Duchaine v. AXA Advisors, LLC

Filing 8

OPINION AND ORDER granting 5 Motion to Compel. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN B. DUCHAINE IV,
Plaintiff,
Civil Case No. 13-14876
Honorable Patrick J. Duggan

v.
AXA ADVISORS, LLC,
Defendant.
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OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
COMPEL ARBITRATION AND DISMISS
Plaintiff filed this lawsuit in state court alleging various claims arising from
his prior employment with Defendant. Defendant removed Plaintiff’s Complaint
to this Court on November 26, 2013, on the basis of diversity jurisdiction.
Presently before the Court is Defendant’s motion to compel arbitration and to
dismiss, filed December 17, 2013.
According to Defendant, it served Plaintiff with a copy of the motion via the
Court’s electronic filing system on December 17, 2013. This Court issued a notice
to the parties the following day, indicating that the motion had been filed and
reminding them of the provisions of Local Rule 7.1, specifically subsection (e)
which provides that “[a] response to a dispositive motion must be filed within 21
days after service of the motion.” E.D. Mich. LR 7.1(e)(1)(B). Nevertheless,

Plaintiff has not responded to the motion. On January 29, 2014, this Court issued a
notice informing the parties that it is dispensing with oral argument with respect to
Defendant’s motion to compel arbitration and dismiss pursuant to Eastern District
of Michigan Local Rule 7.1(f).
Factual Background
According to the Complaint, Plaintiff was a licensed “Financial
Professional”, employed by Defendant to sell life insurance annuities and various
financial planning tools. (Compl. ¶ 4.) Plaintiff suffered from “back
degeneration” which rendered him eligible for disability benefits through
Defendant. (Id. ¶¶ 6, 7.) Since 2004, Defendant provided Plaintiff with a
reasonable accommodation for his disability that enabled Plaintiff to retain his
clients, employment, and benefits. (Id. ¶ 10.) Defendant promised to allow
Plaintiff to continue his employment. (Id. ¶ 11.)
On September 17, 2012, Defendant issued a “field bulletin” providing a
“Policy for FP’s on Extended Leave.” (Id. ¶ 16.) Plaintiff inquired about the
policy and its effects on his employment, but was assured that it did not impact him
and that he was “grandfathered” in as an exception to the new policy. (Id. ¶¶ 17,
18.) Nevertheless, effective March 18, 2013, Defendant rejected Plaintiff’s “Join
practice agreement” which resulted in the termination of his license, client
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appointments, registration, and lost wages with Defendant. (Id. ¶¶ 20, 21.)
Defendant indicates that during his employment with the firm, Plaintiff was
a licensed financial professional registered with the Financial Industry Regulatory
Authority (“FINRA”). (Def.’s Mot. Ex. A.) Plaintiff executed an application for
securities industry registration. (Id. Ex. B.) In this application, Plaintiff
contractually agreed to arbitrate claims against Defendant, a FINRA member,
regardless of the current status of his license. (Id. at 4.)
Applicable Law and Analysis
The Federal Arbitration Act (“FAA”) provides that arbitration clauses in
commercial contracts “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.” Fazio v.
Lehman Bros., Inc., 340 F.3d 386, 392 (6th Cir. 2002) (quoting 9 U.S.C. § 2). The
FAA reflects Congress’ “declaration of a liberal federal policy favoring arbitration
agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
24, 103 S. Ct. 972, 941 (1983). A “party resisting arbitration bears the burden of
proving that the claims at issue are unsuitable for arbitration.” Green Tree Fin.
Corp.-Alabama v. Randolph, 531 U.S. 79, 91, 121 S. Ct. 513, 522 (2000). The
party resisting arbitration also bears the burden of establishing that Congress
intended to preclude arbitration of the claims at issue. Id. at 92, 121 S. Ct. at 522.
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Here, Plaintiff expressly agreed “to arbitrate any dispute, claim or
controversy that may arise between [himself] and [his] firm, or a customer, or any
other person, that is required to be arbitrated under the rules, constitutions, or bylaws of the organization with which [he] register[s].” (Def.’s Mot. Ex. B at 4.)
Plaintiff was registered with FINRA. FINRA Code requires arbitration of a
dispute that “arises out of the business activities of a member or an associated
person and is between or among: Members; Members and Associated Persons; or
Associated Persons.” (Id. Ex. C.) A “member” is defined as
Any broker or dealer admitted to membership in FINRA whether or
not the membership has been terminated or cancelled; and any broker
or dealer admitted to membership in a self-regulatory organization
that, with FINRA consent, has required its members to arbitrate
pursuant to the CODE and/or to be treated as members of FINRA for
purposes of the CODE, whether or not the membership has been
terminated or cancelled.
(Id. Ex. D.)
Thus the Court finds that Plaintiff contractually agreed to arbitrate his
pending claims against Defendant. Plaintiff has not set forth any reason why this
Court should not enforce the Arbitration Agreement. The Court therefore
concludes that Plaintiff’s claims against Defendant are subject to arbitration and
must be dismissed.
Accordingly,
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IT IS ORDERED, that Defendant’s Motion to Compel Arbitration and
Dismiss is GRANTED.
Dated: February 28, 2014

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Gary S. Fields, Esq.
Colin M. Battersby, Esq.

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