Berger v. Showcase Automotive LP et al

Filing 12

ORDER denying 7 Defendants' Rule 12(b)(1) Motion to Dismiss and granting 7 Motion to Compel Arbitration. See PDF document for details. This action is stayed pending the outcome of arbitration and further order of this Court. The parties shall file a joint or separate status reports concerning the arbitration by November 10, 2011. Signed by Judge Neil V Wake on 5/10/11.(LSP)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Showcase Automotive Limited
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Partnership, doing business as
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Camelback Volkswagen, Camelback
Volkswagen-Subaru, Camelback Subaru, )
Camelback Volkswagen Subaru Mazda, )
and Showcase Motors, Inc., the general )
partner of Showcase Automotive Limited )
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Partnership,
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Defendants.
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Arthur Berger,

No. CV-11-00468-PHX-NVW
ORDER

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Before the Court is Defendants’ Rule 12(b)(1) Motion to Dismiss and Compel

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Arbitration. (Doc. 7.) On March 10, 2011, Plaintiff filed his complaint for damages against

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Defendants for “discrimination in the workplace based on race, religion and retaliation . . .

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under Title VII of the Civil Rights Act...and the Civil Rights Act of 1866 . . . .” (Doc. 1.)

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Defendants argue that this Court lacks subject matter jurisdiction over this matter because

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the parties agreed, in an arbitration agreement signed by Plaintiff, to “resolve by arbitration

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all statutory, contractual and common law claims or controversies, past, present or future,

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that arise out of or relate to [Plaintiff’s] hiring, employment, or termination of employment

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by [Camelback Volkswagen Subaru Mazda.]” (Doc. 7-1.) Defendant has therefore asked this

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Court to “dismiss Plaintiff’s Complaint with prejudice in its entirety[,]” order the parties to

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arbitration under the terms of the parties’ arbitration agreement, and award Defendants their

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attorneys’ fees and costs under the arbitration agreement1 or A.R.S. § 12-341.01. (Doc. 7.)

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Plaintiff does not dispute Defendants’ contention that all of the claims raised in his

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complaint are subject to the arbitration agreement. Indeed, Plaintiff does not oppose

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arbitration of his claims; rather, he simply opposes his complaint being dismissed “with

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prejudice in its entirety” and Defendants’ request for attorneys’ fees and costs. Plaintiff

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argues that it is more consistent with the Federal Arbitration Act, 9 U.S.C. § 3, and the

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“practice of the Judges of this District” for the Court to either stay this action pending the

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arbitration or dismiss the action without prejudice and retain jurisdiction to later confirm any

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award that might result from the arbitration. (Doc. 8.) Plaintiff further argues that an award

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of attorneys’ fees is inappropriate under A.R.S. § 12-341.01 because Plaintiff’s claims arise

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under federal statutory law, not state contract law, and untimely under the arbitration

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agreement because the propriety of any fee award is itself subject to arbitration.

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Because Plaintiff does not oppose arbitration, Defendants’ motion will be granted with

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respect to Defendants’ request that the parties be ordered to arbitration in accordance with

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the terms of the arbitration agreement. As to the disposition of this matter, the Court agrees

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with Plaintiff that this action should be stayed pending the arbitration. See Bushley v. Credit

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Suisse First Boston, 360 F.3d 1149, 1153 n.1 (9th Cir. 2004) (endorsing Second Circuit’s

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approach of staying action pending arbitration because “dismissal renders an order

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appealable . . . [and] unnecessary delay of the arbitral process through appellate review is

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disfavored”). Finally, the Court will refer Defendants’ request for an award of attorneys’

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fees and costs in connection with this motion to the arbitrator for resolution.

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Paragraph 26 of the arbitration agreement provides: “Filing of Lawsuit: Either party may
bring an action in any court of competent jurisdiction to compel arbitration under this
Agreement. In the event a party files a lawsuit over a matter which is subject to arbitration
under this Agreement, the other party shall give notice of the existence of this Agreement and
if the lawsuit is not dismissed within ten (10) days receipt of that notice, the party filing the
lawsuit shall be liable for any and all costs and attorneys’ fees incurred in dismissing the
lawsuit.” (Doc. 7-1 at 7.)
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IT IS THEREFORE ORDERED that Defendants’ Rule 12(b)(1) Motion to Dismiss

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and Compel Arbitration (Doc. 7) is denied with respect to the request to dismiss this action

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with prejudice and granted with respect to the request to compel arbitration.

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IT IS FURTHER ORDERED that the parties are directed to arbitration of Plaintiff’s
claims in accordance with the terms of the parties’ arbitration agreement.
IT IS FURTHER ORDERED that this action is stayed pending the outcome of
arbitration pursuant to 9 U.S.C. § 3 and further order of this Court.
IT IS FURTHER ORDERED that the parties shall file a joint or separate status reports

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concerning the arbitration by November 10, 2011.

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DATED this 10th day of May, 2011.

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