Baricuatro et al v. Industrial Personnel and Management Services, Inc. et al

Filing 440

ORDER and REASONS denying as moot 275 Motion to Dismiss and/or Compel Arbitration as to Plaintiffs Isagani Garing and Angelito Marasigan and granting in part and denying without prejudice in part 368 Motion to Compel Arbitration, as stated within document. Signed by Judge Kurt D. Engelhardt on 6/18/2013. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ISIDRO BARICUATRO, ET AL

CIVIL ACTION

VERSUS

NO. 11-2777

INDUSTRIAL PERSONNEL AND
MANAGEMENT SERVICES, INC., ET AL

SECTION “N” (2)

ORDER AND REASONS
Before the Court is the Third Motion to Compel Arbitration and Stay Proceedings
Pending Arbitration & Re-urging of Motion to Compel Arbitration and Stay Proceedings (Rec.
Doc. 368), filed by defendants V Manpower Philippines, Inc. (“V People”) & Pacific Ocean
Manning Inc. (“POMI”).
I. BACKGROUND:
The instant motion is a follow-up to this Court’s Order and Reasons of February 27, 2013
(Rec. Doc. 330), in which the Court denied without prejudice POMI and V People’s original
motion to compel arbitration (Rec. Doc. 214) as to several plaintiffs on grounds that the movants
had failed to prove the existence of a written arbitration agreement with respect to those
plaintiffs. That Order and Reasons (Rec. Doc. 330) is incorporated herein. Having now
located copies of the Seafarer Standard Terms signed by certain of those plaintiffs, the movants
now reurge their motion with respect to these plaintiffs and seek to compel arbitration as to
certain other plaintiffs not addressed in the original motion.

II. ANALYSIS:
In support of the instant motion the movants have submitted copies of the Seafarer
Standard Terms (containing an arbitration agreement) signed by the following twelve plaintiffs:
(1) Zosimo Barroga; (2) Randy O. Cabuenas; (3) Rogelio L. Calagos; (4) Bienvenido B. Cruzat;
(5) Teodoro V. Dominguez; (6) Joselito B. Eleda; (7) Teofilo Erwin S. Garcia; (8) Isagani
Garing; (9) Benito P. Ilagan, Jr.; (10) Angelito A. Marasigan; (11) Amado G. Matusalin; and
(12) Dante A. Perez. See Rec. Docs. 368-2, 368-3 and 368-4.
Plaintiffs offer three arguments in opposition: (1) the movants have failed to submit
employment contracts as to certain of the plaintiffs; (2) only POMI, not V People, is indicated as
a party to the agreements embodied in the signed copies of the Seafarer Standard Terms, and the
movants have failed otherwise to prove that V People is a party to the arbitration agreements;
and (3) as to five of the plaintiffs, the agreements are void due to fraud in the inducement. See
Rec. Doc. 394.
A. Whether POMI Has Established Written Arbitration Agreements:
As to plaintiffs’ first argument, the Court disagrees. Although the movants have not
submitted separate employment agreements for each of the twelve plaintiffs,1 they have
submitted for each of the plaintiffs a copy of the Seafarer Standard Terms, dated and signed by
the plaintiff and an agent for POMI. See Rec. Docs. 368-2, 368-3 and 368-4. The Court finds
that these documents are sufficient to establish a written arbitration agreement between POMI
and each of the twelve plaintiffs.

1

Such agreements are in the record as to certain of the plaintiffs as attachments to Rec.
Docs. 214 and 275.
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B. Whether V People is a Party to Any of the Arbitration Agreements:
The Court agrees with the plaintiff’s second argument. V People is not a signatory to the
arbitration agreements, and the agreements do not appear to mention V People. The burden is
on V People to prove that it is a party to the arbitration agreement. The Court should not be left
to guess. Accordingly, as to V People, the motion will be denied without prejudice.
C. Whether Any of the Agreements is Void for Fraud in the Inducement:
Plaintiffs’ final argument is that the arbitration agreements entered into by the following
five plaintiffs are void due to fraud in the inducement: (1) Zosimo Barroga; (2) Randy O.
Cabuenas; (3) Rogelio L. Calagos; (4) Teofilo Erwin S. Garcia; and (5) Dante A. Perez. In
support of this argument, plaintiffs point to exhibits and arguments presented in opposition to the
movants’ original motion. See Rec. Docs. 246 at 1-5, 16-22; 246-2 at 7-15, 18-23. Law and
analysis regarding fraud in the inducement is set forth at pages 33-34 of this Court’s prior ruling.
See Rec. Doc. 33.
Ignorance by one party of the terms of an agreement may form a basis for nullity if it was
induced by the other party. American Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 538 (5th Cir.
2003). Inducement may be found if the party misrepresented facts, acted in less than good faith,
or had notice of the other party’s ignorance. Id. In opposition to the movants’ original motion,
the plaintiffs argued that they were ignorant of the arbitration agreement contained in the
Seafarer Standard Terms because: (1) they had no opportunity to review the document; (2) the
copy provided to them was in illegibly fine print; and (3) they do not read English proficiently.
See Rec. Doc. 246 at 19-21. Plaintiffs incorporate the same arguments here, pointing to the
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declarations submitted by five of the plaintiffs (Barroga, Cabuenas, Calagos, Garcia and Perez)
in connection with the earlier motion. See Rec. Doc. 246-2 at 7-15, 18-23. Pertinent to this
argument, these declarants state the following: (1) “English is my second language. I do not
read English proficiently.” and (2) “I do not recall having the opportunity to read or review the
Standard Terms and Conditions Governing the Employment of Seafarers on Board Ocean Going
Vessels (“Seafarer Standard Terms”); or the arbitration provision in the Seafarer Standard
Terms; or any rules regarding arbitration before I signed and/or at the time that I signed the
employment contract.” Id.2

In none of the declarations does the declarant state that he was

ignorant of the arbitration clause when he signed the Seafarer Standard Terms. Nor do the
plaintiffs offer any evidence tending to show that POMI knew of such ignorance or that POMI’s
agents misrepresented any facts or acted in bad faith. Accordingly, assuming without deciding
that this is an argument that the Court may even consider,3 the Court finds that the plaintiffs have
failed to make out a prima facie case of fraud in the inducement.
D. Whether Any of the Agreements is Void for Fraud:
In their opposition memorandum (Rec. Doc. 394), the plaintiffs argue only that the
agreements of certain plaintiffs (Barroga, Cabuenas, Calagos, Garcia and Perez) are void for
fraud in the inducement. Rec. Doc. 394 at 6. They do not refer to the separate fraud argument

2

The language of the five declarations are identical in this regard, except that the
declaration of Teofilo Garcia omits the sentence: “I do not read English proficiently.” Rec.
Doc. 246-2 at 20.
3

See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402-04 (1967).
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asserted in opposition to the earlier motion regarding the alleged misclassification of workers.
See Rec. Doc. 246 at 15-19. However, because the plaintiffs cite to certain pages of the
previous memorandum which discuss the fraud argument, the Court will address it here as well.
In opposing the movants’ previous motion, in addition to the fraud in the inducement
argument discussed above, plaintiffs argued that the arbitration agreements were void due to
fraud because the movants had intentionally misclassified the plaintiffs as “seafarers” in order to
implicate the arbitration provision of the Seafarer Standard Terms.

To the extent that they

reassert the argument here, the Court finds that the argument fails. Each of the five plaintiffs in
question states in his declaration: (1) that he was told by the POMI representative that he would
work primarily onshore; and (2) that in fact he did work only onshore (never offshore) in
connection with the POMI employment contract. See Rec. Doc. 246-2 at 7-15, 18-23. Yet, the
plaintiffs have presented no evidence or even specific allegations that the movants made any
misrepresentation to any of the plaintiffs in question, much less that they did so with the intent to
deceive. Accordingly, they have failed to make out a case of fraud or any other infirmity that
would preclude the enforcement of the written arbitration agreements between POMI and the
twelve plaintiffs at issue here. Accordingly;
IT IS ORDERED that:
1) The Third Motion to Compel Arbitration (Rec. Doc. 368) is GRANTED IN
PART, in that it granted as to POMI, and DENIED WITHOUT PREJUDICE IN PART, in
that it is denied as to V People, without prejudice to V People’s right to re-urge the motion
supported by proof that V People is a party to the arbitration agreements;
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2) Plaintiffs Zosimo Barroga, Randy O. Cabuenas, Rogelio L. Calagos,
Bienvenido B. Cruzat, Teodoro V. Dominguez, Joselito B. Eleda, Teofilo Erwin S. Garcia,
Isagani Garing, Benito P. Ilagan, Jr., Angelito A. Marasigan, Amado G. Matusalin, and Dante A.
Perez are hereby directed to arbitrate their claims against POMI in accordance with their
agreements;
3) POMI and V People’s original motion to dismiss and/or compel arbitration as
to plaintiffs Isagani Garing and Angelito Marasigan (Rec. Doc. 275) is DENIED AS MOOT,
these two plaintiffs having been included in the instant motion (Rec. Doc. 368).
3) The claims of plaintiffs Zosimo Barroga, Randy O. Cabuenas, Rogelio L.
Calagos, Bienvenido B. Cruzat, Teodoro V. Dominguez, Joselito B. Eleda, Teofilo Erwin S.
Garcia, Isagani Garing, Benito P. Ilagan, Jr., Angelito A. Marasigan, Amado G. Matusalin, and
Dante A. Perez against POMI are hereby STAYED pending the completion of arbitration of
such claims. All other claims, including those of Zosimo Barroga, Randy O. Cabuenas, Rogelio
L. Calagos, Bienvenido B. Cruzat, Teodoro V. Dominguez, Joselito B. Eleda, Teofilo Erwin S.
Garcia, Isagani Garing, Benito P. Ilagan, Jr., Angelito A. Marasigan, Amado G. Matusalin, and
Dante A. Perez against other defendants, shall proceed in this Court.
New Orleans, Louisiana, this 18th day of June, 2013.

____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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