Walker v. Magic Burger, LLC

Filing 15

ORDER reserving ruling on 12 motion to dismiss. This matter will summarily proceed to a jury trial on the question of whether an arbitration agreement exists between Plaintiff and Defendant. On or before February 17, 2015, the parties shall jointly file their proposed case management plan. Signed by Judge Roy B. Dalton, Jr. on 2/5/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ALON WALKER,
Plaintiff,
v.

Case No. 6:14-cv-1751-Orl-37DAB

MAGIC BURGER, LLC,
Defendant.
ORDER
This cause is before the Court on the Defendant’s Motion to Dismiss and Compel
Arbitration with Incorporated Memorandum of Law (Doc. 12), filed December 8, 2014;
and Plaintiff’s Statement in Opposition to Defendant’s Motion to Dismiss and Supporting
Memorandum of Law (Doc. 14), filed December 22, 2014.
BACKGROUND
This Family Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”) action is
before the Court on Defendant Magic Burger, LLC’s request that the Court order Plaintiff
Alon Walker to arbitrate her claims pursuant to the Federal Arbitration Act, 9 U.S.C.
§§ 1–16 (“FAA”), and dismiss her Complaint (Doc. 1) pursuant to Federal Rule of Civil
Procedure 12(b)(1). (Doc. 12 (“Motion”).) Plaintiff filed a Response to the Motion.
(Doc. 14.) For the reasons set forth below, the Court will reserve ruling on the Motion
and will proceed summarily to a trial in accordance with 9 U.S.C. § 4.
LEGAL STANDARDS
I.

Rule 12(b)(1)
A factual challenge that an extrinsic document (such as an arbitration agreement)

deprives the Court of its power to hear a claim may be raised in a Rule 12(b)(1) motion.
See Norfolk S. Ry. Co. v. Fla. E. Coast Ry., LLC, No. 3:13-cv-576-J-34GRK, 2014 WL
757942, at *1 n.2 (M.D. Fla. Feb. 26, 2014); Owings v. T-Mobile USA, Inc.,
978 F.Supp.2d 1215, 1222 (M.D. Fla. 2013). 1 When resolving such a motion, the Court
may consider matters outside the pleadings, and it must construe all facts in favor of the
non-moving party. See Magnolia Capital Advisors, Inv. v. Bear Stearns & Co.,
272 F. App’x 782, 784–85 (11th Cir. 2008); Schriever v. Navient Solutions, Inc.,
No. 2:14-cv-596-FtM-38CM, 2014 WL 7273915, at *2 (M.D. Fla. Dec. 19, 2014). If all
claims in an action are subject to arbitration, then dismissal of the action is appropriate.
See Hardy v. PSI Family Servs., Inc., No. 3:11-cv-56-J-32JRK, 2011 WL 1344422, at *3
(M.D. Fla. Apr. 8, 2011).
II.

FAA
The FAA embodies a liberal federal policy favoring arbitration agreements, 2 and

it provides the substantive law controlling the validity and enforcement of such
agreements—including in federal statutory employment claims. See Caley v. Gulfstream
Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005); Weeks v. Harden Mfg. Corp.,
291 F.3d 1307, 1313 (11th Cir. 2002) (noting that “arbitration agreements
encompassing claims brought under federal employment discrimination statutes have . .
. received near universal approval”). When a party requests an order compelling
1

But see Lipcon v. Underwriters at Lloyd’s London, 148 F.3d 1285, 1289–90
(11th Cir. 1998) (observing that Rule 12(b)(1) does not apply to motions challenging
venue where subject matter jurisdiction is plain); VI MedRx, LLC v. Hurley Consulting
Assocs., Ltd., 3:11-cv-1-34-J-37TEM, 2012 WL 10494, at *2 (M.D. Fla. Jan. 3, 2012)
(noting that a motion to compel arbitration and dismiss a complaint is properly asserted
in a Rule 12(b)(3) motion).
2 Florida public policy also favors arbitration. See Shotts v. OP Winter Haven,
Inc., 86 So. 3d 456, 472 (Fla. 2011).

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arbitration under the FAA, the Court must:
hear the parties, and upon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith is not in issue,
the court shall make an order directing the parties to proceed to arbitration
in accordance with the terms of the agreement. . . . If the making of the
arbitration agreement or the failure, neglect, or refusal to perform the
same be in issue, the court shall proceed summarily to the trial thereof.
9 U.S.C. § 4 (emphasis added). This framework exists because arbitration under the
FAA “is a matter of consent, not coercion.” See Volt Info. Scis., Inc. v. Bd. of Trs. of
Leland Stanford Jr. Univ., 489 U.S. 468, 479 (1989); United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960) (“[A] party cannot be required
to submit to arbitration any dispute which he has not agreed so to submit.”).
Taking into account the general federal policy favoring arbitration, in this Circuit,
a party who denies the existence of a valid arbitration agreement “must substantiate the
denial of the contract with enough evidence to make the denial colorable.” See Chastain
v. Robinson Humphrey Co., 957 F.2d 851, 855 (11th Cir. 1992). “A party cannot place
the making of the arbitration agreement in issue simply by opining that no agreement
exists.” Id. Rather, “[t]o make a genuine issue entitling the party seeking to avoid
arbitration to a trial by jury on the arbitrability question, an unequivocal denial that the
agreement had been made is needed, and some evidence should be produced to
substantiate the denial.” Id. at 854.
DISCUSSION
The evidence before the Court concerning arbitrability includes: (1) an
unauthenticated and unsigned document titled “Mutual Agreement to Arbitrate”
(Doc. 12-1 (“Mutual Agreement”)); (2) a signed document dated April 20, 2012, titled

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“Receipt of Employment Documents” (Doc. 12-2 (“Receipt”)); 3 and (3) Plaintiff’s Sworn
Affidavit admitting that the signature on the Receipt is hers, but denying that she
entered into any arbitration agreement with Defendant (Doc. 14-1, ¶¶ 6–16). Notably,
Defendant did not provide the Court with an affidavit authenticating the Mutual
Agreement or the Receipt or setting forth any facts that would permit an inference that
the “Mutual Agreement” is the “Arbitration Agreement” listed on the Receipt. 4 In
contrast, in her Sworn Affidavit, Plaintiff unequivocally denies that she assented to the
Mutual Agreement or even saw it before Defendant filed it with the Court. (See id.)
Given the evidentiary record presented, the Court is not “satisfied that the making
of the agreement for arbitration” is established. Thus, the Court must “proceed
summarily” to a jury trial to determine whether an agreement to arbitrate exists, and if
so, the terms of such agreement. 5 See 9 U.S.C. § 4; Magnolia Capital, 272 F. App’x at
784–85 (reversing order compelling arbitration and remanding to trial court for “a trial as
to the making of an agreement to arbitrate”); Wheat, First Secs., Inc. v. Green, 993 F.2d
814, 817–18 (11th Cir. 1993) (finding that the district court had a “responsibility” to order
a trial concerning the existence of an arbitration agreement where the plaintiff’s denial
was “colorable”); see also Caseres v. Texas de Brazil (Orlando) Corp., No. 6:13-cv3

The Receipt lists ten documents—including “Arbitration Agreement”—with the
initials “AW” marked next to each document. (See id. (listing “Cash Register Policy,”
“Drug Free Workplace Policy,” and “Receipt of Employment Documents”).)
4 For instance, Defendant could have submitted a sworn affidavit that the “Mutual
Agreement” was the only agreement provided to its employees, or that it was the
agreement provided during the time frame Plaintiff was hired, or that other specifics
concerning Defendant’s hiring, training, and recordkeeping procedures permits an
inference that the Plaintiff actually received the Mutual Agreement—as opposed to
some other “arbitration agreement.”
5 Plaintiff’s Complaint includes a demand for jury trial (Doc. 1); accordingly, a jury
trial is required on the issue of arbitrability. See 9 U.S.C. § 4 (“If no jury trial be
demanded by the party alleged to be in default, . . . the court shall hear and determine
such issue.”).

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1001-Orl-37KRS, 2013 WL 5921539, at *6 (M.D. Fla. Nov. 4, 2013) (ordering a trial
pursuant to 9 U.S.C. § 4 based on evidence raising a “colorable issue” that an
arbitration agreement was “procured by fraud”); Williams v. MetroPCS Wireless, Inc.,
No. 09-22890-CIV, 2010 WL 62605, at *10 (S.D. Fla. Jan. 5, 2010) (ordering a jury trial
where “a genuine issue of material fact” existed concerning contract formation).
CONCLUSION
Upon consideration, it is hereby ORDERED AND ADJUDGED:
1.

This matter will summarily proceed to a jury trial on the question of
whether an arbitration agreement exists between Plaintiff and Defendant.

2.

On or before February 13, 2015, the parties shall meet and confer
concerning a case management plan that includes a jury trial no later than
May 18, 2015, and deadlines for discovery and dispositive motions related
only to the question of arbitrability.

3.

On or before February 17, 2015, the parties shall jointly file their proposed
case management plan.

4.

Pending completion of trial, the Court will RESERVE RULING on the
Defendant’s Motion to Dismiss and Compel Arbitration with Incorporated
Memorandum of Law (Doc. 12).

DONE AND ORDERED in Chambers in Orlando, Florida, on February 5, 2015.

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Copies:
Counsel of Record

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