Opie v. CVS Caremark

Filing 27

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. FURTHER ORDERED that 3 Motion to Dismiss is DENIED AND 3 Motion to Arbitrate IS GRANTED. This action shall be STAYED pending arbitration in accordance with the parties agreement. Signed by Judge Susan P. Watters on 8/24/2017. (AMC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

RITA OPIE,
CV 16-159-BLG-SPW
Plaintiff,
ORDER

vs.
CVS CAREMARK,
Defendant.

I.

Introduction
CVS Caremark has moved to dismiss Rita Opie's Amended Complaint and

to Compel Arbitration of Plaintiffs Claims. (Doc. 3). On June 30, 2017,
Magistrate Judge Timothy Cavan issued his Findings and Recommendations
recommending that this Court deny CVS' s motion to dismiss but grant its motion
to compel arbitration. (Doc. 23).
When a party timely objects to any portion of the magistrate judge's
Findings and Recommendations, the district court must conduct a de novo review
of the portions of the Findings and Recommendations to which objections are
made. 28 U.S.C. § 636(b)(l)(C); McDonnell Douglas Corp. v. Commodore
1

Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). The district court may
then "accept, reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate with instructions." 28 U.S.C. §
636(b )(1 ). The district court is not required to review the factual and legal
conclusions of the magistrate judge to which the parties do not object. United

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Opie filed timely objections to Judge Cavan's Findings and
Recommendations. (Docs. 25). After independently reviewing and considering
Opie's objections and CVS's response, this Court adopts Judge Cavan's findings
and recommendations, as set forth below.

II.

Relevant Background
Opie does not object to the factual history contained in the Background

section of Judge Cavan's Findings and Recommendations. Judge Cavan's
Background section is therefore adopted in full.

III.

Applicable Law
A.

Legal Standard

Here, because the Arbitration Policy here is made between citizens of
different states and involves interstate commerce, the Federal Arbitration Act
governs. See Elmore v. CVS Pharmacy, Inc., 2016 WL 6635625, *3 (C.D. Cal.
Nov. 9, 2016) (finding the FAA governed the same CVS Arbitration Policy that is
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at issue in this action). The FAA provides that an agreement to arbitrate disputes
arising from a contract shall 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. "The Court's role under the [FAA] is ... limited to determining (1)
whether a valid agreement to arbitrate exists and, if it does (2) whether the
agreement encompasses the dispute at issue." Chiron Corp. v. Ortho Diagnostic

Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The burden of establishing these
two elements is on the party seeking to compel arbitration. Ashbey v. Archstone

Property Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir. 2015). "[A]ny doubts
concerning the scope of arbitrable issues should be resolved in favor of
arbitration." Moses Ashbey v. Archstone Property Mgmt., Inc., 460 U.S. 1, 24-25
(1983), superseded by statute on other grounds. Because arbitration is a matter of
contract, however, "a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit." AT & T Techs., Inc. v. Commc 'ns Workers

ofAm., 475 U.S. 643, 648 (1986).
When considering a motion to compel arbitration, the court applies a
standard similar to the summary judgment standard of Federal Rule of Civil
Procedure 56(a). Three Valleys Municipal Water District v. E.F Hutton &

Company Inc., 925 F.2d 1136, 1141 (9th Cir. 1991) see also Concat LP v.
Unilever, PLC, 350 F.Supp.2d 796, 804 (N.D. Cal. 2004). A court may consider
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evidence outside of the pleadings, such as declarations and other documents filed
with the court. Id.

IV.

Discussion
Opie objects to Judge Cavan's factual finding that she consented to the

Arbitration Policy. In Opie's Objection A to Judge Cavan's recommendations, she
argues that Judge Cavan erred in recommending that the arbitration agreement was
legal under Montana law. (Doc. 25 at 1-6). Her remaining objections B-K consist
of a duplication of her arguments already presented to Judge Cavan. (Id. at 6-9).
As explained below, in light of the requirements of the Federal Rules of Civil
Procedure, the court declines to engage in de novo review of those objections.
Federal Rule of Civil Procedure 72 provides that a party may serve and file
"specific written objections to the proposed findings and recommendations." Fed.
R. Civ. P. 72. The local rule of civil procedure goes on to state that such written
objections shall specify "each recommendation of the magistrate judge to which
objection is made, setting forth the authority the party relies on to contradict that
recommendation." D. Mont. L. R. 72.3(a)(2). In other words, an objecting party
must identify specific errors in the magistrate judge's analysis without simply
rehashing arguments already raised to the magistrate judge. See, e.g., Edmond v.
Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993) (holding that "[a]lthough petitioner

filed written objections to the magistrate's findings, these objections consisted
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solely of a copy of the brief filed to support the original habeas petition to the
district court.... [Petitioner] thus did not raise a factual objection by merely
rearguing arguments contained in the original petition."); see also Goney v. Clark,
749 F.2d 5, 7 (3rd Cir.1984) ("We are satisfied that providing a complete de novo
determination where only a general objection to the report is offered would
undermine the efficiency the magistrate system was meant to contribute to the
judicial process.").
In this case, Opie's Objections B-K, (Doc. 25 at 6-9), are essentially a
verbatim recitation of the same arguments in her memorandum in support of her
brief in opposition to arbitration presented to Judge Cavan. (See Doc. 10 at 10-12).
To now re-address these issues would simply duplicate Judge Cavan's efforts and
defeat any benefit of judicial efficiency gained through his Findings and
Recommendations. Accordingly, the court will review Opie's Objections B-K for
clear error.
1.

Opie consented to the Arbitration Policy.

In his Findings and Recommendations, Judge Cavan determined that Opie
consented to CVS' Arbitration Policy because, after acknowledging and reviewing
it, Opie did not opt out of the Policy and continued her employment with CVS.
(Doc. 23 at 19). Opie argues that this finding was erroneous. Other than her
disagreement with the finding, however, Opie fails to provide this court with any
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substantive argument in support of her position. She reiterates that she testified in
her affidavit that she never executed an agreement which waived her right to jury
trial. (Doc. 25 at 2). But Judge Cavan appropriately found that "a conclusory,
self-serving affidavit lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact." (Doc. 23 at 17, citing

F.TC. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997)).
Opie's self-serving statement stands in stark contrast to CVS' records which
show that she completed the online training course regarding the Arbitration
Policy. The online training required Opie to acknowledge the Arbitration Policy
and Arbitration Policy Guide, described her rights relating to arbitration, how the
Policy would be accepted, and how she could opt-out if she wished. (Doc. 4-1 at
7, 16, 21-33). Further, CVS' records show that to complete the training course,
Opie had to electronically sign an Acknowledgement Form confirming that she
read the Policy and understood that she had thirty days to opt out. (Id. at 18, 33).
Finally, the records demonstrate that Opie continued to work for CVS and never
attempted to opt out of the Arbitration Policy at any time. (Id. at 7).
The court agrees with Judge Cavan that this evidence demonstrates that Opie
undisputedly consented to the Arbitration Agreement by not opting out and by
continuing her employment after having acknowledged reviewing the Policy. See

Olsen v. Johnston, 368 Mont. 347, 350 (2013) ("Parties have consented if, based
6

on their words and conduct, a reasonable person would conclude that they intended
to be bound by the contract.").

2.

The Arbitration Agreement is adequate under the FAA.

Next, Opie argues that no arbitration agreement exists because she did not
sign a written agreement waiving her right to a jury trial, which is required under
Montana law. (Doc. 25 at 3). In support of her argument, Opie relies on the
Montana Supreme Court's decision in Kortum-Managhan v. Herbergers NBGL,
204 P.3d 693 (Mont. 2009). In Mortenson, the Court held that adding an
arbitration clause to a credit agreement using a "bill stuffer" did not provide
sufficient notice for the customer to voluntarily, knowingly, and intelligently waive
her right to a jury trial. Id. at 698-700. The Court found that the addition of the
arbitration clause in this manner was not within the plaintiffs reasonable
expectations and that the waiver of the right to a jury trial must have been made
voluntarily, knowingly, and intelligently. Id. at 698-699.
Opie's argument is unavailing. As Judge Cavan thoroughly explained, this
matter is governed by the Federal Arbitration Act (FAA). (Doc. 23 at 9-10). The
Ninth Circuit has unequivocally held that the FAA preempts Montana's reasonable
expectations and fundamental rights rule. Mortenson v. Bresnan Commc 'ns, LLC,
722 F.3d 1151, 1159 (9th Cir. 2013). There, the Court rejected Opie's exact
argument, and held that Montana's reasonable expectations and fundamental rights
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rule runs contrary to the FAA "because it disproportionately applies to arbitration
agreements." Id. at 1161. In reaching this decision, the Court made clear that
"[a]ny general state-law contract defense, based in unconscionability or otherwise,
that has a disproportionate effect on arbitration is displaced by the FAA." Id. at
1159. This court agrees with Judge Cavan that Montana's reasonable expectations
and fundamental rights provision does not apply in this case.

3.

Objections B-K

After reviewing Judge Cavan's Findings and Recommendations, this court
does not find that Judge Cavan committed clear error with respect to the issues
contained in Opie's Objections B-K.
V.

Conclusion
For the reasons set forth above, IT IS ORDERED that United States

Magistrate Judge Cavan's proposed Findings and Recommendations (Doc. 21) are
ADOPTED.
IT IS FURTHER ORDERED that CVS' Motion to Dismiss is DENIED, and
CVS' Motion to Compel Arbitration is GRANTED. This action shall be
STAYED pending arbitration in accordance with the parties' agreement.

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DATED this J}. day of August 201 7.

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United States District Judge

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