CICERO v. QUALITY DINING, INC.

Filing 68

OPINION FILED. Signed by Judge Noel L. Hillman on 4/3/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
CYNTHIA CICERO, on behalf of
herself and similarly situated
employees,

Civil No. 16-5806 (NLH/KMW)

Plaintiff,

OPINION

v.
QUALITY DINING, INC., et al.,
Defendants.
__________________________________

APPEARANCES:
WINEBRAKE & SANTILLO, LLC
By: Peter Winebrake, Esq.
R. Andrew Santillo, Esq.
Mark J. Gottesfeld, Esq.
715 Twining Road, Suite 211
Dresher, Pennsylvania 19025
and
BARRETT JOHNSTON MARTIN & GARRISON LLC
By: Jerry Martin, Esq.
Seth Hyatt, Esq.
414 Union Street, Suite 900
Nashville, Tennessee 37219
Counsel for Plaintiff
LITTLER MENDELSON, P.C.
By: Rachel Fendell Satinsky, Esq.
Holly Elizabeth Rich, Esq.
1601 Cherry Street, Suite 1400
Philadelphia, Pennsylvania 19102
Counsel for Defendants

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HILLMAN, District Judge
Plaintiff Cynthia Cicero brings this Fair Labor Standards Act,
29 U.S.C. §§ 201, et seq. (FLSA), and New Jersey Wage and Hour Law,
N.J.S.A. §§ 34:11-56a, et seq., suit challenging her former
employer’s tip pooling and tip credit policies.

Defendants move to

dismiss the suit, seeking to enforce the mandatory arbitration
agreement and class action waiver Cicero signed.
For the reasons stated herein, the Motion to Dismiss will be
granted, and Plaintiff’s later-filed Motion for Conditional Class
Certification will be dismissed as moot.
I.
Cicero allegedly worked at one of Defendants’ Chili’s
Restaurants in New Jersey until February, 2016. (Amend. Compl. ¶ 10)
On May 8, 2013, while employed by Defendants, Cicero undisputedly
(at least for purposes of this motion) signed an “Arbitration
Agreement”, which states in relevant part,
1. Employee and the Company mutually agree that
all claims or disputes described in paragraph
Employee may have now or in the future with or
the Company . . . shall be heard and decided by a
arbitrator . . . .

any and
2 that
against
neutral

2. The disputes and claims covered by this Agreement
include all claims or controversies, whether or not
arising out of employment or termination of employment,
that would constitute a cause of action in court,
including but not limited to claims for wages or other
compensation due . . . and claims for violation of any
federal, state, local or other governmental law,
statute, regulation or ordinance (including but not
limited to claims, if any, based on . . . the Fair Labor
Standards Act . . . and any other federal, state, or
local statute, regulation, ordinance, or common law,
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including without limitation any law related to . . .
terms and conditions of employment . . . .
3. The arbitrator’s decision shall be final and binding
on Employee and the Company. Employee and the Company
acknowledge that arbitration is a substitute for
traditional litigation and hereby waive their respective
rights to file a private lawsuit and have that suit heard
in a court by a judge or a jury.
4. . . . Only one Employee may be party to any particular
arbitration unless otherwise agreed by the parties.
Each arbitration is limited to the claims of the Employee
who is a party to that arbitration and shall not include
claims pertaining to any other Employee unless otherwise
agreed by the parties.
(Firth Decl. ¶ 5 and Ex. A)
II.
Defendants do not identify the authority pursuant to which they
move for dismissal.

The Court construes the application as a Fed.

R. Civ. P. 12(b)(6) motion because Cicero does not dispute that she
agreed to arbitrate the claims she asserts in this suit. Guidotti v.
Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 776 (3d Cir.
2013).

The instant motion raises a question of law for which no

discovery is needed. See id.
III.
The issue is whether the Arbitration Agreement that Cicero
signed violates the National Labor Relations Act, and is therefore
unenforceable.

This issue is presently before both the Third

Circuit and the Supreme Court, and the Courts of Appeal that have
ruled on the issue are split. See Morris v. Ernst & Young, LLP, 834
F.3d 975 (9th Cir. 2016), cert. granted, 137 S.Ct. 809 (2017); Lewis
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v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted,
137 S.Ct. 809 (2017); D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th
Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir.
2013); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).
In a related action brought by former employees of Defendants’
restaurants in Pennsylvania, Judge Schmell of the Eastern District
of Pennsylvania recently considered the identical Arbitration
Agreement and held that it did not violate the NLRA. Joseph v.
Quality Dining, Inc., 2017 U.S. Dist. LEXIS 40604 (E.D. Pa. March
21, 2017)(“ The Court declines to follow recent out-of-Circuit
decisions holding such a waiver void under the NLRA and instead
considers more persuasive the holdings of the Fifth Circuit and
other courts that enforce class arbitration waivers under the
FAA.”).
Similarly, the only other District Court within this Circuit to
consider the issue has held the same. See Kobren v. A-1 Limousine
Inc., 2016 U.S. Dist. LEXIS 154012 at *12 (D.N.J. Nov. 7,
2016)(“absent binding authority to the contrary, this Court agrees
with the reasoning of the Second, Fifth, and Eight Circuits that
there is no ‘inherent conflict’ between the FAA and NLRA,
particularly in light of the strong public policy considerations
underlying the FAA and the general understanding that the NLRA
permits and requires arbitration in labor disputes.”).
The undersigned agrees with the reasoning of Joseph and Kobren
and adopts it.
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Accordingly, Defendants’ Motion to Dismiss will be granted, and
Plaintiff’s later-filed Motion for Conditional Collective Action
Certification will be dismissed as moot.
IV.
For the reasons stated above, Defendants’ Motion to Dismiss
will be granted, and the Motion for Conditional Collective Action
Certification will be dismissed without prejudice.

An appropriate

order accompanies this opinion.

Dated: April 3, 2017
At Camden, New Jersey

__s/ Noel L. Hillman___
NOEL L. HILLMAN, U.S.D.J.

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