O'Meara et al v. Intepros Incorporated

Filing 23

ORDER granting 11 Motion to Compel Arbitration and Stay Proceedings Pending Arbitration. The Clerk will administratively close this file, subject to reopening by either party upon conclusion of the arbitration. Signed by Judge Holly B. Fitzsimmons on 7/19/17. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GERALD O’MEARA, GLORIA
DOMIZIANO, and KRISTINA
KRUSE
v.
INTEPROS INCORPORATED

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: Civil No. 3:16CV01840 (HBF)
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RULING ON MOTION TO COMPEL ARBITRATION and
STAY PROCEEDINGS PENDING ARBITRATION
This action was commenced on October 14, 2016, in Connecticut
Superior Court by plaintiffs Gerald O’Meara, Gloria Domiziano and
Kristina Kruse, former employees of defendant IntePros Incorporated.
Defendant moves to compel arbitration and for a stay of proceedings
pending arbitration, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6),
D. Conn. L. Civ. R. 7, the Federal Arbitration Act, 9 U.S.C. §1, et
seq. and Conn. Gen. Stat. §52-408. [Doc. #11-1 at 1].
For the reasons that follow, defendant’s Motion to Compel
Arbitration and Stay Proceedings Pending Arbitration [Doc. #11] is
GRANTED.
BACKGROUND FACTS1
1. Defendant IntePros is a staffing agency which does business
throughout the United States, including in Stamford,
Connecticut. Compl. at Count One ¶6. It is a Pennsylvania

“Defendant does not concede the facts or the legal conclusions as
alleged in the Complaint, but accepts the facts for the purposes of
this Motion only. Defendant expressly reserves its right to dispute
the facts alleged in the Complaint.” [Doc. #11-1 at 2, n. 1].
1
1

corporation with a corporate office in Lexington, Massachusetts.
Compl. ¶5.
2. Plaintiffs were employees of IntePros at its Stamford,
Connecticut office. Compl. at Count One ¶4.
3. At the commencement of their employment, each of the plaintiffs
entered into an employment agreement with defendant. [Doc. #11
Aff. Daniel Hinkley, ¶¶3-5; Def. Ex. A-C].
4. The Employment Agreements contain identical choice of law and
arbitration provisions.
5. Paragraph 12 of the Employment Agreements states, “Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.”
Id.
6. Paragraph 15 of the Employment Agreements states,
Arbitration. Any dispute or claims arising out of or
relating to the Employee’s employment or any provision of
this Agreement, whether based on contract or tort or
otherwise, including, but not limited to claims of sexual
harassment and claims of discrimination based on race,
religion, national origin, gender, age or disability, shall
be submitted to arbitration pursuant to the national Rules
for the Resolution of Employment Disputes of the American
Arbitration Association (“AAA”). Any such dispute or claim
shall be heard in the AAA’s Boston Office. Any issue with
respect to the arbitrability of a particular dispute or to
the scope of this Section shall be decided by the
arbitrator. An arbitration award rendered pursuant to this
Section shall be final and binding on the parties and may
be submitted to any court of competent jurisdiction for
entry of a judgment thereon. Notwithstanding the
aforementioned obligation to arbitrate, the Employer may
sue in any court of competent jurisdiction for the
Employee’s violation of Section 7 [entitled “Disclosure or
Misuse of Confidential Information”] and/or 8 [entitled
“Restrictive Covenant”] of this Agreement.
2

Id.
7. From mid-January to early February of 2015, plaintiffs either
resigned or were involuntarily terminated from employment.2
8. On May 29, 2015, following their resignation and/or terminations
of employment, each plaintiff filed a separate administrative
charge at the Connecticut Commission on Human Rights and
Opportunities (“CHRO”) and the U.S. Equal Employment Opportunity
Commission (“EEOC”).3 Compl. at Count One ¶10. After receiving
releases of jurisdiction, plaintiffs commenced this action which
asserts seventeen claims arising out of or relating to their
employment with defendant.4
9. O’Meara alleges: (1) retaliation in violation of the Connecticut
Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. §46a60(4)(Count One); (2) retaliation in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e-3,

O’Meara tendered his resignation on January 16, 2015. Compl. at
Count Three ¶¶46, 47 (“forced...to quit involuntarily”). Kruse’s
employment was involuntarily terminated on January 16, 2015. Compl.
at Count Eleven ¶45. Gloria Domiziano’s employment was terminated on
February 4, 2015. Compl. at Count Nine ¶50; Count Thirteen ¶64.
2

The Complaint alleges that both Kruse and Domiziano’s employment was
terminated in 2016; however, they filed administrative charges on May
29, 2015. See Compl. at Count Eleven ¶45; Count Thirteen ¶64; Count
One ¶10. Defendant’s motion states that all the plaintiffs’
employment ended in 2015. [Doc. #11-1 at 3]. Plaintiffs did not
challenge these representations in their opposition brief. [Doc. #15
at 2].
3

Plaintiffs filed the Complaint in Connecticut Superior Court on
October 14, 2016. Defendant filed a notice of Removal on November 9,
2016. [Doc. #1].
3
4

et seq. (Count Two); (3) constructive discharge (Count Three);
(4) breach of contract (Count Four); (5) violation of
Connecticut’s Wage Statute, Conn. Gen. Stat. §31-72, et seq.
(Count Five); and (6) unjust enrichment for unpaid earned
commissions (Count Six).
10.

Domiziano alleges: (1) sexual harassment in violation of

CFEPA, Conn. Gen. Stat. §46a-60(8) (Count Nine); (2) sexual
harassment in violation of Title VII, 42 U.S.C. §2000e-3, et
seq. (Count Ten); (3) retaliation in violation of CFEPA, Conn.
Gen. Stat. §46a-60(4)(Count Thirteen); (4) retaliation in
violation of Title VII, 42 U.S.C. §2000e-3, et seq. (Count
Fourteen); (5) negligent infliction of emotional distress (Count
Fifteen); (6) breach of contract (Count Sixteen); and (7)
violation of Connecticut’s Wage Statute, Conn. Gen. Stat. §3172, et seq. (Count Seventeen).
11.

Kruse alleges: (1) sexual harassment in violation of CFEPA,

Conn. Gen. Stat. §46a-60(8)(Count Seven); (2) sexual harassment
in violation of Title VII, 42 U.S.C. §2000e-3, et seq. (Count
Eight); (3) retaliation in violation of CFEPA, Conn. Gen. Stat.
§46a-60(4)(Count Eleven); and (4) retaliation in violation of
Title VII, 42 U.S.C. §2000e-3, et seq. (Count Twelve).

4

LEGAL STANDARD
A. Motion to Dismiss Fed. R. Civ. P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for the
dismissal of a claim when the federal court “lack[s]...jurisdiction
over the subject-matter.”5 Federal courts are courts of limited
subject-matter jurisdiction and may not entertain matters over which
they do not have jurisdiction. Wynn v. AC Rochester, 273 F.3d 153,
157 (2d Cir. 2001). The plaintiff bears the burden of establishing
subject-matter jurisdiction by a preponderance of the evidence.
Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)(citation omitted).
In considering a motion to dismiss for lack of subject-matter
jurisdiction, the court must assume the truth of the material factual
allegations contained in a complaint. J.S. ex rel. N.S. v. Attica
Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004)(citation omitted).
However, “jurisdiction must be shown affirmatively, and that showing
is not made by drawing from the pleadings inferences favorable to the

There is a [l]ack of clarity in the case law of this
Circuit (and others) as to what procedural mechanism must
be employed by courts to dismiss actions in which the
parties are bound to resolve (or attempt resolution of)
their claims in accordance with a contractual grievance
procedure, such as an agreement to arbitrate.
5

Cartagena Enterprises, Inc. v. J. Walter Thompson USA, Inc., No. 13
CIV. 4238 (SAS), 2013 WL 5664992, at *2, n.3 (S.D.N.Y. Oct. 16,
2013)(applying Rule 12(b)(1) “[b]ecause Plaintiffs [did] not contest
Defendants’ invocation” of this rule)(citing cases). Similarly here,
plaintiff does not challenge the application of either Fed. R. Civ.
P. 12(b)(1) or 12(b)(6).

5

party asserting it.”

Jordan v. Verizon Corp., 391 Fed. App’x 10, 12

(2d Cir. 2010) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.
2003)). “[I]n dismissing a complaint for lack of subject-matter
jurisdiction under Rule 12(b)(1), a court ‘may refer to evidence
outside the pleadings.’” Burfeindt v. Postupack, 509 F. App'x 65, 67
(2d Cir. 2013)(quoting Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000)).
B. Motion to Compel Arbitration
Arbitration clauses are subject to the Federal Arbitration Act
(“FAA”). 9 U.S.C. §1, et seq. The FAA “provides that written
provisions to arbitrate controversies in any contract involving
commerce ‘shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.’” Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840,
844 (2d Cir. 1987)(quoting 9 U.S.C. §2); see Rent-A-Center, West,
Inc. v. Jackson, 561 U.S. 63, 67-68 (2010). Under §3 of the Federal
Arbitration Act, a court in which any action is pending based upon an
issue referable to arbitration “shall on application of one of the
parties stay the trial of the action until such arbitration has been
had in accordance with the terms of the agreement....” 9 U.S.C. §3.
Section 4 “directs a federal court to order parties to proceed to
arbitration if there has been a ‘failure, neglect, or refusal of any
party to honor an agreement to arbitrate.’” Genesco, Inc., 815 F.2d
at 844(quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511
(1974)(quoting 9 U.S.C. §4)). “These provisions are mandatory: ‘[b]y
6

its terms, the Act leaves no place for the exercise of discretion by
a district court, but instead mandates that district courts shall
direct the parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed.’” Id. (quoting Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in
original)(citing 9 U.S.C. §§3, 4)).
Before compelling arbitration, a district court must decide two
threshold questions: “(1) whether the parties have entered into a
valid agreement to arbitrate, and, if so, (2) whether the dispute at
issue comes within the scope of the arbitration agreement.” In re Am.
Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011)
(citations omitted). “Courts may not...invalidate arbitration
agreements under state laws applicable only to arbitration
provisions.” Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687
(1996)(emphasis in original). However, courts may invalidate
arbitration agreements on the basis of “generally applicable contract
defenses, such as fraud, duress, or unconscionability....” Id. “There
is a strong presumption in favor of arbitration, and waiver of the
right to arbitration is not to be lightly inferred.” Thyssen, Inc. v.
Calypso Shipping Corp. S.A., 310 F.3d 102, 104-05 (2d Cir. 2002)
(quoting Coca-Cola Bottling Co. v. Soft Drink and Brewery Workers
Union Local, 812, 242 F.3d 52, 57 (2d Cir. 2001)).

7

DISCUSSION
Defendant argues that “[b]y initiating this lawsuit, plaintiffs
violated their obligation to pursue final and binding arbitration”
and moves to compel arbitration and stay these proceedings pending
arbitration. [Doc. #11-1 at 4].

1. Did the Parties Enter into a Valid Agreement to Arbitrate?
Plaintiffs do not challenge defendant’s statutory authority to
compel arbitration. Nor do they contend that they did not enter into
the Employment Agreements. Rather, they argue that the Agreements
should not be enforced because the choice of forum provision at
paragraph 15 is unconscionable and the choice of law provision at
paragraph 12 denies plaintiffs their rights to assert state law
sexual harassment and retaliation claims under CFEPA and claims for
unpaid commissions under the Connecticut Wage and Hour statutes.
“[T]he issue of unconscionability is an issue of substantive
law which ordinarily must be construed by the law of the state which
the parties chose....” Van Voorhies v. Land/home Fin. Servs., No.
CV095031713S, 2010 WL 3961297, at *3 (Conn. Super. Ct. Sept. 3,
2010)(quoting Thomas v CM Securities, LLC, No. CV09035527S, 2010 WL
3038503, *8 (Ct. Super Ct. July 7, 2010)). Under Massachusetts law
the party asserting that a contract is unconscionable has the burden
of proof. NPS, LLC v. Minihane, 451 Mass. 417, 421, 886 N.E.2d 670,
674 (2008); see D’Antuone v. Serv. Rd. Corp., 789 F. Supp. 2d 308,
327 (D. Conn. 2011) (“Under Connecticut law, the party that raises
unconscionability as a defense to the enforcement of any contract
8

typically has the burden of showing that the contract is both
procedurally and substantively unconscionable.”)(emphasis added).
The question of whether an arbitration agreement is
unconscionable is a case-by-case determination, looking at the
“setting, purpose, and effect” of the agreement. Miller v. Cotter,
448 Mass. 671, 680, 863 N.E.2d 537, 545 (2007)(quoting Restatement
(Second) of Contracts § 208, comment a (1981)).
Under Massachusetts law, to prove that the terms of a
contract are unconscionable, a plaintiff must show both
substantive unconscionability (that the terms are
oppressive to one party) and procedural unconscionability
(that the circumstances surrounding the formation of the
contract show that the aggrieved party had no meaningful
choice and was subject to unfair surprise).”
Machado v. System4 LLC, 471 Mass. 204, 218, 28 N.E.3d 401, 414
(2015)(internal quotation marks and citations omitted)(emphasis
added); see D'Antuono, 789 F. Supp. 2d at 327 (“Substantive
unconscionability focuses on the ‘content of the contract,’ as
distinguished from procedural unconscionability, which focuses on the
‘process by which the allegedly offensive terms found their way into
the agreement.’”) (quoting Cheshire Mortgage Serv., Inc. v. Montes,
223 Conn. 80 n. 14 (1992)).
Plaintiffs do not argue that there was anything in the “setting”
of the execution of the Agreements that was procedurally
unconscionable. [Doc. #15 at 4-6].

Rather, plaintiffs argue that

certain terms of the agreement, the “purpose and effect”, are
substantively unconscionable. Id.

9

Choice of Arbitration Forum
Plaintiffs first argue that compelling arbitration in Boston,
over 150 miles from their homes, is “impractical, unaffordable and
will add significant expenses,” rendering it unconscionable. [Doc.
#15 at 4-5; Ex. 1-3 ¶15].
In support of their position, plaintiffs cite to Van Voorhies v.
Land/home Fin. Servs., where the Connecticut Superior Court found
that the arbitration forum in California was substantially
unconscionable. No. CV095031713S, 2010 WL 3961297, at *8 (Conn.
Super. Sept. 3, 2010). In that case, plaintiff submitted an affidavit
averring that he could not afford the costs associated with
arbitrating a case in California rather than his home state of
Connecticut, in light of sustained unemployment and modest liquid
assets. Id. at *8. Here, plaintiffs have made no showing of financial
duress or other hardship associated with arbitrating their claims in
Boston. See Avionics Tech., Inc. v. Ulti-Mate Connector, Inc., No.
CV106015858S, 2011 WL 1886578, at *5 (Conn. Super. Ct. Apr. 21,
2011)(decided after Van Voorhies, the court rejected plaintiff’s
argument that the arbitration and choice-of-law provisions are
oppressive and unconscionable stating, “this argument...fails in the
absence of any actual evidence that in the 21st century, the
necessity of a flight to California represents any kind of
exceptional hardship for a company doing business for this
defendant....”); see also Bragel v. General Steel Corp., No. 05-2820,
2006 WL 2623931, at *5 (Mass. Super. Ct. Aug. 2, 2006) (Massachusetts
10

court finding that “[t]here is nothing inherently unreasonable about
the choice of Colorado as the forum for arbitration; it is not so
remote a location that it acts as a shield against liability as
[plaintiff] argues. It is not unexpected that a business would
require arbitration to take place in its home state; to the contrary,
what business wouldn’t chose its home state?”).

Although travel to

Boston may be inconvenient, it is not onerous, and plaintiffs have
not made any showing for the Court to conclude otherwise.
Accordingly, plaintiffs have failed to carry their burden of proof
that the arbitration forum provision is unconscionable and should not
be enforced. NPS, LLC, 451 Mass. at 421, 886 N.E.2d at 674 (“Having
presented little evidence beyond his assertion that the contract as a
whole was unconscionable, the defendant in this case has not
sustained that burden.”).
Choice of Law Provision
Plaintiffs next argue that the choice of law provision is
unconscionable because application of Massachusetts law precludes
them from asserting their state law claims under CFEPA and the
Connecticut Wage and Hour statutes. [Doc. #15 at 5-6]. However,
plaintiffs have not articulated how they would be prejudiced or
precluded from seeking damages for unlawful
discrimination/retaliation and for lost wages or commissions through
arbitration. Massachusetts courts, like Connecticut, look to federal
law for guidance in interpreting their state employment
discrimination statutes. Massasoit Indus. Corp. v. Massachusetts
11

Comm'n Against Discrimination, 91 Mass. App. Ct. 208, 214, 73 N.E.3d
333, 340 n.6 (2017)(“Massachusetts looks to Federal law to interpret
the definition of disability under G. L. c. 151B, except in those
situations in which the Supreme Judicial Court expressly departs from
it.”); Smith v. Mitre Corp., 949 F. Supp. 943, 946 (D. Mass.
1997)(“In interpreting the Massachusetts employment discrimination
laws, however, Massachusetts courts often look to, although they are
not bound to follow, interpretations by federal courts of similar
federal laws.”)(citing cases); Payne v. PSC Indus. Outsourcing, Ltd.
P'ship, 139 F. Supp. 3d 536, 544 (D. Conn. 2015)(“[T]he Connecticut
Supreme Court has noted that Connecticut state courts will ‘look to
federal law for guidance on interpreting state employment
discrimination law,’ as ‘the analysis is the same under
both.’”)(quoting Craine v. Trinity College, 259 Conn. 625, 637 n. 6,
791 A.2d 518 (Conn. 2002)).
The main object of a judicial proceeding is to recover damages
for allegedly unlawful discrimination, relief that can be awarded
through arbitration should plaintiffs prevail. Aside from a broad
contention that “[a]rbitration agreements that prevent plaintiffs
from vindicating their statutory rights in arbitration are invalid,”
[doc. #15 at 5], plaintiffs offered no analysis or compelling
authority to show how the application of the choice of law provision
will prejudice them or is unconscionable.

Accordingly, plaintiffs

have failed to carry their burden of proof that the choice of law
provision is unconscionable and should not be enforced.
12

2. Do the Disputes at Issue Come Within the Scope of the
Arbitration Agreement?
The next question for the Court to determine is “whether the
dispute at issue comes within the scope of the arbitration
agreement.” In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d at
128. As set forth above, all of plaintiffs’ claims arise from their
employment with IntePros. [Compl.; Doc. #15 Pl. Ex. 1, 2, 3 ¶15 (“Any
dispute or claim arising out of or relating to the Employee’s
employment or any provision of this Agreement, whether based on
contract or tort or otherwise, including, but not limited to claims
of sexual harassment and claims of discrimination based on race,
religion, national origin, gender, age or disability, shall be
submitted to arbitration....”)]. Plaintiffs do not dispute that their
claims arise out of or relate to their employment with defendant.
Accordingly, the Court finds that plaintiffs’ claims come within the
scope of the Agreements.
3.

Waiver
Finally, plaintiffs argue that defendant waived its right to

compel arbitration because it did not demand or compel arbitration
until nineteen months after plaintiffs filed their claims with the
CHRO. [Doc. #15 at 7-10].
The determination of whether a party has waived its right to
arbitration requires consideration of three factors: “(1) the time
elapsed from when litigation was commenced until the request for
arbitration; (2) the amount of litigation to date, including motion
13

practice and discovery; and (3) proof of prejudice.” Sutherland v.
Ernst & Young, LLP, 600 F. App'x 6, 7–8 (2d Cir. 2015)(quoting
Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner
& Smith, 626 F.3d 156, 160 (2d Cir. 2010)). Our Court of Appeals “has
recognized two types of prejudice: substantive prejudice and
prejudice due to excessive cost and time delay.” Sutherland, 600 F.
App’x at 8 (citing Thyssen, 310 F.3d at 105).
Prejudice can be substantive, such as when a party loses a
motion on the merits and then attempts, in effect, to
relitigate the issue by invoking arbitration, or it can be
found when a party too long postpones his invocation of his
contractual right to arbitration, and thereby causes his
adversary to incur unnecessary delay or expense.
Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991). Our Appeals
Court “has refused to find waiver in a number of cases where delay in
trial proceedings was not accompanied by substantial motion practice
or discovery.” Sutherland, 600 F. App’x at 8 (quoting Thyssen, 310
F.3d at 105 (collecting cases)).
Defendant argues, and the Court agrees, that it “could not have
invoked the arbitration provision while the case was pending before
the CHRO.” [Doc. #20 at 7 (citing Ferguson v. United Health Care, No.
3:08CV1389(MRK), 2008 WL 5246145 (D. Conn. 2008)]. The EEOC and CHRO
are not bound by arbitration agreements. EEOC v. Waffle House, Inc.,
534 U.S. 279, 294 (2002); Ferguson, 2008 WL 5246145, *4 (“Since
[defendant] could not have halted the [agency] proceedings once the
agency decided to look into [plaintiff]'s complaint, it cannot be
that [defendant] waived its rights under the Arbitration Policy for
14

failing to try to do so.”); see also Marie v. Allied Home Mortg.
Corp., 402 F.3d 1, 16 (1st Cir. 2005) (“[A]n employer cannot waive
its right to arbitration by failing to raise the arbitration defense
with the EEOC or by failing to initiate arbitration during the
pendency of the EEOC proceedings. The employer's failure to initiate
arbitration during the pendency of such proceedings merely reflects a
desire to avoid inefficiency and is not action inconsistent with a
desire to arbitrate.”). The Court finds that defendant did not waive
its right to arbitrate by participating in the CHRO/EEOC hearing.
Similarly, defendant did not waive its right to arbitrate by
seeking immediate injunctive relief and enforcement of plaintiff
O’Meara’s confidentiality and non-solicitation provisions in
Massachusetts District Court. [Doc. #15 Ex. 1 ¶¶7-8]. Paragraph 15 of
the Agreements states that, “[n]otwithstanding the aforementioned
obligation to arbitrate, the Employer may sue in any court of
competent jurisdiction for the Employee’s violation of Section 7
and/or 8 of this Agreement.”

Id.

The Court finds that defendant’s

exercise of its rights under paragraphs 7, 8 and/or 15 of the
Agreement does not constitute waiver.
Finally, plaintiffs argue that defendant waived its right to
arbitration by waiting nineteen months before filing this motion to
compel arbitration. On this record, plaintiffs have not shown
prejudice. See PPG Indus., Inc. v. Webster Auto Parts Inc., 128 F.3d
103, 107 (2d Cir. 1997)(“[A] party waives its right to arbitration
when it engages in protracted litigation that prejudices the opposing
15

party.”); Sweater Bee By Banff, Ltd. v. Manhattan Indus., Inc., 754
F.2d 457, 461 (2d Cir. 1985) (“The rule of this circuit...is that the
litigation of substantial issues going to the merits may constitute a
waiver of arbitration.”). Prejudice is defined as “inherent
unfairness—in terms of delay, expense, or damage to a party's legal
position—that occurs when the party's opponent forces it to litigate
an issue and later seeks to arbitrate that same issue.” Doctor’s
Assoc., Inc. v. Distajo, 107 F.3d 126, 134 (2d Cir. 1997); see also
Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc., 252
F.3d 218, 229–30 (2d Cir. 2001).
Nor have the parties engaged in litigation on issues going to
the merits of this case. Plaintiffs filed their law suit in
Connecticut state court on October 16, 2016. After removal to the
federal court on November 9, 2016, defendant did not file an answer
to plaintiffs’ claims on the merits; it responded to plaintiffs’
complaint by filing the instant motion to enforce the Agreements to
arbitrate. No discovery or motion practice was undertaken by either
party during that period. Our Court of Appeals has “often stated the
general rule that waiver of the right to arbitrate occurs when a
party ‘engages in protracted litigation that results in prejudice to
the opposing party.’” Doctor’s Assoc., 107 F.3d at 131 (quoting
Cotton v. Sloane, 4 F.3d 176, 179 (2d Cir. 1993)). On this record,
the Court finds that plaintiffs have not been prejudiced beyond the
normal prejudice suffered by plaintiffs who do not wish to submit
their claims to arbitration and who attempt to avoid doing so.
16

On this record, the Court concludes that defendant did not waive
its right to invoke the arbitration provision of the Employment
Agreements.
CONCLUSION
Accordingly, the Motion to Compel Arbitration and Stay
Proceedings Pending Arbitration [Doc. #11] is GRANTED.

This case is

stayed and the parties are directed to proceed to arbitration. See 9
U.S.C. §3 (If the Court finds that an issue is arbitrable under a
valid arbitration agreement, the court “shall on application of one
of the parties stay the trial of the action until such arbitration
has been had in accordance with the terms of the agreement.”); 9
U.S.C. §4 (If the Court finds a valid arbitration agreement, “the
court shall make an order directing the parties to proceed to
arbitration in accordance with the terms of the agreement.”).

The

Clerk will administratively close this file, subject to reopening by
either party upon conclusion of the arbitration.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [doc. #22] on June
12, 2017, with appeal to the Court of Appeals.

Fed. R. Civ. P.

73(b)-(c).
SO ORDERED at Bridgeport, Connecticut this 19th day of July
2017.
/s/
__
_____________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

17