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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FAINE DAVIS, individually and on
behalf of all others similarly
situated,

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United States District Court
For the Northern District of California

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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

________________________________/

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On December 22, 2011, the Court granted Plaintiff Faine

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Davis’s motion to file a sur-reply in connection with Defendant

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Nordstrom, Inc.’s motion to compel arbitration during the hearing

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held on that day and set forth a supplemental briefing schedule.

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As required by the briefing schedule, Plaintiff filed her

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sur-reply on January 5, 2011.

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the Court modifies the supplemental briefing schedule and directs

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Plaintiff to file an amended sur-reply, in which she addresses the

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matters specified below.

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After reviewing Plaintiff’s filing,

Defendant shall file properly authenticated copies of the

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June 2011 dispute resolution policy and the corresponding policy

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that was in effect in December 2010 when Plaintiff originally

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filed a lawsuit against Defendant, including any attachments

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thereto, and declarations regarding verbal advisements.

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shall file these documents by Thursday, January 12, 2012.

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Defendant

Plaintiff shall file a amended sur-reply of fifteen pages or
less by Thursday, January 19, 2012.

Defendant may file an

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response to Plaintiff’s amended sur-reply of fifteen pages or less

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by Thursday, January 26, 2012.

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Defendant’s response of seven pages or less by Thursday, February

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2, 2012.

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the validity and unconscionability of the retroactive application

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of the arbitration agreement to Plaintiff’s already pending case

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against Defendant, and may include other arguments not previously

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briefed.

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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

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statutes and items in the record and asks the parties to consider

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them in preparing their supplemental briefing:

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(1)

The 2009 dispute resolution policy Plaintiff submitted

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in connection with her motion for leave to file a sur-reply states

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in part, “Nordstrom will provide 30 days written notice of

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substantive changes.

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consider the changes and whether or not to continue employment

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subject to the changes,”

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2011 iteration of this policy provided by Defendant does not

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appear to include this language.

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(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

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part that “an agreement in writing to submit to arbitration an

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existing controversy arising out of such a contract . . . shall be

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valid, irrevocable, and enforceable, save upon such grounds as

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exist at law or in equity for the revocation of any contract”).

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(3)

Long v. Fidelity Water Systems, Inc., 2000 U.S. Dist.

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LEXIS 7827 (N.D. Cal.) (Whyte, J.) (addressing the application of

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an arbitration clause added after litigation commenced).

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(4)

Laster v. T-Mobile USA, Inc., 2008 U.S. Dist. LEXIS

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103712, at *17-20 (S.D. Cal.), rev’d on other grounds, 131 S. Ct.

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1740 (considering the enforceability of revisions to arbitration

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provisions made after litigation has begun).

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IT IS SO ORDERED.

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Dated: 1/6/2012

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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