McAllister v. Hertz Global Holdings, Inc. et al

Filing 86

EO: COURT ORDER DENYING: PLAINTIFF'S 63 MOTION REQUESTING THE COURT TO APPOINT AN ARBITRATOR TO THIS CASE; AND THE SNELLING DEFENDANTS' 79 MOTION TO LIFT STAY, VACATE ORDER COMPELLING ARBITRATION, AND ENTER SCHEDULING ORDER. (JUDGE LESLIE E. KOBAYASHI)(afe)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

MINUTES

CASE NUMBER:

CIVIL NO. 17-00146 LEK-WRP

CASE NAME:

Willis C. McAllister vs. Hertz Global Holdings, Inc., doing
business as DTG Operations, Inc. et al.,

JUDGE:

Leslie E. Kobayashi

DATE:

1/15/2020

COURT ACTION: EO: COURT ORDER DENYING: PLAINTIFF’S MOTION
REQUESTING THE COURT TO APPOINT AN ARBITRATOR TO THIS CASE; AND
THE SNELLING DEFENDANTS’ MOTION TO LIFT STAY, VACATE ORDER
COMPELLING ARBITRATION, AND ENTER SCHEDULING ORDER
Pro se Plaintiff Willis C. McAllister (“Plaintiff”) filed his Motion Requesting the
Court to Appoint an Arbitrator to this Case (“Plaintiff’s Motion”) on September 13, 2019.
[Dkt. no. 63.] Defendants Snelling Services, LLC (“Snelling”) and Lisa Lien
(collectively “the Snelling Defendants”) filed their Opposition to Plaintiff’s Motion
Requesting the Court to Appoint an Arbitrator to this Case on November 8, 2019. [Dkt.
no. 80.] On November 11, 2019, Defendants DTG Operations, Inc. and George Choe
(collectively “the DTG Defendants”) filed their Substantive Joinder in Defendants
Snelling Services, LLC and Lisa Lien’s Opposition to Plaintiff’s Motion Requesting the
Court to Appoint an Arbitrator to this Case [Doc 80]. [Dkt. no. 84.] This matter was
subsequently taken under advisement as a non-hearing matter. [Minute Order, filed
12/03/19 (dkt. no. 85).]
For the following reasons, Plaintiff’s Motion is hereby DENIED.
The history of this matter significant to the issue at hand is that: Plaintiff filed his
complaint in this matter on April 2, 2017, which sets forth employment claims against the
DTG Defendants and the Snelling Defendants. [Dkt. no. 1.] Because Plaintiff signed
Snelling’s Dispute Resolution Policy, which requires arbitration of certain claims, the
parties were ordered to arbitrate all claims in the case, and the matter was stayed pending
arbitration of Plaintiff’s claims. [Order Granting in Part and Denying in Part Defendants
Snelling Services, LLC and Lisa Lien’s Motion to Compel Arbitration, and Defendants
DTG Operations Inc. and George Choe’s Substantive Joinder, filed 2/22/18 (dkt. no. 58).]
Plaintiff seeks appointment of another arbitrator in his employment case pursuant
to state law; specifically, the procedure set forth in Hawai`i Revised Statutes § 658A-11:
Appointment of arbitrator; service as a neutral arbitrator

(a)
If the parties to an agreement to arbitrate agree on a method
for appointing an arbitrator, that method shall be followed, unless the
method fails. If the parties have not agreed on a method, the
agreed method fails, or an arbitrator appointed fails or is unable
to act and a successor has not been appointed, the court, on
motion of a party to the arbitration proceeding, shall appoint the
arbitrator. An arbitrator so appointed has all the powers of an
arbitrator designated in the agreement to arbitrate or appointed
pursuant to the agreed method.
Haw. Rev. Stat. § 658A-11(a) (emphasis added). Thus, § 658A-11 provides that this
Court can only appoint an arbitrator in this matter if the agreed method fails.
The relevant language of the contract controlling the arbitration, and the selection
of the arbitrator, provides:
A single arbitrator shall decide all disputes involving Claims. The
arbitrator shall be selected by mutual agreement of the parties within
thirty (30) days of the effective date of the notice initiating the
arbitration. If the parties cannot agree on an arbitrator, then the
complaining party shall notify the [American Arbitration
Association (“AAA”)] and request selection of an arbitrator in
accordance with the AAA Employment Rules.
[Snelling Defs.’ Motion to Compel Arbitration, filed 9/13/17 (dkt. no. 45), Decl. of Lisa
Lien, Exh. A (Dispute Resolution Policy) at 2 (emphasis added).] The contract language
expressly provides for a process for selecting the arbitrator – namely, the AAA
Employment Rules, i.e. the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, as amended. See id. at 1.
The relevant language of Rule 12 (Number, Qualifications and Appointment of
Neutral Arbitrators) of the AAA Employment Rules provides:
c.

If the parties have not appointed an arbitrator and have not
provided any method of appointment, the arbitrator shall be
appointed in the following manner:
i.

Shortly after it receives the Demand, the AAA shall
send simultaneously to each party a letter containing an
identical list of names of persons chosen from the
Employment Dispute Resolution Roster. The parties
are encouraged to agree to an arbitrator from the
submitted list and to advise the AAA of their
agreement.

ii.

If the parties are unable to agree upon an arbitrator,

each party to the dispute shall have 15 days from the
transmittal date in which to strike names objected to,
number the remaining names in order of preference,
and return the list to the AAA. If a party does not
return the list within the time specified, all persons
named therein shall be deemed acceptable.
iii.

From among the persons who have been approved on
both lists, and in accordance with the designated order
of mutual preference, the AAA shall invite the
acceptance of an arbitrator to serve. If the parties fail
to agree on any of the persons named, or if
acceptable arbitrators are unable to act, or if for
any other reason the appointment cannot be made
from the submitted list, the AAA shall have the
power to make the appointment from among other
members of the panel without the submission of
additional lists.

Am. Arbitration Ass’n, Employment Arbitration Rules and Mediation Procedures 15
(2009) (emphasis added),
https://www.adr.org/sites/default/files/EmploymentRules_Web2119.pdf.
As there is no indication that the agreed method - the AAA Employment Rules,
Rule 12(c)(iii) - has failed, Plaintiff’s Motion is hereby DENIED. The parties are
INSTRUCTED to consult AAA as set forth in the AAA Employment Rules to schedule
the arbitration ordered in the instant matter.
In light of the Court’s direction, the Snelling Defendants’ Motion to Lift Stay,
Vacate Order Compelling Arbitration, and Enter Scheduling Order, [filed 11/7/19 (dkt.
no. 79),] is hereby DENIED.
IT IS SO ORDERED.

Submitted by: Agalelei Elkington, Courtroom Manager