Bynum v. Maplebear Inc.

Filing 60

POST REMAND MEMORANDUM, ORDER & JUDGMENT denying plaintiff's 44 request for certification and dismissing the case on the merits, with prejudice. The Clerk of Court shall enter judgment in favor of defendant. No costs or disbursements are awarded to any party. Ordered by Judge Jack B. Weinstein on 9/19/2016. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
POST REMAND
MEMORANDUM, ORDER
& JUDGMENT

MELODY BYNUM,
Plaintiff,

15-CV-6263

– against –
MAPLEBEAR INC., d/b/a INSTACART,
Defendant.

Parties

Appearances

Melody Bynum

represented by Abdul Karim Hassan
Abdul Hassan Law Group, PLLC
215-28 Hillside Avenue
Queens Village, NY 11427
718-740-1000
Fax: [phone]
Email: [e-mail]

Maplebear Inc.
doing business as
Instacart

represented by Alice Keeney Jump
Reavis Parent Lehrer LLP
41 Madison Avenue
41st Floor
New York, NY 10010
Email: [e-mail]
Benjamin W. Berkowitz
Nikki Vo
Ryan Wong
Keker & Van Nest LLP
633 Battery Street
San Francisco, CA 94111
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

JACK B. WEINSTEIN, Senior United States District Judge:
I.

Introduction .......................................................................................................................... 1

II.

Procedural Background ........................................................................................................ 4
A. Arbitration Compelled; Case Stayed .............................................................................. 4
B. Request for Modification of February Order Denied ..................................................... 5
C. Dismissal and Mandate by Court of Appeals for the Second Circuit ............................ 6
D. Plaintiff’s Motion for Leave to Appeal .......................................................................... 7
E. Hearing on Plaintiff’s Motion and Court of Appeals’ Mandate ..................................... 7

III.

Law....................................................................................................................................... 8
A. Certification Pursuant to 28 U.S.C. § 1292(b) ............................................................... 8
B. Stay of Litigation when Arbitration is Compelled ......................................................... 9
C. Dismissal ...................................................................................................................... 11

IV.

Application of Law to Facts ............................................................................................... 12
A. Certification Pursuant to 28 U.S.C. § 1292(b) ............................................................. 12
B. Dismissal on the Merits ................................................................................................ 15

V.

Conclusion ......................................................................................................................... 23

I.

Introduction
The case is before this court upon a mandate from the Court of Appeals for the Second

Circuit. See Mandate, United States Court of Appeals for the Second Circuit, July 13, 2016, ECF
No. 41 (“Mandate”). In a memorandum and order dated February 12, 2016 (“February Order”),
this district court had granted defendant’s motion to compel arbitration and stayed proceedings
pending arbitration. See generally Bynum v. Maplebear Inc., 160 F. Supp. 3d 527 (E.D.N.Y.
2016), appeal dismissed (July 13, 2016).
Plaintiff had initiated the action to recover unpaid overtime and other expenses under the
Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). After severing
unconscionable provisions relating to venue and fees, the February Order ruled that the parties had
entered into a valid arbitration agreement and plaintiff’s claims fell within its scope.
1

Plaintiff appealed. The Court of Appeals for the Second Circuit dismissed the appeal. It
ruled that because a stay rather than dismissal was granted, the February Order is non-final and a
court of appeals does not have jurisdiction. The mandate stated that “[t]he district court should
determine, in the first instance, whether the Appellant’s waiver of the right to arbitrate entitles the
Appellant to termination of the existing stay and dismissal of the action, and/or whether
certification under 28 U.S.C. § 1292(b) is appropriate.” Mandate, July 13, 2016.
Plaintiff then filed a motion in the district court for leave to appeal. She seeks either (1)
certification of the February Order pursuant to section 1292(b) of the United States Code, title 28,
or, in the alternative, (2) a finding that the February Order is final in light of her intention to
“waive” arbitration. See Pl.’s Mot. for Leave to Appeal, Aug. 18, 2016, ECF No. 44 (“Pl.’s Mot.
for Leave to Appeal”). Defendant filed a memorandum in opposition to plaintiff’s motion. See
generally Def.’s Mem. in Opp’n to Pl.’s Mot. for Appellate Certification, Aug. 31, 2016, ECF No.
51 (“Def.’s Opp’n Mem.”).
Whether certification is proper under section 1292(b) of the United States Code, title 28,
depends upon whether the order involves “a controlling question of law as to which there is
substantial ground for difference of opinion” and whether “an immediate appeal from the order
may materially advance the ultimate termination of the litigation.” Plaintiff argues that the relevant
“controlling question” is whether FLSA claims are non-arbitrable as a matter of law. See Pl.’s
Mem. in Supp. of Mot. for Leave to Appeal, Aug. 18, 2016, ECF No. 45 (“Pl.’s Mem.”), at 3-7;
see also Pl.’s Reply in Supp. of Mot. for Leave to Appeal, Sept. 6, 2016, ECF No. 53 (“Pl.’s Reply
Mem.”), at 1-6. This argument has no force. The Supreme Court has specifically recognized the
arbitrability of statutory claims. Courts both within and outside this circuit—including in cases

2

involving the same defendant, agreement, and facts as in the instant case—have enforced valid
agreements to arbitrate FLSA claims. See infra Part IV.A.
In the alternative, plaintiff states she will “waive her right to arbitration” and requests that
the court rule the February Order final and appealable in light of such a waiver. “[T]he relevant
question,” plaintiff argues, “is whether a party can convert a non-final order into a final order for
purposes of appeal by waiving further action in a case.” Pl.’s Mem. at 9. She says she understands
that, should the Court of Appeals not find in her favor, she will end up foregoing her claims
entirely. Id. (stating that “Plaintiff waives arbitration with the understanding that if she loses the
appeal, she will also lose her claims and cannot thereafter pursue them in arbitration”); see also
Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 5:8-14, 9:13-21, 13:22-14:5; infra Part IV.B.
Plaintiff’s counsel brought a near identical claim on behalf of a different plaintiff in the
Southern District of New York, against the same defendant.

That action was decided

contemporaneously with the instant one. See Moton v. Maplebear Inc., No. 15-CV-8879, 2016
WL 616343 (S.D.N.Y. Feb. 9, 2016). The Moton judge found the arbitration agreement valid,
granted defendant’s motion to compel arbitration, and stayed court proceedings pending
arbitration. The plaintiff appealed that decision and the Court of Appeals for the Second Circuit
issued the same mandate as in the instant case. See Moton v. Maplebear Inc., No. 15-CV-8879,
Mandate, United States Court of Appeals for the Second Circuit, July 13, 2016, ECF No. 37.
For the reasons stated orally on the record, the instant case is dismissed on the merits. See
generally Hr’g Tr., Sept. 8, 2016, ECF No. 58. On the advice of counsel, plaintiff indicated her
refusal to arbitrate. See id. at 5:3-18, 9:13-21, 9:25-10:3, 14:2-5, 17:9-20. There is no reason to
delay dismissal when plaintiff states she is abandoning the case. See, e.g., id. at 18:17-19:2. The
court makes no finding with respect to whether the instant dismissal will allow plaintiff to appeal

3

the February Order. Plaintiff was advised that dismissal on the merits would probably result in
her foregoing her claims entirely. See id. at 5:8-14, 9:13-21, 13:22-14:5.
II.

Procedural Background
A.

Arbitration Compelled; Case Stayed

Plaintiff alleged that she was misclassified as an independent contractor and was not paid
overtime wages in violation of the FLSA and NYLL. See generally Compl., Oct. 30, 2015, ECF
No. 1 (“Compl.”). She had entered into an employment contract with defendant. Included was an
agreement to arbitrate disputes before JAMS, a national private organization providing arbitration
services. See Bynum, 160 F. Supp. 3d at Part II.B.
In February 2016, this court granted defendant’s motion to compel arbitration. After
severing the arbitration agreement’s objectionable venue and fee-related clauses, it determined that
the parties had entered into a valid and enforceable agreement to arbitrate, which encompassed
plaintiff’s wage claims. Rejected was plaintiff’s argument that FLSA claims are per se nonarbitrable. The case was stayed—rather than dismissed—pending arbitration, pursuant to section
3 of the Federal Arbitration Act (“FAA”) and defendant agreed to commence the arbitration. The
court ordered:
The case is stayed pending arbitration pursuant to section 3 of the
FAA.
Defendant shall promptly file an arbitration demand with JAMS in
New York. If JAMS is unwilling to accept the arbitration in New
York for any reason, either party shall by letter notify the court. The
court will then set a trial date. The parties and JAMS are requested
to take appropriate prompt steps to determine whether the arbitration
can go forward.
Id. at 541-42.

4

B.

Request for Modification of February Order Denied

On February 29, 2016, plaintiff wrote to the court stating that she had decided to “decline
arbitration, and take an appeal as of right to the Second Circuit.” Pl.’s Letter re Appellate Review
of Arbitration Order, Feb. 29, 2016, ECF No. 37 (emphasis added). Plaintiff explained that:
[A]fter a careful and further review of the Court’s order, JAMS’
rules and its arbitration process, arbitration jurisprudence, the many
inconsistencies and uncertainties, and a variety of scenarios, we
have concluded that there is no guarantee that Plaintiff will not lose
her FLSA rights in arbitration, or be responsible for costs and fees,
when the dust settles . . . . Defendant has also indicated that a coworker of Plaintiff will likely face counterclaims in arbitration – it
is therefore a real possibility that Defendant may use counterclaims
strategically and improperly against Plaintiff . . . .
As such, Plaintiff has concluded that the potential benefits of
recovering a relatively small amount of wages, are prohibitively
outweighed by the risks and potential costs of arbitration in the
context of this case.
Because Plaintiff cannot take such risks, she has decided to decline
arbitration, and take an appeal as of right to the Second Circuit Court
of Appeals.
Id. at 1-2.
Plaintiff requested that the court “convert its stay to a dismissal of the action,” so that she
could pursue an appeal of the February Order. Id. at 2 (emphasis added). Simultaneously, she
filed a notice of appeal. See Notice of Appeal as to Order on Mot. to Compel, Feb. 29, 2016, ECF
No. 38.
Defendant contended that plaintiff could not pursue an appeal as “of right” from an order
compelling arbitration under the FAA. Its position was that, while an interlocutory appeal may be
taken from an order denying a motion to compel arbitration, this relief is not available in the case
of an order compelling arbitration. Def.’s Letter, Mar. 1, 2016, ECF No. 39 (citing 9 U.S.C. §
16(a)-(b); Cotton v. Slone, 4 F.3d 176, 178 (2d Cir. 1993); Sierra Rutile Ltd. v. Katz, 937 F.2d 743,

5

748 (2d Cir. 1991)). It argued that a stay of the litigation is mandatory when arbitration is
compelled under the FAA. Id. at 2 (citing Katz v. Cellco Partnership, 794 F.3d 341, 346 (2d Cir.
2015); 9 U.S.C. § 3). Defendant denied having any intention to initiate counterclaims against
plaintiff. Id.
Denied was plaintiff’s request to modify the February Order and dismiss the action. See
Order, Mar. 3, 2016, ECF No. 40.
C.

Dismissal and Mandate by Court of Appeals for the Second Circuit

Plaintiff’s appeal of the February Order was dismissed. See Mandate, July 13, 2016. The
appellate court found it had no jurisdiction to hear the case because no final order had been issued.
It suggested that the district court first determine whether plaintiff’s waiver of the right to arbitrate
entitles her to termination of the existing stay and dismissal of the action, or whether certification
under section 1292(b) of United States Code, title 28, is appropriate:
This Court has determined that it lacks jurisdiction over this appeal
because a final order has not been issued by the district court within
the meaning of 9 U.S.C. § 16(a). Green Tree Fin. Corp. v. Randolph,
531 U.S. 79, 86-87 (2000); Katz v. Cellco Partnership, 794 F.3d
341, 344 (2d Cir. 2015). The district court should determine, in the
first instance, whether the Appellant’s waiver of the right to arbitrate
entitles the Appellant to termination of the existing stay and
dismissal of the action, and/or whether certification under 28 U.S.C.
§ 1292(b) is appropriate. We do not now decide whether dismissal
of the action based on the waiver would be proper, whether such a
dismissal could be appealed, or whether mandamus review would
be the only means to challenge whatever district court order is
ultimately entered.
Mandate, July 13, 2016.

6

D.

Plaintiff’s Motion for Leave to Appeal

Plaintiff now seeks to appeal this court’s February Order compelling arbitration of her
FLSA and NYLL claims. In order to do so, she seeks the following forms of relief, in the
alternative:
First, certification of the February Order “and any related orders” for an interlocutory
appeal under section 1292 of the United States Code, title 28. See Pl.’s Mem. at 1.
Second, if certification is denied, she states that she is ready to “waive arbitration” so that
the February Order can be converted into a final order dismissing the action (rather than a stay of
litigation pending arbitration). See id. She claims to understand that, should she waive arbitration
and her appeal be denied, she would then be unable to pursue her FLSA claims—either through
litigation or arbitration. Id. at 9 (stating that “Plaintiff waives arbitration with the understanding
that if she loses the appeal, she will also lose her claims and cannot thereafter pursue them in
arbitration”); see also Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 5:8-14, 9:13-21, 13:22-14:5.
Defendant opposes plaintiff’s request. It argues that plaintiff fails to meet the high
threshold required for interlocutory appellate certification and she cannot “by her own action . . .
create finality and secure an otherwise unavailable interlocutory appeal under the FAA.” Def.’s
Opp’n Mem. at 1.
E.

Hearing on Plaintiff’s Motion and Court of Appeals’ Mandate

A hearing on the issues raised by the Court of Appeals for the Second Circuit in its mandate
and on plaintiff’s motion for leave to appeal was conducted. Plaintiff was present in person with
counsel. A representative of defendant appeared telephonically from California. See generally
Hr’g Tr., Sept. 8, 2016, ECF No. 58.

7

The court repeatedly inquired about plaintiff’s intention to forego arbitration, as well as
her understanding that the refusal to arbitrate would lead to a dismissal on the merits and a probable
loss of her claims:
THE COURT: Madam, is that what you want to do, you want to
waive your right to arbitration?
PLAINTIFF BYNUM: That is correct, yes.
THE COURT: On the advice of counsel?
PLAINTIFF BYNUM: That is correct.
THE COURT: Do you know that that will lead to dismissal of your
case on the merits, which means you can’t bring the case again; do
you understand that?
PLAINTIFF BYNUM: I do, yes. It was explained.
THE COURT: And you advised her of that?
MR. HASSAN: Yes, Your Honor. We went through this in great
detail.
THE COURT: So when you say you’re waiving arbitration, I take it
you mean you refuse to go to arbitration; is that right?
PLAINTIFF BYNUM: That is correct, yes.
Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 5:3-18; see also id. at 9:13-21,13:22-14:5, 17:9-18:6.
III.

Law
A.

Certification Pursuant to 28 U.S.C. § 1292(b)

Section 1292 of the United States Code, title 28, outlines the instances where interlocutory
appeals of a district court order may be taken. Essentially, it provides a method of circumventing
the federal principal blocking interlocutory appeals in favor of appeals from final judgments.
Pursuant to section 1292(b):

8

When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have jurisdiction of
an appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it within
ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of Appeals or a
judge thereof shall so order.
28 U.S.C. § 1292 (first emphasis added).
B.

Stay of Litigation when Arbitration is Compelled

Section 16 of the FAA governs appellate review of arbitration orders. Green Tree Fin.
Corp.-Alabama v. Randolph, 531 U.S. 79 (2000); 9 U.S.C. § 16. It provides for limited appeals,
and denies them for stays:
(a) An appeal may be taken from-(1) an order-(A) refusing a stay of any action under section 3 of
this title,
(B) denying a petition under section 4 of this title to
order arbitration to proceed,
(C) denying an application under section 206 of this
title to compel arbitration,
(D) confirming or denying confirmation of an award
or partial award, or
(E) modifying, correcting, or vacating an award;
(2) an interlocutory order granting, continuing, or modifying
an injunction against an arbitration that is subject to this title;
or
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(3) a final decision with respect to an arbitration that is
subject to this title.
(b) Except as otherwise provided in section 1292(b) of title 28, an
appeal may not be taken from an interlocutory order-(1) granting a stay of any action under section 3 of this title;
(2) directing arbitration to proceed under section 4 of this
title;
(3) compelling arbitration under section 206 of this title; or
(4) refusing to enjoin an arbitration that is subject to this title.
9 U.S.C. § 16 (emphasis added).
If arbitration is compelled and the litigation is dismissed, the order of dismissal is a “final
decision with respect to arbitration” pursuant to section 16(a)(3) of the FAA—a final appealable
order. See Green Tree Fin. Corp.-Alabama, 531 U.S. at 86; Katz, 794 F.3d at 346; 9 U.S.C. §
16(a)(3). In Green Tree, the Supreme Court explained:
Section 16(a)(3) . . . preserves immediate appeal of any “final
decision with respect to an arbitration,” regardless of whether the
decision is favorable or hostile to arbitration. And as petitioners and
respondent agree, the term “final decision” has a well-developed and
longstanding meaning. It is a decision that “‘ends the litigation on
the merits and leaves nothing more for the court to do but execute
the judgment.’”
Green Tree Fin. Corp.-Alabama, 531 U.S. at 86 (citations omitted).
An order compelling arbitration and staying litigation proceedings is an interlocutory order
that is not final and not appealable. Pursuant to section 16(b), unless certification is granted under
section 1292 of title 28, an appeal may not be taken from an interlocutory order either granting a
stay pursuant to section 3 or directing arbitration to proceed under section 4 of the FAA. No issue
of mandamus is raised by the parties as a method of avoiding the rule on interlocutory appeals.

10

In Katz v. Cellco Partnership, the Court of Appeals for the Second Circuit addressed the
question of whether district courts retain discretion to dismiss or stay an action after having
compelled arbitration as to all claims pursuant to a valid and binding agreement between the
parties. The appellate court concluded that district courts must stay rather than dismiss proceedings
when all claims are referred to arbitration and a stay is requested by one of the parties. The court
explained that the “text, structure, and underlying policy of the FAA mandate a stay of proceedings
when all of the claims in an action have been referred to arbitration and a stay is requested.” 794
F.3d at 347 (emphasis added).
C.

Dismissal

Rule 41 of the Federal Rules of Civil Procedure addresses the dismissal of actions. It
provides that a plaintiff may voluntarily dismiss an action without a court order either before the
opposing party serves an answer or a motion for summary judgment, or on stipulation signed by
all parties. Fed. R. Civ. P. 41(a)(1).
If dismissal is sought after the opposing party has served an answer or a motion for
summary judgment and without the consent of all parties, then it may only be granted by court
order, “on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2) (“Except as provided in
Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms
that the court considers proper.”); see also 9 Wright & Miller, Fed. Prac. & Proc. Civ. § 2364 (3d
ed.) (“If an answer or a motion for summary judgment has been served, the plaintiff no longer has
the right to dismiss and, unless all of the parties stipulate to dismissal, both Rule 41(a)(2) and a
myriad of cases demand that a plaintiff who wishes to dismiss must obtain an order of the district
court.”) (footnotes omitted).

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“The grant or denial of a dismissal on motion under Rule 41(a)(2) is within the sound
discretion of the trial court.” 9 Wright & Miller, Fed. Prac. & Proc. Civ. § 2364 (3d ed.). “Unless
the order states otherwise,” such a dismissal “is without prejudice.” Fed. R. Civ. P. 41(a)(2).
With respect to dismissals without prejudice, courts have generally found that they should
be granted absent any prejudicial effects on the opposing party. See 9 Wright & Miller, Fed. Prac.
& Proc. Civ. § 2364 (3d ed.) (“The purpose of the grant of discretion under Rule 41(a)(2) that
permits the district court judge to consider whether dismissal is appropriate under the
circumstances of the case ‘is primarily to prevent voluntary dismissals which unfairly affect the
other side, and to permit the imposition of curative conditions.’”) (footnote omitted).
If a plaintiff seeks dismissal with prejudice, courts have taken the view that the request
must be granted:
Many courts have taken the sensible position that dismissals without
prejudice generally should be granted by the district court if no
prejudicial effects would result for the opposing party. A different
view has been taken, however, when a plaintiff wishes to dismiss
with prejudice. Since such a dismissal is a complete adjudication of
the claims and a bar to a further action on them between the parties,
it has been held that the district court has no discretion to refuse
such a dismissal and cannot force an unwilling plaintiff to go to
trial.
9 Wright & Miller, Fed. Prac. & Proc. Civ. § 2364 (3d ed.) (footnotes omitted) (emphasis added).
IV.

Application of Law to Facts
A.

Certification Pursuant to 28 U.S.C. § 1292(b)

Plaintiff argues that certification of the February Order for appeal under section 1292(b) of
title 28 is proper because it involves a “controlling question of law as to which there is substantial
ground for difference of opinion.” See Pl.’s Mem. at 3-7; see also Pl.’s Reply Mem. at 1-6. The
“controlling question,” according to plaintiff, is “whether the FLSA ‘nullifies an arbitration clause
12

contained in’ the parties purported agreement”—i.e., whether FLSA claims are arbitrable or not.
Pl.’s Mem. at 3. Plaintiff states that “[a] critical factor in determining whether Congress intended
FLSA claims to be nonarbitrable, is whether arbitration is inconsistent with the FLSA or
undermines FLSA rights.” Id. at 6.
She argues that the Supreme Court’s ruling in Barrentine v. Arkansas-Best Freight Sys.
Inc. and the Second Circuit’s decision in Cheeks v. Freeport Pancake House, Inc. indicate that the
Court of Appeals for the Second Circuit could now determine that plaintiffs may not be compelled
to arbitrate FLSA claims. See id. at 3.
In its February Order, this court found this argument without merit. It distinguished
Barrentine and Cheeks from the instant case, as follows:


With respect to Barrentine, it has been distinguished from cases involving the arbitrability
of individual statutory claims. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 33-35 (1991). It was not decided under the FAA so the statute’s “liberal policy favoring
arbitration” was not at issue. See id. at 35. It also involved arbitration in the context of a
collective bargaining agreement, where the claimants were represented by their unions; the
relevant concern was the tension between collective representation and individual statutory
rights. Id. The Court did not rule on whether individual FLSA claims could be arbitrated
pursuant to a private agreement between an individual employee and employer. See
Bynum, 160 F. Supp. 3d at 539; see also Moton, 2016 WL 616343, at *5.



With respect to Cheeks, in that case the Court of Appeals for the Second Circuit held that
FLSA claims cannot be settled without the approval of a court or the United States
Department of Labor. While the finding in Cheeks appears to support a policy favoring
transparency in FLSA disputes, which could arguably be frustrated by the confidentiality
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of certain arbitration proceedings, this court noted in its February Order that “[n]o question
regarding the arbitrability of FLSA claims was raised [in Cheeks]. Plaintiff’s reference to
the Second Circuit’s decision in Cheeks is therefore misplaced. That decision does not
bear on the arbitrability of FLSA claims.” Bynum, 160 F. Supp. 3d at 541; see also Moton,
2016 WL 616343, at *6-7.
Plaintiff has not pointed to anything in the text of the FLSA that suggests Congress
intended to preclude arbitration of FLSA claims. As indicated in the February Order, the Supreme
Court has repeatedly recognized the strong federal policy in favor of arbitration, which extends to
the enforcement of agreements to arbitrate statutory claims. See Bynum, 160 F. Supp. 3d at 535
(citing Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226 (“This duty to enforce arbitration
agreements is not diminished when a party bound by an agreement raises a claim founded on
statutory rights.”); Gilmer, 500 U.S. at 26 (“It is by now clear that statutory claims may be the
subject of an arbitration agreement, enforceable pursuant to the FAA.”)). The Court has declared
that “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights
afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial,
forum.” Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler—Plymouth,
Inc., 473 U.S. 614, 628 (1985)) (emphasis added). See also Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 123 (2001).
Although non-negotiable arbitration agreements have come under increasing scrutiny,
courts in this and other circuits, including in cases involving the same defendant, agreement and
general facts as the present one, have repeatedly affirmed valid agreements to arbitrate individual
FLSA claims. See, e.g., Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013) (finding
that an employee can waive his or her ability to proceed collectively under the FLSA in an

14

arbitration agreement); Arrigo v. Blue Fish Commodities, Inc., 408 Fed. App’x 480 (2d Cir. 2011)
(affirming district court’s granting of motion to compel arbitration of FLSA claims); Adkins v.
Labor Ready, Inc., 303 F.3d 496, 506 (4th Cir. 2002) (distinguishing Barrentine in a case involving
an individual agreement to arbitrate because Barrentine “was limited to the case of collectivebargaining arbitration and was thus rooted in substantive concerns that simply do not apply” out
of the collective bargaining context); Bailey v. Ameriquest Mortg. Co., 346 F.3d 821, 824 (8th Cir.
2003) (compelling arbitration of FLSA claims); Ciago v. Ameriquest Mortg. Co., 295 F. Supp. 2d
324, 332 (S.D.N.Y. 2003) (distinguishing Barrentine and stating that “because of the similar
remedial purpose and enforcement mechanisms shared by the ADEA and FLSA, the reasoning in
Gilmer dictates that claims under the FLSA may also be subject to compulsory arbitration
provisions”); Patterson v. Raymours Furniture Co., 96 F. Supp. 3d 71 (S.D.N.Y. 2015)
(compelling arbitration of FLSA claims); LaVoice v. UBS Fin. Servs., Inc., No. 11-CV-2308, 2012
WL 124590, at *9 (S.D.N.Y. Jan. 13, 2012) (same); Steele v. L.F. Rothschild & Co., Inc., 701 F.
Supp. 407, 408 (S.D.N.Y. 1988) (staying FLSA suit pending arbitration); Moton, 2016 WL
616343; Cobarruviaz v. Maplebear, Inc., No. 15-CV-697, 2015 WL 6694112 (N.D. Cal., Nov. 3,
2015).
Plaintiff’s motion for certification is denied. Plaintiff has not demonstrated the existence
of “a controlling question of law as to which there is substantial ground for difference of opinion.”
28 U.S.C. § 1292. Contrary to plaintiff’s assertions, an appeal will not expedite completion of the
litigation. See Pl.’s Mem. at 7-9; Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 12:16-21.
B.

Dismissal on the Merits

In the alternative, should the court not grant certification under section 1292, plaintiff states
that she intends to “waive her right to arbitration.” Pl.’s Mem. at 9 (emphasis added). In light of
15

her “waiver,” plaintiff argues, the February Order should then be deemed “final and appealable.”
Id. According to plaintiff, by waiving arbitration she is waiving any further action in the case—
in her opinion, this is sufficient to convert a non-final interlocutory order into a final one for
purposes of appeal. Id. at 9-10 (citing Slayton v. Am. Express Co., 460 F.3d 215, 224-25 (2d Cir.
2006)).
In Slayton, the Court of Appeals for the Second Circuit found that the notice of appeal was
effective, even though it was from a judgment dismissing the amended complaint with leave to
amend, because appellants disclaimed their intent to amend. See 460 F.3d at 224-25.
Plaintiff likens Slayton to the instant case:
Slayton is controlling because as in this case, it involved a situation
where the appellant disclaimed/waived further action in the lower
court in order to make a non-final order final for purposes of appeal.
In both Slayton and the instant case, once the parties
disclaimed/waived further action below, there was nothing left for
the district court to do – the standard for finality for purposes of
appeal.
Pl.’s Mem. at 10.
The instant case is different from Slayton. See Def.’s Opp’n Mem., at 11-12. There, the
district court had addressed the dispute on the merits. Absent an amendment of the complaint, the
court had disposed of the claims.

Here, plaintiff was compelled—assuming she was not

abandoning her claim—to resolve her dispute through binding arbitration, in accordance with the
parties’ agreement. The court stayed proceedings rather than dismissing them, in conformity with
the Court of Appeals for the Second Circuit’s decision in Katz v. Cellco Partnership. The appellate
court may change the Katz rule; this court may not.
Now plaintiff declares that she will forego arbitration entirely. Essentially, plaintiff is
moving to dismiss the case. See Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 10:1-3 (“[THE COURT:]
In effect, [plaintiff is] moving to dismiss this case; is that right? [PLAINTIFF’S COUNSEL:]
16

That’s the effect.”); see also Pl.’s Reply Mem. at 6 (“Dismissal on the merits simply means the
merits of the claim cannot be litigated again if Plaintiff loses the appeal – that is precisely the case
here in light of Plaintiff’s waiver of arbitration.”).
Her counsel believes that dismissal will allow him to pursue an appeal of the February
Order compelling arbitration. Plaintiff states she understands that dismissal will lead to resolution
of her claims on the merits—should any appeal be denied, she will have lost the ability to litigate
her claims entirely:
THE COURT: Madam, is that what you want to do, you want to
waive your right to arbitration?
PLAINTIFF BYNUM: That is correct, yes.
THE COURT: On the advice of counsel?
PLAINTIFF BYNUM: That is correct.
THE COURT: Do you know that that will lead to dismissal of your
case on the merits, which means you can’t bring the case again; do
you understand that?
PLAINTIFF BYNUM: I do, yes. It was explained.
THE COURT: And you advised her of that?
MR. HASSAN: Yes, Your Honor. We went through this in great
detail.
THE COURT: So when you say you’re waiving arbitration, I take it
you mean you refuse to go to arbitration; is that right?
PLAINTIFF BYNUM: That is correct, yes.
...
THE COURT: It is not interlocutory. It is a final dismissal of the
action on the merits. . . .
MR. HASSAN: True, Your Honor. If we lose the appeal, our claims
are gone.
THE COURT: The appeal?
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MR. HASSAN: If after you dismiss and we appeal, if we lose that
appeal, it is gone, we are out of luck.
Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 5:3-18, 9:13-21; see also Pl.’s Mem. at 9.
The court addressed the possible ethical implications of counsel advising his client to
effectively forego her claims, when she could seek resolution through arbitration:
THE COURT: The only thing that worries me about a dismissal on
the merits is whether this attorney has acted ethically, I don’t say
you haven’t, by putting the client’s possible claim at risk for a
decision on the merits, and whether, as an ethical and as a procedural
question, this practice should be permitted. But the client is sitting
right here next to him and she says -- you don’t want to go forward
with the case, right?
PLAINTIFF BYNUM: Correct. Yes.
Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 13:22-14:5. Plaintiff reiterated her intention to abandon
arbitration and dismiss the case on the merits:
THE COURT: I see. You want to stop your case; is that right,
Madam?
PLAINTIFF BYNUM: For arbitration, yes.
THE COURT: And for all purposes now, if you take that position, I
am going to dismiss it on the merits.
PLAINTIFF BYNUM: Correct.
THE COURT: And then we’ll have the Court of Appeals decide
whether a dismissal on the merits is appropriate, where one of the
parties says “I have been ordered to go to arbitration, but I prefer to
withdraw my case.” That’s your position.
MR. HASSAN: Yes, Your Honor.
Id. at 17:9-20.
Defendant argues that the arbitration should first be completed before a dismissal of the
instant action is granted. According to defendant, if plaintiff refuses to proceed with arbitration,

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as she has indicated, the arbitrator should be allowed to close the arbitration for “failure to
prosecute” before this court dismisses the presently stayed action:
THE COURT: And so what do you want to do now? They refuse to
go to arbitration.
MR. BERKOWITZ: It seems to us, Your Honor, that the arbitration
ought to be, you know, decided on the merits. Whether that’s
decided because of, you know, failure to prosecute or otherwise,
that’s really a decision for the arbitrator. In other words, the case
has now been -- the case has now been compelled to arbitration by
this court. You know, jurisdiction over any final decision on the
merits of this case is in front of JAMS, and when -- if Ms. Bynum,
you know, decides to fail to prosecute the case in JAMS, as she -THE COURT: As she already told me she decided that.
MR. BERKOWITZ: As she says she may do. The decision of how
it -THE COURT: She didn’t say “may.” She said she does now do.
MR. BERKOWITZ: It seems to me that that is an issue that ought
to be, you know, addressed in the first instance by JAMS, by the
arbitrator.
THE COURT: I don’t understand what they have to address. You
have moved for arbitration; she refuses to go ahead. The arbitrator
can’t do anything on your motion without her being present. . . .
You come in and say, “I want to arbitrate this dispute.” She says, “I
have no form of a dispute.” Right? “I don’t want to arbitrate.” Isn’t
that your position?
PLAINTIFF BYNUM: Correct, it is.
MR. BERKOWITZ: I think it is -- I don’t think it is any -- I don’t
think it is any different than if we were in a court, Your Honor. If
the plaintiff in a court refused to proceed with the litigation, there
would be a dismissal entered on that basis. I think the same result
will occur in arbitration.
THE COURT: But I know that’s what the result is. Why put us
through a further delay and perhaps require the plaintiff to spend
money and time on this?

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MR. BERKOWITZ: Well, I think, Your Honor, I think the different
-- I think the difference -- I mean, I think it goes down to what is
considered, you know, a final judgment under the FAA.
THE COURT: Well, if I dismiss it, then it is final.
MR. BERKOWITZ: I think -- well, I guess my comment on that
would be under the Katz decision, Your Honor, I don’t believe -- I
don’t believe the Court has the discretion to dismiss the case under
Katz.
THE COURT: Maybe that’s what we ought to have the Court of
Appeals tell us. It seems to me a waste of arbitral resources, court
resources, and the plaintiff’s resources, to allow the arbitrator to do
what the arbitrator has to do, dismiss.
Hr’g Tr., Sept. 8, 2016, ECF No. 58 at 6:23-9:2.
Because of plaintiff’s stated intention to abandon her claim, it is dismissed on the merits.
Plaintiff refuses to go forward with arbitration and wishes to terminate the litigation with the
understanding that the effect of such a position will be dismissal on the merits—meaning she can
never bring the action again. See id. at 5:8-14, 9:13-21, 13:22-14:5.
There may be some abstract reason for going through the formalities of engaging in the
arbitration where the arbitrator will be bound to dismiss the complaint. This court can see neither
a theoretical basis nor a pragmatic reason for a rule such as that proposed by defendant’s counsel.
There is no purpose in delaying dismissal by waiting for an arbitrator—who has yet to be
appointed—to find that plaintiff has failed to prosecute her claims, when she has clearly stated her
intention not to proceed. As stated by the court at the September 8, 2016 hearing:
I am going to dismiss. Either one of you can take it up on appeal,
and we will get a ruling on whether you can do this and what the
district court should do under these circumstances. My view is that
the easiest and best thing to do is to cut the knot, dismiss on the
merits, and end the dispute, without involving a major arbitral
association, JAMS or AAA or any others, without involving courts
in a further litigation after the arbitration, whatever it may be, with
or without the plaintiff. And in my opinion, without burdening the
Court of Appeals.
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Id. at 18:17-19:1.
Under these circumstances, dismissal is proper under Federal Rule of Civil Procedure
41(a)(2). Dismissal on the merits will not unduly prejudice defendant.
Whether the strategy of plaintiff’s counsel is in the best interest of his client is not apparent.
Plaintiff states that she will “decline/waive arbitration because of the significant financial and other
risks, and her right under the FLSA to bring and maintain her claims in a court of competent
jurisdiction.” Pl.’s Mem. at 10. At the September 8, 2016 hearing, plaintiff’s counsel reiterated
his position that there is “significant risk involved in arbitration.” Hr’g Tr., Sept. 8, 2016, ECF
No. 58 at 4:22-25. He stated that “we don’t even know what rules would apply in arbitration” and
that “[w]e don’t even know if this Court’s striking of the fee shifting is final.” Id. at 14:8-11. He
explained his view that, in arbitration, plaintiff would be facing higher costs than her claims are
worth:
It is to trap the plaintiff in arbitration, and the plaintiff is facing a
situation where for $3,000, she can potentially be facing liability,
10, 15, 20 times that. You have to be insane to do that. And I told
the plaintiff, if I were her, I would never do it. It doesn’t make any
sense.
Id. at 14:19-24. He confirmed his position in a letter filed with the court following the September
8, 2016 hearing. See Corrected Suppl. Decl. by Pl.’s Counsel, Sept. 12, 2016, ECF No. 56-1.
At the February hearing on defendant’s motion to compel, defendant agreed to pay the
arbitrator’s fees. See Hr’g Tr., Feb. 8, 2016 at 8:2-14. The parties also agreed to the striking of
the provisions in the arbitration agreement relating to fee splitting and fee shifting. Id. The
applicable JAMS Minimum Standards provide that the only fee that an employee may be required
to pay is the JAMS’ initial case management fee—all other costs must be borne by the company.
See Bynum, 160 F. Supp. 3d at 538.

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Plaintiff raised the possibility that defendant would initiate counterclaims, but defendant
noted in a letter to the court that it has no intention of doing so. See Def.’s Letter, Mar. 1, 2016,
ECF No. 39. This position constitutes a waiver of the right to bring a counterclaim, which this
court is not likely to ignore.
By staying the case after granting defendant’s motion to compel arbitration, this court
specifically retained jurisdiction to ensure that plaintiff had a fallback forum in which to bring her
claims. It struck venue and fee-related provisions that were in conflict with JAMS policy in
employment disputes. And it instructed the parties to notify the court should JAMS be “unwilling
to accept the arbitration in New York for any reason”:
If JAMS is unwilling to accept the arbitration in New York for any
reason, either party shall by letter notify the court. The court will
then set a trial date. The parties and JAMS are requested to take
appropriate prompt steps to determine whether the arbitration can
go forward.
Bynum, 160 F. Supp. 3d at 541-42.
It appears that counsel are fighting a procedural dual with a figmental windmill which has
nothing to do with the merits of the case or the welfare of the plaintiff. See, e.g., Hr’g Tr., Sept.
8, 2016, ECF No. 58 at 14:25-15:4,16:18-21 (“I think what I have here is an attorney that wants to
use this case to establish a general proposition in like cases that he has. I am not interested in
that.”) (court’s statement); see also Corrected Suppl. Decl. by Pl.’s Counsel, Sept. 12, 2016, ECF
No. 56-1.
But, in light of plaintiff’s repeatedly stated intention to abandon arbitration and seek a
dismissal on the merits, with the understanding that this may lead to the loss of her claims, this
court is left with no alternative but dismissal. See, e.g., 9 Wright & Miller, Fed. Prac. & Proc. Civ.
§ 2364 (3d ed.) (stating that courts have generally found that a plaintiff’s request to dismiss his or
her claims with prejudice must be granted: “Since such a dismissal is a complete adjudication of
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the claims and a bar to a further action on them between the parties, it has been held that the district
court has no discretion to refuse such a dismissal and cannot force an unwilling plaintiff to go to
trial.") (footnotes omitted); see also Hr'g Tr., Sept. 8, 2016, ECF No. 58 at 12:1-3 (court stating
that it is "a basic principle ... of procedure ... that the plaintiff controls her case").

V.

Conclusion
Certification under section 1292 of the United States Code, title 28 is not appropriate. It

would delay rather than save time. Plaintiffs request for certification is denied.
The case is dismissed on the merits, with prejudice. The Clerk of Court shall enter
judgment in favor of defendant. No costs or disbursements are awarded to any party.

SO ORDERED.

Jack B. Weinstein
Senior United States District Judge
Dated: September 19, 2016
Brooklyn, New York

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