TAYLOR v. CDS ADVANTAGE SOLUTIONS et al

Filing 52

OPINION & ORDER that Defendant Club Demonstration Services, Inc.'s 38 Motion to Stay is GRANTED. etc. (n/m). Signed by Judge John Michael Vazquez on 9/8/2021. (ams, )

Case 2:20-cv-02803-JMV-MF Document 52 Filed 09/08/21 Page 1 of 3 PageID: 393

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRIAN L. TAYLOR,
Plaintiff,
Civil Action No. 20-2803

v.
CDS ADVANTAGE SOLUTIONS and
MARC SULLIVAN,

OPINION & ORDER

Defendants.

John Michael Vazquez, U.S.D.J.
Presently pending before the Court is Defendant Club Demonstration Services, Inc.’s
(improperly named as “CDS Advantage Solutions”) (“CDS”) motion to stay pending appeal. D.E.
38. Pro se Plaintiff Brian L. Taylor filed a brief in opposition, D.E. 46, to which Defendant replied,
D.E. 49. The Court reviewed the parties’ submissions and considered the motion without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b).
Plaintiff filed his Complaint in New Jersey state court on September 6, 2019. Plaintiff
alleges that his termination from CDS caused a relapse in his undisclosed symptoms and that this
amounts to a violation of the Family Medical Leave Act and the Americans with Disabilities Act.
D.E. 1 at 10, 11. CDS removed the matter to this Court on March 13, 2020, D.E. 1, and filed an
Answer, D.E. 5.1 CDS subsequently filed a motion to compel arbitration, arguing that because
Plaintiff never opted out of an arbitration program that CDS’s parent company expanded to cover

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It does not appear that Plaintiff has served Defendant Marc Sullivan.

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all employees, Plaintiff is required to arbitrate his claims. D.E. 15. On April 30, 2021, this Court
denied Defendant’s motion because there was a genuine dispute of material fact as to whether
Plaintiff received the arbitration agreement and an opt-out policy in the first instance. D.E. 32, 33.
CDS filed a notice of appeal on May 28, 2021, D.E. 36, and filed the instant motion on June 2,
2021, D.E. 38.
Ordinarily, a stay pending appeal “is not routinely granted.” HR Staffing Consultants, LLC
v. Butts, No. 15-3155, 2015 WL 3561618, at *2 (D.N.J. June 4, 2015). However, CDS’s appeal
involves the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Section 3 of the FAA provides
that when a matter is referable to arbitration pursuant to an arbitration agreement, the trial court
shall stay the trial until arbitration occurs.2 9 U.S.C. § 3. In light of “the FAA’s strong policy
favoring arbitration,” a party should be afforded the opportunity “to obtain a definitive ruling on
the denial of its Section 3 motion by way of interlocutory appeal . . . rather than requiring it to
continue litigating the case to final judgment before obtaining a full round of appellate review.”
Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 214-15 (3d Cir. 2007). As a result, provided that
the appeal is not frivolous or forfeited, the trial court is automatically divested of jurisdiction until
the appeal is fully litigated. Id. at 215 n.6; see also Tae In Kim v. Dongbu Tour & Travel, Inc.,
529 F. App’x 229, 232 (3d Cir. 2013) (“[O]rdinarily an appeal from an order denying a motion for

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Section 3 provides in full as follows:
If any suit or proceeding be brought in any of the courts of the United States upon
any issue referable to arbitration under an agreement in writing for such arbitration,
the court in which such suit is pending, upon being satisfied that the issue involved
in such suit or proceeding is referable to arbitration under such an agreement, shall
on application of one of the parties stay the trial of the action until such arbitration
has been had in accordance with the terms of the agreement, providing the applicant
for the stay is not in default in proceeding with such arbitration.

9 U.S.C. § 3. 
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arbitration divests a district court of jurisdiction over the action that the party seeks to have
submitted to arbitration, and thus the appeal automatically stays proceedings in the district court”).
Here, Defendant filed its appeal in this matter pursuant to 9 U.S.C. § 16(a) less than a
month after this Court denied the motion to compel arbitration. D.E. 36. Accordingly, Defendant
did not forfeit its right to appeal. Further, “[t]he standard for finding that an appeal under § 16(a)
is frivolous is a high one.” Thompson v. Real Estate Mortg. Network, No. 11-1494, 2019 WL
5079561, at *2 (D.N.J. Oct. 10, 2019). To constitute a frivolous appeal, it must be “wholly without
merit” or “lack colorable support.” Id. As discussed, this Court determined that there was a
material issue of fact as to whether Plaintiff initially received the arbitration agreement and the
opt-out policy from Defendant. Thus, the Court cannot conclude that Defendant’s appeal is wholly
without merit or lacking colorable support. Because Defendant’s appeal is not frivolous or
forfeited, this Court is automatically divested of jurisdiction pending appeal before the Third
Circuit. Therefore, for the reasons set forth above and for good cause shown,
IT IS on this 8th day of September 2021
ORDERED that Defendant Club Demonstration Services, Inc.’s motion to stay, D.E. 38,
is GRANTED; and it is further
ORDERED that this matter is stayed until disposition of Defendant’s appeal by the Third
Circuit; and it is further
ORDERED that the Clerk’s Office shall mail a copy of this Opinion & Order to Plaintiff
via certified and regular mail.

___________________________
John Michael Vazquez, U.S.D.J.

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