Williams, Jr. et al v. Voya Financial Advisors, Inc.
ORDER: Defendant Voya Financial Advisors, Inc.'s Motion to Compel Arbitration and Stay this Action (Doc. # 5) is granted. The case is referred to FINRA arbitration and is stayed pending resolution thereof. The Clerk is directed to stay an d administratively close the case. The parties are directed to file a joint report of the status of the arbitration proceeding by March 8, 2021, and every ninety days thereafter. The parties must immediately notify the Court upon the arbitrator's resolution of the claims asserted in this case. Signed by Judge Virginia M. Hernandez Covington on 1/6/2021. (AR)
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 1 of 20 PageID 413
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
O’DOLL VAN WILLIAMS, JR.,
MARCUS ROBINSON, GWENDOLYN
ROBINSON, BRANDI WHITFIELD,
KIMBERLY SAUNDERS, and
Case No. 8:20-cv-2611-T-33JSS
VOYA FINANCIAL ADVISORS, INC.,
This matter comes before the Court upon consideration of
Defendant Voya Financial Advisors, Inc.’s Motion to Compel
Arbitration and Stay This Action (Doc. # 5), filed on November
Saunders, and Johnnie Hall responded on November 30, 2020.
(Doc. # 17). For the reasons below, the Motion is granted.
Plaintiffs are African American individuals who worked
in some capacity for Voya Financial, a broker-dealer “that
services.” (Doc. # 1-4 at ¶¶ 3-8, 11). As part of their
working relationship with Voya Financial, Plaintiffs signed
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 2 of 20 PageID 414
Plaintiffs Williams, Whitfield, and Marcus Robinson signed a
9. Arbitration. Agent and Company shall settle by
controversy, including, without limitation, any
claim alleged under any state or federal statute,
(i) that Agent and Company are required or
constitutions or by-laws of the NASD, as may be
amended from time to time (“NASD Arbitration”), or
(ii) that arises out of or is related in any way to
this Agreement, the breach, termination, or
validity of this Agreement, or the actions of Agent
or Company with respect to one another during the
term of this Agreement. Arbitration of any dispute,
claim, or controversy that is not subject to NASD
Arbitration shall be administered by the American
Arbitration Association under its Commercial
Arbitration Rules. Judgment on any arbitration
award may be entered by any court having
jurisdiction thereof. Agent and Company consent to
arbitration in Hartford, Connecticut. Arbitration
under this Agreement shall be governed by the
Federal Arbitration Act.1
(Doc. # 5-3 at 5-6; Doc. # 5-7 at 5-6; Doc. # 5-14 at 5-6)
1. Plaintiff Marcus Robinson’s agreement contains slightly
different language, replacing “NASD Arbitration” with “FINRA
Arbitration,” and stating that the parties agreed to
arbitration in Windsor, Connecticut, rather than Hartford,
Connecticut. (Doc. # 5-7 at 5-6). The National Association of
Securities Dealers (“NASD”) is the Financial Industry
Regulatory Authority, Inc’s (“FINRA”) predecessor. Deutsche
Bank Sec. Inc. v. Simon, No. 19-20053-CIV-GAYLES/MCALILEY,
2019 WL 4864465, at *2 (S.D. Fla. Aug. 20, 2019).
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 3 of 20 PageID 415
Agreement,” which includes a lengthy agreement to arbitrate:
20. Binding Arbitration. It is understood that the
constitute a waiver of the right to seek a judicial
forum to the extent that such waiver would be void
under applicable law.
a. The parties each agree that, except as
inconsistent with the preceding sentence, all
claims or controversies, and any related
issues, which may arise at any time between
the parties (including their
agents) with respect to any subject matter;
any transaction, order, or direction; any
conduct of the parties or their directors, of
employees, representatives, or agents; any
construction, performance, or breach of this
or any other agreement between the parties,
whether entered into prior to, on, or
subsequent to the date hereof; any breach of
any common law or statutory duty; or any
violation of any federal or state law of any
arbitration rather than by lawsuit in a court
of law or equity.
b. Any arbitration pursuant to this agreement
shall be in accordance with, and governed by,
a mutually agreeable arbitration forum, but,
in the absence of such agreement, then the
Code of Arbitration Procedure of the NASD, if
the NASD accepts jurisdiction, and, if not,
then the American Arbitration Association.
There shall be at least three arbitrators
unless otherwise agreed by the parties. The
award of the arbitrators, or of the majority
of them, shall be final and binding upon the
parties, and judgment upon the award rendered
may be entered in any federal or state court
having jurisdiction. Any arbitration shall be
commenced by delivery to the other party of a
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written demand for arbitration setting forth
in detail the claim or controversy to be
c. The arbitrators shall be entitled to order
specific performance of the
imposed by this Agreement.
(Doc. # 5-4 at 8) (emphases in original). Lastly, Plaintiffs
Saunders, Hall, and Gwendolyn Robinson signed a “Registered
i. Arbitration. Any controversy or claim between
the parties will be settled by arbitration in
accordance with the rules of the Financial Industry
Regulatory Authority, and judgment upon the award
may be entered in any court having jurisdiction.
The arbitrators may award reasonable expenses,
attorneys’ fees and costs.
(Doc. # 5-11 at 7; Doc. # 5-18 at 7; Doc. # 5-21 at 6)
(emphasis in original).
against them on the basis of race in a variety of ways. (Doc.
# 1-4 at ¶ 18-19). Plaintiffs initiated this action in state
court on September 22, 2020. (Doc. # 1-4). Thereafter, on
November 6, 2020, Voya Financial removed the action to this
Court on the basis of federal question jurisdiction. (Doc. #
1). The complaint includes claims against Voya Financial for
racial discrimination (Counts I, III, V, VII, IX, XI) and
retaliation (Counts II, IV, VI, VIII, X). (Doc. # 1-4).
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 5 of 20 PageID 417
On November 13, 2020, Voya Financial moved the Court to
compel arbitration and stay the case pending completion of
the arbitration. (Doc. # 5). Plaintiffs have responded (Doc.
# 17), and the Motion is now ripe for review.
arbitration provision in a “contract evidencing a transaction
enforceable,” unless law or equity necessitates revocation of
the contract. 9 U.S.C. § 2. Federal law favors arbitration
agreements. Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983). Thus, “any doubts concerning
the scope of arbitrable issues should be resolved in favor of
arbitration.” Id. However, “a party cannot be required to
submit to arbitration any dispute which he [or she] has not
agreed so to submit.” United Steelworkers of Am. v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 582 (1960).
Before deciding whether a case should be referred to
arbitration, “a court must determine: (1) whether there is a
valid agreement to arbitrate; (2) whether a court or an
arbitrator should decide if the dispute falls within the scope
of the agreement to arbitrate; and (3) whether the dispute
does fall within the scope – the question of arbitrability.”
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 6 of 20 PageID 418
Convergen Energy LLC v. Brooks, No. 20-cv-3746 (LJL), 2020 WL
5549039, at *13 (S.D.N.Y. Sept. 16, 2020) (citation omitted).
“The question whether the parties have submitted a particular
determination unless the parties clearly and unmistakably
provide otherwise.” Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 83 (2002) (citation omitted).
“A motion to compel arbitration is treated as a Rule
jurisdiction.” Babcock v. Neutron Holdings, Inc., 454 F.
Supp. 3d 1222, 1228 (S.D. Fla. 2020) (citations omitted).
Accordingly, “the Court may consider matters outside the four
corners of the Complaint.” Id. When determining the existence
of an arbitration agreement, federal courts employ a “summary
judgment-like standard,” “conclud[ing] as a matter of law
agreement only if ‘there is no genuine dispute as to any
agreement.’” Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d
1325, 1333 (11th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
“A dispute is not ‘genuine’ if it is unsupported by the
evidence or is created by evidence that is ‘merely colorable’
or ‘not significantly probative.’” Id. (quoting Baloco v.
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 7 of 20 PageID 419
Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014)).
because Plaintiffs’ “claims fall squarely within the broad
scope of the parties’ arbitration agreements.” (Doc. # 5 at
discrimination claims to be arbitrated unless the parties
agreed to arbitrate such claims, they cannot be compelled to
arbitrate the instant suit. (Doc. # 17 at 5).
A. Initial Question of Arbitrability
Generally, it is for the Court to determine the scope of
an arbitration agreement. Betkowski v. Kelley Foods of Ala.,
697 F. Supp. 2d 1296, 1298 (M.D. Ala. Mar. 23, 2010). However,
“[w]hen the parties’ contract delegates the arbitrability
question to an arbitrator, a court may not override the
contract.” Henry Schein, Inc. v. Archer & White Sales, Inc.,
139 S. Ct. 524, 529 (2019). Still, “there must be ‘clear and
unmistakable’ evidence that the parties agreed to have an
arbitrator decide such issues.” Blanton v. Domino’s Pizza
Franchising LLC, 962 F.3d 842, 844 (6th Cir. 2020).
Here, none of the arbitration agreements expressly state
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 8 of 20 PageID 420
that the initial question of arbitrability must be submitted
to arbitration. (Doc. ## 5-3; 5-4; 5-7; 5-11; 5-14; 5-18; 521). Although the agreements do incorporate either the NASD
arbitration agreement is insufficient on its own to evidence
the parties’ clear intent for the arbitral panel to determine
arbitrability.” 2 Retina
Pension Plan v. Benjamin, No. CV-119-037, 2020 WL 1491756, at
*5 (S.D. Ga. Mar. 19, 2020); see Merrill Lynch, Pierce, Fenner
& Smith, Inc. v. Cohen, 62 F.3d 381, 384 (11th Cir. 1995)
(“We conclude that, at most, section 35 [of the NASD Code]
creates an ambiguity as to who determines arbitrability.
2. Although expressly incorporating the American Arbitration
Association’s (“AAA”) Rules into an arbitration clause does
constitute clear and unmistakable evidence that the parties
delegated the initial question of arbitrability to an
arbitrator, the contracts signed by Williams, Whitfield, and
Marcus Robinson refer cases to the AAA only to the extent
that the disputes cannot be arbitrated before FINRA. (Doc. #
5 at 6-9); see JPay, Inc. v. Houston, 904 F.3d 923, 937 (11th
Cir. 2018). Indeed, the parties preferred forum is FINRA, and
none of the other clauses refer to the AAA. (Doc. # 5 at 69). Considering that the AAA’s rules would not apply if the
parties were able to arbitrate before their chosen forum
(FINRA), as well as the fact that the parties appear to agree
that the initial question of arbitrability can be decided by
this Court, and the presumption that courts decide such
questions, the Court finds that this inclusion creates enough
ambiguity so that the initial question of arbitrability need
not be submitted to arbitration. (Doc. ## 5; 17).
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 9 of 20 PageID 421
presumption that courts determine arbitrability, . . . we
conclude that the district court must determine whether the
dispute between [the parties] is arbitrable.”). Therefore,
the Count finds that it can decide the issue of arbitrability.
B. Application of the Arbitration Agreements
The Court now turns to the substance of the Motion.
Plaintiffs challenge the validity of the agreements on the
discrimination, which is carved out from FINRA’s rule on
mandatory arbitrations. (Doc. # 17 at 5). Plaintiffs argue
that this carveout, and the fact that the broad agreements do
evidences an intent not to arbitrate such claims. (Id.).
represent invalid contracts of adhesion. (Id.).
As noted, under the FAA, arbitration agreements are
“valid, irrevocable, and enforceable,” unless grounds exist
to revoke said contract. 9 U.S.C. § 2. This represents a
“federal policy favoring arbitration.” Moses, 460 U.S. at 24.
[courts] should follow the presumption of arbitration and
SeaDream Yacht Club, Inc., No. 1:19-cv-24416-GAYLES/OTAZO9
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 10 of 20 PageID 422
REYES, 2020 WL 6263013, at *5 (S.D. Fla. Oct. 22, 2020)
(citation omitted). “Accordingly, the FAA requires a court .
plaintiff entered into a written arbitration agreement that
is enforceable ‘under ordinary state-law’ contract principles
and (b) the claims before the court fall within the scope of
the agreement.” Lambert v. Austin Ind., 544 F.3d 1192, 1195
(11th Cir. 2008) (citing Paladino v. Avnet Computer Techs.,
Inc., 134 F.3d 1054, 1061 (11th Cir. 1998)).
1. Enforceability of the Agreements
Although state law governs the enforceability of an
arbitration agreement, “the Supreme Court has also made clear
that in enacting [Section 2] of the FAA, ‘Congress declared
a national policy favoring arbitration and withdrew the power
of the states to require a judicial forum for the resolution
of claims which the contracting parties agreed to resolve by
arbitration.’” Morales v. Rent-A-Center, Inc., 306 F. Supp.
2d 175, 180 (D. Conn. 2003) (quoting Southland Corp. v.
Keating, 465 U.S. 1, 7 (1984)). Therefore, “the FAA preempts
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 11 of 20 PageID 423
unconscionability may be applied to invalidate arbitration
agreements without contravening [Section 2 of the FAA].”
Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996).
Robinson, as well as the “Advisory Representative Agreement,”
signed by Williams alone, are governed by Connecticut law,
and the “Registered Representative Agreements,” signed by
Saunders, Hall, and Gwendolyn Robinson, are governed by Iowa
law.3 (Doc. # 5 at 15; Doc. # 17 at 4). Therefore, the Court
turns to Connecticut and Iowa law in determining whether the
arbitration clauses are enforceable.
parties to a contract have agreed to arbitration is controlled
by their intention.” Connecticut v. Philip Morris, Inc., 905
3. The “Retail Agent Agreements” do not include a choice-oflaw clause, but were signed in Connecticut. (Doc. ## 5-3; 57; 5-14); see Taylor, Bean & Whitaker Mortg. Corp. v. GMAC
Mortg. Corp., No. 5:05-cv-260-Oc-GRJ, 2007 WL 1114045, at *2
(M.D. Fla. Apr. 12, 2007) (“Florida follows the principle of
lex loci contractus, which means that the law of the place
where the contract was signed governs the dispute.”). The
“Advisory Representative Agreement” includes a choice-of-law
clause that selects Connecticut law. (Doc. # 5-4 at 9). The
“Registered Representative Agreements” include a conflictof-law clause, which provides: “This Agreement is governed
under the law of the state of Iowa without regard to its
conflicts of laws provisions.” (Doc. # 5-11 at 7; Doc. # 518 at 7; Doc. # 5-21 at 6).
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 12 of 20 PageID 424
A.2d 42, 48 (Conn. 2006) (citation omitted). The parties’
intent is evidenced from the language used, interpreted in
light of the parties’ situation and circumstances. Goldberg
v. Hartford Fire Ins. Co., 849 A.2d 368, 373 (2004). “Although
the intention of the parties typically is a question of fact,
if their intention is set forth clearly and unambiguously, it
is a question of law.” Philip Morris, 905 A.2d at 48.
“Under Iowa law, the elements of a valid contract are
offer, acceptance, and consideration.” Owen v. MBPXL Corp.,
173 F. Supp. 2d 905, 914 (N.D. Iowa 2001). “An acceptance of
an offer is a manifestation of assent to the terms thereof
made by the offeree in a manner invited or required by the
offer.” Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 270
(Iowa 2001) (citation omitted). “The offeree ‘must know of
the offer before there can be mutual assent.’” Duncan v. Int’l
Mkts. Live, Inc., No. 4:20-cv-00017-RGE-HCA, 2020 WL 6733636,
at *4 (S.D. Iowa Nov. 6, 2020) (quoting Anderson v. Douglas
& Lomason Co., 540 N.W.2d 277, 283 (Iowa 1995)).
Here, the agreements are valid under both Connecticut
and Iowa law. The contracts at issue all include a provision
requiring arbitration of related disputes. (Doc. # 5 at 79). Plaintiffs signed those agreements, “which serves as
presumptive evidence that an agreement was formed.” Morales,
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306 F. Supp. 2d at 181; see also Ziskovsky v. Ziskovsky, 843
N.W.2d 478, 478 (Ct. App. Iowa 2014) (“It is well-settled
contract law that if a party to a contract is able to read
the contract, and is given an opportunity to do so, that party
cannot later argue she did not read the contract and remove
herself from the terms of the contact.). And, Plaintiffs do
not contend that they did not intend to arbitrate at least
some claims or that there was no offer or acceptance. 4 (Doc.
# 17); see also Ziskovsky, 843 N.W.2d at 478 (finding offer
and acceptance where the parties had an opportunity to read
signatures). Neither do Plaintiffs contend that they entered
into these agreements out of fraud or duress. (Doc. # 17).
Although Plaintiffs argue that the arbitration clauses
are unenforceable because they are “contracts of adhesion,”
they provide no factual support thereof and this statement
therefore amounts to no more than a legal conclusion. (Id. at
8); DaimlerChrysler Ins. Co. v. Pambianchi, 762 F. Supp. 2d
410, 423 (D. Conn. 2011) (“Under Connecticut law, a court
4. The Court need not address whether adequate consideration
was exchanged because Plaintiffs did not raise a lack of
consideration argument. See Owen, 173 F. Supp. 2d at 914 (“The
Iowa Supreme Court refuses to address the issue [of lack of
consideration] unless raised by the parties.”).
Case 8:20-cv-02611-VMC-JSS Document 26 Filed 01/06/21 Page 14 of 20 PageID 426
cannot find procedural unconscionability unless the party
introduced some specific evidence of overreaching by the
other party in the formation of the agreement.” (emphasis in
original)); De Dios v. Brand Energy & Infrastructure Servs.,
No. C-18-4011-MWB, 2018 WL 2976104, at *8 (N.D. Iowa June 13,
2018) (“Under Iowa law, the burden of proof that a particular
provision or contract is unconscionable rests on the party
claiming it is unconscionable.”).
unconscionability defense without stating so plainly, “mere
employee and employer is an insufficient reason to find an
Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991); see
also De Dios, 2018 WL 2976104, at *8 (“As Brand points out,
De Dios sought employment with Brand, but there is no reason
to believe that he could not have also sought employment
elsewhere, or that he could only have worked for Brand. . .
. Here, De Dios not only signed the Agreement to Arbitrate in
expressly representing that he had read and understood the
Agreement to Arbitrate and had been given time to consider
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it. Because he does not allege any fraud, he cannot contradict
these representations.”); Billie v. Coverall N. Am., 444 F.
Supp. 3d 332, 347 (D. Conn. 2020) (“[U]nder Connecticut law,
unconscionable based solely on the adhesive nature of the
The Court also notes that in all of the relatively short
contracts, the arbitration clauses were visible, with – at a
minimum – the header noting “arbitration” in bold. (Doc. # 5
contracts, the section heading is written in bold, capital
letters. The text of the clause is written in the same font
size as the surrounding clauses. The law requires nothing
more.”). With all of this in mind, as well as the strong
arbitrate are enforceable.
2. Scope of the Agreements
arbitration agreements exist, it must determine whether the
instant racial discrimination claims are included in the
scope of those agreements. In gleaning the scope of the
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agreements’ text. Because “the FAA creates a presumption in
favor of arbitrability,” the parties “must clearly express
“Federal statutory claims are generally arbitrable because
Paladino, 134 F.3d at 1062 (citing Gilmer, 500 U.S. at 28).
claim[.]” Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217,
1221 (11th Cir. 2000).
Here, the arbitration agreements express the parties’
provisions are both broad and do not specifically exclude
discrimination claims. (Id.); see Maddox v. USA HealthcareAdams, LLC, 350 F. Supp. 2d 968, 974 (M.D. Ala. 2004) (“The
FAA creates a presumption in favor of arbitration so parties
must clearly express their intent to exclude categories of
claims from their arbitration agreement. Adams has explicitly
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discrimination claims do not fall within the purview of noted
exceptions. . . . Maddox should be compelled to arbitrate
[the age and disability discrimination] claims that he has
presented to this court.” (citations omitted)).
The Eleventh Circuit faced a similar issue in Brown v.
ITT Consumer Financial Corp., in which three African American
employees sued their employer for racially discriminatory
treatment. Brown, 211 F.3d at 1217-21. The employees had
parties “agreed that any dispute between them or claim by
either against the other or any agent or affiliate of the
other shall be resolved by binding arbitration[.]” Id. at
1220-21. The Court found that this was sufficient to compel
arbitration of the discrimination case, despite the fact that
the arbitration clause did not specifically include such
claims. Id. at 1221-22 (“We think that the language of the
claims.”). Here, like in Brown, the broad arbitration clause
compels the arbitration of racial employment discrimination
claims. Id.; see Bender v. A.G Edwards & Sons, Inc., 971 F.2d
698, 700-01 (11th Cir. 1992) (finding that Title VII claims
were subject to arbitration under similar circumstances); see
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also Maddox, 350 F. Supp. 2d at 972 (“The FAA applies to all
employment contracts not specifically exempted from the FAA
And, although Plaintiffs contend that Rule 13201 of
FINRA’s Code of Arbitration Procedure precludes compelling
arbitration of racial discrimination claims here, the Court
does not find this logic persuasive. (Doc. # 17 at 5). Rule
13201 provides that employment discrimination claims are “not
required to be arbitrated” under FINRA’s Code, and rather
that such claims “may be arbitrated only if the parties have
agreed to arbitrate [them].” FINRA Rule 13201(a). Because the
Court has already found that the broad arbitration clauses
claims, Rule 13201 – even if it applies here – is satisfied.
Additionally, a number of courts in the Eleventh Circuit
arbitrate racial discrimination claims pursuant to a valid
arbitration agreement. See, e.g., Lewis v. Haskell Co., 108
F. Supp. 2d 1288, 1290-91, 1294 (M.D. Ala. 2000) (directing
discrimination claims in light of a broad arbitration clause
that did not specifically include such claims); Ravelo v.
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arbitration in a case involving racial discrimination and
retaliation claims where the arbitration clause provided that
the plaintiff agreed to “resolve all claims, controversies or
disputes which may arise out of his/her employment with the
Firm (including statutory claims) by submitting these claims
to final and binding arbitration”); James v. Cmty. Phone Book,
Inc., No. 3:07-cv-775-J-33TEM, 2008 WL 2741841, at *5 (M.D.
Fla. July 11, 2008) (compelling arbitration of a pro se
plaintiff’s racial discrimination claims).
Therefore, the Motion is granted, and this case is stayed
pending arbitration of Plaintiffs’ claims. See Milestrone v.
Citrus Specialty Grp., Inc., No. 8:19-cv-2341-T-02JSS, 2019
WL 5887179, at *3 (M.D. Fla. Nov. 12, 2019) (“In accord with
Eleventh Circuit law, this case must be stayed rather than
dismissed.” (citing 9 U.S.C. § 3)).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Compel Arbitration and Stay this Action (Doc. # 5) is
This case is referred to FINRA arbitration and is STAYED
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pending resolution thereof. The Clerk is directed to
STAY and administratively CLOSE the case.
The parties are DIRECTED to file a joint report of the
status of the arbitration proceeding by March 8, 2021,
resolution of the claims asserted in this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this
6th day of January, 2021.
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