Moultry v. Tony Serra Ford, Inc. et al

Filing 52

MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/6/2019. (KAM)

FILED
2019 Jun-06 AM 11:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEE MOULTRY,
Plaintiff,
v.
TONY SERRA FORD, INC., et al.,
Defendants.

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Case No.: 2:18-CV-394-RDP

MEMORANDUM OPINION
This case is before the court following a bench trial conducted on April 16, 2019 to
determine whether the parties executed an enforceable arbitration agreement. After careful review
of all record evidence and testimony, and for the reasons explained below, the court concludes that
Defendant Serra Nissan/Oldsmobile, Inc. (“Serra Nissan/Oldsmobile”) and Defendant Tony Serra
Ford, Inc. (“Tony Serra Ford”) are entitled to compel arbitration as parties to the arbitration
agreement.
I.

Procedural Background
Plaintiff Lee Moultry initiated this suit on March 13, 2018 to remedy Tony Serra Ford’s

and Serra Nissan/Oldsmobile’s (collectively, “Defendants”) allegedly discriminatory employment
practices under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C.
§ 1981. (Doc. # 1). Instead of filing an answer, Defendants filed a Motion to Dismiss, Without
Prejudice, or Stay and Compel Arbitration. (Doc. # 5). Specifically, Defendants argued that an
arbitration agreement was contained within Defendants’ online employment application and that
Plaintiff necessarily signed and consented to the agreement when he submitted his application.
(See generally Doc. # 26). Plaintiff countered that neither he nor his fiancée saw any arbitration

1

agreement embedded in the employment application, so Plaintiff could not have assented to such
an agreement. (Doc. # 14 at 1-4). Furthermore, Plaintiff claimed that the employment application
that Defendants produced did not reflect his signature. (Id. at 7).
Because a genuine issue of material fact existed as to whether Plaintiff assented to an
arbitration agreement, the court denied Defendants’ Motion (Doc. # 5) and proceeded to a bench
trial pursuant to 9 U.S.C. § 4 (“If the making of the arbitration agreement or the failure, neglect,
or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.”).
See Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016); see also
Chambers v. Groome Transp. of Ala., 41 F. Supp. 3d 1327, 1354 (M.D. Ala. 2014) (setting a bench
trial for an arbitration issue under 9 U.S.C. § 4).
During the bench trial, Defendants bore the burden to “prove the existence of an agreement
to arbitrate by a preponderance of the evidence.” Tyus v. Virginia College, 2015 WL 4645513, at
*1 (M.D. Ala. Aug. 4, 2015). The court heard testimony from three witnesses: Plaintiff; Roger
Bradford, the Parts and Services Director for Serra Automotive; and Christianna DeRamus,
Plaintiff’s fiancée. The court also accepted into evidence and considered the deposition testimony
of Jesse Rubenstein, a representative of Citrix System, Inc., which provides Defendants with the
RightSignature product that allows applicants to complete and submit job applications online. The
court then ordered additional briefing to address whether Defendants were entitled to enforce the
arbitration agreement contained in the employment application given that Plaintiff applied to work
at a particular dealership that did not ultimately hire him. (Doc. # 46). Upon consideration of all
record evidence and testimony, the court issues the following findings of fact and conclusions of
law.

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II.

Findings of Fact and Conclusions of Law
The court begins by comparing Plaintiff’s and Defendants’ portrayal of the facts

surrounding the submission of Plaintiff’s employment application containing the arbitration
agreement. The court then summarizes its findings of fact in light of the evidence received during
the bench trial. Finally, the court examines the language of the arbitration agreement and concludes
that both named Defendants, Serra Nissan/Oldsmobile and Tony Serra Ford, are signatories to the
arbitration agreement and are entitled to compel arbitration.
A. Bench Trial Testimony
Plaintiff testified during the bench trial that he filled out and submitted only one
employment application on the evening of Sunday, February 14, 2016 while at DeRamus’s
residence. He stated that he used DeRamus’s third generation iPad to review and complete the
entire employment application. However, he denied seeing an arbitration agreement embedded in
the employment application.1 According to Plaintiff, the application consisted of only two pages
that requested general, personal information from the applicant including name, address, contact
information, requested salary, educational background, prior work history, and references. He
filled in his personal information, chose Serra Nissan VW as his preferred employer, then asked
DeRamus to review the application to ensure he completed every field. He claims that at the bottom
of the second page, there was a signature line with a large “X” indicating a place to sign the
electronic document. Plaintiff attempted to sign his name with DeRamus’s Apple pencil, but he

1
Significantly, Plaintiff testified in a prior deposition that he recalled reading on Serra Nissan’s website that
Serra Nissan may conduct a motor vehicle check on potential employees. This statement directly conflicts with his
denial of having seen the arbitration agreement because the section warning applicants about Serra Nissan’s right to
conduct a motor vehicle check appears in the middle of the Disclosures and Arbitration Agreement section of the
application.

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was unable to successfully sign. He asked for DeRamus’s help and authorized her to sign and
submit the application on his behalf.
DeRamus confirmed Plaintiff’s testimony that she helped him review and submit only one
employment application on the evening of Sunday, February 14, 2016. She also claimed that she
saw no arbitration agreement embedded in the employment application. Both Plaintiff and
DeRamus recalled reading below the signature line, “I agree to the Terms of Use, Consumer
Disclosure, and all pages above.” But, they denied seeing the following language appear when
they engaged the signature box: “Signature will be applied to page 4. Review before submitting.”
DeRamus testified that after Plaintiff authorized her to sign and submit the application on his
behalf, she used her left hand to sign “Lee A. Moultry” in a freehand, cursive script. 2 They did
not print the application after submitting it.
By contrast, Defendants produced two employment applications bearing Plaintiff’s name
that were downloaded from the Citrix System servers. Citrix System is a separate entity that
independently receives and maintains the electronic employment applications submitted through
the RightSignature product on Serra Nissan’s website. Jesse Rubenstein testified in his deposition
that once an employment application is submitted, it is stored in an encrypted fashion on Citrix
System’s servers. (Jesse Rubenstein Deposition, pp. 8-9). Other than downloading the completed
document from Citrix System’s servers, the application cannot be changed or altered by anyone—
including anyone working for Defendants. (Id. at pp. 9, 41, 47, 57).

2
During the bench trial, counsel explained to the court that the signature box in the employment application
presents the applicant with two signature options. The applicant may either (1) freehand sign the name (which is the
default option) or (2) choose to type the name, allowing the program to generate a cursive electronic signature.
DeRamus testified that she operated under the default option and signed Plaintiff’s name in a freehand, cursive script.

4

Although Citrix System’s records show that the two employment applications with
Plaintiff’s name were submitted from the same modem, neither was submitted on Sunday evening.
Indeed, Citrix System has no record of Plaintiff submitting a job application on Sunday. The Citrix
data shows the first employment application was submitted on Monday, February 15, 2016 at 6:33
a.m. PT. (Doc. # 47-1). While this application does not reflect a visible signature, Plaintiff testified
that the personal information matched the information he claims he submitted on Sunday evening.
Defendants claim that the second employment application was submitted later that Monday at 5:27
p.m. PT. (Doc. # 47-1). This second application shows a visible cursive signature reading “Lee a.
Moultry,” but the personal information on the first two pages differs from the first application
submitted earlier that morning. Notably, the second application contains the following material
discrepancies: (1) a requested salary of $17.50 instead of $18; (2) an availability date of 2/16/16
instead of 2/15/16; (3) a contractor, Ronald Worsham, as a personal reference, though Plaintiff and
DeRamus testified that they did not know anyone by that name; and (4) Christianna DeRamus was
categorized as Plaintiff’s financial advisor instead of his friend. (Doc. # 47-4).3
Plaintiff further testified that he has no recollection of submitting two different
applications, and he disputes the authenticity of the two produced applications. In particular,
Plaintiff maintains that the signature on the second application is not his signature because (1) he
witnessed DeRamus sign his name “Lee A. Moultry,” and further, (2) he never signs his name with
a lowercase middle initial.

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Plaintiff’s counsel accounted for these differences by arguing that Defendants could have altered the
information on his employment application after receiving it in PDF form. The court is unpersuaded by this theory.
Indeed, it strains logic. Counsel could not articulate any potential motive Defendants would have to either change the
information in Plaintiff’s employment application or submit a new application in his name with slightly different
information. A much more likely explanation is that Plaintiff (or DeRamus) submitted a second application.

5

Bradford testified that he oversees eleven dealerships in his capacity as the Parts and
Services Director for Serra Automotive. He recounted meeting Plaintiff at the Serra Nissan store
on Saturday, February 13, 2016, while Plaintiff was waiting for an oil change. Bradford testified
that Plaintiff expressed interest in applying for a job as an auto technician, so Bradford advised
him to apply online at serranissan.com. After he received Plaintiff’s application from Human
Resources at Serra Automotive, he offered Plaintiff a job at Tony Serra Ford in Talladega. At the
time, no positions were available at Plaintiff’s desired location, Serra Nissan VW. Bradford also
clarified that there is no separate Oldsmobile dealership, and to the best of his knowledge, the
Nissan store and the Volkswagen store are one corporate entity.
B. Findings of Fact
After hearing the testimony at the bench trial, assessing the witnesses’ credibility, and
observing a live demonstration of how an employment application is submitted on Defendants’
website, the court credits Defendants’ framing of the facts and concludes that (1) the employment
application contained an arbitration agreement on the last two pages of the employment
application, which Plaintiff would have seen had he scrolled to the bottom of the document (or, at
a minimum, was responsible for reviewing before signing and submitting the application); and (2)
either Plaintiff or DeRamus (with Plaintiff’s authorization) submitted two employment
applications in Plaintiff’s name and (at least) signed the second application. The court makes the
following additional findings of fact.
1.

On Saturday, February 13, 2016, Plaintiff and DeRamus visited the Serra Nissan

dealership located at 1500 Center Point Parkway, Birmingham, Alabama, 35215. While waiting
for an oil change, Plaintiff spoke with Bradford about applying for an auto technician job.

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Although they did not discuss Plaintiff’s background or qualifications, Bradford directed him to
go to the Serra Nissan website and submit an employment application.
2.

Serra Nissan contracts with Citrix System for the use of its RightSignature product,

which allows for documents to be completed, signed, and submitted electronically. (Jesse
Rubenstein Deposition, pp. 5-6). Defendants used this product on serranissan.com to create an
online platform for applicants to fill out and electronically submit employment applications.
3.

Citrix System keeps records of all account activity that occurs through the

RightSignature program on Serra Nissan’s website. (Jesse Rubenstein Deposition, pp. 10-13). The
system records when a document is created, viewed, signed, or completed. (Id.).
4.

On Sunday, February 14, 2016, Plaintiff used DeRamus’s third generation iPad to

visit the serranissan.com website while at her residence. The Citrix System account activity records
for Serra Nissan’s RightSignature account show that Plaintiff viewed the application at 10:08 a.m.
PT. (Doc. # 47-1 at 13).
5.

At the time Plaintiff visited the serranissan.com website, there was a RightSignature

box containing an electronic job application. The application consisted of four pages and allowed
the applicant to scroll to the bottom of the application. The top portion of the application directed
the applicant, “Before proceeding, please review the Terms of Use and Consumer Disclosure.”
Below two fields requiring the applicant’s name and email address, there were three links to the
Terms of Use, Consumer Disclosure, and Privacy Policy. None of these links included an
arbitration agreement.
6.

Directly below these links, the application read, “Serra Automotive Group

Employment Application.” The first two pages required the applicant to fill out general
information including name, address, contact information, requested salary, educational

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background, prior work history, and references. The application indicated the required fields to be
completed in red. When an applicant typed in the required field, the indication changed to green.
7.

Plaintiff filled out the application at DeRamus’s residence in her presence and using

her third generation iPad.
8.

The application allowed an applicant to specify which dealership he or she

preferred to work at. The application stated: “What dealership are you applying to (Serra Nissan
VW, Serra Visser Nissan, Ford)?” Plaintiff chose the Serra Nissan VW option.
9.

The application also asked, “Have you ever worked for this company?”

10.

Pages three and four of the application contained the Disclosures and Arbitration

Agreement section. This section was visible to any applicant who scrolled down to the bottom of
the application.
11.

The arbitration agreement identified “the Company (or its owners, employees,

agents, directors, and officers)” as a party to the agreement, but it did not define which business
entity or entities formed “the Company.”
12.

Pages three and four of the application contained the following language:

I agree that any dispute or controversy between me and the Company (or its owners,
employees, agents, directors, and officers), which is subject to arbitration under the
Federal Arbitration Act (“FAA”) and which would otherwise require or allow resort
to any court or other governmental dispute resolution forum, arising from, related
to, or having any relationship or connection whatsoever with my seeking
employment with, my employment by, or my other association with the Company,
whether based in tort, contract, statutory or equitable law, or otherwise, specifically
including but not limited to any and all matters arising under the Constitutions of
the United States or Alabama, any claims for employment discrimination or
harassment based on race, color, sex, age, religion, national origin, or disability,
and any other federal or Alabama personal injury, civil rights, or employment
related laws, regulations, rules or theories, shall be submitted to, and determined
by, binding arbitration under the FAA, in conformity with the rules of the American
Arbitration Association for the resolution of employment disputes.

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13.

The arbitration agreement also contained a section entitled “MOTOR VEHICLE

RECORD CHECK.” However, this section did not refer to “the Company.” Instead, it stated, “I
hereby give my permission for the Serra Dealership, where I applied for employment” to run a
motor vehicle record check.
14.

Contrary to Plaintiff’s assertion, pages three and four were visible to him when he

filled out the employment application. He either saw the information and is now denying he did
so, neglected to scroll down to the bottom of the application, or does not remember seeing the last
two pages. The court makes this finding for a number of reasons, including: its assessment of the
credibility of the witnesses; Bradford’s sworn testimony confirming that as of May 1, 2018, the
online employment application available at serranissan.com was the same as when Plaintiff applied
in February 2016; counsel’s live demonstration of the submission of an employment application
on Defendants’ website; the fact that documents submitted to Citrix are not subject to revisions by
Defendants; and the deposition testimony of Jesse Rubenstein confirming that the Disclosures and
Arbitration Agreement portion constituted the last two pages of the documents that were uploaded
to Citrix System’s servers.
15.

At the bottom of the application, there was a signature box with a large “X”

indicating a place for the applicant to sign his or her name. The language, “I agree to the Terms of
Use, Consumer Disclosure, and all pages above,” appeared below the signature line. When an
applicant engaged the signature box, the following language appeared: “Signature will be applied
to page 4. Review before submitting.”
16.

While attempting to sign his name in this box, Plaintiff could not get DeRamus’s

Apple pencil to work. Plaintiff asked DeRamus if she could get the pencil to work and authorized
her to sign his name for him. DeRamus signed Plaintiff’s name at his request and in his presence.

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17.

Plaintiff did not submit an employment application on Sunday, February 14, 2016.

Citrix System has no record of Plaintiff submitting an application on Sunday night. As noted
above, the records show that Plaintiff only viewed the application on Sunday morning. (Doc. # 471 at 13). For whatever reason, the application was not submitted (or, at least, not uploaded) that
day.
18.

On the morning of Monday, February 15, 2016, Plaintiff submitted his first

employment application at 6:33 a.m. PT. (Id.). This application does not contain a visible
signature.4 (Doc. # 47-5). At 8:34 a.m. PT, Citrix Systems and/or RightSignature emailed a link to
an employment application submitted by Plaintiff to [e-mail]. (Doc. # 47-6).
The reference number for the employment application contained within the email matches the
reference number on the RightSignature Signature Certificate on the last page of the employment
application. (Docs. # 47-6; 47-5 at 5).
19.

Plaintiff submitted a second employment application on Monday, February 15,

2016 at 5:27 p.m. PT. (Doc. # 47-1). This second application contains a visible cursive signature,
reading “Lee a. Moultry.” (Doc. # 47-7). At 7:27 p.m. PT, Citrix Systems and/or RightSignature
emailed a link to an employment application submitted by Plaintiff to [e-mail].
(Doc. # 47-8). The reference number for the employment application contained within the email
matches the reference number on the RightSignature Signature Certificate on the last page of the
employment application. (Docs. # 47-8; 47-6 at 5).

4
During his deposition, Rubenstein testified that although RightSignature does not allow an application to
be submitted unless it is electronically signed, the product can pick up anything it views as a signature even though
the application does not show a visible electronic signature—even a stray mark. (Jesse Rubenstein Deposition, pp. 18,
34, 45, 56-57). The court is persuaded that this is likely why Plaintiff’s first application does not reflect a visible
signature.

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20.

Either Plaintiff or DeRamus (who was fully authorized to do so by Plaintiff) signed

the second employment application.
21.

The Citrix System records show that both employment applications were submitted

from the same IP address and modem. (Doc. # 47-1; Jesse Rubenstein Deposition, p. 58).
22.

Once an employment application is submitted online through RightSignature, it is

stored in an encrypted fashion on Citrix System’s servers. (Jesse Rubenstein Deposition, pp. 8-9).
Other than downloading the completed document from Citrix System’s servers, the application
cannot be changed or altered by anyone after it is submitted—including anyone working for
Defendants. (Id. at pp. 9, 41, 47, 57).
23.

When Defendants hired Plaintiff, there were no jobs available at Serra Nissan VW.

So, Bradford hired Plaintiff to work for Tony Serra Ford. Plaintiff was later transferred to Serra
Nissan/Oldsmobile.
C. Conclusions of Law
The Federal Arbitration Act (FAA) provides that a written agreement to arbitrate “shall be
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. “This provision ‘reflect[s] both a liberal federal policy
favoring arbitration, and the fundamental principle that arbitration is a matter of contract.’”
Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1349 (11th Cir. 2014) (quoting AT&T Mobility LLC
v. Concepcion, 131 S. Ct. 1740, 1745 (2011)). In fact, the policy favoring arbitration is so strong
that any doubts surrounding the arbitrability of the dispute must be resolved in favor of arbitration.
See Moses H. Cone Mem’l Hosp. v. Mercury Costr. Corp., 460 U.S. 1, 25 (1983). That being said,
the FAA “does not require parties to arbitrate when they have not agreed to do so.” Wheat, First

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Sec., Inc. v. Green, 993 F.2d 814, 817 (11th Cir. 1993) (quoting Volt Info. Sciences, Inc. v. Bd. of
Trustees of Stanford Univ., 489 U.S. 468, 478 (1989)).
Under Alabama law, “a party seeking to compel arbitration must prove (1) the existence of
a contract containing an arbitration agreement and (2) that the underlying contract evidences a
transaction affecting interstate commerce.” King v. Cintas Corp., 920 F. Supp. 2d 1263, 1267
(N.D. Ala. 2013) (citing Allied Williams Co., Inc. v. Davis, 901 So.2d 696, 698 (Ala.2004)).
Because Plaintiff does not dispute that his employment as an auto technician involved servicing
automobiles at the subject dealerships, this qualifies as a transaction affecting interstate commerce.
As such, the court’s analysis focuses solely on the first element. And, whether an agreement to
arbitrate exists is “simply a matter of contract.” Bazemore, 827 F.3d at 1329 (quoting First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). The elements of a valid contract include
“an offer and an acceptance, consideration, and mutual assent to the terms essential to the
formation of a contract.” Shaffer v. Regions Financial Corp., 29 So. 3d 872, 880 (Ala. 2009).
Plaintiff contests the validity of the arbitration agreement on two grounds. First, he asserts
that he never saw, signed, or agreed to any arbitration agreement contained within the employment
application. Second, he argues that even if he assented to an arbitration agreement, Defendants
cannot compel him to arbitrate his claims because neither entity is a party to the agreement. Upon
consideration of the factual findings above, the court addresses each argument in turn and
concludes that (1) Plaintiff assented to the arbitration agreement contained within the employment
applications; and (2) Defendant Serra Nissan/Oldsmobile and Defendant Tony Serra Ford are
entitled to enforce the arbitration agreement as parties to the agreement.

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i. Plaintiff Assented to the Arbitration Agreement Contained Within the
Employment Applications
Plaintiff’s first argument challenging the validity of the arbitration agreement is easily
resolved in Defendants’ favor, particularly in light of the court’s factual findings above. As
explained earlier, the court concludes that (1) pages three and four of the employment application
on serranissan.com included the Disclosures and Arbitration Agreement section, which Plaintiff
either saw, or at a minimum, would have seen had he scrolled down to the bottom of the
application; and (2) either Plaintiff or DeRamus (with Plaintiff’s authorization) submitted two
employment applications and visibly signed at least the second application in Plaintiff’s name. 5
The court finds that an arbitration agreement was embedded in the employment applications for
the following reasons. First, Bradford has testified that is the case, and the online employment
application available at serranissan.com was the same as when Plaintiff applied in February 2016.
Second, counsel’s live demonstration of the submission of an employment application on
Defendants’ website and Jesse Rubenstein’s deposition testimony that the arbitration agreement
constituted the last two pages of the documents that were uploaded to Citrix System’s servers
support that finding. And, the court is also persuaded by the fact that the two employment
applications were submitted from the same IP address and modem (Doc. # 47-1; Jesse Rubenstein
Deposition, p. 58), and all employment applications submitted to Citrix System’s servers are stored
in an encrypted fashion, meaning that Defendants could not have altered Plaintiff’s applications

Because the court concludes that either Plaintiff or DeRamus (with Plaintiff’s authorization) signed at least
the second employment application, the court need not address Plaintiff’s contention that an unsigned arbitration
agreement is unenforceable. However, the court briefly notes that “[t]he Federal Arbitration Act only requires that
there be a written provision in a contract; it does not specify that a party’s assent to the terms of the contract containing
an arbitration provision can be evidenced only by that party’s signature.” Lanier Worldwide, Inc. v. Clouse, 875 So.
2d 292, 296 (Ala. 2003); see also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1368-69 (11th Cir. 2005).
Also, to the extent Plaintiff argues that the arbitration agreement is unenforceable because Defendants did not sign it,
“[i]t is well settled than an employer signature is not necessary for an arbitration agreement to be valid.” Campbell v.
Pilot Catastrophe Services, Inc., 2010 WL 3306935, at *7 (S.D. Ala. 2010).
5

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by signing them or otherwise tampering with them. (Jesse Rubenstein Deposition, pp. 8-9, 41, 47,
57). All of these considerations support the court’s findings that there was a visible arbitration
agreement in Defendants’ employment application, and if Plaintiff did not see it, that was because
he ignored it or neglected to scroll to the bottom and read the agreement before signing.
Furthermore, Plaintiff is bound by the arbitration agreement even if he did not scroll down
and read the entire application. The Alabama Supreme Court has held that “a person who signs a
contract is on notice of the terms therein and is bound thereby even if he or she fails to read the
document.” Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303, 306 (Ala. 1997). The court
reasoned as follows:
[A party] should not be excused from [his] contractual responsibilities because [he]
took that risk [of not reading the contract before signing]. To hold otherwise would
turn the concept of “sanctity of contract” upside down. Allowing parties to avoid
their contractual obligations by merely claiming that they did not read a contract
would encourage irresponsibility. Those responsible enough to read their contracts
would be bound to their terms, while those reckless enough not to read their
contracts could avoid their terms; in addition to avoiding the contract terms, the
party who did not read the contract could file a legal action against the other party
for suppressing something that was stated clearly in the contract. This is too
perverse a result to contemplate. Moreover, modern society relies on written
agreements.
Id. As the court noted at the conclusion of the bench trial, Plaintiff is no different than an individual
who signed a written contract without reading the document carefully. In fact, Plaintiff even
received a warning that the employment application contained four pages as soon as he engaged
the signature box: “Signature will be applied to page 4. Review before submitting.” Accordingly,
Plaintiff is bound to comply with the arbitration agreement regardless of his failure to read the
entire application before signing.

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ii. Defendants’ Ability to Enforce the Arbitration Agreement
Finding (in the abstract) that Plaintiff is bound by the arbitration agreement is not enough
to compel arbitration in this case because there is at least a colorable argument that Plaintiff was
not hired to work for the entity he designated on his employment applications—Serra Nissan VW.
Indeed, this would be a straightforward case had Plaintiff ultimately been hired to work at the Serra
Nissan VW dealership. Instead, Plaintiff was first hired by Tony Serra Ford, and was later
transferred to Serra Nissan/Oldsmobile. Defendants argue that because Plaintiff’s Complaint
alleges that Defendants are a single integrated enterprise and/or joint employer, he should be
estopped from now asserting that either one or both Defendants are not parties to the arbitration
agreement. (Doc. # 49 at 3-4). While the court recognizes that Plaintiff has taken what appears to
be inconsistent positions, whether Defendants are “joint employers” for the purposes of Title VII
and Section 1981 is a separate legal question from whether Defendants are parties to the arbitration
agreement. The second inquiry, which now occupies the court’s focus, deals with Plaintiff’s assent
to enter into an arbitration agreement with either one or both parties. Thus, at least at present, the
court is unconcerned by Plaintiff’s “alternative” legal theories.
With the foregoing in mind, the court ordered supplemental briefing after the bench trial
on two questions: (1) “Whether Serra Nissan/Oldsmobile, Inc. is a separate legal entity from Serra
Nissan VW or simply another dealership under the Serra Nissan VW umbrella or within the same
corporation”; and (2) “Whether the fact that Plaintiff applied to work at the Serra Nissan VW
dealership, but was hired by a different dealership affects the enforceability of the arbitration
agreement with respect to Tony Serra Ford, Inc. and Serra Nissan/Oldsmobile, Inc.” (Doc. # 46).
The court addresses each question in turn.

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1. Defendant Serra Nissan/Oldsmobile and Defendant Tony Serra
Ford Are Both Parties to the Arbitration Agreement Entitled to
Compel Arbitration
Defendants argue (contrary to Plaintiff’s assertion) that both named Defendants are parties
to the arbitration agreement. (Doc. # 49 at 2-3). Specifically, they assert that although the
arbitration agreement identifies “the Company” as a party to the agreement, a review of the entire
application makes it clear that “the Company” refers to all three dealerships under the Serra
Automotive umbrella—Serra Nissan VW, Serra Visser Nissan, and Tony Serra Ford. (Id.). For the
reasons explained below, the court agrees and concludes that both Defendants may enforce the
arbitration agreement as parties to the agreement.
Defendants’ argument boils down to a question of contract interpretation. As such, the
court must first look to the plain language of the contract. The agreement’s plain language indicates
that the arbitration agreement is between the applicant and “the Company (or its owners,
employees, agents, directors, and officers).” (Docs. # 47-5; 47-7). Although the arbitration
agreement does not define “the Company,” it does draw a clear distinction between “the Company”
and “the Serra Dealership, where I applied for employment.” (Id.). To be sure, “when any specific
term applies to only the dealership where [Plaintiff] applied for employment…the
application/agreement clearly and unambiguously states so.” (Docs. # 49 at 3; 51 at 4). For
example, the section entitled “MOTOR VEHICLE RECORD CHECK,” provides that “I hereby
give my permission for the Serra Dealership, where I applied for employment” to run a motor
vehicle record check. (Docs. # 47-5; 47-7). By differentiating between “the Company” and “the
Serra Dealership, where I applied for employment,” it is clear that the term “the Company” refers
to Serra Automotive, which encompasses all three dealerships. The fact that Plaintiff selected one
dealership on his employment application does not change the fact that “the Company” refers to

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all three. (Id.). This interpretation is supported by the well-established rule of contract construction
that “where there is choice between a valid construction and an invalid construction the court has
a duty to accept the construction that will uphold, rather than destroy, the contract and that will
give effect and meaning to all of its terms.” Homes of Legend, Inc. v. McCollough, 776 So. 2d 741,
746 (Ala. 2000). Equating “the Company” and “the Serra Dealership, where I applied for
employment” (as Plaintiff invites this court to do) would render the agreement’s use of the term
“Company” meaningless.
Furthermore, an examination of the entire employment application supports Defendants’
interpretation of the contract. First, to apply to any of the three dealerships (including Serra Nissan
VW and Tony Serra Ford), an applicant must visit serranissan.com to access the employment
application. The top of the application reads, “Serra Automotive Group Employment Application.”
Second, the application then asks the applicant, “What dealership are you applying to? (Serra
Nissan VW, Serra Visser Nissan, Ford)” (emphasis added). Finally, the application also asks,
“Have you ever worked for this company?” (emphasis added). Again, the employment application
itself draws a distinction between the Company and the three dealerships. In sum, the plain
language of the arbitration agreement combined with the language of the employment application
shows that “the Company” encompasses all three dealerships under the Serra Automotive
umbrella, including Serra Nissan VW and Tony Serra Ford. Thus, Defendant Tony Serra Ford (and
Defendant Serra/Nissan Oldsmobile, as explained below) is a party to the arbitration agreement
with the right to enforce arbitration against a signatory.
The next question is whether the agreement binds Plaintiff as to any of his claims against
“Serra/Nissan Oldsmobile,” since he chose Serra Nissan VW on his employment application. The
court agrees with Defendants that Serra Nissan/Oldsmobile is a party to the arbitration agreement

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because it is not a separate legal entity from Serra Nissan VW. (Doc. # 49 at 11-12). Defendants
have submitted two sworn (and uncontested) declarations from Martin J. Brill, the Secretary for
Serra Nissan/Oldsmobile, Inc. (Docs. # 49-1; 51-2). Brill states as follows:
Serra Nissan/Oldsmobile, Inc. is not a separate legal entity from Serra Nissan VW.
Serra Nissan/Oldsmobile, Inc. does business as Serra Nissan VW. Serra Nissan VW
includes both the Nissan dealership and the VW and/or Volkswagen dealership
located beside each other on Center Point Parkway. The Nissan store and
Volkswagen or VW store are not separate legal entities.
(Doc. # 49-1). Brill also attaches to his first declaration a Nissan Dealer Sales & Service Agreement
and a Volkswagen Dealer Agreement, both of which were in effect during the subject time frame.
(Doc. # 49-1 at 3-7). The documents show that at the time Plaintiff submitted his employment
applications, Serra Nissan/Oldsmobile, Inc. was doing business as both Serra Nissan and Serra
Volkswagen. (Id.). Also, the Secretary of State print-out for the 2018 annual report filed by Serra
Nissan/Oldsmobile, Inc. lists as its general business address, “1500 Center Point Pkwy.” (Doc. #
51-1). This is the same address listed on Serra Nissan’s website, www.serranissan.com.
Furthermore, Serra Nissan/Oldsmobile, Inc.’s Jefferson County dealer license shows that it does
business as Serra Nissan Volkswagen at two locations: (1) 1490 Center Point Parkway and (2)
1500 Center Point Parkway. (Doc. # 51-2 at 4-6).
Plaintiff, on the other hand, argues that (1) Serra Nissan VW is the same entity as Serra
Volkswagen, Inc. and (2) Serra Nissan/Oldsmobile, Inc. is a separate legal entity from Serra Nissan
VW/Serra Volkswagen, Inc. (Doc. # 50 at 3-4). Defendants counter with Brill’s second
declaration, which provides:
Serra Nissan VW is not the same business entity as Serra Volkswagen, Inc. Serra
Volkswagen, Inc. was formed in September 1985, as Parkway Volkswagen, Inc.
and later changed its name to Serra Volkswagen, Inc. Serra Volkswagen, Inc. was
formed in order to operate a dealership but has not performed any type of business
since at or around the year 1990, when it filed its last annual report with the

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Alabama Secretary of State. Serra Volkswagen, Inc. does not generate any revenue
or income and does not operate a motor vehicle dealership.
(Doc. # 51-2 at 3). Consistent with Brill’s declarations given in his capacity as the Secretary for
Serra Nissan/Oldsmobile, Inc., the court concludes that Serra Nissan/Oldsmobile, Inc. is not a
separate business entity from Serra Nissan VW. Accordingly, Defendant Serra Nissan/Oldsmobile,
along with Defendant Tony Serra Ford, is entitled to compel arbitration of Plaintiff’s claims as a
party to the agreement.6
III.

Conclusion
After careful consideration, and for the reasons explained above, the court concludes that

Plaintiff consented to binding arbitration of his claims against both named Defendants.
Accordingly, Plaintiff shall proceed to arbitration of his claims against Defendant Serra
Nissan/Oldsmobile and Defendant Tony Serra Ford.
DONE and ORDERED this June 6, 2019.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

6

Because the court concludes that both named Defendants are parties to the arbitration agreement with the
right to compel arbitration against Plaintiff, the court need not reach Defendants’ alternative arguments relating to
Defendant Tony Serra Ford’s role as a nonsignatory to the agreement.

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