(a)(1). 10 950548, 950549, and 950646, 584 F.3d 513, 524 (3d Cir. 2009) (quoting AT&T Techs., Inc. v. Commc ns Workers of Am., 475 U.S. 643, 650 (1986)); see also Morgan Stanley & Co. v. Druz, No. A2256-10T1, 2013 WL 68712, at *4 (N.J. Super. Ct. App. Div. Jan. 8, 2013) (noting the presumption of arbitrability under the New Jersey Arbitration Act). Consequently, an agreement to arbitrate must be construed broadly, with any doubts concerning the scope of arbitrable issues [] [] resolved in favor of arbitration. Great W. Mortg. Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997) (quoting Moses H. Cone Mem l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-5 (1983)); see also Morgan Stanley & Co., 2013 WL 68712, at * 4 (same). express provision excluding a In the absence of any particular grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail. AT&T Techs., 475 U.S. at 654 (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584-85 (1960)). Plaintiff s complaint generally alleges that Defendant subjected Plaintiff to sexual orientation harassment/hostile work environment[,] racial discrimination[,] and retaliation[,] in violation of the New Jersey Law Against Discrimination. Removal [Doc. No. 1], Ex. A, ¶¶ 41-51.) (See Notice of Plaintiff, however, agreed to be bound by Defendant s Dispute Resolution Agreement with respect to disputes 11 regarding the employment relationship, including those claims of discrimination, retaliation or harassment in violation of either federal or state laws. (Id. at 2.) Therefore, in light of the clear scope of the Dispute Resolution Agreement, the Court finds no genuine dispute concerning the arbitrability of the claims set forth in Plaintiff s complaint. See Hinnant v. Am. Ingenuity, LLC, 554 F. Supp. 2d 576, 587 (E.D. Pa. 2008) (finding that two counts fell within the confines of the broad arbitration clause, which required arbitration of all disputes in connection with this contract ). Consequently, the Court motion and shall compel arbitration. grants Defendant s In addition, because the pending motion seeks to compel arbitration of arbitrable issues, the Court must issue a stay as requested by Defendant. Oliver v. Nordstrom King of Prussia, No. 10-5340, 2010 WL 5121966, at *6 (D.N.J. Dec. 14, 2010) (citing 9 U.S.C. § 3; see Lloyd v. Hovensa, LLC, 369 F.3d 263, 269 (3d Cir. 2004) (noting that district courts must issue a stay if the lawsuit is brought on an arbitrable claim )). Consequently, for the reasons set forth herein, and for good cause shown: IT IS on this 17th day of December 2013, ORDERED Proceedings that Pending Defendant s Arbitration [Doc. hereby is, GRANTED; and it is further 12 Motion No. to Stay 4] shall Judicial be, and ORDERED that the parties shall proceed to arbitration on all claims asserted in Plaintiff s complaint in accordance with the terms of the Dispute Resolution Agreement; and it is further ORDERED that this matter shall be, and hereby is, ADMINISTRATIVELY TERMINATED, without prejudice to the parties right to reopen by way of letter application following completion of arbitration. s/ Ann Marie Donio ANN MARIE DONIO UNITED STATES MAGISTRATE JUDGE 13

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