Davis v. Nordstrom, Inc.

Filing 34

ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED SUR REPLY AND MODIFYING FURTHER BRIEFING SCHEDULE FOR DEFENDANTS 9 MOTION TO COMPEL ARBITRATION. Sur-Reply due by 1/19/2012. Response due by 1/26/2012. Reply due 2/2/2012. Signed by Judge Claudia Wilken on 1/6/2012. (ndr, COURT STAFF) (Filed on 1/6/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 FAINE DAVIS, individually and on behalf of all others similarly situated, 6 7 8 9 United States District Court For the Northern District of California 10 Plaintiff, v. NORDSTROM, INC., Defendant. No. C 11-3956 CW ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED SUR-REPLY AND MODIFYING FURTHER BRIEFING SCHEDULE FOR DEFENDANT’S MOTION TO COMPEL ARBITRATION ________________________________/ 11 12 On December 22, 2011, the Court granted Plaintiff Faine 13 Davis’s motion to file a sur-reply in connection with Defendant 14 Nordstrom, Inc.’s motion to compel arbitration during the hearing 15 held on that day and set forth a supplemental briefing schedule. 16 As required by the briefing schedule, Plaintiff filed her 17 sur-reply on January 5, 2011. 18 the Court modifies the supplemental briefing schedule and directs 19 Plaintiff to file an amended sur-reply, in which she addresses the 20 matters specified below. 21 After reviewing Plaintiff’s filing, Defendant shall file properly authenticated copies of the 22 June 2011 dispute resolution policy and the corresponding policy 23 that was in effect in December 2010 when Plaintiff originally 24 filed a lawsuit against Defendant, including any attachments 25 thereto, and declarations regarding verbal advisements. 26 shall file these documents by Thursday, January 12, 2012. 27 28 Defendant Plaintiff shall file a amended sur-reply of fifteen pages or less by Thursday, January 19, 2012. Defendant may file an 1 response to Plaintiff’s amended sur-reply of fifteen pages or less 2 by Thursday, January 26, 2012. 3 Defendant’s response of seven pages or less by Thursday, February 4 2, 2012. 5 the validity and unconscionability of the retroactive application 6 of the arbitration agreement to Plaintiff’s already pending case 7 against Defendant, and may include other arguments not previously 8 briefed. 9 Plaintiff may file a reply to In their supplemental briefs, the parties shall address The Court directs the parties’ attention to several cases, United States District Court For the Northern District of California 10 statutes and items in the record and asks the parties to consider 11 them in preparing their supplemental briefing: 12 (1) The 2009 dispute resolution policy Plaintiff submitted 13 in connection with her motion for leave to file a sur-reply states 14 in part, “Nordstrom will provide 30 days written notice of 15 substantive changes. 16 consider the changes and whether or not to continue employment 17 subject to the changes,” 18 2011 iteration of this policy provided by Defendant does not 19 appear to include this language. 20 (2) This notice is to allow employees time to Davis Decl., Ex. B, at 55. The August Doctor Decl., Ex. A. Title 9, section 2 of the United States Code states in 21 part that “an agreement in writing to submit to arbitration an 22 existing controversy arising out of such a contract . . . shall be 23 valid, irrevocable, and enforceable, save upon such grounds as 24 exist at law or in equity for the revocation of any contract”). 25 (3) Long v. Fidelity Water Systems, Inc., 2000 U.S. Dist. 26 LEXIS 7827 (N.D. Cal.) (Whyte, J.) (addressing the application of 27 an arbitration clause added after litigation commenced). 28 2 1 (4) Laster v. T-Mobile USA, Inc., 2008 U.S. Dist. LEXIS 2 103712, at *17-20 (S.D. Cal.), rev’d on other grounds, 131 S. Ct. 3 1740 (considering the enforceability of revisions to arbitration 4 provisions made after litigation has begun). 5 IT IS SO ORDERED. 6 7 8 Dated: 1/6/2012 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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