Bormann v. Waxie Enterprises, Inc.

Filing 18

ORDERED that Magistrate Judge Edmond's Report and Recommendation 13 is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court. ORDERED Dft's Petiton to Compel Arbitration 6 is GRANTED in part, with the provisions restricting puntive damages, award of atty's costs and fees, and the choice of venue hereby voided in accordance with the Report and Recommendation. That is action is dismissed. ORDERED that the Clk of the Ct enter judgment accordingly. Signed by Judge Frank R Zapata on 3/31/10.(SGG)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Waxie Enterpirses, Inc., dba Waxie Sanitary Supply, Defendant. Deborah Bormann, a single woman, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV 09-264-TUC-FRZ ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Plaintiff Deborah Bormann filed her original Complaint for wrongful termination based on age discrimination in violation of A.R.S. 41-1461, et seq., against Defendant Waxie Enterprises in state court. Plaintiff filed a First Amended Complaint on March 2, 2009, adding a claim for violation of the Age Discrimination in Employment Act (ADEA). Defendant removed this action to federal court on May 8, 2009. On May 13, 2009, Defendant filed its "Petition to Compel Arbitration and Motion to Dismiss, or, in the Alternative, Stay Action Pending Arbitration," to which Plaintiff filed her an opposition. This matter was referred to Magistrate Judge Glenda E. Edmonds for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. 636(b)(1) and LRCiv 72.1 and LRCiv 72.2 of the Rules of Practice of the United States District Court for the District of Arizona. Before the Court for consideration is the Report and Recommendation of Magistrate Judge Edmonds, filed July 8, 2009, recommending that the Court, after its independent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review of the record, grant in part, Defendant's petition to compel arbitration and motion to dismiss. The Report and Recommendation specifically recommends that the Court grant the motion to compel arbitration and motion to dismiss, but void as "substantively unconscionable," the provisions in the arbitration agreement restricting punitive damages, the award of attorneys' costs and fees, and the choice of venue provision. The Report and Recommendation includes a thorough analysis of the legal authority and issues raised in the motion to compel arbitration and the remedy consistent with its findings and severance of the unconscionable provisions in the employment letter agreement.1 Plaintiff filed her objections to the Report and Recommendation, arguing summarily, that the arbitration agreement is substantively unconscionable requiring denial of the request to sever or rewrite the agreement and denial of the motion to compel arbitration. Plaintiff argues that her Amended Complaint should move forward in federal court against the Defendant. In the alternative, Plaintiff moves for reconsideration. In response, Defendant requests that the Court enter an order consistent with the Report and Recommendation. The Court finds, after careful consideration of the matters presented and an independent review of the record herein, that the petition to compel arbitration should be granted in accordance with the findings of the Magistrate Judge set forth in the Report and Recommendation. Based on the foregoing, IT IS ORDERED that Magistrate Judge Edmond's Report and Recommendation [Doc. #13] is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; 1 Declaration of Amy Rumbin in Support of Petition to Compel Arbitration, Exhibit -2- A. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS FURTHER ORDERED that Defendant's Petition to Compel Arbitration [Doc. #6] is GRANTED, in part, with the provisions restricting punitive damages, award of attorney's costs and fees, and the choice of venue hereby voided, in accordance with the Report and Recommendation; IT IS FURTHER ORDERED that this action is dismissed. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment accordingly. DATED this 31st day of March, 2010. -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?