Merrill et al v. Pathway Leasing LLC et al

Filing 326

ORDER by Magistrate Judge Kristen L. Mix on 4/29/19. Motion for Reconsideration of Court's Order Dated October 5, 2017 [Dkt. 164] 298 is GRANTED IN PART. (lgale, ) Modified on 4/30/2019 to note this is a written opinion (lgale, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02242-KLM
FRANKLIN MERRILL, et al.,
Plaintiffs,
v.
PATHWAY LEASING LLC, a Colorado limited liability company,
MATTHEW HARRIS, an individual,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Motion for Reconsideration of Court’s
Order Dated October 5, 2017 [Dkt. 164] [#298]1 (the “Motion”). Former Defendants XPO
Logistics Truckload, Inc., Transforce, Inc., and Con-way Truckoad, Inc. (collectively, “XPO”)
and current Defendants Pathway Leasing LLC and Matthew Harris (collectively, the
“Pathway Defendants”) filed Responses [#299, #300] in opposition to the Motion [#298],
and Plaintiffs filed a Reply [#302]. The Court held a hearing on the Motion [#298] on
February 21, 2019, see [#304], and ordered limited supplemental briefing. As a result,
XPO filed a Supplemental Response [#310], and Plaintiffs filed a Supplemental Reply
[#317]. The Court also permitted a Second Supplemental Response [#324] from XPO to
address a new argument raised by Plaintiffs in their Supplemental Reply [#317]. The Court

1

“[#298]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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has reviewed the pertinent briefs, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set forth below, the Motion [#298] is
GRANTED in part.
I. Background
On January 10, 2017, XPO filed a Motion to Dismiss and Compel Individual
Arbitrations [#94] (the “Motion to Compel”). On October 5, 2017, the Court granted the
Motion to Compel to the extent that Plaintiffs were “compelled to submit their individual
claims against these three Defendants to arbitration pursuant to the arbitration provision
of the Agreement.” Order [#164] at 10. The claims against XPO were thus dismissed
without prejudice. Id. at 11. At that time, the Court noted:
Typically, claims that are sent to arbitration are stayed. See, e.g., Urbanic
v. Travelers Ins., No. 10-cv-02368-WYD-MJW, 2011 WL 1743412, at *10 (D.
Colo. May 6, 2011). However, the Court is aware of no authority that
mandates a stay. Here, Defendants have moved to dismiss Claims One and
Five in order to compel arbitration and Plaintiffs have not raised any
arguments in the alternative that the claims should be stayed.
Id. at 11 n.5. On January 17, 2019, Plaintiffs filed the present Motion [#298], asking the
Court to reconsider its prior Order [#164] on the basis of the United States Supreme Court
opinion in New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019), issued on January 15, 2019.
II. Legal Standard
A motion for reconsideration “is an extreme remedy to be granted in rare
circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995).
It is well-established in the Tenth Circuit that grounds for a motion to reconsider are limited
to the following: “(1) an intervening change in the controlling law; (2) new evidence
previously unavailable; and (3) the need to correct clear error or prevent manifest injustice.”

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Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57
F.3d at 948). Therefore, a motion to reconsider is “appropriate [only] where the court has
misapprehended the facts, a party’s position, or the controlling law.” Id. Here, Plaintiffs
base their Motion [#298] on the first ground, i.e., an intervening change in the controlling
law.
III. Analysis
“The Federal Arbitration Act [(“FAA”)] requires courts to enforce private arbitration
agreements.” New Prime, Inc., 139 S. Ct. at 536. “But like most laws, this one bears its
qualifications.” Id. “Among other things, [9 U.S.C.] § 1 says that ‘nothing herein’ may be
used to compel arbitration in disputes involving the ‘contracts of employment’ of certain
transportation workers.” Id. “While a court’s authority under the Arbitration Act to compel
arbitration may be considerable, it isn’t unconditional.” Id. at 537. “If two parties agree to
arbitrate future disputes between them and one side later seeks to evade the deal, [9
U.S.C.] §§ 3 and 4 of the Act often require a court to stay litigation and compel arbitration
‘accord[ing to] the terms of the parties’ agreement.” Id. “But this authority doesn’t extend
to all private contracts, no matter how emphatically they may express a preference for
arbitration.” Id. “Instead, antecedent statutory provisions limit the scope of the court’s
powers under §§ 3 and 4.” Id. “Section 2 provides that the Act applies only when the
parties’ agreement to arbitrate is set forth as a ‘written provision in any maritime transaction
or a contract evidencing a transaction involving commerce.’” Id. “And § 1 helps define §
2’s terms.” Id. “Most relevant for our purposes, § 1 warns that ‘nothing’ in the Act ‘shall
apply’ to ‘contracts of employment of seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce.’” Id. “[T]o invoke its statutory powers
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under §§ 3 and 4 to stay litigation and compel arbitration according to a contract’s terms,
a court must first know whether the contract itself falls within or beyond the boundaries of
§§ 1 and 2.” Id. “The parties’ private agreement may be crystal clear and require
arbitration of every question under the sun, but that does not necessarily mean the Act
authorizes a court to stay litigation and send the parties to an arbitral forum.” Id. at 537-38.
Both New Prime and the present case involve drivers working for an interstate
trucking company. After New Prime, it appears indisputable that the Court was without
authority under the FAA to order Plaintiffs and XPO to arbitration; indeed, neither party
argues otherwise. See generally Motion [#298]; Response [#299, #300]. Ultimately, the
Supreme Court held that (1) “a court should decide for itself whether § 1’s ‘contracts of
employment’ exclusion applies before ordering arbitration” and (2) the statutory phrase
“contracts of employment” includes both employee-employer relationships as well as
independent contractor relationships. Id. at 537, 543. These holdings call into question the
Court’s October 5, 2017 Order [#164] dismissing XPO pursuant to the FAA on the basis of
the arbitration agreements between Plaintiffs and XPO. Applying the New Prime holdings
here, the Court finds that, pursuant to § 1 of the FAA, Plaintiffs, as interstate truck drivers,
may not be compelled to arbitration pursuant to the FAA regardless of their status as either
employees or independent contractors. See also id. at 543-544 (holding that the interstate
truck driver plaintiff’s agreement with his company defendant fell within the § 1 exclusion).
Thus, Plaintiffs are correct that the Court was without authority to direct Plaintiffs and
XPO to arbitration pursuant to the FAA. Indeed, XPO does not contend that the Court
would have reached the same decision expressed in the October 5, 2017 Order pursuant
to the FAA had the New Prime decision been available then. See Response [#299]; Supp.
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Response [#310]; see also Pathway’s Response [#300]. However, XPO argues why,
regardless of New Prime, the same result is mandated, i.e., that XPO should be dismissed
from this lawsuit in favor of arbitration.2 The Court first addresses XPO’s argument that the
Court’s Order [#164] is supported on the alternative basis that arbitration may be compelled
under Missouri state law via the Missouri Uniform Arbitration Act (“MUAA”). See Supp.
Response [#310] at 8-12.
A.

Preemption
The parties contest whether the FAA fully preempts the MUAA in this case. Supp.

Response [#310] at 8-12; Supp. Reply [#317] at 1-5.
First, the Court notes that Plaintiffs argue that New Prime “clarified that federal policy
in favor of enforcing valid arbitration contracts also embodies a policy of not enforcing
arbitration agreements in the context of the FAA’s Section One exclusions.” Supp. Reply
[#317] at 2 (emphasis in original). The Court disagrees with this assessment of New Prime.
In fact, the Supreme Court explicitly stated in New Prime that it had “granted certiorari only
to resolve existing confusion about the application of the Arbitration Act, not to explore
other potential avenues for reaching a destination it does not.” 139 S. Ct. at 543 (emphasis
added). In other words, the Supreme Court left open the possibility that a truck driver
working for an interstate trucking company suing under the FLSA who had signed an
arbitration agreement could still be compelled to arbitration, but merely held that the FAA
did not provide the authority to do so. See also id. at 537 (“While a court’s authority under

2

XPO and Defendants also assert several arguments regarding why the Court should not
reconsider its prior Order [#164] at all. See Responses [#299, #300]. The Court need not address
these particular arguments, because, ultimately, the Court finds that the outcome of its prior Order
[#164] was still essentially correct, albeit on an alternative basis.

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the Arbitration Act to compel arbitration may be considerable, it isn’t unconditional. . . .
[T]his authority doesn’t extend to all private contracts . . . .” (first emphasis added) (second
emphasis in original)). In Volt Information Sciences v. Board of Trustees of Leland Stanford
University, 489 U.S. 468, 472 (1989), the United States Supreme Court had previously
ruled that “[w]here, as here, the parties have chosen in their agreement to abide by the
state rules of arbitration, application of the FAA to prevent enforcement of those rules
would actually be inimical to the policies underlying state and federal arbitration law.” Id.
at 472 (internal citations and quotation marks omitted). Nothing in New Prime overturns
that prior decision. Thus, the Court finds that New Prime does not, as Plaintiffs contend,
provide authority supporting an inverse “policy of not enforcing arbitration agreements in
the context of the FAA’s Section One exclusions.” Supp. Reply [#317] at 2 (emphasis in
original).
Therefore, the question becomes whether the Court’s Order [#164] is supported by
authority outside of the FAA. XPO contends that this authority exists through Plaintiffs’ and
XPO’s agreements to submit to binding arbitration under the MUAA. Supp. Response
[#310] at 4. The Court agrees that the relevant contract language is clear that Missouri’s
state arbitration laws shall apply to the parties’ disputes (under certain circumstances not
material to the present preemption analysis):
This Agreement is made in the State of Missouri, and all disputes and
matters arising out of or relating hereto, including any allegation of a tort, or
breach of this Agreement, or of violations of the requirements of any
applicable governmental authorities, whether local, state, federal or foreign,
including but not limited to the federal leasing regulations (49 C.F.R. Part
376), shall be governed by Missouri law without regard to Missouri’s conflicts
of law provision, except to the extent that federal law supersedes Missouri
law or otherwise applies. The Parties further agree to submit all claims or
disputes where the aggregate amount in controversy exceeds $25,000
exclusively to binding arbitration pursuant to the Missouri Uniform Arbitration
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Act, RSMo. chapter 435 and the procedures herein.
See, e.g., [#58-2] at 13 ¶ 8.
Plaintiff cites to Howard Fields & Associates v. Grand Wailea Company, 848 F.
Supp. 890, 892 (D. Haw. 1993), for the proposition that the MUAA is preempted in this
context. However, Howard Fields is distinguishable from the present case on two important
grounds. First, Howard Fields held that the consulting services contract at issue implicated
interstate commerce and, unlike here, the FAA therefore did apply to the Court’s resolution
of the parties’ arbitration dispute. 848 F. Supp. at 893-94. Second, the parties’ state
choice-of-law provision did not expressly encompass state arbitration rules. Id. at 894. In
other words, unlike here, the arbitration provision did not expressly state that the state’s
choice-of-law provision mandated that arbitration proceed under the state’s arbitration act.
Id. Here, it is clear that the FAA does not directly apply and that the parties’ expressly
chose to proceed under the MUAA. See, e.g., [#58-2] at 13 ¶ 8. Todd Shipyards Corp. v.
Cunard Line, Ltd., 943 F.2d 1056 (9th Cir. 1991), relied on by the Howard Fields court, is
in accord. 848 F. Supp. at 894. The circuit court there noted that the Supreme Court had
not held that “a state choice of law provision that does not expressly encompass state
arbitration rules, does so by operation” and consequently simply “reaffirmed that arbitrability
in cases subject to the federal act is governed by federal law.” Id. (quoting and citing Todd
Shipyards, 943 F.2d at 1062).
The Court finds that Roberts v. Central Refrigerated Service, 27 F. Supp. 3d 1256
(D. Utah 2014), presented a set of circumstances materially similar to those of the present
case. The plaintiff there was employed as a company truck driver and sued under the
FLSA on the basis of the company’s alleged failure to fully compensate him for wages
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earned, including the failure “to pay at least the minimum wage for orientation time, travel
time, and training time.” Roberts, 27 F. Supp. 3d at 1258. The court compellingly held that
the FAA generally, and its § 1 exclusion provision specifically, did not preempt arbitration
under the Utah Arbitration Act. Id. at 1263. As explained below, the Court finds that the
Roberts court’s analysis applies equally to the issue here.
“While the FAA preempts application of state laws which render arbitration
agreements unenforceable, it does not follow, however, that the federal law has preclusive
effect in a case where the parties have chosen in their arbitration agreement to abide by
state rules.” Volt Info. Scis., 489 U.S. at 472. “There is no federal policy favoring
arbitration under a certain set of procedural rules; the federal policy is simply to ensure the
enforceability, according to their terms, of private agreements to arbitrate.” Id. at 476.
“Interpreting a choice-of-law clause to make applicable state rules governing the conduct
of arbitration—rules which are manifestly designed to encourage resort to the arbitral
process—simply does not offend the rule of liberal construction . . . , nor does it offend any
other policy embodied in the FAA.” Id.
In recognition of Congress’ principal purpose of ensuring that private
arbitration agreements are enforced according to their terms, [the United
States Supreme Court has] held that the FAA preempts state laws which
require a judicial forum for the resolution of claims which the contracting
parties agreed to resolve by arbitration. But it does not follow that the FAA
prevents the enforcement of agreements to arbitrate under different rules
than those set forth in the Act itself.
Indeed, such a result would be quite inimical to the FAA’s primary purpose
of ensuring that private agreements to arbitrate are enforced according to
their terms. Arbitration under the Act is a matter of consent, not coercion,
and parties are generally free to structure their arbitration agreements as
they see fit. Just as they may limit by contract the issues which they will
arbitrate, so too may they specify by contract the rules under which that
arbitration will be conducted.
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Id. at 478-79. Importantly here, “[t]he effect of § 1 of the FAA is to leave the arbitration of
disputes in the excluded categories as if the FAA had never been enacted.” Roberts, 27
F. Supp. 3d at 1260 (citing Mason–Dixon Lines, Inc. v. Int’l Bhd. of Teamsters, 443 F.2d
807, 809 (3d Cir.1971)). “There is no language in the FAA that explicitly preempts the
enforcement of state arbitration statutes.” Roberts, 27 F. Supp. 3d at 1260 (quoting Palcko
v. Airborne Express, Inc., 372 F.3d 588, 595 (3d Cir. 2004)).
Here, Plaintiffs and XPO agreed to follow Missouri’s arbitration law. “Thus, allowing
application of the FAA’s § 1 exemption to prevent enforcement of the very state laws that
the parties contracted for would indeed offend the policies underlying state and federal
arbitration law.” Roberts, 27 F. Supp. 3d at 1262. The underlying purpose of the FAA was
to “overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” and to
“place such agreements upon the same footing as other contracts.” Volt, 489 U.S. at 474
(citations omitted). There is no federal policy favoring arbitration under any particular set
of procedural rules; rather, if anything, there is a federal policy to ensure the enforceability
of private arbitration agreements pursuant to their terms. Roberts, 27 F. Supp. 3d at 1263
(citing Volt, 489 U.S. at 476).
Here, as in Roberts, “[t]he parties are free to negotiate the terms of arbitration and
the arbitration agreement here states that the laws of [Missouri] will apply to any dispute
that arises or is related to [Plaintiffs’] employment with [XPO].” 27 F. Supp. 3d at 1263;
see, e.g., [#58-2] at 13 ¶ 8. Here, as in Roberts, Plaintiffs “in effect ask[ ] the court to
declare that the FAA forbids application of the very laws that the parties contracted to
govern their agreement.” 27 F. Supp. 3d at 1263; Supp. Reply [#317] at 3-5. As
summarized by the Roberts court:
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Volt does not support such a result. The FAA contains no express
preemptive provision, nor does it reflect a congressional intent to occupy the
entire field of arbitration. As Volt states, the FAA’s passage was motivated
by a congressional desire to enforce agreements into which parties had
entered. Thus, the Supreme Court has recognized that the FAA does not
require parties to arbitrate when they have not agreed to do so. Furthermore,
it does not prevent parties who do agree to arbitrate from excluding certain
claims from the scope of their arbitration agreement or from electing that the
agreement be governed by state rather than federal law. It simply requires
courts to enforce privately negotiated agreements to arbitrate, like other
contracts, in accordance with their terms.
Congress has not shown a clear intention to fill the entire field of arbitration
here. Thus, the FAA’s § 1 exemption does not preempt either application of
the [state] Arbitration Act or enforcement of the arbitration agreement
between [the defendant] and [the plaintiff]. Because [the plaintiff] and [the
defendant] agreed for [state] law to govern their arbitration agreement, the
court will not prevent them from abiding by the terms of their agreement.
[State] law controls the enforcement of the arbitration agreement, which the
court is required to enforce, and the [state Arbitration] Act should be applied
to its enforcement.
27 F. Supp. 3d at 1263 (citing Volt, 489 U.S. at 477-78) (internal quotation marks and
citations omitted).
Following New Prime, it is clear that Plaintiffs here fall within the FAA exclusion, see
New Prime, Inc., 139 S. Ct. at 536, but there is no clear authority preventing the Court from
upholding the parties’ agreement to arbitrate pursuant to the MUAA. Accordingly, the Court
finds that the MUAA is not preempted by the FAA. See Roberts, 27 F. Supp. 3d at 1263
B.

$25,000 Arbitration Threshold
Plaintiffs previously raised the argument that the $25,000 amount in controversy

requirement in the Agreement’s arbitration provision is not met, and again raise that
argument here. Order [#164] at 8; Supp. Reply [#317] at 7. The Court previously held:
Disputes about procedural prerequisites for arbitration are presumed to be
for arbitrators to decide rather than the Court. Conditions that dictate when
the contractual duty to arbitrate arises, not whether there is a contractual duty
to arbitrate at all, are procedural in nature. While the parties disagree about
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the exact function of the amount in controversy requirement included in the
arbitration provision, both parties refer to it as a trigger for arbitration. This
language, as well as the text and structure of the provision, make it clear that
the $25,000 amount in controversy requirement is a condition precedent to
arbitration. Therefore, the Court finds that the amount in controversy
prerequisite is procedural in nature and for an arbitrator to decide.
Order [#164] at 8-9 (internal citations and quotation marks omitted).
Plaintiffs do not explicitly ask the Court to reconsider its prior ruling, but essentially
that is what they have done. See Supp. Reply [#317] at 7. To reiterate, grounds for a
motion to reconsider are limited to the following: “(1) an intervening change in the
controlling law; (2) new evidence previously unavailable; and (3) the need to correct clear
error or prevent manifest injustice.” Servants of Paraclete, 204 F.3d at 1012. Under the
present circumstances, there appears to be no ground on which the Court should, or even
could, reconsider the relevant portion of its prior Order [#164]. Accordingly, the Court
reiterates its prior holding that “the amount in controversy prerequisite is procedural in
nature and for an arbitrator to decide.” Order [#164] at 9.
C.

Contracts of Adhesion
Plaintiffs further argue that the parties’ arbitration agreements are not enforceable

because each is a contract of adhesion. Supp. Reply [#317] at 5-7. Missouri law controls
issues relating to the contracts. See, e.g., [#58-2] at 13 ¶ 8 (“This Agreement is made in
the State of Missouri, and all disputes and matters arising out of or relating hereto,
including any allegation of a tort, or breach of this Agreement, or of violations of the
requirements of any applicable governmental authorities, . . . shall be governed by Missouri
law without regard to Missouri’s conflicts of law provision, except to the extent that federal
law supersedes Missouri law or otherwise applies.”).
Plaintiffs rely on Eaton v. CMH Homes, Inc., 461 S.W.3d 426, 438-39 (Mo. 2015),
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in support of their argument. Supp. Reply [#317] at 5-6. There, the plaintiff argued that
“the arbitration agreement as a whole [was] unconscionable because of the contract’s
adhesive nature.” Eaton, 461 S.W.3d at 438. The Missouri Supreme Court first noted that,
“[u]nder Missouri law, however, the fact that a contract is one of adhesion does not
necessarily make it invalid.” Id. “An adhesion contract is a contract created by the stronger
of the contracting parties and offered on a ‘take this or nothing’ basis.” Id. “An adhesion
contract’s terms are imposed upon the weaker party who has no choice but to conform, and
such terms unexpectedly or unconscionably limit the obligations and liability of the drafting
party.” Id. (internal quotation marks omitted).
The Missouri Supreme Court pointed out that “a court should not invalidate an
arbitration agreement in a consumer contract simply because it is contained in a contract
of adhesion or because the parties had unequal bargaining power, as these are hallmarks
of modern consumer contracts generally.” Id. “Because the bulk of contracts signed in this
country are pre-printed, form contracts, any rule automatically invalidating such contracts
would be completely unworkable.” Id. (internal brackets and ellipsis omitted). Thus, “rather
than automatically invalidating contracts simply because they are contracts of adhesion,
a court should look at the terms of the contract to determine whether they are rendered
unfair by the contract’s take-it-or-leave-it nature . . . .” Id.
In determining whether to enforce the terms of a contract of adhesion, courts
have looked not only to the take-it-or-leave-it nature or the standardized form
of the document, but also to the subject matter of the contract, the parties’
relative bargaining positions, the degree of economic compulsion motivating
the “adhering” party, and the public interests affected by the contract.
Id. (quoting Woods v. QC Fin. Servs., Inc., 280 S.W.3d 90, 97 (Mo. App. 2008)).
Plaintiffs argue the following in connection with their assertion that the parties’
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agreements are contracts of adhesion:
Former XPO Defendants’ arbitration agreement . . . reserves the right to
“seek[] replevin or other in rem relief to recover its property from any other
jurisdiction.” In other words, Former XPO Defendants reserved the right to
repossess their property from Plaintiffs in court, while Plaintiffs are required
to arbitrate “all disputes and matters arising out of or relating hereto.”
Therefore, there is no difference between the unconscionability of the
provision in Eaton and the provision at issue here, except that this arbitration
agreement strays even farther into the realm of unconscionability through
unexpected limitations on the drafting party’s obligations and liabilities.
Here, the drafting party (Former XPO Defendants) required Plaintiffs to
arbitrate any issue in which the aggregate value of the dispute exceeds
$25,000, but any dispute where the aggregate value is less than $25,000
must be litigated in court. Through this provision, Former XPO Defendants
have effectively insulated themselves from ever fairly resolving a dispute so
long as the provision is enforced. If a dispute is valued at less than $25,000,
the economics of civil litigation make it unlikely that the holder of this dispute
could ever successfully litigate the claim with legal representation. While the
truck driver could attempt to proceed pro se, this would seem an unlikely path
to success given that Former XPO Defendants would be represented by
Ogletree Deakins or the like.
Conversely, if the dispute is over $25,000 but subject to binding, private
arbitration, i.e., an expensive dispute resolution method, then it is highly
unlikely that any individual in an economic position similar to Plaintiffs could
ever afford to proceed through arbitration. Former XPO Defendants crafted
a devious arbitration agreement which obtains one-sided and advantageous
results; however, because this provision is contained within a contract of
adhesion, it is not enforceable under Missouri law. The provision is
unconscionable and unreasonably restricts the obligations of the drafter while
heaping all detriment onto each individual Plaintiff.
Supp. Reply [#317] at 6-7 (internal citations omitted).
The Court first notes that the Eaton court did not find that the agreement to arbitrate
was part of an adhesion contract and, instead, explicitly held that the differences in
arbitration rights did not make the agreement invalid: “The Court, therefore, rejects Mr.
Eaton’s argument that his agreement to arbitrate was invalid solely based on the fact that
the arbitration clause required Mr. Eaton to arbitrate all claims but gave [the defendant] the
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right to bring suit in court ‘to foreclose upon any collateral, to obtain a monetary judgment
or to enforce the security agreement.’” 461 S.W. 3d at 429. The Court did, though, clarify
“that a lack of mutuality of the obligation to arbitrate is one of the relevant factors a court
will consider, along with the other terms of the contract, in determining whether the
agreement to arbitrate otherwise is unconscionable.” Id. However, “as long as the contract
as a whole meets the consideration requirement, an arbitration clause in the contract will
not be invalidated for a lack of mutuality of the obligation to arbitrate . . . .” Id. at 433. This
is true regardless of whether the included arbitration clause itself was one-sided.” Id. at
434 (quoting State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. 2006))
(emphasis added).
Here, there has been no showing, or even any argument, by Plaintiffs that each
contract as a whole fails to meet the consideration requirement. See also Supp. Response
[#310] at 7-8 (outlining XPO’s argument that consideration supports the contracts). The
mere lack of mutuality does not render the agreement to arbitrate invalid in the absence of
a failure to meet the consideration requirement, and thus Plaintiff’s argument does not
provide any legitimate basis on which to invalidate the parties’ contracts as contracts of
adhesion. See Eaton, 461 S.W.3d at 434, 438-39.
IV. Conclusion
In short, Plaintiffs are correct that their claims against XPO cannot be compelled to
arbitration pursuant to the FAA. However, the Court is not convinced that New Prime
precludes the Court from dismissing those claims in favor of arbitration pursuant to the
MUAA. Accordingly,
IT IS HEREBY ORDERED that the Motion [#298] is GRANTED in part. Thus,
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IT IS FURTHER ORDERED that the Court’s prior Order [#164] is VACATED only
to the extent inconsistent with this Order.
IT IS FURTHER ORDERED that former Defendants XPO, TransForce, and ConWay remain dismissed so that Plaintiffs may submit their individual FLSA claims against
these three entities pursuant to the arbitration provision of the Agreement and the MUAA.
See, e.g., Spencer v. XPO Logistics, No. 17-14084, 2018 WL 6830349, at *4 (E.D. Mich.
Dec. 28, 2018) (dismissing action where parties had voluntarily agreed to arbitrate claims
in another jurisdiction).

Dated: April 29, 2019

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