Potapowicz v. Gregerson Management Services et al

Filing 12

MEMORANDUM OPINION AND ORDER- The pending motion to stay the requirements under Rule 26 of the Federal Rules of Civil Procedure is GRANTED (Doc 10 ); The defts' motion to compel (Doc 3 ) is GRANTED, and this action is STAYED and referred to arbitration; The parties are ORDERED to report the status of the arbitration by February 12, 2018, or when an arbitration hearing is set, whichever is earlier. Signed by Magistrate Judge Staci G Cornelius on 8/11/17. (MRR, )

FILED
2017 Aug-11 AM 08:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TONY POTAPOWICZ,
Plaintiff,
v.
GREGERSON MANAGEMENT
SERVICES, et al.,
Defendants.

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Case No.: 4:16-cv-01999-SGC

MEMORANDUM OPINION AND ORDER
The plaintiff, Tony Potapowicz, initiated this matter by filing a complaint on
December 13, 2016. (Doc. 1). Potapowicz asserts claims for breach of contract
and conversion under Alabama law, as well as a claim for violations of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq., against his former
employers.

The parties have unanimously consented to magistrate judge

jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 11). Presently pending is the
defendants' motion to dismiss or stay pursuant to the parties' arbitration agreement.
(Doc. 3). Potapowicz has not responded to the motion. For the reasons that
follow, the motion will be granted, and this matter will be stayed pending
arbitration.
Under the Federal Arbitration Act ("FAA"), claims of the type asserted here
are subject to mandatory arbitration where (1) a valid agreement to arbitrate exists,

(2) the claims fall within the scope of that agreement, and (3) the underlying
contract evidences a transaction involving interstate commerce. See 9 U.S.C. § 2;1
King v. Cintas Corp., 920 F. Supp. 2d 1263, 1267 (N.D. Ala. 2013); Maddox v.
USA Healthcare-Adams, LLC, 350 F. Supp. 2d 968, 972 (M.D. Ala. 2004). "To
resolve [the first two] questions, courts apply state-law principles relating to
ordinary contract formation and interpretation, construed through the lens of the
federal policy favoring arbitration." King, 920 F. Supp. 2d at 1267.
The undersigned finds the signed arbitration agreement in question is valid
and binding under Alabama law. See Ex parte McNaughton, 728 So. 2d 592, 59596 (Ala. 1998) (holding signed acknowledgement form indicated parties agreed to
be bound by arbitration policy, and employer's provision of at-will employment to
employee constituted sufficient consideration in exchange for employee's
agreement to arbitrate employment disputes under arbitration policy) (citing Kelly
v. UHC Mgmt. Co., 967 F. Supp. 1240 (N.D. Ala. 1997)). The undersigned further
finds all of Potapowicz's claims fall within the scope of the arbitration agreement,
which applies to:
1

Section 2 of the FAA provides:
A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract, transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.

2

claims for breach of contract (express or implied); . . . tort claims; all
matters directly or indirectly related to [Potapowicz's] recruitment,
employment or termination of employment by Certified Services,
LLC/Gregerson Management Services/Personnel Stafffing, Inc./
Chyna, Inc., including but not limited to: . . . claims under federal or
state law involving discrimination, whether based on race, sex,
religion, national origin, [or] age . . . (this would include, for example,
claims brought under Title VII of the Civil Rights Act of 1964 . . .
and/or the Age Discrimination in Employment Act).
(Doc. 3-1 at 3-4).
Finally, the undersigned finds the existence of a nexus to interstate
commerce. The defendant entities operated business locations throughout multiple
states. (Doc. 3-1 at 1-2).2 Potapowicz frequently travelled to the defendants'
various locations. (Doc. 1 at 4).3 As explained by a court in the Middle District of
Alabama:
[I]f an organization engages in business across state lines, has any
portion of its assets generated as a result of any activity across state
lines, or engages in any business that may be regulated by the
Congress pursuant to powers granted in the Commerce Clause, then
FAA jurisdiction is the appropriate mechanism for settling a dispute
where a valid arbitration agreement has been executed.
2

The affidavit of Mike Purkey, the VP/CFO of the business entity defendants, states:
Personnel Staffing, Inc., along with the management services of Gregerson
Management Services and, prior to its dissolution, the services of Certified
Services, LLC for payroll, operates 12 branches, located throughout Alabama,
Tennessee, Georgia and Texas, and has provided staffing services in more than 15
states in a variety of industries.

(Doc. 3-1 at 1-2).
3

The Complaint alleges "Plaintiff resided in [Alabama], but he frequently traveled to the many
locations of PSI's customers. Plaintiff generally logged over 20,000 miles annually and was away
from his family 60% of the time." (Doc. 1 at 4).

3

Maddox, 350 F. Supp. 2d at 973-74. Accordingly, Potapowicz's claims are subject
to the arbitration provision, and the defendants’ motion is due to be granted to the
extent it seeks an order compelling arbitration.
The FAA provides that, where a dispute is subject to an arbitration
provision, the court "shall on application of one of the parties stay the trial of the
action until such arbitration has been had in accordance with the terms of the
agreement." 9 U.S.C.A. § 3. Accordingly, this matter will be stayed pending
arbitration. See Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699 (11th Cir.
1992) (remanding with instructions to stay claims pending arbitration, rather than
dismiss). Additionally, the pending motion to stay the requirements under Rule 26
of the Federal Rules of Civil Procedure is GRANTED. (Doc. 10).
For the foregoing reasons, the defendants’ motion to compel (Doc. 3) is
GRANTED, and this action is STAYED and referred to arbitration. The parties
are ORDERED to report the status of the arbitration by February 12, 2018, or
when an arbitration hearing is set, whichever is earlier.
DONE this 11th day of August, 2017.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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