Roberts v. U.S. Training Center, Inc. et al
Filing
17
ORDER denying without prejudice 10 Motion to Compel Arbitration. Signed by Senior Judge Malcolm J. Howard on 6/25/2012. (Lee, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:11-CV-70-H
FREDERIC BLAIR ROBERTS,
Plaintiff,
v.
ORDER
U.S. TRAINING CENTER, INC.,
a subsidiary of XE SERVICES, LLC,
formerly BLACKWATER, USA, and
ACADEMI, LLC,
Defendants.
This matter is before the court on defendants'
compel
arbitration.
replied,
and
Plaintiff
defendants'
has
responded,
is
motion
motion to
defendants
therefore
ripe
have
for
adjudication.
BACKGROUND
Plaintiff
brought
this
action
against
the
defendants
asserting claims under the Age Discrimination in Employment Act,
29 U.S.C.
29
U.S.C.
§§
~
621 et
§§
201
et
Income Security Act,
North Carolina law.
("ADEA"), the Fair Labor Standards Act,
seq.
("FLSA"),
29 U.S.C.
§§
the
1001 et
Employee
~
Retirement
("ERISA"),
and
Plaintiff alleges that he provided personal
protective services for Blackwater USA in Iraq and Afghanistan
from May 2006 until June 2010.
Plaintiff admits that he signed
an agreement designating him as an independent contractor but
asserts that he was, as a matter of law, an employee within the
meaning of the ADEA, FLSA and ERISA.
Defendants move to compel arbitration,
20.5
relying on Section
(entitled Arbitration/Law/Venue) of plaintiff's Independent
Contractor Service Agreement, which provides, in pertinent part,
as follows:
The parties to this Agreement
agree that any
dispute,
suit,
action or proceeding relating to,
arising out of, or with respect to, this Agreement or
the subject matter thereof that cannot be resolved by
negotiation or mediation within thirty (30) days will
be
resolved
exclusively
by
binding
confidential
arbitration under the Commercial Rules (Expedited) of
the American Arbitration Association (AAA) then in
effect.
(Mem. Supp. Mot. Compel Arbitration, Ex. 1 attach. A [DE #11-2]
at
Plaintiff
14. )
disputes
the
enforceability
of
the
arbitration provision, arguing lack of mutual assent, procedural
and
substantive
unconscionability,
and
lack
of
consideration.
In their reply defendants assert that the parties' agreement to
arbitrate
delegates
to
the
arbitrator
the
gateway
regarding the enforceability of the arbitration provision.
such,
defendants
entertain
matters
argue
plaintiff's
relating
to
that
this
court
unconscionability
the
enforceability
agreement.
2
lacks
As
jurisdiction to
argument
of
issue
the
or
other
arbitration
Defendants
raised a
similar argument
in Mercadante v.
XE
Svcs., Inc., No. 11-1044, 2012 WL 1850863 (D.D.C. May 22, 2012),
a purported class action suit brought by other individuals who
claim
that
Blackwater
contractors.
misclassified
them
as
independent
The Mercadante court found that the plaintiffs had
not been given an opportunity to respond to the delegation issue
since defendants
Consequently,
absence
of
first
raised the issue in their reply brief.
the court declined to rule on the issue
more
fulsome
and
targeted briefing.
"in the
Mercadante,
1/
2012 WL 1850863, at *2.
As
in
Mercadante,
delegation
issue
forth
Mercadante,
in
in
here
their
the
defendants
For
reply brief.
the
court
first
DENIES
raised
the
the
reasons
set
WITHOUT
PREJUDICE
defendants'
motion to compel arbitration of plaintiffs'
[DE
Defendants may renew
#10].
motion
and
accompanying
parties agreed
to delegate
their
memorandum
request
addressing
gateway questions
upon
.claims
filing
whether
<'f!!day
~~
of June 2012.
Senior United States District Judge
At Greenville, NC
#31
3
the
of arbitrability
and any other relevant issues.
This
a
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