AT&T MOBILITY SERVICES LLC v. FRANCESCA JEAN-BAPTISTE
OPINION. Signed by Judge Madeline Cox Arleo on 7/13/2018. (sm)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AT&T MOBILITY SERVICES LLC,
Civil Action No. 17-11962
THIS MATTER comes before the Court on Plaintiff AT&T Mobility Services LLC’s
(“Plaintiff” or “AT&T”) Motion to Compel Arbitration, ECF No. 3, and Defendant Francesca
Jean-Baptiste’s (“Defendant” or “Jean-Baptiste”) Cross-Motion to Dismiss Plaintiff’s Complaint,
ECF No. 11. For the reasons set forth below, AT&T’s Motion to Compel Arbitration is DENIED
and Jean-Baptiste’s Cross-Motion to Dismiss is GRANTED.
A. Factual Background
AT&T asks the Court to compel arbitration pursuant to 9 U.S.C. § 4 and to stay a pending
action in the Superior Court of New Jersey Law Division, Essex County (the “State Court Action”),
which AT&T alleges was initiated by Jean-Baptiste in violation of a pre-dispute arbitration
agreement (the “Arbitration Agreement”). The enforceability of that Arbitration Agreement
against Jean-Baptiste is at the core of the present dispute.
Jean-Baptiste is employed by AT&T as an Assistant Store Manager in Union, New Jersey.
Compl. ¶ 7. On March 18, 2016, she received an email with the subject heading “Action Required:
Notice Regarding Arbitration Agreement.” Id. ¶ 9. The email advised Jean-Baptiste that AT&T
had created “an alternative process for resolving disputes between the company and employees.”
Id. at Ex. 1. This alternative process would use “independent, third-party arbitration rather than
courts or juries” and, according to AT&T, “is more informal than a lawsuit in court, and may be
The email also informed Jean-Baptiste that her participation in the arbitration program was
The decision on whether or not to participate is yours to make. To help you make
your decision, it is very important for you to review the Management
Arbitration Agreement linked to this email. It provides important information
on the process and the types of disputes that are covered by the Agreement.
Again, the decision is entirely up to you. To give you time to consider your
decision, the company has established a deadline of no later than 11:59 p.m. Central
Standard Time on Wednesday, May 18, 2016 to opt out – that is, decline to
participate in the arbitration process – using the instructions below.
If you do not opt out by the deadline, you are agreeing to the arbitration process as
set forth in the Agreement. This means that you and AT&T are giving up the right
to a court or jury trial on claims covered by the Agreement.
Id. (emphasis original).
In other words, AT&T would assume Jean-Baptiste wished to give up her rights unless she
followed their prescribed “opt out” procedure: (1) open the Arbitration Agreement attached to the
email; (2) click a link in the Arbitration Agreement to visit a separate website; and (3) follow the
instructions on that separate site to register Jean-Baptiste’s opt out. Id. Whether she wished to opt
out or not, AT&T instructed Jean-Baptiste to click the “Review Completed” button after reading
the Arbitration Agreement. Id. at Exh. 2.
On April 1, 2016 and April 15, 2016, AT&T sent follow-up emails identical to the first
email. Id. ¶ 11. On April 18, 2016, Jean-Baptiste accessed the text of the Arbitration Agreement
and clicked the “Review Completed” button. Id. ¶¶ 14-15. On May 19, 2016, the opt out period
expired, and the Arbitration Agreement allegedly took effect. Id. ¶ 18.
B. Procedural Background
On August 18, 2017, Jean-Baptiste commenced the State Court Action, alleging, inter alia,
gender and race discrimination in violation of the New Jersey Law Against Discrimination,
N.J.S.A. § 10:5-1, et seq. (“NJLAD”). Id. ¶ 19. On September 14, 2016, AT&T asked JeanBaptiste to withdraw her State Court Action and proceed to arbitration. Id. ¶ 20. On November
21, 2017, AT&T filed this action, seeking to compel arbitration and to stay the State Court Action.
Id. ¶¶ 23, 25, 33; ECF No. 3. Jean-Baptiste cross-moved to dismiss. ECF No. 11.
STANDARD OF REVIEW
In considering a Rule 12(b)(6) motion to dismiss on the pleadings, the court accepts as true
all of the facts in the complaint and draws all reasonable inferences in favor of the plaintiff.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Moreover, dismissal is
inappropriate even where “it appears unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.” Id.
The facts alleged, however, must be “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). The allegations in the complaint “must be enough to raise a right to relief
above the speculative level.” Id. Accordingly, a complaint will survive a motion to dismiss if it
provides a sufficient factual basis such that it states a facially plausible claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
AT&T’s motion to compel arbitration and Jean-Baptiste’s motion to dismiss both turn on
whether the Arbitration Agreement is enforceable against Jean-Baptiste. 1 Jean-Baptiste does not
dispute that she reviewed the Arbitration Agreement, or that it purports to cover her NJLAD claims
brought in the State Court Action. Rather, she argues that she never affirmatively agreed to be
bound by the Arbitration Agreement and that mere silence cannot be considered consent. AT&T
argues that Jean-Baptiste agreed to the Arbitration Agreement by reading the agreement and failing
to follow AT&T’s prescribed opt out procedure. The Court agrees with Jean-Baptiste.
To determine the enforceability of an arbitration agreement, the Court looks to state
contract law. JPMorgan Chase & Co. v. Custer, No. 15-6288, 2016 WL 927339, at *4 (D.N.J.
March 10, 2016) (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Leodori
v. CIGNA Corp., 175 N.J. 293, 302 (2003)). In New Jersey, a waiver of rights – in the context of
an arbitration agreement or otherwise – must be clear and unambiguous. See Atalese v. U.S. Legal
Services Group, L.P., 219 N.J. 430, 447-48 (2014). Such a waiver “results only from an explicit,
Jean-Baptiste’s motion to dismiss presents two additional grounds for dismissal: (1) Robert
Woodier, Jean-Baptiste’s manager at AT&T and a named defendant in the State Court Action, is
a necessary and indispensable party whose joinder would destroy diversity jurisdiction; and (2)
the Court should abstain from making a ruling pursuant to the Younger/Colorado River abstention
doctrine. Neither warrants dismissal. Woodier is not a necessary or indispensable party because
“the Supreme Court has ruled that the FAA requires courts to enforce arbitration agreements
‘notwithstanding the presence of other persons who are parties to the underlying dispute but not to
the arbitration agreement.’” JPMorgan Chase & Co. v. Custer, No. 15-6288, 2016 WL 927339, at
*2 (D.N.J. March 10, 2016) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 461
U.S. 1, 20 (1983)); see also Northport Health Servs. of Ark., LLC v. Rutherford, 605 F.3d 483,
491 (8th Cir. 2010) (“[E]very circuit to consider the issue has concluded that a party joined in a
parallel state court contract or tort action who would destroy diversity jurisdiction is not an
indispensable party under Rule 19 in a federal action to compel arbitration.”). Nor will the Court
abstain. “Congress’s clear intent, in the Arbitration Act, [was] to move the parties to an arbitrable
dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone, 460
U.S. at 22. Abstention in such actions “would thwart Congress’s intent that, despite the existence
of a concurrent related action in state court, parties to a binding agreement under the FAA should
move into arbitration rapidly.” Custer, 2016 WL 927339, at *3 (citing Moses H. Cone, 460 U.S.
affirmative agreement that unmistakably reflects the employee’s assent.” Leodori, 175 N.J. at 303.
This affirmation “need not be an actual signature, but must demonstrate a willingness and intent
to be bound by the arbitration provision[.]” Schmell v. Morgan Stanley & Co., Inc., No. 17-1308,
2018 WL 1128502, at *2 (D.N.J. March 1, 2018) (citing Ricci v. Sears Holding Corp., No. 143136, 2015 WL 333312, at *4 (D.N.J. Jan. 23, 2015)).
The Supreme Court of New Jersey’s analysis in Leodori v. CIGNA Corp. is instructive.
175 N.J. 293 (2003). There, the Supreme Court considered whether an arbitration provision
contained in an employee handbook was enforceable, even though the employee had failed to sign
the “Employee Handbook Receipt and Agreement” form. Id. at 297-98. The defendants argued
that the plaintiff’s receipt of the handbook, together with the plaintiff’s continued employment and
knowledge of the arbitration policy “based on . . . numerous documents” received by the plaintiff,
was sufficient to demonstrate the plaintiff’s assent to the waiver of rights. Id. at 303, 306. The
Supreme Court disagreed, holding that such a waiver was unenforceable “unless we find some
other unmistakable indication that the employee affirmatively had agreed to arbitrate his claims.”
Id. at 307. Thus, Leodori established that “an arbitration provision cannot be enforced against an
employee who does not sign or otherwise explicitly indicate his or her agreement to it.” Id. at 306.
AT&T argues that Jean-Baptiste’s failure to follow AT&T’s opt out procedure – her lack
of action – signifies she intended to waive her rights and be bound by the Arbitration Agreement.
Leodori compels the Court to reject this argument. Jean-Baptiste’s silence is not “explicit,
affirmative agreement that unmistakably reflects” her assent to the Arbitration Agreement.
Leodori, 175 N.J. at 303.2 Without any explicit indication of assent, the Court cannot ensure that
AT&T cites a previous case in this District holding that a mere failure to opt out is sufficient
conduct to signify acceptance of an arbitration program. See Jayasundera v. Macy’s Logistics &
Jean-Baptiste “has agreed clearly and unambiguously” to waive her rights and participate in the
arbitration program. See id. at 302. Jean-Baptiste did not take any explicit action whatsoever to
affirmatively indicate her assent to the Arbitration Agreement. Id. At no point did Jean-Baptiste
click or sign anything that said “I agree.” Although she acknowledged having reviewed the
Arbitration Agreement, acknowledgement of receipt is not the same as assent to the terms. See
Morgan v. Raymours Furniture Co., Inc., 443 N.J. Super 338, 343 (App. Div. 2016) (citing
Leodori, 175 N.J. at 307).
AT&T cites cases where continued employment was deemed an affirmative indication of
an employee’s assent to an arbitration program. In those cases, however, the employees were
either notified that their continued employment signified their assent, or they were told that their
employment was expressly conditioned on their participation in the company’s arbitration
program. See Descafano v. BJ’s Wholesale Club, Inc., No. 15-7883, 2016 WL 1718677, at *3
(D.N.J. Apr. 28, 2016) (noting that “the forms accompanying the acknowledgment explain that
continued employment would signify consent”); Jaworski v. Ernst & Young U.S. LLP, 441 N.J.
Super 464, 474 (App. Div. 2015) (involving language stating “[a]n Employee indicates his or her
agreement to the Program and is bound by its terms and conditions by beginning or continuing
employment with [EY] after July 18, 2017”); Bourgeois v. Nordstrom, Inc., No. 11-2442, 2012
WL 42917, at *1 (D.N.J. Jan. 9, 2012) (involving language stating “I understand that the Program
becomes effective on December 1, 2004, for employees who are employed with Nordstrom on or
after December 1, 2004”); Taha v. Tires Plus, No. 10-4118, 2011 WL 2293330, at *3 (D.N.J. June
8, 2011) (“Plaintiff unequivocally manifested his intent to accept Plaintiff’s offer when he signed
Operations, Dep’t of Human Res., No. 14-7455, 2015 WL 4623508 (D.N.J. Aug. 3, 2015). The
Court notes that this case is persuasive, not binding, precedent.
the Agreement, which clearly provides that the EDR Plan is a condition of his at-will
Here, AT&T did not condition Jean-Baptiste’s employment on her participation in its
arbitration program, nor did it say that by continuing her employment she would be signifying her
acceptance of the Arbitration Agreement. To the contrary, AT&T specifically told Jean-Baptiste
that the decision was “entirely up to [her]” and that there would be “no adverse consequences” if
she did not wish to participate in the program. Compl. ¶ 10. Accordingly, Jean-Baptiste’s decision
to continue her employment with AT&T simply had nothing to do with her assent to the optional
If AT&T wished to make the Arbitration Agreement a condition of Jean-Baptiste’s
continued employment, or if it wished to obtain a signature or a simple click that stated “I agree”
or “I accept,” it was free to do so. Instead, AT&T chose to rely on an absence of action from its
employees to signify acceptance of the Arbitration Agreement. Leodori makes clear that the
burden of obtaining affirmative acceptance of waiver-of-rights provisions rests with employers.
See Leodori, 175 N.J. at 307 (“[W]ith minimal effort, employers can revise the language to include
an indication that the recipient has received and agreed to an arbitration policy.”). AT&T failed
to obtain this explicit, affirmative acceptance, and the Arbitration Agreement is thus unenforceable
For the reasons stated above, Plaintiff’s motion to compel arbitration is DENIED and
Defendant’s motion to dismiss GRANTED. An appropriate Order accompanies this Opinion.
Date: July 13, 2018
/s/ Madeline Cox Arleo
Hon. Madeline Cox Arleo
UNITED STATES DISTRICT JUDGE
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