Balady v. Xerox HR Solutions

Filing 9

ORDER granting 5 defendant's Motion to Compel Arbitration and Dismiss. The parties are ORDERED to proceed to arbitration pursuant to their agreement. Denying 5 defendant's motion in the alternative to stay the proceeding pending arbitration on grounds of mootness. DISMISSING this action without prejudice. Signed by Judge Frederick J Martone on 9/20/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Balady, Jr.,
Plaintiff,

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vs.

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Xerox HR Solutions,
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Defendant.
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No. CV 12-01814-PHX-FJM
ORDER

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The court has before it defendant's motion to compel arbitration and to dismiss or, in

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the alternative, to stay proceedings pending arbitration (doc. 5). Plaintiff did not respond and

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the time for doing so has expired.

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Plaintiff filed this action in the Superior Court of Arizona in Maricopa County on July

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23, 2012, alleging negligence, violation of the Occupational Safety and Health Act, and

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disability discrimination. Defendant contends that it has a valid arbitration agreement with

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plaintiff and plaintiff did not pursue alternative dispute resolution options before filing his

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complaint.

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The Federal Arbitration Act ("FAA") governs arbitration clauses in contracts that

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involve interstate commerce. 9 U.S.C. § 1. There is a strong presumption in favor of

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arbitration and "any doubts concerning the scope of arbitrable issues should be resolved in

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favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-

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25, 103 S. Ct. 927, 941 (1983).

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If the court determines that a valid arbitration agreement exists and it encompasses the

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dispute at issue, the court must enforce the agreement. Lifescan, Inc. v. Premier Diabetic

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Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004). The dispute resolution plan encompasses

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the dispute here because it covers "any dispute or claim concerning [the employee's]

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application for employment or the terms and conditions of [the employee's] employment"

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(doc. 5, ex. 2 at 11). Plaintiff consented to the agreement. He does not argue that it is

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unenforceable or revocable. Therefore, enforcement is mandatory under the FAA.

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Although the FAA states that an action should be stayed pending arbitration, 9 U.S.C.

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§ 3, we have discretion to dismiss rather than stay claims. Sparling v. Hoffman Constr. Co.,

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864 F.2d 635, 638 (9th Cir. 1988). We exercise that discretion in the interest of judicial

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economy.

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Alternatively, the failure to file a response to a motion "may be deemed a consent to

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the . . . granting of the motion and the Court may dispose of the motion summarily." LRCiv

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7.2(i). We construe the lack of a response as a concession and grant the motion to dismiss

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and compel arbitration summarily.

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IT IS ORDERED GRANTING defendant's motion to compel arbitration and dismiss

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(doc. 5). The parties are ORDERED to proceed to arbitration pursuant to their agreement.

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IT IS ORDERED DENYING defendant's motion in the alternative to stay the

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proceeding pending arbitration on grounds of mootness (doc. 5).

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IT IS ORDERED DISMISSING this action without prejudice.

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DATED this 20th day of September, 2012.

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