Lusk et al v. Serve U Brands, Inc. et al

Filing 175

DECISION AND ORDER granting in part and denying in part 67 Motion for Judgment on the Pleadings - It is granted to the extent that the claims asserted by DRA Opt-In Plaintiffs Christopher Lee Caldwell, Dylan Burgett, Hannah Stanger, Michael Cresp o and Ben Sehnert are dismissed without prejudice; it is denied as to DRA Opt-In Plaintiff Avery Buggs whose claims shall remain pending in this action; and it is denied to the extent that Defendants request attorneys fees and costs pursuant to FRCP 41(d); and denying 79 Motion to Stay. The Clerk of Court is directed to terminate Christopher Lee Caldwell, Dylan Burgett, Hannah Stanger, Michael Crespo and Ben Sehnert as parties to this action. Signed by Hon. Michael A. Telesca on 9/16/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SKYLER LUSK, TIA COUNCIL, VIKTORIA
O’BRIEN, and JUSTIN BYROAD, on
behalf of themselves and all other
employees similarly situated,

No. 6:17-cv-06451-MAT
DECISION AND ORDER

Plaintiffs,
-vsSERVE U BRANDS, INC., INSOMNIA
COOKIES, LLC, and SETH BERKOWITZ,
Defendants.

INTRODUCTION
Skyler Lusk, Tia Council, Viktoria O’Brien, and Justin Byroad
(collectively, “Plaintiffs”), former delivery drivers for Insomnia
Cookies, LLC (“Insomnia”), commenced the instant action against
Serve U Brands, Inc., Insomnia, and Seth Berkowitz (collectively,
“Defendants”) on July 11, 2017, alleging violations of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq. (“the FLSA”), as well
as violations of the state laws of New York, Michigan, and Indiana.
Docket No. 1. Presently before the Court are Defendants’ converted
Motion for Summary Judgment (Docket No. 67) seeking to dismiss the
claims of six plaintiffs they claim are subject to individual
dispute resolution agreements, and Named Plaintiffs’ Cross-Motion
to Stay Proceedings for the Six Putative Opt-In Plaintiffs Subject
to Individual Dispute Resolution Agreements (Docket No. 79).

FACTUAL BACKGROUND
Pursuant to 29 U.S.C. § 216(b), Plaintiffs filed consent forms
for approximately 88 current and former Insomnia employees. Since
the commencement of the action, Defendants have identified six of
the Opt-In Plaintiffs, i.e., Avery Buggs (“Buggs”), Christopher Lee
Caldwell (“Caldwell”), Dylan Burgett (“Burgett”), Hannah Stanger
(“Stanger”), Michael Crespo (“Crespo”) and Ben Sehnert (“Sehnert”),
as

individuals

who

executed

individual

dispute

resolution

agreements (“DRAs”) which, Defendants assert, contain a provision
precluding

them

from

joining

a

class

action

to

litigate

any

employment claims. Defendants state that the DRAs also contains a
class and collective action waiver precluding the six individuals
who

signed

DRAs

from

individuals,

whom

Plaintiffs,”

filed

participating

the

parties

Consents

in
to

refer
to

Join

this
as

this

action.

the

“DRA

lawsuit

These
Opt-In
against

Defendants; the Consents were filed with the Court on July 11,
2017. See Docket Nos. 3 & 4.
Citing the DRA’s class and collective waiver, Defendants
argued

in

their

Motion

to

Dismiss,

inter

alia,

that

(1)

an

employee’s right to litigate on a collective basis is a waivable
procedural right, and the DRA Opt-In Plaintiffs waived that right
in

the

DRA

to

resolve

employment

disputes

with

Insomnia;

(2) contractual collective action waivers, like those in the DRA
are

enforceable;

(3)

the

claims

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asserted

by

the

DRA

Opt-In

Plaintiffs here fall within the scope of the DRA and must be
resolved pursuant to the terms of the DRA; and (4) the Court should
address the DRA’s enforceability prior to a decision on conditional
class certification is rendered. Defendants further argue that
because

the

Opt-in

Plaintiffs

ignored

Defendants’

multiple

communications regarding the DRA, necessitating the Motion to
Dismiss, they should be responsible for Defendants’ fees and costs
associated with making this motion pursuant to FRCP 41.
On January 14, 2019, the Court issued a Decision and Order
(Docket No. 115) converting the Motion to Dismiss to a motion for
summary judgment pursuant to Federal Rule of Civil Procedure
(“FRCP”) 56 and requesting additional briefing on the issue of what
law

applies

to

the

DRAs

at

issue.

Defendants

submitted

a

Supplemental Memorandum of Law (Docket No. 135) on February 11,
2019. In a text order dated July 30, 2019, the Court modified the
final briefing schedule for Docket Nos. 67 and 79, directing
responses to be due by August 27, 2019, and replies to be filed
September 10, 2019. On August 27, 2019, Plaintiffs sent a letter
(Docket No. 171) to the Court indicating their intention to rely on
the papers they previously submitted (Docket No. 79) in support of
their cross-motion to stay. Defendants filed a Reply (Docket
No. 173) on September 10, 2019.
The

motions

were

submitted

without

oral

argument

on

September 11, 2019. For the reasons discussed below, Defendants’

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converted Motion for Summary Judgment (Docket No. 67) is granted in
part and denied. Plaintiffs’ Cross Motion to Stay (Docket No. 79)
is denied.
FRCP 56
FRCP 56 provides that the Corut “shall grant summary judgment
if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Only a factual dispute that is genuine
and material will defeat summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
DISCUSSION
I.

Choice of Law
Defendants assert that there is no conflict among any of the

relevant jurisdictions and that courts in each those states have
recognized that individual dispute resolution agreements between
employees and employers are enforceable. Defendants also submit
that, according to the DRA, the law of the state where each DRA
Opt-In

Plaintiff

worked

controls

the

interpretation

and

enforceability of the DRA signed by him or her. Thus, Defendants
assert, Florida law applies to Burgett, Illinois law applies to
Stanger, Michigan law applies to Buggs, Mississippi law applies to
Caldwell, North Carolina law applies to Crespo, and Pennsylvania
law applies to Sehnert. Plaintiffs do not argue otherwise.

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The Court agrees that the law of the state where each DRA OptIn Plaintiff signed his or her agreement applies. However, the
Court disagrees with Defendants that the law of each state mandates
the enforceability of DRAs at issue in this action. In particular,
the Court finds that the Sixth Circuit has taken a position that
does not support Defendants’ argument. The Court further finds that
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018) (“Epic”), does
not lead inexorably to the result urged by Defendants.
II.

Waivability of the Right to Proceed Collectively Under the
FLSA
Defendants argue that the right to proceed collectively under

the FLSA is procedural rather than substantive in nature and thus
can be waived by an employee. See Docket No. 67-1 at 5-6 citations
omitted);
Defendants

see

also

assert,

Docket
“[i]t

is

No.

at

clear

4-5
after

(citations
the

omitted).

Supreme

Court’s

decision in [Epic] that class and collective action waivers of
employment claims in dispute resolution agreements are valid and
enforceable.” As discussed below, the Court finds that Epic’s
holding does not reach as far as Defendants urge.
Epic consolidated two case in which an employer and employee
entered into a contract providing for individualized arbitration
proceedings to resolve employment disputes between the parties.
Notwithstanding these contracts, each employee sought to litigate
FLSA and related state law claims through class or collective
actions in federal court. Although the Federal Arbitration Act
-5-

(“FAA”) generally requires courts to enforce arbitration agreements
as written, the employees argued that its “saving clause” removes
this obligation if an arbitration agreement violates some other
federal law and that, by requiring individualized proceedings, the
agreements here violated the National Labor Relations Act (“NLRA”).
The employers countered that the FAA protects agreements requiring
arbitration from judicial interference and that neither the saving
clause nor the NLRA demands a different conclusion. Until recently,
courts as well as the general counsel of the National Labor
Relations

Board

(“NLRB”)

had

agreed

that

such

arbitration

agreements are enforceable. But in 2012, the NLRB ruled that the
NLRA effectively nullifies the FAA in cases like the ones at issue
in Epic. Since that time, the lower courts either agreed with or
deferred to the NLRB’s position.
In a five-four decision, the Supreme Court held that
contains an
agreements

explicit
providing

congressional
for

directive

individualized

that

the FAA

arbitration

proceedings

must

be

enforced, and neither the FAA’s saving clause nor the NLRA suggests
otherwise. See Epic, 138 S. Ct. at 1621-32. The FAA’s saving
clause—which

allows

courts

to

refuse

to

enforce

arbitration

agreements “upon such grounds as exist at law or in equity for the
revocation of any contract,” FAA, § 2—recognizes only “‘generally
applicable

contract

defenses,

such

as

fraud,

duress,

or

unconscionability,’” 138 S. Ct. at 1622 (quotation omitted), “not

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defenses targeting arbitration either by name or by more subtle
methods, such as by ‘interfer[ing] with fundamental attributes of
arbitration,’” id. (quotation omitted; alteration in original). In
Epic,

the

employees

did

not

suggest

that

their

“arbitration

agreements were extracted . . . by an act of fraud or duress or in
some other unconscionable way that would render any contract
unenforceable.” 138 S. Ct. at 1622 (emphasis in original). Rather,
they

challenged the agreements “precisely because they require

individualized

arbitration

instead

of

class

or

collective

proceedings,” and thus they sought “to interfere with one of
arbitration’s

fundamental

attributes[,]”

which is

where

their

argument “stumble[d].” Id. (citation omitted). The Supreme Court
further held that the provision of NLRA, which guarantees to
workers the right to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, does
not

reflect

a

clearly

expressed

and

manifest

congressional

intention to displace the FAA and to outlaw class and collective
action waivers. 138 S. Ct. at 1624-25. Indeed, the majority noted,
the NLRA does not express approval or disapproval of arbitration,
it does not mention class or collective procedures, and it does not
hint at a wish to displace the FAA. Id. at 1624.
The critical difference between Epic and the Circuit court and
district court cases cited by Defendants is that they involved
collective and class action waivers in the arbitration context. The

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DRA at issue here does not contain an arbitration clause. See
Killion v. KeHE Distributors, LLC, 761 F.3d 574, 591 (6th Cir.
2014) (“[Defendant-employer] nonetheless points to cases from other
circuits enforcing agreements to arbitrate FLSA claims on an
individual basis. . . . Crucially, however, the respective waiver
agreements in all of the above-cited cases included provisions
subjecting the employees to arbitration.”) (citing Walthour v.
Chipio Windshield Repair, LLC, 745 F.3d 1326, 1330 (11th Cir. 2014)
(noting the existence of an arbitration agreement between the
parties); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296
(2d Cir. 2013) (same); Owen v. Bristol Care, Inc., 702 F.3d 1050,
1052 (8th Cir. 2013) (same); Carter v. Countrywide Credit Indus.,
Inc., 362 F.3d 294, 298 (5th Cir. 2004) (same); Adkins v. Labor
Ready, Inc., 303 F.3d 496, 498 (4th Cir. 2002) (same)); see also
Delaney v. FTS Int’l Servs., LLC, No. 4:16-CV-662, 2017 WL 264463,
at *8 (M.D. Pa. Jan. 20, 2017) (recognizing “that the majority of
the cases discussing the relevant issues arise in the context of
arbitration agreements governed by the FAA, and are therefore
distinguishable from the instant case [involving a class and
collection action waiver signed by an employee agreeing to “to
resolve or litigate any dispute, whether in court or otherwise, .
. . solely on an individual basis”).
In Killion, the Sixth Circuit observed that Walthour, Owens,
Sutherland, Carter, and Adkins all relied on two Supreme Court

-8-

decisions, both of which addressed the FAA. Killion, 761 F.3d at
592 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
35 (1991) (“We conclude that Gilmer has not met his burden of
showing that Congress, in enacting the [Age Discrimination in
Employment Act], intended to preclude arbitration of claims under
that [FAA].”); Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228,
233 (2013) (“No contrary congressional command requires us to
reject the waiver of class arbitration here. Respondents argue that
requiring

them

to

litigate

their

claims

individually—as

they

contracted to do—would contravene the policies of the antitrust
laws. But

the

antitrust

laws

do

not

guarantee

an affordable

procedural path to the vindication of every claim.”); Walthour, 745
F.3d at 1331 (citing Gilmer and Italian Colors); Sutherland, 726
F.3d at 296 (quoting Italian Colors); Carter, 362 F.3d at 298
(citing Gilmer); Adkins, 303 F.3d at 502 (citing Gilmer)). Killion
noted that “that the considerations change when an arbitration
clause is involved” because arbitration is an alternative to a
judicial forum that “‘allow[s] for the effective vindication of
[the employee’s] claim.’” Killion, 761 F.3d at 591 (quoting Boaz v.
FedEx Customer Information Servs., Inc., 725 F.3d 603, 606–07
(alterations in Boaz; internal quotation marks omitted in Killion).
Accordingly,

the

Sixth

Circuit

concluded,

“none

of

the

foregoing authorities [from the Second, Fourth, Fifth, Eighth, and
Eleventh Circuits] speak to the validity of a collective-action

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waiver outside of the arbitration context.” Killion, 761 F.3d at
592. Because no arbitration agreement was present in Killion, the
Sixth

Circuit

found

“no

countervailing

federal

outweighs the policy articulated in the FLSA.”

policy

that

Id. Accordingly,

the Sixth Circuit relied on Boaz to hold that the collective action
waivers in the employees’ separation agreements did not validly
waive their rights to participate in a collective action to recover
unpaid overtime under FLSA, absent an arbitration provision that
provided

an

adequate

alternative

forum

for

the

effective

vindication of overtime claims. Id. In light of Killion’s holding,
the Court finds that the DRA signed by Buggs in Michigan, within
the Sixth Circuit, is not enforceable. Accordingly, Defendants’
summary judgment motion is denied as to Buggs.
With regard to the remaining DRA Opt-In Plaintiffs, the other
Circuits involved are the Fifth, Third, Eleventh, Fourth, and
Seventh. The Fifth, Fourth, and Eleventh Circuits have ruled in
Carter, Adkins, and Walthour, respectively, that the right to
proceed collectively is a procedural right that can be waived
contractually.

Although

these

cases

were

in

decided

in

the

arbitration context, Plaintiffs have offered no argument as to why
these cases should not apply to the DRA Opt-In Plaintiffs who
reside in these Circuits, i.e., Crespo (North Carolina/Fourth
Circuit),

Caldwell

(Mississippi/Fifth

Circuit),

and

Burgett

(Florida/Eleventh Circuit). Accordingly, the Court will apply these

-10-

cases to find that the right to proceed collectively can be waived
contractually; the Court’s next step is to determine whether the
DRAs signed by these Plaintiffs are enforceable contracts.
The

Third

and

Seventh

Circuits

have

not

addressed

this

question, but district courts from these Circuits have ruled in
Defendants’

favor.

See

Delaney

v.

FTS

Int’l

Servs.,

LLC,

No. 4:16-CV-662, 2017 WL 264463, at *8 (M.D. Pa. Jan. 20, 2017)
(“While the

Court

recognizes

that

the

majority

of

the

cases

discussing the relevant issues arise in the context of arbitration
agreements governed by the FAA, and are therefore distinguishable
from the instant case, the Court is persuaded by those cases which
have found that the ability to litigate collectively under the FLSA
is a procedural right subject to waiver outside of the arbitration
context. . . . [T]he Court concludes, as a matter of law, that
employees can waive their ability to participate in collective
action litigation, as long as individual employees maintain the
individual

capacity

to

vindicate

their

rights.”)

(internal

citations omitted); Copello v. Boehringer Ingelheim Pharm. Inc.,
812 F. Supp.2d 886, 894-96 (N.D. Ill. 2011) (while FLSA prohibits
substantive wage and hour rights from being contractually waived,
it does not prohibit contractually waiving the procedural right to
join a collective action; under either Connecticut or Illinois law,
separation agreement and general release entered into between
pharmaceutical

company

and

its

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sales

representative,

which

prohibited sales representative from leading or participating in an
FLSA

collective

action

following

her

termination,

was

not

procedurally or substantively unconscionable and was enforceable).
III. Enforceability of the DRAs
A.

Burgett’s DRA Is Enforceable Under Florida Law

“‘A contract is made under Florida law when the three elements
of

contract

formation

are

present:

offer,

acceptance,

and

consideration.’” In re Harrell, 351 B.R. 221, 241 (Bankr. M.D. Fla.
2006) (quoting Pezold Air Charters v. Phoenix Corp., 192 F.R.D.
721, 725 (M.D. Fla. 2000) (citing Air Prods. & Chems., Inc. v. The
Louisiana Land & Exploration Co., 806 F.2d 1524, 1529 (11th Cir.
1986)).
“‘The rule is generally recognized that for the parties to
have a contract, there must be reciprocal assent to certain and
definite

propositions.’”

Acosta

v.

Dist.

Bd.

of

Trustees

of

Miami-Dade Cmty. Coll., 905 So. 2d 226, 228 (Fla. Dist. Ct. App.
2005)

(quoting

Truly

Nolen,

Inc.

v.

Atlas

Moving

&

Storage

Warehouses, Inc., 125 So.2d 903, 905 (Fla. 3d Dist. Ct. App.
1961)).

Here,

the

DRA

shows

that

Burgett

and

Insomnia

“reciprocal[ly] assent[ed]” to “certain definite propositions,”
including the class-action waiver.

Defendants offered the DRA to

Burgett in consideration for his employment with Insomnia, and both
parties agreed to be bound by the agreement. At the end of the DRA
are the printed words, “AGREED: Insomnia Cookies.” Underneath those

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words are the words, “AGREED AND RECEIVED[,]” below which Burgett
signed and printed his name, and dated the DRA.
“Under Florida law, ‘[a] promise, no matter how slight,
qualifies as consideration if the promisor agrees to do something
that he or she is not already obligated to do.’” Bhim, 655 F. Supp.
2d at 1312 (quoting Cintas Corp. No. 2 v. Schwalier, 901 So.2d 307,
309 (Fla. 1st Dist. Ct. App. 2005); alteration in original)).
Burgett’s employment with Insomnia constituted consideration in
support of the DRA. See Bhim, 655 F. Supp.2d at 1313 (“Bhim
received additional consideration, however, in the form of her
continued

employment at

Rent–A–Center.”)

(citing

Cintas

Corp.

No. 2, 901 So.2d at 309 (holding that promises of continued
employment and increased pay and benefits provided consideration
for arbitration contract)). Accordingly, the Court concludes that
the DRA is valid and enforceable under Florida law.
B.
Under

Stanger’s DRA Is Enforceable Under Illinois Law
Illinois

law,

“[a]n

offer,

an

acceptance,

and

consideration are basic ingredients of a contract.” Steinberg v.
Chicago Med. Sch., 69 Ill. 2d 320, 329 (1977) (internal citations
omitted).

Defendants offered the DRA to Stanger in consideration

for her employment with Insomnia, and both parties agreed to be
bound by the agreement. At the end of the DRA are the printed
words, “AGREED: Insomnia Cookies.” Underneath those words are the
words, “AGREED AND RECEIVED[,]” below which Stanger signed and

-13-

printed her name, and dated the DRA. Stanger’s employment with
Insomnia was sufficient consideration for the enforcement of the
DRA. See Melena, 219 Ill.2d at 152 (“By continuing her employment
with Anheuser–Busch, plaintiff both accepted the offer and provided
the necessary consideration. . . .[U]nder Illinois law, continued
employment is sufficient consideration for the enforcement of
employment agreements.”) (citing Duldulao v. Saint Mary of Nazareth
Hospital Center, 115 Ill.2d 482, 490 (1987); Lawrence & Allen, Inc.
v. Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131
(1997); other citations omitted)).
C.

Caldwell’s DRA Is Enforceable Under Mississippi Law

Under Mississippi law, “‘[a] valid contract must include the
following essential elements: (1) two or more contracting parties,
(2) consideration, (3) an agreement that is sufficiently definite,
(4) parties with legal capacity to make a contract, (5) mutual
assent,

and

(6)

no

legal

prohibition

precluding

contract

formation.’” Rotenberry v. Hooker, 864 So. 2d 266, 273 (Miss. 2003)
(quoting Lanier v. State, 635 So.2d 813, 826 (Miss. 1994)).
The first, second, third, and fifth elements are apparent on
the face of the DRA. There are two contracting parties, i.e.,
Caldwell and Insomnia. Courts applying Mississippi law have “found
adequate consideration where defendant employer ‘conditioned its
decision to employ plaintiff on [the plaintiff’s] signing the
arbitration agreement,’ the defendant then paid and employed the

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plaintiff, and the plaintiff received the benefit of employment.”
Green v. Faurecia Auto. Seating, Inc., No. 2:11CV173, 2012 WL
2367698, at *3 (N.D. Miss. June 21, 2012) (quoting Singleton v.
Goldman, No. 3:11CV224TSL–MTP, 2011 WL 3844180, at *1, *2 (S.D.
Miss. Aug. 30, 2011)). Caldwell’s employment in exchange for
signing the DRA thus amounts to adequate consideration. Id. Both
Caldwell and Insomnia indicated their agreement to be bound by the
DRA, the terms of which are clear, definite, and unambiguous.
As to the fourth and sixth elements, Plaintiffs have not
asserted that Caldwell lacked the legal capacity to make a contract
or that there was any legal prohibition that precluded Caldwell and
Insomnia from entering into the DRA. Therefore, the Court finds
that the DRA is valid and enforceable under Mississippi law.
D.

Crespo’s DRA Is Enforceable Under North Carolina Law

Under North Carolina law, “[a] valid contract ‘requires offer,
acceptance, consideration and no defenses to formation.’” Collie v.
Wehr Dissolution Corp., 345 F. Supp.2d 555, 558 (M.D.N.C. 2004)
(quoting Koltis v. North Carolina Dep’t Human Res., 125 N.C. App.
268, 271, 480 S.E.2d 702, 704 (1997). “Mutual assent is typically
‘established by an offer by one party and an acceptance by the
other, which offer and acceptance are essential elements of a
contract.’” Id. (quotation omitted). Here, Defendants offered the
DRA to Crespo in consideration for his employment with Insomnia,
and both parties agreed to be bound by the agreement. At the end of
the

DRA

are

the

printed

words,
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“AGREED:

Insomnia

Cookies.”

Underneath those words are the words, “AGREED AND RECEIVED[,]”
below which Crespo signed and printed his name, and dated the DRA.
Plaintiffs have asserted no defenses to formation. Accordingly, the
Court finds that the DRA is a valid contract under North Carolina
law and is enforceable.
E.

Sehnert’s DRA Is Enforceable Under Pennsylvania Law

Pennsylvania law directs a court to evaluate the following
three criteria when determining the existence of a valid contract:
“(1) whether both parties manifested an intention to be bound by
the

agreement;

(2)

whether

the

terms

of

the

agreement

are

sufficiently definite to be enforced; and (3) whether there was
consideration.” ATACS Corp. v. Trans World Commc’ns, Inc., 155 F.3d
659, 666 (3d Cir. 1998).
With regard to mutual assent, at the end of the DRA are the
printed words, “AGREED: Insomnia Cookies.” Underneath those words
are the words, “AGREED AND RECEIVED[,]” below which Sehnert signed
and printed his name, and dated the DRA. Plaintiffs have come
forward

with

no

evidence

that

Sehnert

was

deprived

of

an

opportunity to read the DRA or that his signature was not provided
freely and willingly. With regard to the clarity of terms, the DRA
contains unambiguous language, and the class-action waiver, in
particular, is called out in bold-faced type. As to the third
criterion, consideration, courts in Pennsylvania have “repeatedly
held

that

continued

employment

fulfills

the

consideration

requirement under Pennsylvania law.” Grant, 2009 WL 1845231, at *5
-16-

(citing Hamilton v. Travelers Prop. & Cas. Corp., No. 01-11, 2001
WL 503387, at *2 (E.D. Pa. May 11, 2001) (finding continued
employment of two years following receipt of the employee handbook
which included an arbitration agreement sufficient to constitute
acceptance

and

consideration);

other

citations

omitted).

Accordingly, the Court finds that the DRA is a valid contract under
Pennsylvania law and is enforceable.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Docket No. 67) is granted in part and denied in part. It
is granted to the extent that the claims asserted by DRA Opt-In
Plaintiffs Christopher Lee Caldwell, Dylan Burgett, Hannah Stanger,
Michael Crespo and Ben Sehnert are dismissed without prejudice; it
is denied as to DRA Opt-In Plaintiff Avery Buggs whose claims shall
remain pending in this action; and it is denied to the extent that
Defendants request attorney’s fees and costs pursuant to FRCP
41(d).

Plaintiffs’ Cross-Motion to Stay (Docket No. 79)is denied.

The Clerk

of

Court

is

directed

to

terminate

Christopher

Lee

Caldwell, Dylan Burgett, Hannah Stanger, Michael Crespo and Ben
Sehnert as parties to this action.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

September 16, 2019
Rochester, New York.
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