Nicholson v. NPC International, Inc.

Filing 6

ORDER ATTACHED denying without prejudice for failure to comply with Local Rule 3.01(g) 4 Motion to Compel Arbitration and to Stay; denying 4 Motion to Dismiss; and directing counsel to personally confer within seven (7) days. Signed by Judge Richard A. Lazzara on 3/9/2017. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHANE NICHOLSON,
Plaintiffs,
v.

CASE NO. 8:17-cv-529-T-26TGW

NPC INTERNATIONAL, INC.
d/b/a Pizza Hut,
Defendant.
/

ORDER
UPON DUE AND CAREFUL CONSIDERATION of the Defendant’s submissions, it
is ORDERED AND ADJUDGED as follows:
1) Defendant’s Motion to Dismiss (Dkt. 4) is denied. Even if this Court ultimately
concludes that Plaintiff’s claim is subject to mandatory and binding arbitration, it would commit
error by dismissing the complaint. See Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699
(11th Cir. 1992). The proper procedure would be to stay the case pending arbitration rather than
dismissing it. Id.1
2) Defendant’s Motions to Compel Arbitration and to Stay Proceedings (Dkt. 4) are
denied for failure to comply with the conferral requirements of Local Rule 3.01(g).
1

To the extent that Bender conflicts with Caley v. Gulfstream Aerospace Corp., 428
F.3d 1359 (11th Cir. 2005) and Lambert v. Austin Ind., 544 F.3d 1192 (11th Cir. 2008), Bender
controls because it is the earlier decided case. See United States v. Ohayon, 483 F. 3d 1281,
1289 (11th Cir. 2007); Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir. 1986).

3) Counsel for the parties shall confer personally within seven (7) days of the entry of
this order in a good faith effort to resolve the merits of the motion without Court intervention.

DONE AND ORDERED at Tampa, Florida, on March 9, 2017.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

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