Doctor's Associates, Inc. v. Kirksey

Filing 18

RULING re 1 Petition to Compel Arbitration, filed by Doctor's Associates, Inc. For the foregoing reasons, DAIs Petition to Compel Arbitration (Doc. No. 1 ) is GRANTED. Kirksey is ordered to submit to arbitration the claims that he raised or could have raised against DAI so that the arbitrator may decide, in the first instance, whether such claims are arbitrable. The Clerk is directed to close the case. Signed by Judge Janet C. Hall on 11/20/2018.(Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DOCTOR’S ASSOCIATES, INC.,
Plaintiff,
v.
KARLTON F. KIRKSEY,
Defendant.

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CIVIL ACTION NO.
3:18-cv-963 (JCH)

NOVEMBER 19, 2018

RULING ON PETITION TO COMPEL ARBITRATION (DOC. NO. 1)
The plaintiff, Doctor’s Associates, Inc. (“DAI”), filed a Petition to Compel
Arbitration. See generally Petition to Compel Arbitration (“DAI’s Petition”) (Doc. No. 1).
DAI is the franchisor of Subway sandwich shops in the United States. Id. at ¶ 2. The
pro se defendant, Karlton F. Kirksey (“Kirksey”), is a Subway franchisee. Memorandum
in Opposition to Petition to Compel Arbitration (“Kirksey’s Opp’n”) (Doc. No. 16) at 1;
Amended Complaint for Damages and Declaratory Relief, Kirksey’s Opp’n (“Kirksey’s
Am. Compl.”) (Doc. No. 16) at ¶ 2.1 On May 31, 2018, Kirksey filed suit against DAI in
Louisiana state court, which DAI later removed to the United States District Court for the
Eastern District of Louisiana (the “Louisiana Lawsuit”). DAI’s Petition at ¶¶ 15, 17;
Kirksey’s Am. Compl. at ¶¶ 12, 14. Pursuant to section 4 of the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 4, DAI moves to compel arbitration of the claims raised by Kirksey in
the Louisiana Lawsuit. DAI’s Petition at ¶ 20.

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Kirksey did not file an Opposition brief to DAI’s Petition to Compel Arbitration. Instead, he
docketed the Amended Complaint that he filed as part of his Louisiana Lawsuit in the United States
District Court for the Eastern District of Louisiana. For the reasons discussed below, see, infra, at 4–5,
the court treats Kirksey’s Amended Complaint as his brief in opposition to DAI’s Petition to Compel
Arbitration.

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For the reasons stated below, DAI’s Petition to Compel Arbitration is granted so
that the arbitrator may decide, in the first instance, whether the claims raised in the
Louisiana Lawsuit are arbitrable.
I.

FACTUAL BACKGROUND
DAI, a Florida corporation with its principal place of business in Connecticut, is

the franchisor of Subway sandwich shops. See DAI’s Petition at ¶ 2; Kirksey’s Am.
Compl. at ¶ 38. Kirksey is a resident of Louisiana. DAI’s Petition at ¶ 3; Kirksey’s Am.
Compl. at ¶ 38.
On or about February 5, 2004, DAI and Kirksey entered into a written contract,
Franchise Agreement #33426 (the “Franchise Agreement”), allowing Kirksey to operate
a Subway restaurant in Louisiana. DAI’s Petition at ¶ 6; Kirksey’s Am. Compl. at ¶ 2;
Exhibit A, DAI’s Petition (“Franchise Agreement”) (Doc. No. 1). Paragraph 10 of the
Franchise Agreement is an arbitration clause, which provides in relevant part:
a. Any dispute, controversy or claim arising out of or relating
to this Agreement or the breach thereof shall be settled by
arbitration. The arbitration shall be administered by an
arbitration agency, such as the American Arbitration
Association (“AAA”) or the American Dispute Resolution
Center, in accordance with its administrative rules including,
as applicable, the Commercial Rules of the AAA and under
the Expedited Procedures of such rules or under the Optional
Rules For Emergency Measures of Protection of the AAA . . .
. The parties agree that Bridgeport, Connecticut shall be the
site for all hearings held under this Paragraph 10 . . . .
...
c. You may only seek damages or any remedy under law or
equity for any arbitrable claim against us or our successors or
assigns.
You agree that our Affiliates, shareholders,
directors, officers, employees, agents and representatives,
and their affiliates shall not be liable nor named as a party in
any arbitration or litigation proceeding commenced by you
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where the claim arises out of or relates to this Agreement.
You further agree that the foregoing parties are intended
beneficiaries of the arbitration clause; and that all claims
against them that arise out of or relate to this Agreement must
be resolved with us through arbitration.
...
e. Any disputes concerning the enforceability or scope of the
arbitration clause shall be resolved pursuant to the Federal
Arbitration Act, 9 U.S.C. § et. seq. (“FAA”), and the parties
agree that the FAA preempts any state law restrictions
(including the site of the arbitration) on the enforcement of the
arbitration clause in this Agreement. If, prior to an Arbitrator’s
final decision, either we or you commence an action in any
court of a claim that arises out of or relates to this Agreement
(except for the purpose of enforcing the arbitration clause or
as otherwise permitted by this Agreement), that party will be
responsible for the other parties’ expenses of enforcing the
arbitration clause, including court costs, arbitration filing fees
and other costs and attorney’s fees.
Franchise Agreement at ¶ 10.
On September 28, 2016, DAI notified Kirksey that he was in default of the
Franchise Agreement. DAI’s Petition at ¶ 10; Kirksey’s Am. Compl. at ¶ 5. On January
6, 2017, DAI initiated arbitration proceedings against Kirksey, which resulted in Kirksey
and DAI entering into an Interim Order. DAI’s Petition at ¶¶ 10, 11; Kirksey’s Am.
Compl. at ¶¶ 6, 7. On August 7, 2017, Kirksey and DAI again engaged in arbitration
and entered into a Second Interim Order. DAI’s Petition at ¶ 12; Kirksey’s Am. Compl.
at ¶¶ 8, 9. In substance, both Interim Orders provided that DAI would not seek to
terminate Kirksey’s Franchise Agreement if Kirksey satisfied certain conditions. DAI’s
Petition at ¶ 12; Kirksey’s Am. Compl. at ¶¶ 7, 10.
On March 21, 2018, DAI notified Kirksey that he was in breach of the Second
Interim Order and that DAI would initiate arbitration proceedings against Kirksey to

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terminate Kirksey as a Subway franchisee. DAI’s Petition at ¶ 13; Kirksey’s Am. Compl.
at ¶ 11. The arbitration hearing was scheduled for June 1, 2018, in Bridgeport,
Connecticut (the “June Arbitration”). DAI’s Petition at ¶ 14.
On May 31, 2018, Kirksey filed suit against DAI in Louisiana state court (the
“Louisiana Lawsuit”), seeking to enjoin the June Arbitration from being held. Verified
Petition for a Temporary Restraining Order, Preliminary and Permanent Injunction,
Exhibit B, DAI’s Petition (Doc. No. 1). That same day, the Louisiana state court issued
a Temporary Restraining Order staying the June Arbitration and ordering DAI to show
cause why a preliminary injunction in the form and substance of the Temporary
Restraining Order should not issue. Order, Exhibit C, DAI’s Petition (Doc. No. 1).
DAI subsequently removed the Louisiana Lawsuit to the United States District
Court for the Eastern District of Louisiana. DAI’s Petition at ¶ 17; Kirksey’s Am. Compl.
at ¶ 14. On June 25, 2018, Kirksey filed an Amended Complaint in federal district court,
in which he seeks, inter alia, a declaration that the arbitration provisions in the
Franchise Agreement are unenforceable under Louisiana law, as well as actual
damages, punitive damages, and attorneys’ fees. Kirksey’s Am. Compl. at ¶ 145.
On June 8, 2018, DAI filed in this court a Petition to Compel Arbitration of
Kirksey’s claims in the Louisiana Lawsuit. See generally DAI’s Petition. Although
Kirksey was represented by counsel in the Louisiana Lawsuit, he is a pro se litigant in
the proceeding before this court. See Kirksey’s Opp’n at 1. In response to DAI’s
Petition to Compel Arbitration, Kirksey attached the Amended Complaint that he filed in
Louisiana federal court. Id. Kirksey represents that the Amended Complaint, which
was drafted by his attorney in the Louisiana Lawsuit, contains his “substantive

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arguments” in opposition to DAI’s Petition to Compel Arbitration. Id. Having reviewed
Kirksey’s submissions, the court concludes that his Amended Complaint does, in fact,
address arguments made by DAI in favor of arbitration. The court will therefore treat
Kirksey’s Amended Complaint as his brief in opposition to DAI’s Petition to Compel
Arbitration.
II.

LEGAL STANDARD
The Federal Arbitration Act (the “FAA”) provides that “a written provision in a

contract to settle by arbitration a controversy thereafter arising out of such contract shall
be valid, irrevocable, and enforceable.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 73 (2d
Cir. 2017) (quoting 9 U.S.C. § 2) (internal quotation marks and alterations omitted).
“The FAA's primary purpose is to ensure that private agreements to arbitrate are
enforced according to their terms.” In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d
113, 127 (2d Cir. 2011) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford,
Jr. Univ., 489 U.S. 468, 479 (1989)) (internal alterations omitted). While “a party cannot
be required to submit to arbitration any dispute which he has not agreed so to submit,”
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (internal quotation
marks omitted), courts are required to “construe arbitration clauses as broadly as
possible,” Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19 (2d Cir.1995)
internal quotation marks omitted), and “any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration,” Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). Thus, courts “will compel arbitration
unless it may be said with positive assurance that the arbitration clause is not

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susceptible of an interpretation that covers the asserted dispute.” In re Am. Exp. Fin.
Advisors Sec. Litig., 672 F.3d at 128 (internal quotation marks omitted).
In deciding motions to compel arbitration, courts in this Circuit apply a “standard
similar to that applicable for a motion for summary judgment.” Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 229 (2d Cir. 2016). Thus, “the court considers all relevant,
admissible evidence submitted by the parties and contained in pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, and draws all
reasonable inferences in favor of the non-moving party.” Meyer, 868 F.3d at 74
(internal quotation marks, citations, and alterations omitted). “If there is an issue of fact
as to the making of the agreement for arbitration, then a trial is necessary.” Bensadoun
v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). However, “where the undisputed facts
in the record require the matter of arbitrability to be decided against one side or the
other as a matter of law, [the court] may rule on the basis of that legal issue and avoid
the need for further court proceedings.” Nicosia, 834 F.3d at 229 (internal quotation
marks omitted).
III.

DISCUSSION
Kirksey argues that the Louisiana Lawsuit is not arbitrable because the suit

seeks to invalidate the Franchise Agreement’s arbitration provisions. Kirksey’s Am.
Compl. at ¶¶ 22–24. In particular, the Louisiana Lawsuit alleges that the forum
selection clause in the arbitration provisions is invalid and unenforceable under
Louisiana law. Id. at ¶¶ 22, 106. It also alleges that “the arbitration clause lacks
mutuality to such an extent that it is unenforceable.” Id. at ¶¶ 22, 84. Kirksey contends

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that the court, rather than the arbitrator, must decide these threshold questions of
whether the parties entered into a valid arbitration agreement. Id. at ¶¶ 19–24.
DAI, on the other hand, argues that the Franchise Agreement’s delegation
provision clearly and unmistakably delegates questions regarding the validity and
enforceability of the arbitration provision to the arbitrator. See Reply in Further Support
of Petition to Compel Arbitration (“DAI’s Reply”) (Doc. No. 17) at 3. Because Kirksey
does not specifically challenge the validity of the Franchise Agreement’s delegation
provision, DAI argues that the court must enforce the delegation provision and,
accordingly, compel arbitration of the threshold questions regarding the validity and
enforceability of the arbitration provision. See id. at 3–6.
Ordinarily, it is the role of the district court to determine whether a dispute is
arbitrable based on “(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. Express Fin. Advisors Sec. Litig., 672 F.3d at 128.
However, the threshold question of whether a dispute is arbitrable must be referred to
the arbitrator where “there is clear and unmistakable evidence from the arbitration
agreement, as construed by the relevant state law, that the parties intended that the
question of arbitrability shall be decided by the arbitrator.” Contec Corp. v. Remote Sol.,
Co., 398 F.3d 205, 208 (2d Cir. 2005) (emphasis in the original); see also VRG Linhas
Aereas S.A. v. MatlinPatterson Glob. Opportunities Partners II L.P., 717 F.3d 322, 325
(2d Cir. 2013) (“[Q]uestions of arbitrability are to be sent to arbitration if and only if the
parties clearly and unmistakably expressed their intention to do so.”). As the Supreme
Court explained in Rent-A-Center, “parties can agree to arbitrate ‘gateway’ questions of

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‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their
agreement covers a particular controversy,” by including a so-called “delegation
provision” in their contract. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010).
Because “[a delegation provision] is simply an additional, antecedent agreement the
party seeking arbitration asks the federal court to enforce, [ ] the FAA operates on this
additional arbitration agreement just as it does on any other.” Id. at 70.
Thus, “[a]s a matter of substantive federal arbitration law,” courts must treat a
delegation provision as severable from “the remainder of the contract” in which it
appears, just as they would do with any other arbitration provision. Id. at 70–72. As
Rent-A-Center made clear, “[a]pplication of the severability rule does not depend on the
substance of the remainder of the contract.” Id. at 72. As a result, even where a
delegation provision appears in a contract that contains other arbitration clauses, the
delegation provision is severable from all other provisions in the contract, including from
the other arbitration clauses. Id. at 71–72.
The practical consequence of applying the severability rule to delegation
provisions is that “a party’s challenge to [the validity of] another provision of the
contract, or to the contract as a whole, does not prevent a court from enforcing” the
delegation provision. Id. at 70, 72. Instead, just as with any other arbitration clause,
courts must “apply the [delegation] clause to all disputes within its scope unless [1] the
validity challenge is to the [delegation] clause itself or [2] the party disputes the
formation of the contract.” Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287,
298–99 (2010). Put differently, there are only two types of challenges to arbitration that
cannot be delegated to the arbitrator through a delegation clause.

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First, courts, not arbitrators, must decide challenges directed specifically to the
validity of the delegation provision itself. See Rent-A-Ctr., 561 U.S. at 71, 72. Because
“arbitrators derive their authority to resolve disputes only because the parties have
agreed in advance to submit such grievances to arbitration,” AT & T Techs., Inc. v.
Commc'ns Workers of Am., 475 U.S. 643, 648–49 (1986), the court may not compel
arbitration of arbitrability issues without first addressing challenges to the validity of the
delegation provision, Rent-A-Ctr., 561 U.S. at 71, 72. To be clear, however, “the basis
of challenge [must] be directed specifically to the [the delegation provision] before the
court will intervene.” Id. at 71. A party cannot avoid arbitration by arguing that the
contract’s arbitration provisions are generally invalid, even where a challenge to the
delegation clause is implicit in the party’s claim that the entire agreement to arbitrate is
invalid. See id. at 72 (finding that the arbitrator must decide the respondent’s claims
that the arbitration agreement was unconscionable because such claims were not
directed specifically to the agreement’s delegation provision); Pingel v. Gen. Elec. Co.,
No. 3:14-CV-00632 CSH, 2014 WL 7334588, at *6 (D. Conn. Dec. 19, 2014) (holding
that, under Rent-A-Center, a claim that the entire agreement to arbitrate is procedurally
unconscionable must be submitted to the arbitrator under the agreement’s delegation
provision).
Second, it is the role of the court, not the arbitrator, to resolve challenges to “the
very existence of the contract embodying the arbitration clause.” Specht v. Netscape
Commc'ns Corp., 306 F.3d 17, 26 (2d Cir. 2002) (internal quotation marks omitted).
The Supreme Court has expressly distinguished the issue of a contract’s “validity” –
which can be delegated to the arbitrator through a delegation clause, see Rent-A-Ctr.,

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561 U.S. at 72 – from the issue of a contract’s “formation,” which must be decided by
the court, see Granite Rock, 651 U.S. 299. See also Rent-A-Ctr., 561 U.S. at 70 n.2
(“The issue of the agreement's ‘validity’ is different from the issue whether any
agreement between the parties ‘was ever concluded.’”). Issues of contract validity
include, inter alia, disputes over whether the contract containing the arbitration clause
was unconscionable, see Rent-A-Ctr., 561 U.S. at 72, fraudulently induced, or rendered
invalid by the illegality of one of its provisions, see Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 444, 446 (2006). In contrast, issues of contract formation
include, inter alia, disputes over “whether the alleged obligor ever signed the contract,
whether the signor lacked authority to commit the alleged principal, and whether the
signor lacked the mental capacity to assent.” Buckeye Check Cashing, 546 U.S. at 444
n.1 (internal citations omitted). While the Second Circuit has long recognized the
exception to arbitration for disputes over “whether a contract was ever made,” it has
repeatedly stressed that this exception is a “limited” one. Ipcon Collections LLC v.
Costco Wholesale Corp., 698 F.3d 58, 61 (2d Cir. 2012); see also Dedon GmbH v.
Janus et Cie, 411 F. App'x 361, 363 (2d Cir. 2011) (“Granite Rock reconfirms this
circuit's well-established precedent that where a party challenges the very existence of
the contract containing an arbitration clause, a court cannot compel arbitration without
first resolving the issue of the contract's existence.”); Denney v. BDO Seidman, L.L.P.,
412 F.3d 58, 68 (2d Cir. 2005) (noting that the Second Circuit rule in Sphere Drake
“protect[s] parties from arbitration only in those narrowly-limited circumstances where
the very existence of a contract is in doubt.”).

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In this case, DAI and Kirksey have clearly and unmistakably agreed to send
questions of arbitrability to the arbitrator. The Franchise Agreement provides that “[t]he
arbitration shall be administered by an arbitration agency, such as the American
Arbitration Association (“AAA”) or the American Dispute Resolution Center, in
accordance with its administrative rules[.]” Franchise Agreement at ¶ 10(a). Both the
AAA and the ADRC rules explicitly empower the arbitrator to determine the scope,
existence, and validity of the Franchise Agreement’s arbitration clause. See AAA
Commercial Rule 7(a) (“The arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence, scope, or validity of
the arbitration agreement or to the arbitrability of any claim or counterclaim.”); ADRC
Commercial Rule 4 (“The arbitrator(s) has the authority to rule on his or her own
jurisdiction including any questions concerning the existence of or the scope or validity
of the arbitration agreement.”). The Second Circuit has held that, when “parties
explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability,
the incorporation serves as clear and unmistakable evidence of the parties' intent to
delegate such issues to an arbitrator.” Contec Corp., 398 F.3d at 208.
Furthermore, paragraph 10(e) of the Franchise Agreement provides that “[a]ny
disputes concerning the enforceability or scope of the arbitration clause shall be
resolved pursuant to the Federal Arbitration Act[.]” As this court has found in several
prior cases involving identical delegation provisions, such language constitutes clear
and unmistakable evidence that the parties agreed to delegate questions of arbitrability
to the arbitrator. See, e.g., Doctor's Assocs., Inc. v. El Turk, No. 3:17-CV-2019 (JCH),
2018 WL 3238701, at *9 (D. Conn. Feb. 28, 2018); Doctor's Assocs., Inc. v.

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Rahimzadeh, No. 3:17-CV-2126 (JCH), 2018 WL 1704757, at *4 (D. Conn. Apr. 9,
2018); Doctor's Assocs., Inc. v. Repins, No. 17-CV-323 (JCH), 2018 WL 513722, at *6
(D. Conn. Jan. 22, 2018). Thus, in light of this language and the incorporation of the
AAA and ADRC rules, the court finds clear and unmistakable evidence that the
Franchise Agreement delegates disputes over the scope, enforceability, and validity of
the Franchise Agreement’s arbitration clause to the arbitrator.
Notwithstanding this delegation provision, Kirksey argues that the Louisiana
Lawsuit is not arbitrable because it addresses “threshold issues” of arbitrability. See
Kirksey’s Am. Compl. at ¶¶ 19–24. Specifically, Kirksey cites to Rent-A-Center for the
proposition that, while the arbitrator must decide validity challenges directed generally to
a contract that contains an arbitration clause, the court must decide challenges directed
specifically to that contract’s arbitration clause. See id. at ¶¶ 20–23. Based on this
reading of Rent-A-Center, Kirksey reasons that the Louisiana Lawsuit must be resolved
by the court, not the arbitrator, because it attacks the validity of the Franchise
Agreement’s arbitration provisions, not the validity of the Franchise Agreement as a
whole. See id. at ¶¶ 22–24.
Kirksey misunderstands the holding in Rent-A-Center. It is true that, if the
Franchise Agreement did not contain a delegation provision, the court would be
required to decide challenges directed specifically to the Franchise Agreement’s
arbitration clause. See Rent-A-Ctr., 561 U.S. at 70–71. However, when the agreement
contains a delegation provision, Rent-A-Center instructs that the arbitrator must decide
all validity challenges to that agreement’s arbitration provisions, except for those
directed specifically and expressly towards the delegation provision itself. See, supra,

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at 9. If Kirksey were pro se when he filed the Amended Complaint, the court might have
considered interpreting the Amended Complaint’s citation to Rent-A-Center as an
attempt to raise a specific challenge to the Franchise Agreement’s delegation provision.
See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (“[C]ourts must construe pro se
pleadings broadly, and interpret them to raise the strongest arguments that they
suggest.”) (internal quotation marks omitted). The court notes, however, that the
Amended Complaint was drafted by Kirksey’s attorney in the Louisiana Lawsuit.
Moreover, notwithstanding the Amended Complaint’s citations to Rent-A-Center, none
of Kirksey’s challenges to arbitration are directed specifically to the Agreement’s
delegation provision. Instead, the Louisiana Lawsuit challenges the validity of (1) the
arbitration provision’s forum selection clause on the grounds that it is unenforceable
under Louisiana law, and (2) the arbitration provision in its entirety on the grounds that it
lacks mutuality to such an extent that it is unenforceable. See, supra, at 6–7. Although
Kirksey’s argument that the entire arbitration agreement is invalid implicitly contains a
challenge to the delegation clause, it is not sufficiently targeted to the delegation clause
to avoid arbitration under Rent-A-Center. See, supra, at 7–9.
Nor does Kirksey challenge the very existence of the Franchise Agreement. He
does not, for example, dispute that he entered into the Franchise Agreement with DAI or
that he operates a Subway restaurant pursuant to that Agreement. See Kirksey’s Am.
Compl. at ¶ 38 (“Kirksey executed the Franchise Agreement in Louisiana for a franchise
located in Louisiana after negotiating with and with the assistance of . . . DAI’s
development agent in Louisiana[.]”). In fact, he expressly acknowledges that “[his]
relationship with DAI is governed by a Franchise Agreement,” id. at ¶ 127, and even

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seeks damages on the basis of DAI’s move to terminate that Agreement without good
cause, see id. at ¶¶ 135, 145. Moreover, Kirksey takes pains to note that the Louisiana
Lawsuit does not “seek to invalidate the Franchise Agreement as a whole; rather, it
seeks to invalidate the arbitration clause itself.” Id. at ¶ 23. In accordance with this
representation, all of Kirksey’s challenges to arbitration are directed to the Franchise
Agreement’s arbitration clause, not to the Franchise Agreement in its entirety. See,
e.g., id. at ¶¶ 84, 105, 107.
Therefore, while Kirksey attempts to draw comparisons between his suit and the
suit at issue in Alemayehu, see id. at ¶ 70, the two are wholly distinguishable. At issue
in Alemayehu was whether an application to become a Subway franchisee, which itself
contained an arbitration clause, created a contract between DAI and Alemayehu. See
Doctor's Assocs., Inc. v. Alemayehu, 321 F. Supp. 3d 305, 307–08 (D. Conn. 2018)
(“[T]he dispute before the court is whether the Franchise Application is a binding
contract[.]”). In other words, Alemayehu involved the “narrowly-limited circumstances
where the very existence of a contract is in doubt.” Denney, 412 F.3d at 68. Here, in
contrast, there is no issue of fact as to “whether any agreement between [DAI and
Kirksey] was ever concluded.” Rent-A-Ctr., 561 U.S. at 70 n.2 (internal quotation marks
omitted).
Having determined that the arbitrability of Kirksey’s claims is a question for the
arbitrator, the court must compel arbitration pursuant to the Franchise Agreement’s
delegation provision. As the Supreme Court has explained, “the [FAA] 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

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agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218
(1985) (emphasis in original). Therefore, the court compels arbitration as to the
arbitrability of Kirksey’s claims.
IV.

CONCLUSION
For the foregoing reasons, DAI’s Petition to Compel Arbitration (Doc. No. 1) is

GRANTED. Kirksey is ordered to submit to arbitration the claims that he raised or could
have raised against DAI so that the arbitrator may decide, in the first instance, whether
such claims are arbitrable. The Clerk is directed to close the case.
SO ORDERED.
Dated this 19th day of November 2018 at New Haven, Connecticut.

/s/ Janet C. Hall _
Janet C. Hall
United States District Judge

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