Bettin on Blue Farms, LLC v. Dole Berry Company

Filing 17

ORDER granting 9 --motion to compel arbitration; denying 11 --motion for leave to reply; denying 15 --motion to strike; denying 10 --requestthat Dole pay the arbitral filing fee; directing the parties, within thirty days after the arbitral decision, to stipulate to dismissal or to move to confirm or to vacate the award; directing the clerk to ADMINISTRATIVELY CLOSE the case. Signed by Judge Steven D. Merryday on 8/14/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BETTIN’ ON BLUE FARMS, LLC,
Plaintiff,
v.

CASE NO. 8:18-cv-755-T-23JSS

DOLE BERRY COMPANY,
Defendant.
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ORDER
Two years after signing an agreement in which Bettin’ on Blue Farms agreed
to harvest and pack blueberries and in which Dole Berry Company agreed to
“endeavor to obtain the best market price available” for the blueberries, Bettin’ on
Blue Farms sues (Doc. 1) Dole for breach of contract, conversion, unjust enrichment,
and negligent misrepresentation and for “unfair conduct” under 7 U.S.C. § 499(b)(4).
Dole allegedly sold Bettin’ on Blue Farms’ blueberries in 2016 for less than the
market price. Bettin’ on Blue Farms requests a declaration that several provisions in
the parties’ agreement are invalid, and Dole moves (Doc. 9) to compel arbitration
under the Federal Arbitration Act. The parties argued the motion at an
August 10, 2018 hearing.

DISCUSSION
I. Arbitrability
The parties agreed to arbitrate “any claim, dispute, or difference” “in
connection with” the agreement. (Doc. 1-1 at 9) Resisting arbitration, Bettin’ on
Blue Farms argues that three purportedly invalid or unenforceable provisions (but not
the arbitration provision) preclude arbitration.1 But the parties included in the
agreement two provisions that delegate to the arbitrator the power to resolve a
dispute about arbitrability. First, the parties agreed to an arbitrator’s deciding “any
claim, dispute, or difference” in connection with the agreement, and a dispute about
arbitrability is a dispute in connection with the agreement. Second, the parties
agreed that a dispute “shall be submitted to arbitration in accordance with the
Commercial Rules of the” AAA. Terminix Intern. Co., LP v. Palmer Ranch Ltd. P’ship,
432 F.3d 1327, 1332–33 (11th Cir. 2005), holds that an indistinguishable provision
evinces a “clear and unmistakable” intent that the arbitrator decide an arbitrability
dispute. Directing the parties to arbitration and adopting the rules of the AAA, the
“delegation” provisions compel granting the motion to compel arbitration of every
dispute, including a “gateway” dispute.2 See, e.g., Prima Paint Corp. v. Flood & Conklin
1

Bettin’ on Blue Farms attacks as invalid the prohibition on punitive damages, the limitation
on the attorney’s fee recoverable by the prevailing party, and the purported limitation on the time
within which to sue.
2

Bettin’ on Blue Farms submits a convoluted argument that another provision, which
prohibits the arbitrator’s adding to or “otherwise amend[ing]” the agreement, precludes the
arbitrator’s resolving Bettin’ on Blue Farms’ arguments about the three purportedly invalid or
unenforceable provisions. The argument lacks merit for at least two reasons. First, an arbitrator’s
(continued...)

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Mfg. Co., 388 U.S. 395 (1967) (affirming compelled arbitration because the appellant
submitted no challenge to the specific arbitration provision); Rent-A-Center, West, Inc.
v. Jackson, 561 U.S. 63, 70–71 (2010) (holding that “a party’s challenge to another
provision of the contract, or to the contract as a whole, does not prevent a court from
enforcing a specific agreement to arbitrate”). Because the parties agreed that the
arbitrator must resolve a dispute, which includes a dispute about arbitrability, the
motion to compel arbitration warrants granting.
2. Arbitral filing fee
Finally, Bettin’ on Blue Farms cites Green Tree Fin. Corp.-Alabama v. Randolph,
531 U.S. 79 (2000), and requests that Dole pay the arbitral filing fee, which Bettin’ on
Blue Farms states “could be in excess of $14,700.” (Doc. 10 at 17) But Bettin’ on
Blue Farms cites no contractual or statutory provision that obligates Dole to pay the
arbitral filing fee for Bettin’ on Blue Farms. Although Green Tree Fin. Corp.-Alabama,
531 U.S. at 90–91, states that the “existence of large arbitration costs” might in some
circumstance render an arbitration agreement unenforceable,3 Bettin’ on Blue Farms

2

(...continued)
refusal to apply an invalid or unlawful provision is not equivalent to the arbitrator’s “amend[ing]”
the agreement. Rather than prohibit severance, the provision cited by Bettin’ on Blue Farms appears
to prohibit reformation or some other excursion outside the contract by the arbitrator. Second, the
parties agreed unambiguously to the severability of an invalid provision (Doc. 1-1 at ¶ 14(d)) and to
the application of Florida law. If the arbitrator finds a provision invalid under Florida law and
refuses to apply the provision, the arbitrator has not “amended” the agreement. On the contrary, the
arbitrator has applied Florida law and the severability provision, a result consistent with the
agreement.
3

Green Tree suggests discomfort that an arbitral filing fee might prevent a person “such as
Randolph” from attempting to secure relief. Bettin’ on Blue Farms is not a consumer like the
plaintiff in Green Tree ; Bettin’ on Blue Farms is a commercial farm.

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disclaims arguing that the arbitral filing fee renders the arbitration agreement
unenforceable. (Doc. 10 at 18 n.3) In any event, an argument that an unaffordable
filing fee precludes arbitration succeeds only if supported by evidence that the party
resisting arbitration cannot afford the fee. Musnick v. King Motor Co. of Ft. Lauderdale,
325 F.3d 1255, 1260 (11th Cir. 2003). The argument in Bettin’ on Blue Farms’
unsworn response is not evidence, and Bettin’ on Blue Farms submits no affidavit,
declaration, account statement, or other evidence to show that the arbitral filing fee is
prohibitively expensive for Bettin’ on Blue Farms. Even if Bettin’ on Blue Farms
submits evidence to support its argument, Bettin’ on Blue Farms’ argument cannot
succeed because Rule 53 of the AAA’s Commercial Rules authorizes the AAA to
defer or to reduce the arbitral filing fee “in the event of extreme hardship on the part
of any party.” See Anders v. Hometown Mortg. Serv., Inc., 346 F.3d 1024, 1028
(11th Cir. 2003) (suggesting that the AAA rule forecloses an argument against
arbitration based on a party’s inability to pay the AAA filing fee).
CONCLUSION
The motion (Doc. 9) to compel arbitration is GRANTED, and the action is
stayed pending an arbitral decision. No later than thirty days after the decision, the
parties either must stipulate to the dismissal of this action or must move to confirm or
to vacate the award. The motion (Doc. 11) for leave to reply is DENIED, and the
motion (Doc. 15) to “strike” Dole’s notice of supplemental authority is DENIED.

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Bettin’ on Blue Farms’ request (Doc. 10 at 17) that Dole pay the arbitral filing fee is
DENIED, and the clerk is directed to ADMINISTRATIVELY CLOSE the case.
ORDERED in Tampa, Florida, on August 14, 2018.

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