Kirksey v. Doctor's Associates Inc.

Filing 40

ORDER AND REASONS: ORDERED that 38 Motion to Extend Time to File Opposition is DENIED. FURTHER ORDERED that 37 Motion for Judgment on the Pleadings is GRANTED, and this case is DISMISSED without prejudice. FURTHER ORDERED that 4 Motion to Sta y Pending Ruling From the District of Connecticut and Karlton Kirksey's 7 Motion to Stay the District of Connecticut from Ruling on Doctor's Associates Inc.'s Petition to Compel Arbitration are DENIED AS MOOT. Signed by Judge Barry W Ashe on 12/18/18. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KARLTON KIRKSEY

CIVIL ACTION

VERSUS

NO. 18-5689

DOCTOR’S ASSOCIATES INC.

SECTION M (2)

ORDER & REASONS
Before the Court is Defendant Doctor’s Associates Inc.’s (“DAI”) motion for judgment on
the pleadings.1 Plaintiff Karlton Kirksey filed an ex parte motion for an extension of time to file
a response2 without the defendant’s consent. Therefore, the Court treats Kirksey’s motion to file
for an extension of time as a contested motion.3 Kirksey contends that, under Federal Rule of Civil
Procedure 6(b)(1)(A), there is good cause to extend the deadline solely because “Kirksey only had
seven work days within which to respond.”4 DAI opposes Kirksey’s motion on the grounds that
Kirksey fails to demonstrate good cause as to why he cannot comply with the Local Rules and
characterizes Kirksey’s motion as “a stall tactic” to delay arbitration.5 The Court agrees with DAI
and denies Kirksey’s motion for an extension.6 Thus, DAI’s motion is unopposed, but the
Court will nonetheless weigh its merit. Having considered DAI’s brief and the applicable law, the
Court issues this Order & Reasons.

1

R. Doc. 37.
R. Doc. 38.
3
See Local Rule 7.3.
4
Id. at 4.
5
R. Doc. 39 at 3-4.
6
See Local Rule 7.2. Although Kirksey timely requested an extension before the deadline to file an
opposition, the Court notes several points in DAI’s opposition that support denial of an extension: that Kirksey has
not requested a particular number of days within which to respond, that Kirksey previously opposed DAI’s motion for
an extension of time to file over a holiday weekend, and that, ultimately, granting an extension to oppose the judgment
on the pleadings will not change the outcome of the Court’s holding. R. Doc. 39 at 3.
2

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I.

BACKGROUND
The claims before the Court arise out of a franchise agreement between Kirksey, a

franchisee owner of a Subway sandwich shop in Louisiana, and DAI, the franchisor. The franchise
agreement contains an arbitration clause, by which Kirksey and DAI arbitrated several disputes in
Connecticut. On May 31, 2018, the eve of the latest arbitration hearing, Kirksey filed suit against
DAI in Louisiana state court, seeking a restraining order enjoining the arbitration.

DAI

subsequently filed a motion to compel arbitration in the U.S. District Court for the District of
Connecticut, removed the Louisiana case to federal court (the instant suit), and sought a stay of
the instant proceedings pending the Connecticut federal court’s ruling.7 Meanwhile, in the Eastern
District of Louisiana, Kirksey filed a motion to stay the Connecticut district court proceedings
until the resolution of the Louisiana litigation.8
On November 19, 2018, the Connecticut federal court granted DAI’s motion to compel
arbitration. Doctor’s Assoc., Inc. v. Kirksey, 2018 WL 6061573, at *1, *6 (D. Conn. Nov. 19,
2018). Finding there was no dispute that Kirksey and DAI agreed to delegate questions of
arbitrability to the arbitrator, the court analyzed whether Kirksey challenged (1) the delegation
provision or (2) the existence of the franchise agreement as a whole, either of which would put
arbitrability properly before the Court. Id. at *4-5 (citing Granite Rock Co. v. Int’l Bhd. of
Teamsters, 561 U.S. 287, 298-99 (2010)). In opposition to DAI’s motion to compel arbitration,
Kirksey, as a pro se litigant, had submitted the amended complaint he filed in this Court, which
was drafted by a Louisiana attorney. Id. at *1 n.1. In it, Kirksey solely attacked the enforceability
of the arbitration provision. Id. at *4. Therefore, the Connecticut federal court held that “the

7
8

R. Doc. 4.
R. Doc. 7.

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arbitrability of Kirksey’s claims is a question for the arbitrator,” and so ordered Kirksey to “submit
to arbitration the claims that he raised or could have raised against DAI so that the arbitrator may
decide, in the first instance, whether such claims are arbitrable.” Id. at *5.
II.

PENDING MOTION
In its motion for judgment on the pleadings, DAI submits that this Court must stay or

dismiss the instant proceedings without prejudice under the Federal Arbitration Act.9 Given that
the Connecticut federal court has held that the arbitrability of Kirksey’s claims must be decided
by the arbitrator, DAI argues that there is nothing left for this Court to decide.10 In accordance
with Fifth Circuit cases dismissing similar claims where “staying the action will serve no purpose,”
DAI urges the Court to dismiss the case without prejudice.11
III.

LAW & ANALYSIS
A. Judgment on the Pleadings Standard
Federal Rule of Civil Procedure 12(c) permits a party to move for a judgment on the

pleadings. “A Rule 12(c) motion may dispose of a case when there are no disputed material facts
and the court can render a judgment on the merits based on ‘the substance of the pleadings and
any judicially noted facts.’” Linicomn v. Hill, 902 F.3d 529, 533 (5th Cir. 2018) (quoting Machete
Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015)). Courts will consider an amended
complaint when it supersedes earlier pleadings. Bosarge v. Miss. Bureau of Narcotics, 796 F.3d
435, 440 (5th Cir. 2015).
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a motion to dismiss under Rule 12(b)(6).” Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir.

9

R. Doc. 37-1 at 2.
R. Doc. 37 at 1.
11
R. Doc. 37-1 at 3 (citing Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674, 678 (5th Cir. 1999) (quoting Alford
v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992))).
10

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2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on the face of the complaint “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550
U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”’”
Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit
the court to infer more than a mere possibility of misconduct, the complaint has alleged – but it
has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
B. Analysis
The Federal Arbitration Act directs courts, upon motion of a party, to stay the trial of an
action “upon any issue referable to arbitration under an agreement in writing for such arbitration”
when the court is “satisfied that the issue involved … is referable to arbitration under such an
agreement.” 9 U.S.C. § 3. In addition to granting a stay, the Fifth Circuit has held that district
courts have discretion to dismiss cases in favor of arbitration under 9 U.S.C. § 3 when “staying the
action will serve no purpose.” Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674, 677, 678 (5th Cir.
1999) (quoting Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)). Staying
an action serves no purpose when “all issues raised in this action are arbitrable and must be
submitted to arbitration.” Id. at 678 (quoting Alford, 975 F.2d at 1164). See, e.g., Anderson v.

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Waffle House, Inc., 920 F. Supp. 2d 685, 695 (E.D. La. 2013) (dismissing suit after holding all
claims referable to arbitration); Electrostim Med. Servs., Inc. v. Blue Cross Blue Shield of La.,
2013 WL 5819704, at *11 (E.D. La. Oct. 28, 2013) (same).
Here, the claims that Kirksey asserts in his amended complaint are identical to the claims
asserted in federal court in Connecticut because Kirksey filed there the same amended complaint
as his opposition to DAI’s motion to compel arbitration under the same arbitration agreement at
issue. See Kirksey, 2018 WL 6061573, at *1 n.1. The Connecticut federal court ruled that that
“the arbitrability of Kirksey’s claims is a question for the arbitrator,” and ordered Kirksey to
“submit to arbitration the claims that he raised or could have raised against DAI so that the
arbitrator may decide, in the first instance, whether such claims are arbitrable.” Id. at *5. As a
result, because the Connecticut federal court has ruled that “all issued raised in this action are
arbitrable and must be submitted to arbitration,” Fedmet Corp., 194 F.3d at 678, there is nothing
left for this Court to decide, and staying the action serves no purpose. See id. Instead, dismissal
of the case is the appropriate course of action.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Karlton Kirksey’s Ex Parte Motion to Extend Time to File

Opposition (R. Doc. 38) is DENIED.
IT IS FURTHER ORDERED that Doctor’s Associates Inc.’s Motion for Judgment on
the Pleadings (R. Doc. 37) is GRANTED, and this case is DISMISSED without prejudice.
IT IS FURTHER ORDERED that Doctor’s Associates Inc.’s Motion to Stay Pending
Ruling From the District of Connecticut (R. Doc. 4) and Karlton Kirksey’s Motion to Stay the

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District of Connecticut from Ruling on Doctor’s Associates Inc.’s Petition to Compel Arbitration
(R. Doc. 7) are DENIED AS MOOT.
New Orleans, Louisiana, this 18th day of December, 2018.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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