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.)

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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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