Pierre-Louis v. CC Solutions, LLC et al

Filing 46

ORDER ON DEFENDANTS MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS. Defendants Motion to Compel Arbitration and Stay Proceedings, ECF No. 29 ,is GRANTED. This matter is STAYED pending resolution of arbitration, and is therefore administratively C LOSED. The Clerk of Court is directed to CLOSE this matter. Signed by Judge Beth Bloom on 10/25/2017. (kpe) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60781-BLOOM/Valle
BENEDICT PIERRE-LOUIS,
Plaintiff,
vs.
CC SOLUTIONS, LLC
a/k/a CCS LLCS, and
DINO AVDIC,
Defendants.
__________________________________________/
ORDER ON DEFENDANTS’ MOTION TO
COMPEL ARBITRATION AND STAY PROCEEDINGS
THIS CAUSE is before the Court upon Defendants’ CC Solutions, LLC a/k/a CCS LLC
and Dino Avdic (“Defendants”) Motion to Compel Arbitration and Stay Proceedings, ECF No.
[29] (“Motion to Compel”). The Court has reviewed the Motion, all opposing and supporting
submissions, the record in this case, the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is granted.
I.

BACKROUND
Plaintiff Benedict Pierre-Louis claims that he is entitled to certain wages for work

performed while employed as a field tech cable installer by Defendants, CC Solutions, LLC and
Dino Avdic, who are engaged in the field of cable installation services for Comcast. He filed this
action seeking wages and liquidated damages pursuant to the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”). Defendant now moves to compel Plaintiff to arbitrate the claims
presented in this case pursuant to the Federal Arbitration Act, 9 U.S.C. §1 et seq. (“FAA”).
Plaintiff, on the other hand, asserts that Defendants have waived any right to arbitration.

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The parties do not dispute that on August 18, 2016, Plaintiff signed an Acknowledgement
Regarding Arbitration and the Entire Manual form, which was attached to the last page of
Defendant CC Solutions, LLC’s Employee Manual (“Employee Manual”). See ECF No. [29-1].
The Employee Manual contains an arbitration policy that specifically applies to claims arising
under the FLSA. In relevant part, the policy states:
Except as it otherwise provides, this Agreement also applies,
without limitation, to disputes regarding the employment
relationship, trade secrets, unfair competition, compensation,
breaks and rest periods, termination, or harassment and claims
arising under the Uniform Trade Secrets Act, Civil Rights Act of
1964, Americans With Disabilities Act, Age Discrimination in
Employment Act, Family Medical Leave Act, Fair Labor
Standards Act, Employee Retirement Income Security Act (except
for claims for employee benefits under any benefit plan sponsored
by the Company and covered by the Employee Retirement Income
Security Act of 1974 or funded by insurance), Genetic Information
Non-Discrimination Act, and state statutes, if any, addressing the
same or similar subject matters, and all other state statutory and
common law claims.
ECF No. [29-1] at 23.
On June 29, 2017, Defendants answered the Complaint but failed to assert the agreed
upon arbitration policy in the Employee Manual. On August 4, 2017, Defendants filed the
Motion to Compel, asserting that “the Acknowledgement Regarding Arbitration and the Entire
Manual form was located upon review of Plaintiff’s file in preparation for discovery in this
matter and was immediately provided to his counsel by email, on July 19, 2017.” ECF No. [29],
¶ 5; see also ECF No. [45-1] (copy of July 19, 2017 e-mail from Defendants’ counsel to
Plaintiff’s counsel). Plaintiff responds to the Motion with the sole argument that Defendants
waived the arbitration right by “actively participat[ing] in this lawsuit.” ECF No. [40] at 6. The
primary example of this “active participation” is the filing of Defendants’ Answer. Id.

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II.

LEGAL STANDARD
The presence of a valid arbitration provision raises a strong presumption of enforcement.

See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 630-31 (1985).
Indeed, the FAA “embodies a ‘liberal federal policy favoring arbitration agreements.’”
Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1366 (11th
Cir. 2008) (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983)). Accordingly, the FAA requires courts to “rigorously enforce agreements to arbitrate,”
including those contained in employment contracts. Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 111 (2001); Hemispherx, 553 F.3d at 1366; Brandon, Jones, Sandall, Zeide, Kohn, Chalal
& Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1357-58 (11th Cir. 2002), abrogated on
other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating
Engineers & Participating Employers, 134 S. Ct. 773 (2014) (quoting Mitsubishi Motors, 473
U.S. at 625-26). Under the FAA, a written agreement to arbitrate is “valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2.
Despite the Courts’ proclivity for enforcement, a party will not be required to arbitrate if
the party has not agreed to do so. Nat’l Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F. Supp. 2d
1318, 1322 (S.D. Fla. 2010) aff’d, 433 F. App’x 842 (11th Cir. 2011) (citing United Steelworkers
of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). It is axiomatic that the
determination of whether parties have agreed to submit a dispute to arbitration is an issue of law
subject to judicial resolution. See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296
(2010). Generally, this determination requires the district court to apply standard principles of
contract garnered from the applicable state law. First Options of Chicago, Inc. v. Kaplan, 514

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U.S. 938, 939 (1995) (citation omitted); see also P & S Business Machines, Inc. v. Canon USA,
Inc., 331 F.3d 804, 807 (11th Cir. 2003). When presented with a motion to compel arbitration, a
district court will consider three factors: (1) whether a valid agreement to arbitrate exists; (2)
whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived. Nat’l Auto
Lenders, 686 F. Supp. 2d at 1322 (citation omitted).
Here, Plaintiff’s only quarrel with enforcement of the arbitration policy in the Employee
Manual concerns waiver. Accordingly, the Court need not address whether a valid arbitration
agreement exists or whether the Complaint presents an arbitrable issue and instead focuses its
analysis on whether Defendants waived the right to arbitrate.
III.

DISCUSSION
At the outset, it is important to note that federal law governs the Court’s determination of

this dispute. S&H Contractors, Inc. v. A.J. Taft Coal Co., Inc., 906 F.2d 1407 (11th Cir. 1990)
(“Our determination of whether S&H waived it right to arbitration, as opposed to whether the
contract is void under Alabama law, is controlled solely by federal law.”); see also AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 341 (2011). In its Response in Opposition to
Defendant’s Motion to Compel, ECF No. [40], Plaintiff exclusively relies on Florida state court
cases analyzing waiver, while Defendant relies on cases from the Eleventh Circuit and other
federal jurisdictions.

Florida law treats waiver similar to federal law, but there are some

distinctions. In Florida, “waiver may occur as the result of active participation in a lawsuit.”
Hill v. Ray Carter Auto Sales, Inc., 745 So. 2d 1136, 1138 (Fla. 1st DCA 1999). However,
federal law utilizes a two-part test to analyze waiver. “Waiver occurs when both: (1) the party
seeking arbitration substantially participates in litigation to a point inconsistent with an intent to
arbitrate; and (2) this participation results in prejudice to the opposing party.” In re Checking

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Account Overdraft Litig., 754 F.3d 1290, 1294 (11th Cir. 2014) (internal quotations omitted,
emphasis added); see Morewitz v. W. of England Ship Owners Mut. Prot. & Indem. Ass’n
(Luxembourg), 62 F.3d 1356, 1366 (11th Cir. 1995). “Prejudice exists when the party opposing
arbitration undergoes the types of litigation expenses that arbitration was designed to alleviate.”
In re Checking Account Overdraft Litig., 754 F.3d at 1294 (internal quotations omitted).
Because Plaintiff brings a federal FLSA claim in federal court, the Court will analyze
Defendants’ Motion pursuant to federal law and precedent.
A. Substantial Participation to a Point Inconsistent with an Intent to Arbitrate
As to the first prong of the waiver analysis, Defendants contend that, even though they
did not invoke the right to arbitrate in their Answer, they did not substantially participate in
litigation because they notified Plaintiff of their intent to seek arbitration shortly thereafter. See
ECF No. [45]. Defendants filed their Answer on June 29, 2017, ECF No. [19], and, twenty (20)
days later, notified Plaintiff via e-mail that it “located an arbitration agreement signed by the
Plaintiff.” ECF No. [45-1]. On August 4, 2017, Defendant filed the Motion to Compel. See ECF
No. [29].
In determining whether a party acted inconsistent with its right to arbitrate, courts
examine the extent to which a party participated in litigation leading up to the filing of the
motion to compel arbitration. Krinsk v. Sun Trust Banks, Inc., 654 F.3d 1194, 1200–01 (11th
Cir. 2011) (“A party that substantially invokes the litigation machinery prior to demanding
arbitration may waive its right to arbitrate if that conduct manifests the party’s intent to waive
arbitration”) (citations omitted); Morewitz, 62 F.3d at 1366 (“Waiver occurs when a party
seeking arbitration substantially participates in litigation to a point inconsistent with an intent to
arbitrate.”). “When little meaningful litigation has taken place, this Court has declined to find

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waiver from even longer delays.” CitiBank, N.A. v. Stok & Assoc., P.A., 387 F. App’x 921, 925
(11th Cir. 2010). Federal courts in this Circuit have enforced arbitration provisions even after an
answer that neglects to assert the arbitration right is filed. For example, in Dockeray v. Carnival
Corp., 724 F. Supp. 2d 1216, 1222 (S.D. Fla. 2010), the defendant did not waive its right to
arbitrate even though it filed an answer and affirmative defenses without raising the arbitration
agreement and then waited nearly two months before demanding arbitration. In Benoay v.
Prudential-Bache Sec., Inc., 805 F.2d 1437 (11th Cir. 1986), a party did not waive its right to
arbitrate when the motion to compel arbitration was filed approximately ten weeks after the
arbitration right accrued and no discovery had commenced. In contrast, a party asserting an
arbitration agreement one year and eight months into litigation waived the right to arbitrate due
to delay. See Stone v. E.F. Hutton & Co., Inc., 898 F.2d 1542, 1544 (11th Cir. 1990).
Here, Defendants did not waive their right to arbitrate by participating in the early stages
of litigation.

The Eleventh Circuit’s waiver analysis asks whether a party substantially

participated in litigation to a point inconsistent with an intent to arbitrate. See Krinsk, 654 F.3d
at 1200–01. Defendants did not. Although Plaintiff alleged that, in addition to filing an Answer,
Defendants served Plaintiff with initial disclosures, it still cannot be said that discovery, or any
substantial litigation, has occurred.
B. Prejudice to the Opposing Party
Plaintiff asserts that Defendants’ delay in asserting the arbitration demand prejudiced him
because he was required to comply with certain court deadlines and incurred attorneys’ fees in so
doing. See ECF No. [40]. Specifically, Plaintiff mentions the joint pre-trial scheduling report
prepared and filed prior to Defendants’ arbitration demand. Id. While Defendants’ delay in
asserting the arbitration right caused Plaintiff some prejudice, the Eleventh Circuit’s test does not

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merely ask whether the opposing party was prejudiced.

In order to waive an arbitration

agreement, a party asserting the arbitration right must both 1) substantially participate in the
litigation which, in turn, results in 2) prejudice to the opposing party. Morewitz, 62 F.3d at 1366.
According to the docket, Defendants filed a Joint Scheduling Report, an Answer, and a Response
to Statement of Claim before filing the Motion to Compel. See ECF Nos. [17], [19], and [22].
Plaintiff adds that Defendants also served their initial disclosures. Defendants then became
aware of the arbitration clause less than three weeks after filing their answer and notified
Plaintiff of their intent to arbitrate immediately thereafter. See ECF No. [45-1]. This limited
activity is simply not substantial participation in a lawsuit. Therefore, although Plaintiff suffered
some prejudice by the minor delay, the arbitration right was not waived. Because any doubt
“should be resolved in favor of arbitration, whether the problem at hand is . . . an allegation of
waiver, delay, or a like defense of arbitrability,” the Court grants Defendants’ Motion to Compel.
Mercury Constr. Corp., 460 U.S. at 24–25.
IV.

CONCLUSION
For the foregoing reasons, the Court grants the Motion to Compel. Plaintiff must submit

to arbitration in accordance with the arbitration policy in the Employee Manual. Accordingly, it
is ORDERED AND ADJUDGED that
1. Defendants’ Motion to Compel Arbitration and Stay Proceedings, ECF No. [29],
is GRANTED.
2. The parties shall SUBMIT to arbitration of all claims asserted in this matter in
accordance with the arbitration policy in the Employee Manual.
3. This matter is STAYED pending resolution of arbitration, and is therefore
administratively CLOSED. The Clerk of Court is directed to CLOSE this matter

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for administrative purposes. After arbitration has concluded, either party may
seek to reopen the case.
4. All pending motions are DENIED AS MOOT, and any pending deadlines are
TERMINATED.
DONE AND ORDERED in Miami, Florida this 25th day of October, 2017.

____________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

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