Smith v. Swift Transportation
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 23 Motion to Compel arbitration. This action is stayed pending resolution of the arbitration proceedings for all claims asserted by plaintiff after December 4, 2012. That defendant's mo tion to dismiss case for improper venue (Doc. # 23) be hereby denied. Defendant's motion for a more definite statement (Doc. # 23) be hereby granted in part. Plaintiff shall file an amended complaint in compliance with the guidelines stated in t his memorandum and order within fourteen (14) days of the date of this order. Signed by U.S. District Judge Richard D. Rogers on 10/7/2013. (Mailed to pro se party Shervis Ramar Smith by certified mail; Certified Tracking Number: 7012 2920 0001 2196 8466) (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERVIS RAMAR SMITH,
Plaintiff,
v.
SWIFT TRANSPORTATION, CO., INC.,
Defendant.
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Case No. 13-2247-RDR
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant=s motion
to compel arbitration and stay proceedings and/or dismiss case for
improper venue or, in the alternative, for a more definite statement.
Plaintiff has not filed a timely response to this motion.
The court
is now prepared to rule.
I.
Plaintiff, proceeding pro se, filed this action on May 23, 2013.
He later filed an amended complaint on July 11, 2013.
complaint is 120 pages.
The amended
It consists of an Aemployment discrimination
complaint@ form provided by the court, some handwritten pages, and
many documents related to plaintiff=s employment with the defendant.
Plaintiff is apparently seeking to pursue an action under Title VII
of the Civil Rights Act 0f 1964, 42 U.S.C. ' 2000e et seq.
defendant is Swift Transportation.
The named
In the form provided by the
court, plaintiff indicates that the Adiscrimination@ occurred from
October 2010 to May 2013.
He has further indicated that the nature
of the case is Amistaken identity.@
He suggests that he has been
subjected to Asexual harassment and defamation of character.@
In the
section requesting the essential facts of his claim, he has stated:
Ramona Robertson went out of her way to help me obtain my
job at SWIFT Transportation under the impression I was my
older brother Anthony Smith, who=s in the entertainment
business around the Metro Area. Every (sic) since she
learn (sic) I wasn=t him, I (sic) been put threw (sic) hell!
From her and co-workers labeling me as a St. Thug and such.
Not only that; she turn (sic) out to be related to my sons
mother; now Ramona has slandered my name threwout (sic)
her co-workers.
In an attached charge of discrimination filed with the Kansas
Human Rights Commission on April 24, 2013, plaintiff indicated that
he was rehired on or about September 12, 2012, and he currently works
as an owner/operator.
He states that during his employment he was
subjected to adverse term and conditions including but not limited
to being addressed by managers as a Astreet thug@ and Agang member.@
He notes that Agenerally@ his managers do not treat him with respect.
He contends that the actions of Swift Transportation were taken
because of his race, black, and his sex, male.
The other documents before the court indicate that plaintiff
was hired by Swift on October 13, 2010 as a driver.
on April 12, 2011.
He was later rehired.
He was terminated
On December 4, 2012,
plaintiff entered into a Contractor Agreement with Swift, thus
becoming an owner-operator truck driver.
In the agreement, the
parties agreed to Aconclusive and binding@ arbitration of A[a]ll
disputes arising under, arising out of or relating to this Agreement.
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. ., and any disputes arising out of or relating to the relationship
created by this Agreement, including any claims or disputes arising
under or relating to any state or federal laws, statutes or
regulations. . .in accordance with Arizona=s Arbitration Act and/or
the Federal Arbitration Act.@
The agreement also contained a forum
selection clause which stated that A[t]he parties agree that any legal
proceedings between the parties arising under, arising out of, or
relating to the relationship created by this Agreement, including
arbitration proceedings discussed above, shall be filed and/or
maintained in Phoenix, Arizona or the nearest location in Arizona
where such proceedings can be maintained.
The parties specifically
waive any defense as to personal jurisdiction in any federal or state
court in Arizona.@
Plaintiff=s position as an owner-operator truck
driver was later terminated by Swift.
II.
In its motion, Swift contends that the court should (1) compel
arbitration; (2) alternatively dismiss for improper venue; or (3)
alternatively grant a more definite statement.
Swift contends
initially that this matter should be stayed and arbitration compelled
because claims asserted in the amended complaint relate directly to
the
relationship
created
by
the
Agreement.
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December
4,
2010
Contractor
The FAA provides that contractual agreements to arbitrate
disputes Ashall be 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.
AThe purpose of the Act is >to place an
arbitration agreement upon the same footing as other contracts and
to
overturn
the
judiciary=s
agreements to arbitrate.=@
longstanding
refusal
to
enforce
Hill v. Ricoh Americas Corp., 603 F.3d
766, 771 (10th Cir. 2010)(quoting Glass v. Kidder Peabody & Co., Inc.,
114 F.3d 446, 451 (4th Cir. 1997)).
The FAA states a Aliberal federal
policy favoring arbitration agreements.@
Moses H. Cone Memorial
Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983).
The
FAA obliges courts to stay litigation on matters that the parties
have agreed to arbitrate.
9 U.S.C. ' 3; Hill, 603 F.3d at 771.
The court is persuaded that all of plaintiff=s claims that arise
after December 4, 2012 are subject to arbitration.
The arbitration
provision in the Contractor Agreement is a valid and enforceable
provision.
as
an
Plaintiff was provided with the agreement when he began
owner-operator
truck
driver
voluntarily and knowingly signed it.
on
December
4,
2012.
He
Therefore, the court must
enforce it and must compel arbitration for all claims that arose after
December 4, 2012.
The court shall stay litigation of these claims
until resolution of them in arbitration.
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The court notes, however, that plaintiff has asserted claims
that arise prior to December 4, 2012.
These claims are difficult
to discern, but Swift recognizes that plaintiff is also attempting
to assert such claims.
Swift contends that plaintiff=s claims
arising prior to December 4, 2012 are also subject to arbitration.
Swift argues that the language of the arbitration clause includes
those claims that arose before the agreement was signed.
Swift
relies upon Zink v. Merrill Lynch, Pierce, Fenner & Smith, 13 F.3d
330, 332 (10th Cir. 1993) for support.
The court is not persuaded at this time that these claims are
subject to arbitration.
bonds in 1980.
In Zink, the plaintiff purchased a some
A financial account was opened for him and thereafter
managed continuously by the defendant.
Zink, 13 F.3d at 331.
Two
years after the bond purchase, without any cessation in the business
relationship, the parties executed a formal account agreement which
included an arbitration clause that provided, in part, as follows:
AIt is agreed that any controversy between us arising out of your
business or this agreement, shall be submitted to arbitration. . .
.@
Id.
The following year, the plaintiff instituted a civil action
in federal court alleging various claims concerning the initial bond
purchase. Id.
The Tenth Circuit determined that the arbitration agreement
covered both the plaintiff=s financial account and any dispute
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stemming from the plaintiff=s business dealings with the defendant,
and then held that the agreement was Aclearly broad enough to cover
the dispute at issue despite the fact that the dealings giving rise
to the dispute occurred prior to the execution of the agreement.@
Id.
at 332.
The court does not find Zink applies here.
Here, unlike in
Zink, the parties have not agreed to specific contract language
encompassing prior dealings.
The language of the Contractor
Agreement appears only to include those claims arising in connection
with that agreement.
The nature of the plaintiff=s status with Swift
changed when he signed the Contractor Agreement.
The court finds
no basis for the argument that plaintiff=s claims arising prior to
December 4, 2012 are within the arbitration provision of the
Contractor Agreement.
III.
Swift has also argued, in the alternative, that this action
should be dismissed for improper venue.
This argument is based on
the forum selection clause contained in the Contractor Agreement.
Swift contends that this action should have been filed in Arizona.
The court has compelled plaintiff to seek arbitration on the
claims arising after December 4, 2012, and stayed this litigation
pending resolution of the arbitration.
motion as moot at the present time.
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The court will deny this
Swift may raise the issue at
a later time if it becomes relevant.
The court has also determined
that the other claims raised by the plaintiff precede the date of
the Contractor Agreement.
For the reasons previously stated, these
claims are not subject to the terms of the Contractor Agreement and
therefore not subject to the forum selection clause.
IV.
Finally, the court shall consider Swift=s motion for a more
definite statement.
Swift asserts that it is unclear what type of
discrimination that plaintiff is alleging in this action.
Fed.R.Civ.P. 12(e) provides that, A[i]f a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, the
party may move for a more definite statement before interposing a
responsive pleading. . . .@
lies
within
the
sound
Whether to grant or deny such a motion
discretion
of
the
court.
Bradley
v.
ValBMejias, 2001 WL 1155292, at *1 (D. Kan. April 18, 2001)(citing
Graham v. Prudential Home Mortgage Co., 186 F.R.D. 651, 653
(D.Kan.1999)).
Although such motions are generally disfavored,
they should be granted Awhen a party is unable to determine the issues
requiring a response. . .[T]he standard to be applied is whether the
claims alleged are sufficiently specific to enable a responsive
pleading in the form of a denial or admission.@
Shaffer v. Eden, 209
F.R.D. 460, 464 (D.Kan.2002)(citations omitted).
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The court agrees with Swift that framing a response to the
plaintiff=s complaint would be extremely difficult.
The court has
made some effort to identify the claims asserted by the plaintiff
in the prior discussion of the plaintiff=s complaints and the
attachments.
But, the claims are difficult to discern.
The court
understands that plaintiff is proceeding pro se, but the filings of
pro se parties are subject to the Federal Rules of Civil Procedure.
Williamson v. Owners Resort & Exch., 90 Fed. Appx. 342, 345 (10th Cir.
2004).
The Federal Rules of Civil Procedure require complaints to
be comprehensible and provide a
A>short and plain= statement of the
claims sufficient to give the defendants reasonable and fair notice
of the basis of the claims.@
Id.; Fed.R.Civ.P. 8(a)(2).
The court shall require plaintiff to file an amended complaint
within fourteen (14) days of the date of this order.
The complaint
should be a short and plain statement of what he alleges happened
and which statutes he claims were violated.
In doing so, plaintiff
shall list the specific statutory section, the specific action that
he believes constitutes a violation of it, and the date on which the
action allegedly occurred.
Plaintiff should focus on the claims
that occurred prior to December 4, 2012.
IT IS THEREFORE ORDERED that defendant=s motion to compel
arbitration (Doc. # 23) be hereby granted in part and denied in part.
This
action
is
stayed
pending
resolution
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of
the
arbitration
proceedings for all claims asserted by plaintiff after December 4,
2012.
IT IS FURTHER ORDERED that defendant=s motion to dismiss case
for improper venue (Doc. # 23) be hereby denied.
IT IS FURTHER ORDERED that defendant=s motion for a more definite
statement (Doc. # 23) be hereby granted in part.
Plaintiff shall
file an amended complaint in compliance with the guidelines stated
in this memorandum and order within fourteen (14) days of the date
of this order.
IT IS SO ORDERED.
Dated this 7th day of October, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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