Stevenson et al v. The Great American Dream, Inc. et al

Filing 120

ORDER denying 109 Motion for Reconsideration re: 99 Order on Motion for Reconsideration, Order on Motion for Appeal under 1292(b). Signed by Judge Thomas W. Thrash, Jr on 7/15/2014. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARTISHA STEVENSON
Individually and on behalf of others
similarly situated, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:12-CV-3359-TWT

THE GREAT AMERICAN DREAM,
INC. doing business as
Pinups, et al.,
Defendants.

OPINION AND ORDER

This is an FLSA overtime case. It is before the Court on the Plaintiff Kwanza
Edwards’ Motion for Reconsideration [Doc. 109]. For the reasons set forth below, the
Plaintiff’s Motion for Reconsideration [Doc. 109] is DENIED.
I. Background
The Plaintiffs Martisha Stevenson and Elisha Hunter – former adult entertainers
at Pin Ups Nightclub – brought suit alleging that they were entitled to minimum wage
and overtime compensation under the FLSA. On December 17, 2012, they moved for

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conditional certification of a collective action class,1 which was granted on August 14,
2013.2 The Plaintiff Kwanza Edwards filed an opt-in form to become part of the
collective action class on October 7, 2013.3 However, on February 24, 2013 – after
Stevenson and Hunter had moved for conditional certification, but before Edwards
had opted in – Edwards signed an arbitration agreement.4 The Defendant filed a
motion to compel Edwards to arbitrate her claim, which the Court granted on January
16, 2014.5 On January 22, 2014, Edwards filed her first Motion for Reconsideration,6
which was denied.7 Edwards now again moves the Court to reconsider its ruling.

II. Legal Standard

1

[Doc. 15].

2

[Doc. 50].

3

She originally filed her form on October 2, 2013 [Doc. 56-1], but then
filed a redacted version on October 7, 2013 [Doc. 57-1].
4

Adams Decl., Ex. A.

5

[Doc. 86].

6

[Doc. 87].

7

[Doc. 99].

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Local Rule 7.2 provides that motions for reconsideration are not to be filed “as
a matter of routine practice,” but only when “absolutely necessary.”8 A party may
move for reconsideration only when one of the following has occurred: “an
intervening change in controlling law, the availability of new evidence, [or] the need
to correct clear error or prevent manifest injustice.”9 Further, a party “may not employ
a motion for reconsideration as a vehicle to present new arguments or evidence that
should have been raised earlier, introduce novel legal theories, or repackage familiar
arguments to test whether the Court will change its mind.” 10

8

L.R. 7.2E.

9

Godby v. Electrolux Corp., No. 1:93-CV-0353-ODE, 1994 WL 470220,
at *1 (N.D. Ga. May 25, 1994).
10

Brogdon v. National Healthcare Corp., 103 F. Supp. 2d 1322, 1338 (N.D.
Ga. 2000); see also Godby, 1994 WL 470220, at *1 (“A motion for reconsideration
should not be used to reiterate arguments that have previously been made ... ‘[It is an
improper use of] the motion to reconsider to ask the Court to rethink what the Court
[has] already thought through-rightly or wrongly.’”) (quoting Above the Belt, Inc. v.
Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.1983)) (alterations in
original); In re Hollowell, 242 B.R. 541, 542-43 (Bankr. N.D. Ga. 1999) (“Motions
for reconsideration should not be used to relitigate issues already decided or as a
substitute for appeal ... Such motions also should not be used to raise arguments which
were or could have been raised before judgment was issued.”).
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III. Discussion
Edwards argues that the Court erred in finding that the arbitration agreement
was not unconscionable. Under Georgia law, the “unconscionability doctrine
contemplates both procedural unconscionability, which addresses the process of
making the contract, and substantive unconscionability, which looks to the contractual
terms themselves.”11 In moving the Court to reconsider its ruling, Edwards focuses not
so much on the content of the arbitration agreement, or the procedure by which it was
executed, but rather on the time at which it was executed. Edwards argues that an
otherwise permissible arbitration agreement is unconscionable if it was executed
during the pendency of a collective action for which the signatory may potentially
have been a participant. This argument fails. Regardless of whether there is a
pre-existing collective action, the effect of the arbitration agreement is the same: it
prevents the signatory from litigating her FLSA claim in a judicial forum. In her
Motion for Reconsideration, the Plaintiff does not deny that – in Caley v. Gulfstream
Aerospace Corp.12 – the Eleventh Circuit stated that a compulsory arbitration

11

Cappuccitti v. DirectTV, Inc., 623 F.3d 1118, 1124 (11th Cir. 2010)
(internal quotation marks omitted).
12

428 F.3d 1359 (11th Cir. 2005).

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agreement issued to an employee is not per se unconscionable.13 The Plaintiff
similarly concedes that – according to Caley – an arbitration agreement is not
unconscionable simply because it requires a party to forfeit her right to take part in a
collective action.14 It is thus unclear why, for the unconscionability analysis, it makes
any difference when the collective action was initiated.
In response, Edwards argues that the Eleventh Circuit in Billingsley v. Citi
Trends, Inc.15 found that an arbitration agreement executed during the pendency of a
collective action was unconscionable.16 This is incorrect. In Billingsley, the district
court had cited two bases for not enforcing an arbitration agreement: (1) the agreement
was unconscionable, and (2) the court could set aside the arbitration agreement using
its inherent authority to supervise and manage a collective action.17 In affirming the
judgment, the Eleventh Circuit expressly noted that it was only relying on the latter

13

See id. at 1367 (“[C]ompulsory arbitration agreements are . . . common
in the workplace, and it is not an unlawful employment practice for an employer to
require an employee to arbitrate . . . rights under . . . federal statutes.”).
14

See id. at 1378 (“The plaintiffs . . . argue that the [agreement] is
unconscionable because it precludes class actions . . . [w]e disagree.”).
15

No. 13-12561, 2014 WL 1199501 (11th Cir. Mar. 25, 2014).

16

Pl.’s Second Mot. for Reconsideration, at 6.

17

See Billingsley, 2014 WL 1199501, at *5.

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ground.18 It did not address unconscionability.19 Edwards then contends that the
arbitration agreement “divest[s]” her of the “right to participate in the pending
litigation[].”20 But the same could be said if the arbitration agreement had been signed
prior to the filing of this action – it still would have inhibited Edwards from optingin.21 Again, this argument does not support Edwards’ assertion that the arbitration
agreement is unconscionable due to the time at which it was executed.
The Court also rejects Edwards’ arguments for why the Court, pursuant to its
inherent authority to manage a collective action, ought to disregard the arbitration
agreement. The Court has “broad authority to exercise control over the collective
action and to govern the conduct of counsel and parties in the collective action.”22 This

18

See id. at *8 n.12 (“[O]ur affirmance of the district court’s exercise of its
managerial discretion does not require us to determine whether the district court
lacked authority to consider issues related to the arbitration agreements’ enforceability
or formation.”).
19

See id.

20

Pl.’s First Mot. for Reconsideration, at 9.

21

Additionally, the Eleventh Circuit recently held that the FLSA permits
a party to waive her right to proceed as part of a collective action. See Walthour v.
Chipio Windshield Repair, LLC, 745 F.3d 1326, 1334 (11th Cir. 2014) (“After
examining the FLSA’s text, legislative history, purposes, and . . . Supreme Court
decisions, we discern no ‘contrary congressional command’ that precludes the
enforcement of plaintiffs’ Arbitration Agreements and their collective action
waivers.”).
22

Id. at *6.

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includes the “authority to prevent confusion and unfairness concerning an FLSA
collective action.”23 This authority is necessary here because “ex parte communication
with putative FLSA collective members about the case has an inherent risk of
prejudice and opportunities for impropriety.”24 Here, as Edwards herself
acknowledges, the Defendant did not communicate with her about this case.25 The
Defendant simply did what it was allowed to do: it “require[d] [its] employee[s] to
arbitrate, rather than litigate, rights under various federal statutes.”26 Although this
may incidentally affect the litigation by reducing the total number of participants, that
alone does not compel the Court to disregard an otherwise valid arbitration agreement.
In response, Edwards cites to multiple out-of-Circuit decisions, none of which
stand for the proposition that an arbitration agreement executed during a collective
action suit is presumptively an impermissible intrusion upon a court’s managerial

23

Id.

24

Id. (emphasis added).

25

Pl.’s First Mot. for Reconsideration, at 9.

26

Caley, 428 F.3d at 1367; see also In re Checking Account Overdraft
Litig., 459 Fed. Appx. 855, 859 (11th Cir. 2012) (“Although the district court found
troubling that the clause was presented . . . ‘on a take-it-or-leave-it basis with no
opt-out provision,’ under Georgia law, an adhesion contract is not per se
unconscionable.”).
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authority. For example, in Williams v. Securitas Sec. Services USA, Inc.27 the Eastern
District of Pennsylvania invalidated an arbitration agreement because it “did not
require an employee to sign the document before it [became] effective,” and because
“the agreement [was] written in single-spaced, small type and crafted so as not to be
easily understood by lay persons.”28 Similarly, in Piekarski v. Amedisys Illinois,
LLC,29 the Northern District of Illinois invalidated an arbitration agreement because
“it [was] likely that . . . [the] employees did not understand they would be bound by
[the] agreement . . . unless they affirmatively opted-out.”30 Edwards does not allege
that similar circumstances are present here.
Edwards then argues that the Defendant ought to have informed her of the
current litigation.31 But it is unclear how the Defendant’s failure to discuss this case
with Edwards interfered with the Court’s managerial authority. To the extent that this
is another argument for why the arbitration agreement is unconscionable, the Court
is still unpersuaded. Even if Edwards was unaware of this litigation when she signed

27

CIV.A. No. 10-7181, 2011 WL 2713741 (E.D. Pa. July 13, 2011).

28

Id. at *2-3.

29

No. 12-CV-7346, 2013 WL 6055488 (N.D. Ill. Nov. 12, 2013).

30

Id. at *3.

31

Pl.’s First Mot. for Reconsideration, at 9.

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the arbitration agreement, she does not deny that the text of the arbitration agreement
made it clear to her that she could not participate in an FLSA collective action suit,
pre-existing or not.
Finally, Edwards argues that the Court ought to hold an evidentiary hearing. In
some circumstances, “evidentiary hearings are necessary.”32 They may be required,
for example, when there is a genuine dispute over material facts.33 Here, the Defendant
correctly points out that there is little dispute regarding the pertinent facts.34 Indeed,
other than referencing the time at which the arbitration agreement was signed, and the
inherent bargaining power asymmetry found in any employer-employee relationship,
Edwards points to nothing else that she believes was suspect about the manner in
which the agreement was executed. Thus, the Court denies Edwards’ request for an
evidentiary hearing. This is not an exceptional case and an interlocutory appeal would
not materially advance the ultimate termination of the litigation. Therefore, the request
to certify the Order for an interlocutory appeal is denied.

32

Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1303
(11th Cir. 1988).
33

See Love v. Deal, 5 F.3d 1406, 1409 (11th Cir. 1993).

34

Def.’s Resp. to Pl.’s First Mot. for Reconsideration, at 8.

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IV. Conclusion
For these reasons, the Plaintiff Kwanza Edwards’ Motion for Reconsideration
[Doc. 109] is DENIED.
SO ORDERED, this 15 day of July, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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