Shirk v. Gonzales et al

Filing 30

ORDER by District Judge M. Christina Armijo granting 19 Motion to Compel and requiring the parties to submit Joint Status Reports (lvm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KRISTINE SHIRK,
Plaintiff,
v.

No. 17-CV-1129 MCA/KK

JACKIE GONZALES,
SPECIALTY RETAILERS, INC.
d/b/a BEALLS,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Motion to Compel
Arbitration under 9 U.S.C. § 3, or, Alternatively, Under the New Mexico Arbitration Act.
[Doc. 19] The Court, having considered the submissions, the relevant law, and otherwise
being fully informed in the premises, hereby GRANTS the Motion.
BACKGROUND
Defendants bring this Motion to Compel Arbitration. [Doc. 19] Defendants argue
that when Plaintiff accepted employment with Defendant Specialty Retailers, she agreed
to a “Dispute Resolution Program,” which requires that dispute be submitted to
arbitration. [Doc. 19, p. 2] Plaintiff, however, resists arbitration on several grounds.
First, she asserts that the Court need not apply the Federal Arbitration Act (FAA) because
“Plaintiff was not engaged in interstate commerce” – instead she was “a clerk who sold
makeup over the counter in a small town.” [Doc. 22, p. 1] Plaintiff further argues that
the arbitration agreement is unconscionable under New Mexico law because “the only
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disputes that are subject to the arbitration agreement are those claims that likely may be
brought by employees.” [Doc. 22, p. 3] Plaintiff also argues that Defendant Jacque
Gonzales is not a party to the arbitration agreement, and thus her claims against
Defendant Gonzales do not need to be arbitrated. [Doc. 22, pp. 5-6] Finally, Plaintiff
submits that Defendant Specialty Retailers has refused to provide her with a copy of her
personnel file to date, which Plaintiff states “may contain information or evidence or
other agreements or personnel rules bearing on the issues raised herein[.]” [Doc. 22, p. 7]
Thus, Plaintiff requests this Court to “stay resolution of this motion pending some
nominal discovery by the Plaintiff.” [Doc. 22, p. 7] The Court addresses the parties
arguments below, though not in the order set out in their briefs.
ANALYSIS
Discovery
Plaintiff asks this Court to “stay resolution of this motion pending some nominal
discovery by the Plaintiff.” [Doc. 22, p. 7] Plaintiff states that her personnel file “would
presumably contain this arbitration agreement, any other agreements she executed with
Defendants, and anything else relating to her employment with Defendants.” [Doc. 22,
p. 7] Plaintiff thus submits that her “personnel file may contain information or evidence
or other agreements or personnel rules bearing on the issues raised herein.” [Doc. 22,
p. 7]
Plaintiff has not demonstrated that the discovery she requests would assist her in
opposing Defendant’s Motion to Compel Arbitration.

2

In enacting the FAA, Congress intended that proceedings to compel
arbitration be “expeditious and summary,” “with only restricted inquiry into
factual issues.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 22, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). To obtain discovery
in opposition to a motion to compel arbitration, the arbitration opponent
must at least show how discovery would “assist[ ] them in opposing the
motion to compel arbitration.” Wolff v. Westwood Mgmt., LLC, 558 F.3d
517, 521 (D.C.Cir. 2009).
THI of New Mexico at Hobbs Ctr., LLC v. Spradlin, 532 F. App’x 813, 819 (10th Cir.
2013) (unpublished decision). Instead, she makes an overly broad request for her entire
personnel file. Moreover, while she states that she “may” have executed some other
agreements with Defendants, but she does not state the subject of those hypothetical
agreements, or how they would contradict the “Dispute Resolution Program,” or
otherwise have any bearing on the Motion to Compel Arbitration. As such, Plaintiff has
not met her burden of demonstrating that she needs discovery to assist her in opposing
the Motion to Compel Arbitration. Plaintiff’s requests for discovery and to stay this
matter are denied.
Whether the Contract Involves Interstate Commerce
The FAA defines commerce as:
commerce among the several States or with foreign nations, or in any
Territory of the United States or in the District of Columbia, or between
any such Territory and another, or between any such Territory and any
State or foreign nation, or between the District of Columbia and any State
or Territory or foreign nation.
9 U.S.C. § 1. The FAA goes on to declare that:
[a] written provision in . . . a contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of
such contract or transaction, or the refusal to perform the whole or any part
thereof, or an agreement in writing to submit to arbitration an existing
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controversy arising out of such a contract, transaction, or refusal, 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 Supreme Court has construed the words “involving commerce” as
used in the FAA “as broadly as the words ‘affecting commerce,’” which “normally mean
a full exercise of constitutional power.” Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.
265 277 (1995). Thus,
[b]ecause the statute provides for “the enforcement of arbitration
agreements within the full reach of the Commerce Clause,” Perry v.
Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), it is
perfectly clear that the FAA encompasses a wider range of transactions than
those actually “in commerce”-that is, “within the flow of interstate
commerce,” Allied-Bruce Terminix Cos., supra, at 273, 115 S.Ct. 834
(internal quotation marks, citation, and emphasis omitted).
Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003). “Congress’ Commerce Clause
power may be exercised in individual cases without showing any specific effect upon
interstate commerce if in the aggregate the economic activity in question would represent
a general practice subject to federal control.” Id. at 56-57 (internal ellipses, quotation
marks and citations omitted).
Plaintiff argues that she was not involved in interstate commerce – she submits
that she merely sold makeup in a small town. [Doc. 22, p. 1] Moreover, she argues that
there has been no showing that “Plaintiff, while performing her duties under the
employment contract was working ‘in’ commerce, was producing goods for commerce,
or was engaging in activity that affected commerce,” citing Bernhardt v. Polygraphic
Company, 350 U.S. 198, 200-201 (1956) (concluding that the Court lacked jurisdiction
over the case because “[t]here is no showing that petitioner while performing his duties
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under the employment contract was working ‘in’ commerce, was producing goods for
commerce, or was engaging in activity that affected commerce, within the meaning of
our decisions”). [Doc. 22, p. 1]
Supreme Court cases more recent than Bernhardt, however, have elucidated the
type of “showing” that is sufficient to evidence a transaction involving commerce. First,
in Allied-Bruce Terminix, 513 U.S. at 281-82, the Court held that a contract between a
homeowner in Alabama and a local franchise of a national pest treatment company to
inspect and treat for termites involved interstate commerce and thus was within the
Court’s jurisdiction pursuant to the FAA. The Court reasoned: “In addition to the
multistate nature of Terminix [the national company] and Allied-Bruce [the franchise,
which operated in multiple states], the termite-treating and house-repairing material used
by Allied-Bruce in its (allegedly inadequate) efforts to carry out the terms of the Plan,
came from outside Alabama.” Id. at 282. The Court distinguished Bernhardt because it
turned on a lack of a showing1 concerning whether the petitioner was engaged in an
activity that affected commerce. Id. at 271-72. By contrast, the showing in Allied-Bruce
Terminix was sufficient. Id. at 282.

1

The facts surrounding the agreement in Bernhardt are vaguely described by the
Supreme Court. However, the Second Circuit’s decision sets forth more detail:
“Defendant, a New York corporation, made a written agreement in New York with
plaintiff, then a resident of that State. The agreement provided for the employment of
plaintiff as the superintendent of defendant’s lithograph plant in Vermont.” Bernhardt v.
Polygraphic Co, 218 F.2d 948, 949 (2d Cir. 1955), rev’d, 350 U.S. 198 (1956). Neither
Court discussed whether the employer’s Vermont plant used products which traveled in
interstate commerce. However, that pest control and house repair products traveled
across state lines was clear, and relied upon, in Allied-Bruce Terminix.
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Even more recently, our Supreme Court rejected the argument that the “involving
commerce” provision within 9 U.S.C. § 2 does not apply to employment contracts,
relying heavily on Allied-Bruce Terminix. Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 113 (2001). In Circuit City, the plaintiff signed an agreement to arbitrate when he
applied for employment with Circuit City, “a national retailer of consumer electronics.”
Id. at 109. In addition to holding that Section 2 of the FAA applies to employment
contracts, the Court also rejected the plaintiff’s alternative argument that an exception to
the application of the FAA within 9 U.S.C. § 1 applied to employment contracts. The
exception states that the FAA shall not “apply to contracts of employment of seamen,
railroad employees, or any other class of workers engaged in foreign or interstate
commerce.” (Emphasis added). However, the Court determined that, while “involving
commerce” as used in Section 2 (the general rule) “signals an intent to exercise Congress’
commerce power to the full,” the words “engaged in commerce” as used in Section 1 (the
exception) are “words of art” “understood to have a more limited reach.” Circuit City
Stores, 532 U.S. at 115 (internal quotation marks omitted). Accordingly, the Court held
that the FAA applies to most employment contracts, and that the Section 1 exception only
applies to transportation workers. Id. at 119; see also EEOC v. Waffle House, Inc., 534
U.S. 279, 289 (2002) (“Employment contracts, except for those covering workers
engaged in transportation, are covered by the FAA.”).
Applying these cases to the facts at hand, the showing in this case is sufficient for
this Court to hold that the contract evidences “a transaction involving commerce” as
required by Section 2 of the FAA. Here, Plaintiff alleges that she was living in Texas
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when she accepted employment with Defendant Specialty Retailers. [Doc. 1-1, ¶ 11]
Defendant Specialty Retailers is incorporated in Texas and its principal place of business
is in Texas. [Doc. 1, ¶¶ 9-10] Defendant Specialty Retailers owns and operates Bealls
department stores. [Doc. 1-1, ¶ 2] Plaintiff was hired as the “Estee Lauder counter
manager” at the Bealls store in Taos, New Mexico. [Doc. 1-1, ¶ 10] At one point,
Defendant Specialty Retailer’s District Manager “offered Plaintiff employment in
Defendant Specialty’s Las Vegas, Nevada store.” [Doc. 1-1, ¶ 26] These facts support
the statement within the “Dispute Resolution Program” agreement itself that “[t]he
Company is engaged in interstate commerce, and your employment involves such
commerce.” [Doc. 19-1, p. 23, ¶ H] Finally, by affidavit, a Compliance Manager for
Stage Stores, Inc. (of which Specialty Retailers is a wholly owned subsidiary) averred
that:
[Specialty Retailers] engages in interstate commerce in many ways,
including by: (i) selling products that out-of-state vendors supply; (ii)
advertising in other states; (iii) operating retail stores in states other than
New Mexico; (iv) being insured by out-of-state insurance carriers; and (v)
conducting business through the use of interstate mail and telephone calls.
[Doc. 19-1, pp. 2-3, ¶¶ 1, 2, 12] Plaintiff has not challenged these statements. Because
Specialty Retailers operates in several states and sells products which have travelled in
interstate commerce, Defendant Specialty Retailers is indistinguishable from the
“national” retailer at issue in Circuit City or the pest control franchise in Allied-Bruce
Terminix. Working for Defendant Specialty Retailers, Plaintiff sold products which had
traveled in interstate commerce. Accordingly, her employment affected commerce and
was “within the flow of interstate commerce,” and therefore her employment involved
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commerce as required by Section 2 of the FAA. See Citizens Bank, 539 U.S. at 56
(internal quotation marks and citation omitted). As such, the FAA applies to the parties’
agreement in this case.
Alternatively, Defendants argue that pursuant to New Mexico’s Uniform
Arbitration Act, the arbitration agreement in this case is valid and enforceable. The New
Mexico Uniform Arbitration Act contains the following provision:
An agreement contained in a record to submit to arbitration any existing or
subsequent controversy arising between the parties to the agreement is
valid, enforceable and irrevocable except upon a ground that exists at law
or in equity for the revocation of a contract.
NMSA 1978, § 44-7A-7(a) (2001).2 New Mexico recognizes a “strong public-policy
preference in favor of resolving disputes through arbitration.” McMillan v. Allstate
Indem. Co., 2004-NMSC-002, ¶ 9, 84 P.3d 65. This Court agrees with Defendants that,
even if the arbitration agreement did not involve interstate commerce, it would be
enforceable under the New Mexico Uniform Arbitration Act.3
Whether the Contract is Unconscionable
The parties agree that this Court must decide whether the agreement is
substantively unconscionable prior to compelling arbitration. [Doc. 22, p. 2; Doc. 26,
p. 5] See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967)

2

Defendants cite a portion of the New Mexico Statutes repealed in 2001 in arguing that
New Mexico would enforce the arbitration agreement. The Court cites the current
version of the New Mexico Statutes, which was in effect at the time the parties agreed to
the “Dispute Resolution Program.”
3
This conclusion assumes the applicability of New Mexico law, as both parties focus
exclusively on New Mexico law, although Plaintiff alleges that she accepted employment
while residing in Texas and Defendant Specialty Retailers is a citizen of Texas.
8

(holding that “in passing upon a [Section] 3 application for a stay while the parties
arbitrate, a federal court may consider only issues relating to the making and performance
of the agreement to arbitrate”); AT&T Techs., Inc. v. Commc’n Workers of Am., 475 U.S.
643, 649 (1986) (“Unless the parties clearly and unmistakably provide otherwise, the
question of whether the parties agreed to arbitrate is to be decided by the court, not the
arbitrator.”).
According to the New Mexico Supreme Court, an “inherently one-sided
agreement” which “would limit [one party] to mandatory arbitration as a forum to settle
all disputes whatsoever, while reserving for the [other party] the exclusive option of
access to the courts for all remedies” it is most likely to pursue is contrary to New
Mexico public policy and thus “void as unconscionable.”4 Cordova v. World Fin. Corp.
of NM, 2009-NMSC-021, ¶ 1, 208 P.3d 901. The New Mexico Court of Appeals later
applied Cordova in holding unconscionable an agreement in which “the drafter
unreasonably reserved the vast majority of his claims for the courts, while subjecting the
weaker party to arbitration on essentially all of the claims that party is likely to bring.”
Figueroa v. THI of New Mexico at Casa Arena Blanca, LLC, 2013-NMCA-077, ¶ 30,
306 P.3d 480, cert. denied, 569 U.S. 1004 (2013). The Court further explained:
Defendant cannot avoid the equitable doctrine of unconscionability by
drafting an agreement that reserves its most likely claims for a judicial
forum, and provides some exemptions from arbitration to the resident so
4

The New Mexico Supreme Court recognizes both substantive and procedural
unconscionability, and Cordova explains each doctrine in detail. Cordova, 2009-NMSC021, ¶¶ 22-25. The Court in Cordova held that the contract at issue was substantively
unconscionable. Id. ¶¶ 26, 32. (“Substantive unconscionability concerns the legality and
fairness of the contract terms themselves.”)
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that there is some appearance of bilaterality, when that exemption is
completely meaningless in practicality because the [plaintiff] would rarely,
if ever, raise that type of claim.
Id.
However, our Tenth Circuit subsequently held that the rule set forth in Figueroa is
preempted by the FAA. THI of New Mexico at Hobbs Ctr., LLC v. Patton, 741 F.3d
1162, 1170 (10th Cir. 2014). The Court stated that the rule in Figueroa is premised on an
assumption that arbitration is an inferior means of dispute resolution as compared to
litigation, id. at 1169, and that the Supreme Court has long forbid any refusal to find an
arbitration agreement valid based on such assumption. Id. at 1166 (citing Perry v.
Thomas, 482 U.S. 483, 492 n.9 (1987)). This Court is bound to apply Patton, and
therefore cannot rely on the unconscionability analysis set forth in Figueroa, as requested
by Plaintiff [Doc. 22, pp. 2-5], to refuse to compel arbitration.5

5

Without further explanation, Plaintiff cites an unpublished New Mexico Court of
Appeals case, Hegerty v. Skilled Healthcare, LLC, No. 34,846, 2017 WL 1019632, *4
(N.M. App. Feb. 15, 2017) (unpublished opinion), stating merely that it “distinguishes”
Patton. [Doc. 22, p. 3] However Hegerty, along with the other New Mexico Court of
Appeals cases which cite Patton (no New Mexico Supreme Court case cites Patton), all
state only that the New Mexico Court of Appeals is bound by New Mexico Supreme
Court case law, and thus in each case the Court refused to apply Patton. Id. (rejecting the
“argument that Patton must be applied” because the New Mexico Court of Appeals “is
bound by existing [New Mexico] Supreme Court precedent); John v. Rehab. Ctr. of
Albuquerque, LLC, No. 34,561, 2017 WL 1019478, *5 (N.M. App. Feb. 15, 2017)
(same); Dalton v. Santander Consumer USA, Inc., 2015-NMCA-030, ¶ 30, 345 P.3d 1086
(stating that the Court is bound by New Mexico Supreme Court decisions even when a
United States Supreme Court decision seems contrary, and thus declining to address the
argument based on Patton), rev’d 2016-NMSC-035, ¶ 24, 385 P.3d 619 (reversing
without citing or discussing Patton). Unlike the New Mexico Court of Appeals, this
Court is bound to follow our Tenth Circuit’s holdings.
10

But even if the Court were to apply Cordova and Figueroa, the Court would not
be persuaded that the arbitration agreement in this case is inherently one-sided. While
Plaintiff submits that “[t]here is no claim than an employer can bring against an employee
that is not exempted from this arbitration agreement,” several such claims exist. The
employer could bring tort actions against an employee, for example for defamation or
negligence (i.e., negligently damaging or losing property belonging to the employer).
The arbitration agreement requires both parties to resolve tort actions through arbitration.
[Doc. 19-1, pp. 12-13] Further, the Court holds (in the next section) that the agreement to
arbitrate applies to directors, managers and supervisors, and thus those employees would
be required to bring claims for work-related intentional torts, such as assault, through
arbitration.6

[Doc. 19-1, p. 12]

As to those causes of action not covered by the

arbitration agreement, some are for claims which would be brought by the employee,
including: “claims for benefits or other relief under the Employment Retirement Income
Security Act (“ERISA”), or the Internal Revenue Code that strictly relate to any associate
benefit plan sponsored by the company”; claims for unemployment; and claims for
worker’s compensation insurance benefits. [Doc. 19-1, p. 14] The only type of claim
excluded from arbitration and expressly belonging solely to Defendant Specialty
Retailers is a claim “for equitable relief for associate violation of a contract, a covenant
against competition or the use or disclosure of trade secrets or other confidential
information.” [Doc. 19-1, p. 14] Thus, the fact that the exemptions from arbitration are
6

Furthermore, if Plaintiff were sued for a tort by another coworker, and that coworker
had signed an arbitration agreement with the same language as that at issue here, Plaintiff
could move to compel arbitration. [Doc. 19-1, pp. 12-13]
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not solely for claims belonging to the employer demonstrates that the arbitration
agreement is not unconscionably unilateral. Accordingly, this Court cannot conclude that
the arbitration agreement is unconscionable under New Mexico law as set forth in
Cordova and Figueroa.
In sum, the arbitration agreement between the parties in this case is not
unenforceable “upon such grounds as exist at law or in equity for the revocation of any
contract” under New Mexico law. 9 U.S.C. § 2. The arbitration agreement is valid and
enforceable under the FAA.
Whether Jacque Gonzales is a Third Party Beneficiary
The “Dispute Resolution Program” agreement states:
What Claims Are Subject to Mediation and Arbitration?
Instead of courtroom litigation, you and the Company must use the External
Procedures in this Dispute Resolution Program (Mediation and Arbitration)
to resolve work-related problems involving legally protected rights. This
includes all claims listed below that you have now or in the future against
the Company, its officers, directors, owners, manager[s], partners, current
or former associates, representatives, or agents.
...
Examples of some claims covered by the Mediation and Arbitration
portions of this Dispute Resolution Program (“Stages” 3 and 4) include but
are not limited to:
 Claims for harassment (including, but not limited to, sexual
harassment).
 Claims for discrimination (including, but not limited to, claims based
on race, sex, religion, national origin . . . ), whether such claims arise
under Title VII of the Civil Rights Act, . . . the Age Discrimination
in Employment Act, . . . or any other similar laws.
...
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 Claims for other damage or harm to person or property (including,
but not limited to, any form of tort claim for physical or
psychological injury, such as assault, battery, occupational injury,
negligent hiring/training/supervision/retention, emotional distress or
defamation), whether allegedly caused by negligence, gross
negligence, or an intentional act.
...
 Claims for violation of any other noncriminal federal, state or other
governmental common law, statute, regulation or ordinance[.]
[Doc. 19-1, pp. 12-13 (Emphasis added.)]
While one who is not a party to a contract generally may not seek to enforce the
contract, an exception exists where the party seeking to enforce the contract is a thirdparty beneficiary of the agreement. Woody Inv., LLC v. Sovereign Eagle, LLC, 2015NMCA-111, ¶ 34, 362 P.3d 107. “Whether a party is a third-party beneficiary depends
on if the parties to the contract intended to benefit the third party.”7 Fleet Mortg. Corp. v.
Schuster, 1991-NMSC-046, ¶ 4, 811 P.2d 81. “Such intent must appear either from the
contract itself or from some evidence that the person claiming to be a third party
beneficiary is an intended beneficiary.” Valdez v. Cillessen & Son, Inc., 1987-NMSC015, ¶ 34, 734 P.2d 1258.
The Dispute Resolution Program explicitly lists claims against managers as within
the purview of the arbitration clause. Defendant Gonzales was a manager. Thus, the
intent of the parties is clear: the parties, including Plaintiff, intended to arbitrate any
7

A third-party beneficiary is an intended beneficiary – which must be distinguished from
“an incidental beneficiary: a person who is neither the promisee of a contract nor the
party to whom performance is to be rendered but who will derive a benefit from its
performance.” Fleet Mortg. Corp., 1991-NMSC-046, ¶ 4 (internal brackets, quotation
marks and citation omitted).
13

claims Plaintiff may have against Defendant Gonzales. See Callahan v. New Mexico
Fed’n of Teachers-TVI, 2006-NMSC-010, ¶ 20, 131 P.3d 51 (holding that union
members were third-party beneficiaries of agreement between union and employer);
Lucchese Boot Co. v. Solano, 473 S.W.3d 404, 414-15 (Tex. App. 2015) (holding that coemployee non-signatories to arbitration agreement were third-party beneficiaries and thus
could enforce arbitration agreement against employee where the agreement “explicitly
include[d] claims ‘against the Company or its officers, directors, shareholders,
employees, or agents in their personal or official capacities’”); see also Gibson v. WalMart Stores, Inc., 181 F.3d 1163, 1170 (10th Cir. 1999) (holding that employee waived
claim against co-employee by signing agreement with employer not to pursue “any
independent action in any court against Wal-Mart, its officers, directors, employees,
agents . . . as the result of any accident”). Given the clear, express language in the
Dispute Resolution Program that claims against managers and other employees must be
arbitrated, Defendant Gonzales is a third-party beneficiary of the agreement to arbitrate
claims. Plaintiff, therefore, must pursue her claims against Defendant Gonzales, if at all,
in arbitration.
Summary
When she signed the Dispute Resolution Program, Plaintiff agreed to arbitrate the
current claims, both against Defendant Specialty Retailers and Defendant Gonzales. The
agreement itself is not unconscionable, and, as this Court is bound to apply Patton, 741
F.3d at 1169-70, to the extent that the New Mexico case law on unconscionability relies
on a presumption that arbitration is an inferior dispute resolution forum, the FAA
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preempts such case law. Both the FAA and the New Mexico Uniform Arbitration Act
require that this Court compel arbitration. This Court is “satisfied that the issue involved
in such suit or proceeding is referable to arbitration under [the parties’] agreement,” and
thus the Court must “stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement.” 9 U.S.C. § 3.
CONCLUSION
WHEREFORE, the Court hereby:
GRANTS Defendants’ Motion to Compel Arbitration Under 9 U.S.C. § 3, or,
Alternatively, under the New Mexico Arbitration Act [Doc. 19];
STAYS this matter pending arbitration; and
ORDERS that the parties submit a joint status report, to be submitted by
Defendants, within four (4) months of the date of this order stating the procedural status
of the arbitration, and, if arbitration has not been completed, to submit a joint status
report every three (3) months thereafter.
SO ORDERED this 29th day of May, 2018 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
United States District Judge

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