SPURGEON v. MARRIOTT INTERNATIONAL, INC. et al

Filing 24

ORDER granting 14 Motion to Stay; Administratively Closing Case pending arbitration. Signed by Judge Cecilia M. Altonaga on 3/7/2017. (ps1) 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.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
SAMANTHA SPURGEON,
Plaintiff,
v.
MARRIOTT INTERNATIONAL, INC., et al.,
Defendants.
_______________________________________/
ORDER
THIS CAUSE came before the Court on the Defendants, Marriott International, Inc.;
Starwood Hotels & Resorts Worldwide, Inc.; and W Hotel Management, Inc.’s Motion to
Compel Arbitration and to Stay, or in the Alternative Dismiss, Plaintiff’s Action [ECF No. 14],
filed on January 9, 2017. Plaintiff, Samantha Spurgeon filed a Response in Opposition to the
Motion . . . [ECF No. 18] on January 23, 2017; and Defendants filed a Reply in Support of Their
Motion to Compel Arbitration [ECF No. 19] on January 30, 2017. The Court has carefully
considered the parties’ written submissions, the record, and applicable law.
I. BACKGROUND
A. Factual History
Spurgeon is a 52-year-old former Starwood employee, originally from the United
Kingdom. She began her 22-year career with the company at a Starwood property in London in
June 1992. (See Compl. ¶¶ 16, 23). The alleged conduct underlying Spurgeon’s Complaint took
place more recently — it began in 2014, a year or so after she resigned from positions at two
Hawaiian resorts and transferred to a position within the Starwood network at the W South
Beach Hotel (the “Hotel”) in Miami Beach, Florida. (See id. at ¶¶ 19–20, 26–31).

CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
Spurgeon relocated to Miami Beach in May 2013 to become the Hotel’s Director of Sales
& Marketing. (See id. at ¶¶ 17, 19, 20, 22). A year after her relocation to Miami, Defendants
transferred a new General Manager from one of their other properties to the Hotel.1 (See id. at ¶¶
20, 26). Although Spurgeon had an exemplary employment record at Starwood spanning over
two decades (see id. at ¶¶ 27–31), the new General Manager “targeted [Spurgeon] for
termination” almost as soon as he arrived (id. at ¶ 31 (alteration added)). Spurgeon asserts he set
unclear and unrealistic expectations for her, sometimes delegating work to her that was
completely outside the scope of her departmental duties. (See id. at ¶¶ 48–49). He allegedly
subjected her to constant criticism and provided her with poor performance reviews that were
inaccurate and undeserved. (See id. at ¶¶ 34, 44–45, 47, 50).
The General Manager similarly targeted other members of the Hotel leadership team
who, like Spurgeon, were over the age of 40. (See id. at ¶ 32). A few such individuals were
forced to resign or were terminated shortly after the General Manager’s transfer to the Hotel, and
were replaced with younger individuals. (See id. at ¶¶ 32–33).
The alleged discrimination Spurgeon experienced related not only to her age, but also to
her national origin. On one occasion in August 2014, Starwood’s Senior Vice President of
Operations berated Spurgeon during a budget meeting about her unsatisfactory approach to sales,
implying it was the result of her “European mentality.” (Id. at ¶¶ 37–38). Spurgeon complained
to the General Manager and the Human Resources Department about the comment, but her
complaint was not taken seriously and nothing was ever done to address it. (See id. at ¶¶ 39–41).

A brief overview of Spurgeon’s substantive allegations provides important context for the parties’
arguments relating to the Motion — especially Defendants’ argument that Marriott and W Hotel
Management may compel arbitration as non-signatories to an arbitration agreement between Starwood
and Spurgeon because Spurgeon’s claims against them are “inextricably intertwined” with her claims
against Starwood.
1

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
Instead, seemingly in response to the complaint, Spurgeon was “immediately” placed on a
confusing Performance Improvement Plan that “attempted to mix and increase goals” and based
itself on figures and sales numbers using a methodology different from any Spurgeon had seen in
her two decades with the company. (Id. at ¶¶ 42–43).
Spurgeon took time off from work in July 2015 to deal with severe emotional distress she
developed as a result of the targeted harassment and constant criticism. (See id. at ¶¶ 50–53).
When she did so, Starwood cut off her email account and ceased all communications with her.
(See id. at ¶ 54). Starwood officially terminated Spurgeon on July 20, 2015, when she tried
returning to work after her leave of absence. (See id. at ¶ 55).
Spurgeon filed this action claiming Defendants: (1) harassed and discriminated against
her on the basis of age and national origin in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. section 2000e, et seq.; the Age Discrimination in Employment Act of 1967, 29
U.S.C. section 621, et seq.; and the Florida Civil Rights Act, Fla. Stat. section 760.01, et seq.;
and (2) retaliated against her in violation of Title VII and the FRCA. (See generally id.).
Defendants’ Motion asks the Court to compel arbitration pursuant to a “Mutual
Agreement to Arbitrate” (the “Arbitration Agreement” or the “Agreement”) [ECF No. 14-1] the
parties executed in April 2013, shortly before Spurgeon began working at the Hotel. Defendants
claim by signing the Arbitration Agreement, which Starwood enclosed with the offer letter it sent
Spurgeon, Spurgeon agreed to submit “all disputes and claims” — including those asserted in
this case — to binding arbitration. (See Mot. 2). In response, Spurgeon argues the Agreement
she signed is not valid because its terms and the manner in which it was presented reflect “a level
of deceptiveness that is unconscionable.”

(Resp. 6).

Spurgeon also argues even if the

Agreement is valid, Marriott and W Hotel Management may not compel arbitration because they

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are non-signatories to the Agreement. (See Resp. 15–17). She asks the Court to deny the
Motion, or in the alternative, to permit discovery on issues pertaining to validity of the
Agreement. (See id. at 18).
B. The Arbitration Agreement
The first paragraph of the Arbitration Agreement contains the following commitment to
arbitrate:
[Starwood] and I hereby agree that, except as otherwise provided herein, all
disputes and claims for which a court otherwise would be authorized by law to
grant relief, in any manner, that I may have, now or in the future, during or after
my employment with Starwood, of any and every kind or nature whatsoever with
or against Starwood, any of Starwood’s affiliated or subsidiary companies,
partners, joint venturers, owners of properties Starwood manages, and/or any of
his, her, its or their directors, officers, employees or agents, or any disputes and
claims that Starwood may have against me (collectively, “Claims”), shall be
submitted to the American Arbitration Association (“AAA”) to be resolved and
determined through final and binding arbitration before a single arbitrator and to
be conducted in accordance with the National Rules for the Resolution of
Employment Disputes of the AAA.
(Agreement 2 (alteration added)).
Although this paragraph broadly encompasses “disputes and claims” of “every kind or
nature whatsoever,” a separate paragraph of the Agreement lists examples of claims that fall
within its scope. (Id.) Among other claims, the list includes “any Claim of discrimination,
retaliation, or harassment based upon age, . . . national origin, . . . or any other unlawful basis”
that is brought “under any applicable federal, state, local or other statutes.” (Id. (alterations
added)). It specifically references claims brought under Title VII and the ADEA. (See id. at 2–
3).
The Agreement also carves out exceptions for certain types of claims. For example, it
excludes monetary disputes within the jurisdiction of a small claims court, as well as claims that
are required by statute or benefit or pension plans to be submitted to an administrative forum.
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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
(See id. at 3). It also excludes claims that “involve the alleged taking, use or disclosure of trade
secrets and similar confidential or proprietary information” and claims “involving a failure to
pay a retention bonus or relocation expense” (or “to repay any unearned portion” of such a bonus
or expense). (Id.).
The Agreement contains multiple acknowledgments that the parties understand its terms,
and they are “knowingly and voluntarily” waiving any and all rights they may have to bring
covered claims in court before a judge or jury. (Id. 3–4). By its own terms, the Agreement
survives the employer-employee relationship between Starwood and Spurgeon (see id. 3), and
consistent with the scope outlined in the first paragraph, the Agreement notes that references to
Starwood include “all of Starwood’s affiliated entities, . . . and all successors and assigns of any
of them” (id. at 2).
II. LEGAL STANDARD
“District courts consider three factors in reviewing a motion to compel arbitration: (1)
[w]hether there is a valid written agreement to arbitrate; (2) [w]hether there is an arbitrable issue;
and (3) [w]hether the right to arbitrate has been waived.” Dimattina Holidngs, LLC v. SteriClean, Inc., 195 F. Supp. 3d 1285, 1288 (S.D. Fla. 2016) (alterations added; internal quotation
marks and citation omitted). Spurgeon does not deny her claims are arbitrable or claim a right to
arbitrate has been waived; rather, she denies a valid arbitration agreement even exists.
Consequently, resolution of the Motion turns on the first factor.
The Federal Arbitration Act, 9 U.S.C. section 1, et seq., makes written arbitration
agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.”2 Id. at § 2. “The FAA was enacted in 1925 in
2

Agreements to arbitrate workplace disputes are covered under the FAA. See Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 119 (2001).

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
response to widespread judicial hostility to arbitration agreements,” and it “reflect[s] both a
‘liberal federal policy favoring arbitration,’ and the ‘fundamental principle that arbitration is a
matter of contract.’” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (alteration
added; citations omitted). This means “courts must place arbitration agreements on equal footing
with other contracts, . . . and enforce them according to their terms.” Id. (alteration added;
internal citations omitted). But it also means such agreements may be “invalidated by ‘generally
applicable contract defenses, such as fraud, duress, or unconscionability.’” Id. (quoting Doctor’s
Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996)).
“Although the FAA governs the applicability of arbitration agreements, state law governs
issues ‘concerning the validity, revocability, and enforceability of contracts generally.’” Bhim v.
Rent-A-Center, Inc., 655 F. Supp. 2d 1307, 1311 (S.D. Fla. 2009) (quoting Perry v. Thomas, 482
U.S. 483, 492 n.9 (1987)); see also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1368
(11th Cir. 2005) (“[S]tate law generally governs whether an enforceable contract or agreement to
arbitrate exists.” (alteration added; citation omitted)). Defenses such as fraud, unconscionability,
and duress are governed by state law. See Bhim, 655 F. Supp. 2d at 1311. In this case,
Spurgeon’s claims arose in Florida, and the parties agree Florida law applies.
“The party opposing a motion to compel arbitration . . . ‘has the affirmative duty of
coming forward by way of affidavit or allegation of fact to show cause why the court should not
compel arbitration.’” Sims v. Clarendon Nat’l Ins. Co., 336 F. Supp. 2d 1311, 1314 (S.D. Fla.
2004) (alteration added) (quoting Aronson v. Dean Witter Reynolds, Inc., 675 F. Supp. 1324,
1325 (S.D. Fla. 1987)). “This burden is not unlike that of a party seeking summary judgment.”
Id. (internal quotation marks and citation omitted). “Therefore, the party opposing arbitration
should identify those portions of the pleadings, depositions, answers to interrogatories, and

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affidavits which support its contention.” Id. (internal quotation marks, citations, and alterations
omitted).
III. ANALYSIS
In opposing Defendants’ request the Court compel arbitration, Spurgeon argues the
Arbitration Agreement is not legally binding because it is unconscionable. She also asserts even
if the Agreement is valid and enforceable, Marriott and W Hotel Management may not compel
arbitration because they are not signatories to the Agreement.

The Court addresses each

argument in turn.
A.

Whether the Arbitration Agreement is Unconscionable
Under Florida law, to support a finding of unconscionability sufficient to invalidate the

Arbitration

Agreement,

Spurgeon

must

“establish

both

procedural

and

substantive

unconscionability.” Premiere Real Estate Holdings, LLC v. Butch, 24 So. 3d 708, 711 (Fla. 4th
DCA 2009) (emphasis in original; citation omitted). Procedural unconscionability “relates to the
manner in which the contract was entered and it involves consideration of such issues as the
relative bargaining power of the parties and their ability to know and understand the disputed
contract terms.” Powertel, Inc. v. Bexley, 743 So. 2d 570, 574 (Fla. 1st DCA 1999). Substantive
unconscionability focuses on the agreement itself, and it exists where the terms “are so
‘outrageously unfair’ as to ‘shock the judicial conscience.’” VoiceStream Wireless Corp. v. U.S.
Commc’ns, Inc., 912 So. 2d 34, 40 (Fla. 4th DCA 2005) (quoting Gainesville Health Care Ctr.,
Inc. v. Weston, 857 So. 2d 278, 285 (Fla. 1st DCA 2003)).

Procedural and substantive

unconscionability need not exist in equal amounts — one may “outweigh [the other] provided
that there is at least a modicum of the weaker prong.” Id. at 39 (alteration added; citation

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
omitted). For the reasons explained below, the Court finds the Agreement is neither procedurally
nor substantively unconscionable.
a. Procedural Unconscionability
In determining whether a contract is procedurally unconscionable, courts consider “(1)
the manner in which the contract was entered into; (2) the relative bargaining power of the
parties and whether the complaining party had a meaningful choice at the time the contract was
entered into; (3) whether the terms were merely presented on a ‘take-it-or-leave-it’ basis; and (4)
the complaining party’s ability and opportunity to understand the disputed terms of the contract.”
Pendergast v. Spring Nextel Corp., 592 F.3d 1119, 1135 (11th Cir. 2010) (citations omitted).
One issue bearing on this analysis is whether important terms in the agreement were “hidden in a
maze of fine print and minimized by deceptive sales practices.” Powertel, Inc., 743 So. 2d at
574 (citation and internal quotation marks omitted).
Spurgeon argues these factors militate against compelling arbitration. She claims, for
example, she was presented with the Agreement only after she had interviewed for and orally
accepted Starwood’s offer to relocate to Miami Beach and work at the Hotel. (See Resp. 8–9;
id., Ex. A, Declaration of Samantha Spurgeon (“Spurgeon Decl.”) [ECF No. 18-1] ¶¶ 1–2). She
further asserts the Agreement was provided to her on a “take it or leave it” basis, without a
meaningful opportunity to negotiate its terms, and she feared the loss of her existing job with
Starwood and the position she had just accepted if she did not sign it. (See Resp. 9; Spurgeon
Decl. ¶¶ 6, 9–11).

With regard to Spurgeon’s ability and opportunity to understand the

Agreement’s terms, she notes despite being unfamiliar with arbitration and lacking a
“sophisticated knowledge of legal terms,” she was given just a short period of time to review,
sign, and return the Agreement — which referenced, without explaining or even attaching, the

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
American Arbitration Association’s National Rules for the Resolution of Employment Disputes.
(See Resp. 9; Spurgeon Decl. ¶¶ 5, 7–8).
Defendants dispute Spurgeon’s account of how the Agreement was entered into, and they
question the factual basis for some of her claims. According to Defendants, Spurgeon has failed
to articulate any facts to support her contention the Agreement could not be negotiated,
emphasizing an employer’s failure to tell an employee contractual terms are negotiable is not
sufficient, in itself, to later establish the terms were, in fact, not negotiable. (See Reply 3).
Defendants state Spurgeon’s supposed fear of losing both her then-current job and the offer she
had accepted, even if true, does not resolve the unconscionability question in her favor. (See id.
at 5). Finally, Defendants contest Spurgeon’s representations about her inability to understand
the terms of the Agreement and the time frame she was given to do so. (See id. at 4–6).
The Court agrees with Defendants, and finds the circumstances under which Spurgeon
signed the Agreement do not rise to the level of procedural unconscionability. As an initial
matter, although Spurgeon stresses Starwood did not present her with the Agreement until after
she had verbally accepted Starwood’s offer, arbitration agreements are not somehow more
dubious or subject to challenge by virtue of being entered into at this juncture. See, e.g.,
Echeverri v. P.S. Business Parks, L.P., No. 13-24525-CIV, 2014 WL 11961962, at *3 (S.D. Fla.
Mar. 20, 2014) (compelling arbitration, and in doing so rejecting the plaintiff employee’s
argument the parties’ arbitration agreement was procedurally unconscionable where the plaintiff
was made to sign it on her first day of work, even though she “had already previously accepted
the job”). In fact, it would be unusual for parties exploring a potential employer-employee
relationship to consider the mechanism through which future disputes will be resolved before

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
agreeing in principle to some of the defining aspects of the employment relationship, such as
title, salary, and benefits.
Spurgeon remembers the Agreement was given to her on a rushed, “take-it-or-leave-it”
basis, and her job offer depended upon signing it. (See Resp. 9; Spurgeon Decl. ¶¶ 5–6, 9). Yet,
Spurgeon does not articulate any specific reason she felt rushed, and the Court notes the offer
letter Starwood sent Spurgeon in April 2013 does not convey any sense of urgency at all — it
simply asked Spurgeon to review the details of the offer and reach out with any questions. (See
Reply, Ex. 1, Declaration of Katherine Saborit [ECF No. 19-1] 4). Further, the letter even
explained Spurgeon’s offer was “contingent upon [her] execution of the Arbitration Agreement.”
(Id. at 6 (alteration added)).
While the letter is silent as to whether the terms of the Agreement were negotiable, the
Agreement itself contains a capitalized acknowledgement each party had the “opportunity to
discuss the agreement with personal legal counsel” and “used that opportunity to the extent
desired.” (Agreement 4). Spurgeon does not claim to have spoken to an attorney about the
Agreement or to have made any attempt to negotiate its terms on her own behalf. 3 See Mackler
v. Fitness Int’l, LLC, No. 16-80150-CIV, 2016 WL 7756623, at *4 (S.D. Fla. Apr. 22, 2016)
(finding arbitration agreement was not procedurally unconscionable even though plaintiff
employee was required to sign it to obtain employment, and noting the agreement “warn[ed]
[plaintiff] in bold” it affected his rights and he therefore “may wish to seek legal advice” before
3

Even if the Court were satisfied the Agreement was truly non-negotiable, Spurgeon has failed to show,
and has not asserted, she lacked employment alternatives to Starwood. See Bhim, 655 F. Supp. 2d at 1315
(finding arbitration agreement was not procedurally unconscionable, reasoning in part “even if the
[agreement] was presented on a ‘take it or leave it’ basis, [plaintiff employee] has not shown that she
lacked employment alternatives to [defendant employer] in the event that she chose to ‘leave it’”
(alterations added)); Ware Else, Inc. v. Ofstein, 856 So. 2d 1079, 1082 (Fla. 5th DCA 2003) (noting “the
vast majority of employment agreements are take-it-or-leave-it propositions” and “if [plaintiff employee]
did not like the terms of the agreement, she could indeed have left it” (alterations added)).

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
signing it (alterations added)). Nor does Spurgeon claim to have tried unsuccessfully to obtain
the relevant AAA rules.
To be sure, there was disparity in bargaining power between Starwood and Spurgeon, the
extent of which was perhaps enhanced by Spurgeon’s status as a Starwood employee when they
were discussing the opportunity to work at the Hotel. But “[m]ere inequality in bargaining
power . . . is not a sufficient reason to hold that arbitration agreements [are unenforceable].”
Caley, 428 F.3d at 1377 (first alteration added; second and third alteration in original; internal
quotation marks omitted) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32–33
(1991)). The relevant consideration is how any such disparity manifested itself. Here, the
Arbitration Agreement is not oppressive, and far from being hidden in a “maze of fine print,”
Spurgeon’s commitment to arbitrate is set forth in a stand-alone three-page contract. See id. at
1377 (finding dispute resolution agreement was not procedurally unconscionable because “[i]ts
terms [were] clear and were presented to employees with a cover letter reflecting the importance
of the policy, and its terms [were] not oppressive” (alterations added)). Further, the terms of the
Agreement are straightforward and easy for a director-level employee like Spurgeon to
understand; to the extent there is any ambiguity in the Agreement, it certainly does not relate to
the causes of action in Spurgeon’s Complaint, which the Agreement specifies are within its
scope.
b. Substantive Unconscionability
Because both procedural and substantive unconscionability must be present to find an
arbitration agreement unenforceable, see Butch, 24 So. 3d at 711, Spurgeon’s failure to establish
procedural unconscionability forecloses her unconscionability argument. But although it is a
closer question, Spurgeon’s argument that the Arbitration Agreement is substantively

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
unconscionable also falls short, and it is worth briefly explaining why.

Substantive

unconscionability turns on the agreement itself, considering whether the disputed terms “limit
available remedies, exclude punitive damages, prevent equitable relief, impose substantial costs,
or lack mutuality of obligation with respect to the arbitration of disputes.” Henry v. Pizza Hut of
Am., Inc., No. 07-01128-CIV, 2007 WL 2827722, at *4 (M.D. Fla. Sept. 27, 2007) (quoting U.S.
EEOC v. Taco Bell of Am., Inc., No. 06-001792-CIV, 2007 WL 809660, at *1 (M.D. Fla. Mar.
15, 2007)).
Spurgeon’s primary argument in this regard is Starwood’s obligations under the
Agreement are illusory because despite being titled a “Mutual Agreement to Arbitrate,” a closer
look reveals Spurgeon is the only party required to forego judicial resolution of her claims.
(Resp. 9–14). In other words, Spurgeon asserts under the Agreement, “Starwood retains the right
to sue Spurgeon, but shield from public eye . . . her claims against them [sic].” (Id. at 12
(alteration added)). In support of this position, Spurgeon references a section of the Agreement
she believes carves out the types of claims Starwood would have against her. (See id.).
The Court acknowledges the Agreement’s exclusion of claims “involv[ing] the alleged
taking, use or disclosure of trade secrets and similar confidential or proprietary information”
encompasses a large and important category of claims Starwood could realistically raise against
its employees. Florida courts have held “[w]here one party is bound to arbitration of its claims
but the other is not, there can be some substantive unconscionability.” Palm Beach Motor Cars
Ltd., Inc. v. Jeffries, 885 So. 2d 990, 992 (Fla. 4th DCA 2004) (alteration added; citation
omitted). But the exclusion clause does not encompass all of Starwood’s potential claims, and
even if it did, one-sided arbitration agreements are not necessarily infected with substantive
unconscionability — courts must look at the agreement as a whole. See, e.g., Tranchant v. Ritz

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Carlton Hotel Co., LLC, No. 10-00233-CIV, 2011 WL 1230734, at *6 (M.D. Fla. Mar. 11, 2011)
(upholding a one-sided arbitration provision because it was limited in scope, did not require
plaintiff to surrender claims or damages he could have sought in court, did not impose substantial
costs on plaintiff, and provided for discovery consistent with the arbitral rules governing the
agreement); Avid Eng’g, Inc. v. Orlando Marketplace, Ltd., 809 So. 2d 1, 5 (Fla. 5th DCA 2001)
(upholding a one-sided arbitration provision, reasoning it was not substantively unconscionable
because it “[did] not require [plaintiff-appellee] to surrender any of its claims or damages that it
could seek in court,” but “merely substitute[d] the forum for deciding those claims and damages”
(alterations added)).4
Spurgeon claims the terms of the Agreement reflect Starwood’s attempt to create an
unfair advantage over her and argues the Agreement is in fact so unfair it should “shock the
judicial conscience.” (Resp. 12–14). Having reviewed the Agreement, the Court’s conscience is
not shocked. For one, the Agreement carves out important categories of claims employees could

4

According to Spurgeon, the alleged lack of mutuality shows not only the Arbitration Agreement’s
substantive unconscionability, but also lack of consideration. This argument is also without merit, but for
a different reason. Under Florida law, “mutual promises to arbitrate are not the only form of
consideration sufficient to support an arbitration provision.” Tranchant, 2011 WL 1230734, at *4. To
the contrary, “consideration can be established by performance or a promise to perform,” id. (citation
omitted), and “[a] promise, no matter how slight, qualifies as consideration if the promisor agrees to do
something that he or she is not already obligated to do.” Cintas Corp. No. 2 v. Schwalier, 901 So. 2d 307,
309 (Fla. 1st DCA 2005) (alteration added; citation omitted). Spurgeon specifically alleges she
considered the opportunity at the Hotel to be a “‘promotion’ . . . at a higher salary.” (Compl. ¶ 28
(alteration added)). By signing the Agreement, she acknowledged the Agreement was “in consideration
of Starwood’s employment, transfer, or promotion” of her. (Agreement 3 (emphasis added)). This
consideration is sufficient to support her commitment to arbitrate. See Schwalier, 901 So. 2d at 309
(finding trial court erred in denying defendant employer’s motion to compel arbitration, and explaining
defendant’s promises of “continued employment, increased pay and benefits” were sufficient
consideration for arbitration agreement); Tranchant, 2011 WL 1230734, at *4 (finding defendant
employer’s continued employment of plaintiff to be sufficient consideration for employment agreement
and arbitration provision contained therein); see also Bhim, 655 F. Supp. 2d at 1313 (noting although the
parties’ mutual promises to arbitrate provided sufficient consideration for the arbitration agreement,
“[plaintiff] received additional consideration . . . in the form of her continued employment at [defendant
store]” (alterations added)).

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potentially have against Starwood, as well, including monetary claims within the jurisdiction of a
small claims court and claims involving a failure to pay a retention bonus or relocation expense.
(See Agreement 3). But more importantly, by committing to arbitration, Spurgeon was not
required to forego any claim or remedy — the Agreement specifically provides the arbitrator
with the “authority to award equitable relief, damages, costs, and fees to the extent permitted by
law, including, but not limited to, any remedy or relief that a governing court might order.” (Id.
at 2). Nor does the Agreement handicap Spurgeon’s ability to build and present her case — it
provides for “adequate discovery,” including “reasonable access to essential documents and
witnesses as determined by agreement or the arbitrator,” and it states each party “shall be entitled
to present evidence and examine and cross-examine witnesses.” (Id.) For these reasons, the
Arbitration Agreement is valid and enforceable.5
B.

Whether Marriott and W Hotel Management May Compel Arbitration
As noted, Spurgeon objects to Defendants’ claim that Marriott and W Hotel Management

are entitled to compel arbitration pursuant to the Arbitration Agreement despite being nonsignatories. Specifically, Spurgeon challenges the argument that these two Defendants may
compel arbitration on the ground that Spurgeon’s allegations against them are “inextricably
intertwined” with her allegations against Starwood. (See Resp. 16). Spurgeon also disagrees
that Defendants should be permitted to compel arbitration as third-party beneficiaries of the
Agreement, emphasizing Defendants’ failure to provide affidavits or declarations elucidating
their exact relationship to Starwood. (See id. at 15).

5

The fairness of the Arbitration Agreement is further underscored by the provision making Starwood
responsible for the majority of arbitration costs. Spurgeon must pay the initial AAA filing fee of up to a
maximum of $125, but Starwood is responsible for all arbitrator compensation, as well as any filing or
administrative fees in excess of the $125. (See Agreement 2).

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Spurgeon is correct in noting non-signatories to an arbitration agreement generally may
not compel signatories to arbitrate pursuant to that agreement under Florida law. See Koechli v.
BIP Int’l, Inc., 870 So. 2d 940, 943 (Fla. 1st DCA 2004). However, there are exceptions to this
rule, one of which is the doctrine of equitable estoppel. See Kolsky v. Jackson Square, LLC, 28
So. 3d 965, 969 (Fla. 3d DCA 2010). This doctrine recognizes “[a] non-signatory . . . may
compel arbitration when the allegations against him are inextricably intertwined with or mirror
those against a signatory, or when the allegations are of interdependent and concerted
misconduct between a non-signatory and a signatory.” Dimattina Holdings, LLC, 195 F. Supp.
3d at 1292 (citations omitted; alterations added).
Although Spurgeon recognizes this exception, she fails to offer any convincing reason
why it should not be applied in this case, and the Court is not aware of any. Spurgeon’s claims
against all three Defendants are inextricably intertwined because, as set forth in the Background
section above, they rely on a single set of factual allegations. Tellingly, all six counts of
Spurgeon’s Complaint refer to the “Defendants” collectively rather than naming Starwood,
Marriott, or W Hotel Management individually. See Dimattina Holdings, 195 F. Supp. 3d at
1292 (compelling arbitration where the claims against the signatory and non-signatory were “one
and the same,” and because plaintiff “repeatedly refer[red] to their actions collectively”
(alteration added)).

Indeed, Spurgeon even alleges Marriott’s purchase of Starwood and

W Hotel Management in September 2016 had the effect of “merging the companies.” (Compl. ¶
21). Because of her own admissions, the Court finds Spurgeon is equitably estopped from
avoiding arbitration with Marriott and W Hotel Management. See Escobal v. Celebration Cruise
Operator, Inc., 482 F. App’x 475, 476 (11th Cir. 2012) (affirming district court’s finding non-

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CASE NO. 16-24612-CIV-ALTONAGA/O’Sullivan
signatory could be compelled to arbitrate on equitable estoppel grounds where plaintiff’s claims
against signatory and non-signatory defendants were “inextricably intertwined”).6
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Motion [ECF No. 14] is GRANTED as
follows:
1. Arbitration of Spurgeon’s claims is compelled in accordance with the Arbitration
Agreement and the FAA.
2. This case is STAYED pending arbitration.
3. The Clerk is directed to administratively CLOSE this case.
DONE AND ORDERED in Miami, Florida this 7th day of March, 2017.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

6

The Court need not, and therefore does not, reach the question of whether Marriott and W Hotel
Management are also entitled to compel arbitration as third-party beneficiaries of the Agreement or
whether Plaintiff should be allowed discovery. The Court notes, however, that in opposing this argument
Spurgeon contests whether Defendants have established that Marriott and W Hotel Management are
affiliates of Starwood, even though she relied upon them being affiliates for purposes of bringing this
action.

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