Moise v. Family Dollar Stores of New York, Inc. et al

Filing 22

OPINION AND ORDER: re: 12 MOTION to Compel Arbitration filed by Family Dollar Stores of New York, Inc., Family Dollar Services, Inc. For the foregoing reasons, Family Dollar's motion to compel arbitration and to stay these proceedings is granted, and this action is stayed. The Clerk of Court is respectfully directed to terminate the motion pending at Docket No.12. SO ORDERED. (Signed by Judge Ronnie Abrams on 6/01/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 06/01/2017

JOCELYN MOISE,
Plaintiff,
No. 16-CV-6314 (RA)

V.

FAMILY DOLLAR STORES OF NEW
YORK, INC. and FAMILY DOLLAR
SERVICES, INC.,

OPINION & ORDER

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Jocelyn Moise brings this action against his former employer, Defendants Family
Dollar Stores of New York, Inc. and Family Dollar Services, Inc. (collectively, "Family Dollar"),
under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). Family
Dollar moves to compel arbitration and to stay these proceedings. For the reasons set forth below,
Family Dollar's motion is granted, and this action is stayed.

BACKGROUND
From approximately July 2013 through June 2016, Moise worked as a "store
supervisor/shelf-stocker" at a Family Dollar store in the Bronx. See Compl.

irir 7, 22-23 (Dkt. 3).

Moise alleges that he worked an average of ninety hours per week without receiving overtime
compensation. See id.

irir 30,

32. On August 9, 2016, Moise filed a complaint in this action,

claiming that Defendants violated the overtime provisions of the FLSA and the NYLL. See id.

irir 34-39.
On September 26, 2016, Family Dollar moved to compel arbitration. See Mot. to Compel
Arbitration (Dkt. 12). Family Dollar claims that it provides its employees an online training

program known as Family Dollar University ("FDU"), which includes a course titled "Open Door
& Arbitration at Family Dollar."

See Deel. of Matthew Broel in Supp. of Mot. to Compel

Arbitration ifil 4, 8, Ex. A (Dkt. 16). This online training course presents several slides and,
ultimately, an arbitration agreement titled "Mutual Agreement to Arbitrate Claims" (the
"Agreement"). See id.

iii! 9-11, Exs. A, B.

The Agreement provides: "All disputes covered by this Agreement between me and
[Family Dollar] shall be decided by an arbitrator through arbitration and not by way of
court or jury trial."

Broel Deel. Ex. B at 1(boldface in original).

Under a section titled

"DISPUTES COVERED BY THE AGREEMENT," the Agreement states: "[Family Dollar]

and I mutually consent and agree to the resolution by arbitration of all claims or controversies,
past, present, or future ... including without limitation, claims arising out of or related to
my ... assignment/employment." Id. (boldface in original). "Further,'' the agreement continues,
"covered Disputes include any claim or controversy regarding the Agreement or any portion of the
Agreement or its interpretation, enforceability, applicability, unconscionability, arbitrability or
formation, or whether the Agreement or any portion of the Agreement is void or voidable." Id.
The agreement then lists a number of claims that qualify as covered disputes, including claims
under "all employment related laws, including, but not limited to ... the Fair Labor Standards
Act ... and any such related or similar state or local laws." Id. 1

1

The Agreement states that it "it is between [the employee] and Family Dollar, Inc. (the
'Company')." Broel Deel. Ex. B. The Agreement further provides that "[a]ny reference to Company will
be a reference also to Company's parents, subsidiaries, partners, divisions, and affiliated entities, and all
successors and assigris of any of them." Id. Moise has named Family Dollar Stores of New York, Inc. and
Family Dollar Services, Inc. as defendants. Moise does not argue that these named defendants are not
parties to the Agreement. Accordingly, the Court assumes that the Family Dollar entities named as
defendants in this action fall within the Agreement's definition of "Company" and are thus parties to the
Agreement.
2

A signature line appears at the end of the Agreement. See id. Above the signature line,
the Agreement reads:

BY CLICKING THE "I ACCEPT" BUTTON OR SIGNING BELOW, I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ AND
UNDERSTAND THIS AGREEMENT AND AGREE TO ITS TERMS. I
AGREE THAT THROUGH THIS AGREEMENT, THE COMPANY AND I
ARE GIVING UP OUR RIGHTS TO A JURY TRIAL AND THAT
PURSUANT TO THE TERMS OF THIS AGREEMENT; WE ARE
AGREEING TO ARBITRATE DISPUTES COVERED BY THIS
AGREEMENT.
Id. at 3 (capitalization and boldface in original). If the employee has both downloaded and viewed

the Agreement, he may then click a checkbox labeled "I ACCEPT" in the online training program.
See Broel Deel. ii 14, Ex. A. Below this checkbox, the following text appears:

AGREEMENT
By clicking "I Accept", I acknowledge that I have carefully read and understand
this agreement and agree to its terms. I agree that through this agreement, the
company and I are giving up our rights to a jury trial and that pursuant to the terms
of this agreement, we are agreeing to arbitrate disputes covered by this agreement.
I further understand and agree to the use of electronic method of signature to
demonstrate my acceptance and agreement to the terms of the agreement.
Broel Deel. Ex. A (boldface in original). Below this text is another "I ACCEPT" checkbox. See
id.

Family Dollar's system automatically records the date and time on which an employee
completes the online training portal. See Broel Deel.

ii 17. Family Dollar's records indicate that

Moise received, reviewed, and acknowledged the Agreement on September 28, 2013. See id.

ii 19,

Ex. C. In addition, a record of Moise's "Leaming History" lists the status of the "Open Door and
Arbitration at Family Dollar" course as "COMPLETE," and includes a comment that reads,
"Completion noted in FDU on October 11, 2013." Id. ii 20, Ex. D.
On October 10, 2016, Moise filed an opposition to Family Dollar's motion to compel
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arbitration, accompanied by a personal declaration. See PI. 's Opp'n Mem. (Dkt. 18); Moise Deel.
(Dkt. 17). In his declaration, Moise states that he does not "recall receiving or reviewing the Open
Door Guidelines and/or Arbitration Agreement on September 28, 2013 or at any time thereafter
prior to my termination." Moise Deel.

ii 35.

Moise also states that, even if he did access the

agreement, he believes he "had no choice but to accept the terms without a full and complete
understanding of the implications of the agreement because it was a computer program that
required [him] to click on the screen to continue to access the next screen and that [he] had no
other choice but to agree to the terms if [he] wished to continue employment with defendants." Id.

ii 37.

On October 17, 2017, Family Dollar filed a reply. See Defs.' Reply Mem. (Dkt. 19).

LEGAL STANDARD
The Federal Arbitration Act (FAA) provides that an arbitration agreement "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. Enacted to "revers[ e] centuries of judicial hostility to arbitration
agreements," Bird v. Shearson Lehman/Am. Express, Inc., 926 F.2d 116, 119 (2d Cir. 1991)
(citation omitted), the FAA "embodies the national policy favoring arbitration and places
arbitration agreements on equal footing with all other contracts," Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 443 (2006). "This policy is founded on a desire to preserve the parties'

ability to agree to arbitrate, rather than litigate, disputes." Nicosia v. Amazon.com, Inc., 834 F.3d
220, 229 (2d Cir. 2016) (alteration omitted) (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110,
118 (2d Cir. 2012)). "But the FAA 'does not require parties to arbitrate when they have not agreed
to do so."' Id. (quoting Schnabel, 697 F.3d at 118); accord AT & T Techs. v. Commc 'ns Workers
of Am., 475 U.S. 643, 648 (1986) ("[A]rbitration is a matter of contract and a party cannot be

required to submit to arbitration any dispute which he has not agreed so to submit." (citation
4

omitted)).
Under the FAA, a party to an arbitration agreement may petition a district court for "an
order directing that ... arbitration proceed in the manner provided for in such agreement." 9
U.S.C. § 4. "In resolving a claim that an action must be arbitrated pursuant to an arbitration
agreement, [a district court] must determine: (1) whether the parties entered into an agreement to
arbitrate; (2) if so, the scope of that agreement; (3) if federal statutory claims are asserted, whether
Congress intended those claims to be nonarbitrable; and (4) if some, but not all, claims are subject
to arbitration, whether to stay the balance of the proceedings pending arbitration." Begonja v.

Vornado Realty Tr., 159 F. Supp. 3d 402, 408-09 (S.D.N.Y. 2016) (citing Guyden v. Aetna, Inc.,
544 F.3d 376, 382 (2d Cir. 2008)). "Whether or not the parties have agreed to arbitrate is a question
of state contract law." Schnabel, 697 F.3d at 119. 2
"In deciding motions to compel, courts apply a 'standard similar to that applicable for a
motion for summary judgment."' Nicosia, 834 F .3d at 229 (quoting Bensadoun v. Jobe-Rial, 316
F.3d 171, 175 (2d Cir. 2003)). A court must therefore "consider all relevant, admissible evidence
submitted by the parties" and "draw all reasonable inferences in favor of the non-moving party."

Id. (citations omitted).
DISCUSSION
A. Existence of an Arbitration Agreement
In opposing Family Dollar's motion, Moise first argues that there is no arbitration
agreement for the Court to enforce. Specifically, Moise argues that he never entered into an
arbitration agreement because: (1) he does not recall receiving or reviewing the Agreement, (2) he

2

The parties do not dispute that New York law governs this agreement.

5

did not read or fully understand the any arbitration agreement he may have signed, and (3) to the
extent that he signed any arbitration agreement, he did so under "economic duress or coercion."
See Pl.'s Opp'n Mem. at 5-9. These arguments fail.

First, Moise's claim that he does not "recall" receiving the Agreement does not create a
genuine dispute as to whether he signed it. It is well-established that a "mere assertion that one
does not recall signing a document does not, by itself, create an issue of fact as to whether a
signature on a document is valid-especially in the absence of any evidence the document was
fabricated."

Gonder v. Dollar Tree Stores, Inc., 144 F. Supp. 3d 522, 528 (S.D.N.Y. 2015)

(emphasis in original); see also, e.g., Vardanyan v. Close-Up Int'!, Inc., 315 F. App'x 315, 31718 (2d Cir. 2009) (summary order) (holding that a plaintiffs "statement that he does not remember
whether he signed the document does not conflict with the testimony and evidence that defendants
have submitted about the terms of that agreement"). Moise does not claim that he did not sign the
Agreement, instead asserting that he "do[ es] not recall receiving or reviewing" it. Moise Deel.

ii 35. Family Dollar, however, has submitted a record of the date and time on which Moise
"received, reviewed, and acknowledged" the Agreement through its online training program. See
Broel Deel.

ii 17, 19, Ex. C. 3 Moise does not argue that this record is fabricated or inaccurate.

Instead, he argues that the record could have provided even more information, including "whether
the links preceding the checkboxes were accessed at a certain time and date during the online
training session" and "when the online training session was first accessed." Pl. 's Opp'n Mem. at

3

Family Dollar submitted several other records indicating that Moise did, in fact, receive and
review the agreement, including a note in his "Leaming History," see Broel Deel. if 20, Ex. D, and a record
that Moise used his unique employee identification number to mark the task of reviewing the Open Door
and Arbitration training program as complete, see Deel. of Natalie Neely in Supp. of Mot. to Compel
Arbitration if 7, Ex. D (Dkt. 20).

6

8. But even without these details, the report undisputedly demonstrates that Moise "reviewed and
accepted" the Agreement in the online training portal. See Broel Deel. Ex. C. Accordingly, the
fact that Moise does not recall receiving the Agreement does not demonstrate the existence of any
genuine dispute as to whether he signed it. See, e.g., Gonder, 144 F. Supp. 3d at 528 (finding no
dispute of fact as to whether an employee signed an arbitration agreement based on records of that
the employee accessed an electronic portal containing hiring paperwork, created a unique
password for use in signing the documents, and signed the agreement using this password, where
the employee alleged that he did not recall signing the documents); Victoria v. Sammy's Fishbox

Realty Co., LLC, No. 14-CV-8678 (CM), 2015 WL 2152703, at *11 (S.D.N.Y. May 6, 2015)
(finding that parties' assertions that "they 'do not recall' signing an arbitration agreement," without
more, "are insufficient to challenge the existence of the agreements"); Padro v. Citibank, NA.,
No. 14-CV-2986 (NGG), 2015 WL 1802132, at *5 (E.D.N.Y. Apr. 20, 2015) ("[I]t is not relevant,
for purposes of [a motion to compel arbitration], whether Plaintiff recalls signing documents
acknowledging the Employment Arbitration Policy, or whether she subjectively understood at the
time the contents thereof.").
Second, Moise's claim that he did not read or fully understand the Agreement does not
demonstrate a genuine dispute as to the formation of an arbitration agreement. Under New York
law, "[a] party is under an obligation to read a document before he or she signs it, and a party
cannot generally avoid the effect of a [document] on the ground that he or she did not read it or
know its contents." Brandywine Pavers, LLCv. Bombard, 970 N.Y.S.2d 653, 655 (1st Dep't 2013)
(alterations in original) (quoting Cash v. Titan Fin. Servs., Inc., 873 N.Y.S.2d 642, 645 (2d Dep't
2009)); see also, e.g., Kai Peng v. Uber Techs., Inc., No. 16-CV-545 (PKC) (RER), 2017 WL
722007, at *9 (E.D.N.Y. Feb. 23, 2017) (under New York law, "failure to read a contract is not a
7

defense to contract formation"); Kamdem-Ouaffo v. Pepsico, Inc., 160 F. Supp. 3d 553, 565
(S.D.N.Y. 2016) ("[U]nder New York law, a party's failure to read or understand a contract that it
signs does not relieve it of its obligation to be bound by the contract." (alteration omitted) (internal
quotation marks omitted)), ajf'd, 657 F. App'x 949 (Fed. Cir. 2016) (unpublished), cert. denied,
13 7 S. Ct. 1096 (2017); Pig Newton, Inc. v. Eds. of Dirs. of Motion Picture Indus. Pension Plan,
95 F. Supp. 3d 366, 379 (S.D.N.Y. 2015) (under New York law, a "person who signs an agreement
is conclusively bound by it even if he did not read the agreement or understand its terms" (citation
omitted)), ajf'd, No. 15-1029, 2017 WL 1087852 (2d Cir. Mar. 21, 2017).

Thus, Moise's

"contention that [he] did not read the entire Arbitration Agreement, by itself, does not create a
material factual dispute." Marciano v. DCH Auto Grp., 14 F. Supp. 3d 322, 330 (S.D.N.Y. 2014).
Third, Moise cannot avoid the binding effects of the Agreement by asserting that he signed
it "under economic duress and coercion." Pl.'s Opp'n Mem. at 6. Under New York law, the
defense of economic duress or coercion is "reserved for extreme and extraordinary cases, where
the party asserting economic duress can show (1) threats of an unlawful act by one party that (2)
compel performance by the other party of an act that it had a legal right to abstain from
performing." Adler v. Lehman Bros. Holdings Inc. (Jn re Lehman Bros. Holdings Inc.), 855 F.3d
459, 477 (2d Cir. 2017) (alterations omitted) (internal quotation marks omitted). "However, 'the
person claiming duress must act promptly to repudiate the contract or release or he will be deemed
to have waived his right to do so."' VKK Corp. v. Nat'l Football League, 244 F.3d 114, 122 (2d
Cir. 2001) (quoting DiRose v. PK Mgmt. Corp., 691 F.2d 628, 633-34 (2d Cir. 1982)); accord
United States v. Twenty Miljam-350 JED Jammers, 669 F.3d 78, 89 (2d Cir. 2011). "A party may
ratify a contract or release entered into under duress by 'intentionally accepting benefits under the
contract,' by 'remaining silent or acquiescing in the contract for a period of time after he has the
8

opportunity to avoid it,' or by 'acting upon it, performing under it, or affirmatively acknowledging
it."' VKK Corp., 244 F.3d at 123 (quoting In re Boston Shipyard Corp., 886 F.2d 451, 455 (1st
Cir. 1989)). Here, Moise signed the arbitration agreement in September 2013, see Broel Deel.

if 19, Ex. C, but continued working at Family Dollar until June 2016, see Moise Deel. if 3. Moise
does not claim that he repudiated the Agreement at any point during this period, and he has offered
no explanation for remaining silent for nearly three years. See VKK Corp., 244 F.3d at 123 (noting
that "[ d]elays as short as six months have been held to constitute forfeiture of the claim" of
economic duress). Moise is thus deemed to have affirmed the agreement and cannot avoid the
binding effects of its terms under the doctrine of economic duress or coercion.
B. Unconscionability

Moise next argues that the arbitration agreement is unconscionable under New York law.
See Pl.' s Opp 'n Mem. at 9-11. This argument is for the arbitrator to decide.
It is well-established that, "as a matter of substantive federal arbitration law, an arbitration

provision is severable from the remainder of the contract," and "unless the challenge is to the
arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the
first instance." Buckeye Check Cashing, 546 U.S. at 445-46; see also Prima Paint Corp. v. Flood
& Conklin Mfg. Co., 388 U.S. 395, 404 (1967). In Rent-A-Center, West, Inc. v. Jackson, 561 U.S.

63 (2010), the Supreme Court applied these principles to so-called "delegation provisions" within
arbitration agreements. The Court held that, when an arbitration agreement contains a provision
granting the arbitrator the exclusive authority to decide claims related to arbitrability-including,
for example, claims of unconscionability-the "precise agreement to arbitrate at issue" is this
delegation provision itself, even though it is nested within a broader arbitration agreement. Id. at
71-72. Thus, if a party challenges the validity of the arbitration agreement as a whole but does
9

not "challenge[] the delegation provision specifically," a court must enforce the delegation
provision, "leaving any challenge to the validity of the [a]greement as a whole for the arbitrator."
Id. at 72.

Under Rent-A-Center, Moise's unconscionability claim is for the arbitrator to decide. The
Agreement

provides

that

"any

claim

or

controversy

regarding

the

Agreement['s] ... unconscionability" shall be "decided by an arbitrator through arbitration and
not by way of court or jury trial." Broel Deel. Ex. B (boldface omitted). This provision plainly
delegates a claim of unconscionability to the arbitrator.

Moise did not, however, direct his

unconscionability claim to the delegation provision specifically-indeed, Moise's opposition brief
does not mention the delegation provision at all. See Pl.'s Opp'n Mem. at 9-12. Moise's failure
to direct his attack at the delegation provision is particularly striking because, while his brief quotes
from other sections of the Agreement, see id. at 10, it is the delegation provision that specifically
addresses the "unconscionability" argument he advances here, Broel Deel. Ex. B.

Because

Moise's unconscionability claim falls within a provision delegating this claim to the arbitrator, and
because Moise did not specifically challenge this provision, the Court must enforce the delegation
provision and refer the question of unconscionability to the arbitrator. See Rent-A-Center, 561
U.S. at 71-72; see also, e.g., Philippe v. Red Lobster Rests. LLC, No. 15-CV-2080 (VEC), 2015
WL 4617247, at *4 (S.D.N.Y. Aug. 3, 2015) (granting a motion to compel arbitration where the
opposing party did not challenge a delegation provision that "plainly encompass[ ed]" his claim).
C. Stay

The FAA requires a district court, "on application of one of the parties," to stay an action
after determining that "any issue" in the action is "referable to arbitration." 9 U.S.C. § 3. In Katz
v. Cellco Partnership, 794 F.3d 341 (2d Cir. 2015), cert. denied, 136 S. Ct. 596 (2015), the Second

10

Circuit held 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
requested." 794 F.3d at 347. Since the Court has determined that all claims in this action should
be referred to arbitration and since Family Dollar has requested a stay, this action will be stayed.
CONCLUSION

For the foregoing reasons, Family Dollar's motion to compel arbitration and to stay these
proceedings is granted, and this action is stayed.
The Clerk of Court is respectfully directed to terminate the motion pending at Docket No.
12.
SO ORDERED.
Dated:

i .

June 1, 2017
New York, New York

Ro
rams
Uni ed States District Judge

11