Humphrey v. Cheddar's Casual Cafe, Inc.
MEMORANDUM OPINION AND ORDER that this action is STAYED pending the resolution through arbitration; the clerk is directed to close this case for administrative and statistical purposes; parties are DIRECTED to file a notice with the court upon settlement of this case or the conclusion of arbitration; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/27/2016. (AHI )
2016 Jun-27 AM 11:03
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CHEDDAR’S CASUAL CAFÉ,
Civil Action No. 5:16-CV-00704-CLS
MEMORANDUM OPINION AND ORDER
Humphrey filed this action against her former employer,
Cheddar’s Casual Café, Inc. (“Cheddars”), asserting claims of sexual harassment and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The action currently is before the court on defendant’s motion to dismiss
the action and compel arbitration.2
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA” or “the Act”), establishes
a national policy favoring arbitration of disputes. See, e.g., Shearson/American Express,
Inc. v. McMahon, 482 U.S. 220 (1987).
“[A]ny doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Memorial
Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983) (alteration
Doc. no. 1 (Complaint), ¶¶ 9-22, 23-33.
Doc. no. 6.
“[A]s with any other contract, the parties’ intentions control, but those
intentions are generously construed as to issues of arbitrability.”
Corporation v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985) (alteration
The existence of a valid contract to arbitrate is determined by state law. See First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
prerequisites for a valid arbitration contract under Alabama law:
There are two
“(1) there must be a
written agreement calling for arbitration[;] and (2) the contract in which the arbitration
agreement appears must relate to a transaction involving interstate commerce.”
Prudential Securities v. Micro-Fab, Inc., 689 So. 2d 829, 832 (Ala. 1997) (citing
Maxus, Inc. v. Sciacca, 598 So. 2d 1376 (Ala. 1992)) (alteration supplied).
There undisputedly exists a written agreement calling for arbitration.
agreement, dated December 9, 2014, states:
The Company and the Employee consent to the resolution by
arbitration of all claims or controversies involving Employee’s application
with, employment with, or termination from, the Company.
The Claims covered by this Agreement include, but are not limited
to . . . claims for discrimination, retaliation, or harassment of any kind,
including without limitation harassment or discrimination based on gender,
race, nationality, ethnicity, disability, religion, or age. . . .
Doc. no. 7-2, at ECF 5 (Arbitration Agreement) (ellipsis and emphasis supplied).
Plaintiff’s “Opposition to Defendant’s Motion to Compel Arbitration” states, in
Defendant has failed to carry its burden. Defendant contends Plaintiff
electronically signed the arbitration agreement dated December 9, 2014.
(Doc. 6-2). An electronic signature has the same effect as a handwritten
signature, however, the signature still must be attributed to that person
before it can be established as the act of that person. Ala. Code § 8-1A-9
(2015). Whether an electronic signature is attributable as an act of that
person “may be shown in any manner, including a showing of the efficacy
of any security procedure . . . [and] from the context and surrounding
circumstances at the time of its creation, execution, or adoption.” Id.
Defendant’s affidavit shows no policy or process to explain how
Plaintiff’s electronic signature was placed on the arbitration agreement
per some sort of unique identification or log in procedure or any other
method to ensure that the alleged signature is attributable to the
Plaintiff. In short, Defendant presents no evidence as to how this
electronic signature to its arbitration agreement came to be.
Defendant’s affiant only states, without support, that Plaintiff’s electronic
signature is affixed to the agreement.
Defendant’s Motion to Dismiss and to Compel Arbitration fails to
meets [sic] its burden and is due to be DENIED.
Doc. no. 13 (Plaintiff’s Opposition to Defendant’s Motion to Compel Arbitration), ¶¶
2 & 3, at 1-2 (alteration and second ellipsis in original, first ellipsis and emphasis
Defendant subsequently filed a reply, stating:
“Plaintiff does not dispute that a
valid arbitration agreement exists between the parties, nor does she dispute that
Plaintiff’s claims fall squarely within the scope
the arbitration agreement.”3
Doc. no. 14 (Defendant’s Reply in Response to Plaintiff’s Opposition to Defendant’s Motion
to Compel Arbitration), at 1.
Moreover, in response to plaintiff’s contention that defendant failed to demonstrate that
the electronic signature affixed to the arbitration agreement indeed was hers, defendant
At the time [plaintiff] signed the 2014 Arbitration Agreement, she
also completed a Personal Information Form, which required she
provide the following: (1) her social security number; (2) her first
name, middle initial, and last name; (3) her street address; (4) her
telephone number; (5) her email address; (6) her date of birth; and
(7) her gender. See Ex. A at ¶¶ 8, 9 and Exhibit 2, attached thereto.
Like the arbitration agreement, the Personal Information Form is
part of a new hire packet all Cheddar’s employees are required to
sign upon their hire. Employees must have a personal password
to access, fill out, and sign the packet’s forms. See Ex. A at ¶ 9.
In addition to providing Cheddar’s with a
personal information, the Personal Information
how Plaintiff’s electronic signature came to be
Arbitration Agreement. See Ex. A at ¶ 11,
The Personal Information Form explains the electronic signature
process as follows:
record of Plaintiff’s
Form also explains
affixed on the 2014
and Ex. 2, attached
You will be asked to provide your signature electronically on
the required forms and documents by placing your initials in
a box or checking an ‘I Agree’ box where indicated. Your
initials will consist of the first letter of your first name, the
first letter of your middle name, and the first letter of your
last name. . . . By providing your signature below, you:
Agree that your electronic signature will have the same
legal and binding effect as if it were a manual (handwritten) signature.
Agree that your initials and/or an agreement
checkbox, in conjunction with your personal
password that you us ed to gain access to the
system, will identify that record or transaction as
Agree that because an e le ctronic record or
transaction undertaken with your password will
be attributed to you, it is essential that you keep it
secure. You also agree that you will not disclose your
password to another person.
Agree that you will immediately request that your
electronic signature be revoked if you discover or
suspect that it has been or is in danger of being lost,
disclosed, compromised, or subject to unauthorized
use in any way.
Understand that a record or signature may not be
denied legal effect or enforceability solely because
it is in electronic form.
See Ex. A at ¶ 12 and Ex. 2, attached thereto. (emphasis added).
Pursuant to Ala. Code § 8-1A-9(a), “[a]n electronic record or
electronic signature is attributable to a person if it was the act of the
person. The act of the person may be shown in any manne r,
including a showing of the efficacy of any security procedure
applied to determine the person to which the electronic record
or electronic signature was attributable.” (emphasis added).
Ala. Code § 8-1A-9(b) further provides: “The effect of an electronic
record or electronic signature attributed to a person under
subsection (a) is determined from the context and surrounding
circumstances at the time of its creation, execution, or adoption,
including the parties’ agreement, if any, and otherwise as provided
As the Personal Information Form explains, Plaintiff gained access
to Cheddar’s system through the use of her personal password,
at which point she provided Cheddar’s with her personal
information and electronically signed the 2014 Arbitration
When Plaintiff’s electronic signature is considered alongside
Plaintiff’s personal information and the security procedure Plaintiff
followed to electronically sign the arbitration agreement, as
required under Ala. Code § 8-1A-9(b), it is clear that Plaintiff’s
electronic signature may properly be attributed to her.
Accordingly, Cheddar’s has demonstrated how Plaintiff’s signature
on the 2014 Arbitration Agreement came to be, and this Court
should enter an order dismissing Plaintiff’s Complaint and
compelling Plaintiff to arbitrate her claims.
Doc. no. 14 (Defendant’s Reply in Response to Plaintiff’s Opposition to Defendant’s
Motion to Compel Arbitration), at 2-5 (boldface emphasis, ellipsis, and alteration in
original, italicized emphasis supplied).
In light of all of the foregoing, the court is satisfied that there was a written
arbitration agreement regarding plaintiff’s employment, and that plaintiff electronically
affixed her signature to the agreement.
Plaintiff does not dispute that the agreement
pertains to matters involving interstate commerce.
Accordingly, there is a valid,
enforceable arbitration agreement under Alabama law.
See Prudential Securities, 689
So. 2d at 832.
In addition to requesting that this court compel arbitration, defendant requests that
the court dismiss the action.4
That aspect of defendant’s motion is due to be denied.
Although there is legal authority from other circuits supporting the proposition that
courts have discretionary authority under 9 U.S.C. § 3 to dismiss cases when compelling
arbitration,5 the Eleventh Circuit adheres to a more literal interpretation of the statute.
See Bender v . A.G. Edwards & Sons, Inc., 971 F.2d 698, 699 (11th Cir. 1992). See also
Musnick v . King Motor Company of Ft. Lauderdale, 325 F.3d 1255, 1261 (11th Cir.
2003); Pitchford v. Amsouth Bank, 285 F. Supp. 2d 1286, 1297 (M.D. Ala. 2003);
Wright v. Circuit City Stores, Inc., 82 F. Supp. 2d 1279, 1288 (N.D. Ala. 2000);
Bradford v. KFC National Management Co., 5 F. Supp. 2d 1311, 1315 (M.D. Ala.
1998); Nazon v. Shearson Lehman Brothers, Inc., 832 F. Supp. 1540, 1543 (S.D. Fla.
1993). Accord Lloyd v. Hovensa, L.L.C., 369 F.3d 263, 268-71 (3d Cir. 2003).
In Bender, for example, the Eleventh Circuit concluded that district courts do not
have the power to choose dismissal over a stay:
Doc. no. 14 (Defendant’s Reply in Response to Plaintiff’s Opposition to Defendant’s Motion
to Compel Arbitration), at 5.
Section 3 of the Federal Arbitration Act states that:
If any suit or proceeding be brought in any of the courts of the United States
upon any issue referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration under such an agreement,
shall on application of one of the parties stay the trial of the action until such
arbitration has been held in accordance with the terms of the agreement, providing
the applicant for the stay is not in default in proceeding with such arbitration.
9 U.S.C. § 3 (emphasis supplied).
The district court properly found that the state law claims were
subject to arbitration, but erred in dismissing the claims rather than
staying them. Upon finding that a claim is subject to an arbitration
agreement, the court should order that the action be stayed pending
arbitration. 9 U.S.C. § 3. If the parties do not proceed to arbitration, the
court may compel arbitration. 9 U.S.C. § 4. Therefore, we vacate the
dismissal of the state law claims and remand with instructions that
judgment be entered staying all claims pending arbitration.
Bender, 971 F.2d at 699 (emphasis supplied). In Lloyd, the Third Circuit expressed a
similar stance on the issue, primarily basing its reasoning upon the clear statutory
language, but also providing some practical justifications for entering a stay rather than
an order of dismissal. Lloyd, 369 F.3d at 268-71. The court noted that a stay “relieves
the party entitled to arbitrate of the burden of continuing to litigate the issue while the
arbitration process is on-going, and it entitles that party to proceed immediately to
arbitration without the delay that would be occasioned by an appeal of the District
Court’s order to arbitrate.”6 Id. at 269.
For those reasons, it is ORDERED that this action is STAYED pending resolution
Even so, the Clerk is directed to close this file for administrative and statistical
purposes. See, e.g., Taylor v. Citibank U.S.A., N.A., 292 F. Supp. 2d 1333, 1346 (M.D.
The Eleventh Circuit also recognizes the fact that stays, unlike dismissals, are unappealable,
interlocutory decisions. The court in Bender observed, “[i]f the district court had stayed the state law
claims and compelled arbitration under 9 U.S.C. §§ 3-4, this order would not have been appealable
under 9 U.S.C. §§ 16(b)(1) and (2).” Bender, 971 F.2d at 699 (alteration supplied). See a lso
Campbell v. Dominick & Dominick, Inc., 872 F.2d 358, 360 (11th Cir. 1989).
Ala. 2003) (closing file administratively after entering stay but advising parties of their
right to request reinstatement); Pitchford, 285 F. Supp. 2d at 1297 (same); Nazon, 832
F. Supp. at 1543 (same); Brown v . Terminix International Company, L.P., No. CV-05607-PB, 2006 WL 181678, at *5 (S.D. Ala. Jan. 24, 2006) (same). That action shall have
no effect on the court’s retention of jurisdiction, and the file may be re-opened, on either
party’s motion, for an appropriate purpose, such as dismissal following settlement, entry
of judgment, vacatur, or modification of an arbitrator’s award. See 9 U.S.C. § 9; Cortez
Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 201-02 (2000).
The parties are DIRECTED to file a notice with the court upon settlement of the
case or the conclusion of arbitration, whichever event shall first occur.
DONE and ORDERED this 27th day of June, 2016.
United States District Judge
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