Lorenzo v. Prime Communications, L.P.

Filing 151

ORDER denying 77 Motion for Reconsideration; denying 79 Motion to Dismiss; adopting Report and Recommendations regarding 97 Memorandum and Recommendations. Signed by Senior Judge Malcolm J. Howard on 7/8/2014. (Rudd, D.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:12-CV-69-H ROSE LORENZO, on behalf of herself and all others similarly situated, Plaintiff, v. ORDER PRIME COMMUNICATIONS, L.P., a Texas General Partnership, Defendant. This matter is before the court on defendant's motions to dismiss certain defendant's responded, opt-in motion to plaintiffs compel and reconsideration Plaintiff arbitration. and defendant has replied. of has On March 31, 2014, United States Magistrate Judge Kimberly A. Swank filed a memorandum and recommendation Defendant (M&R) objected recommending that to the M&R, and both motions plaintiff be denied. responded to defendant's objections. Pursuant Procedure, the to Rule 72(b) of the Federal Rules of Civil a district judge "must determine de novo any part of magistrate objected to." judge's disposition that has been See also Local Civil Rule 72.4, EDNC. properly Defendant Judge objects failed ( 1) agreement to between the to the M&R arguing that acknowledge parties, the (2) the Magistrate binding ignored arbitration strong precedent favoring arbitration and a liberal interpretation of arbitration agreements, and (3) failed to address whether defendant set forth sufficient evidence for a motion for reconsideration under Federal Rule of Civil Procedure 60. The the court binding rather the that arbitration found, once the M&R did not agreement again, a lack plaintiff, there is objections regarding arbitration is merit. without favoring valid agreement. The plaintiff. and the argued of to by assent acknowledge defendant on the but part of Here, statements In fact, precedent" court where the favoring acknowledges parties strong can show a the court finds no assent on the part of Acknowledgment conflicting. "strong The arbitration Additionally, contract. no defendant's precedent as fail Because defendant has not shown assent on the part plaintiff. of finds contained signed by in the Employee plaintiff Handbook at are, best, the acknowledgment explicitly states that the handbook does not create a contract. Finally, defendant argues that the M&R failed to address whether defendant set forth sufficient evidence for a motion for reconsideration. This objection 2 is without merit, as the M&R thoroughly discussed the new evidence (acknowledgement form) that is before the court and found there is still lack of assent to arbitrate. A full and careful review of the M&R and other documents of record convinces the magistrate judge is, court that the in all respects, recommendation of the in accordance with the law and should be approved. Accordingly, the court adopts the recommendation of the magistrate judge as its own; and for the reasons stated therein, the defendant's motions to dismiss certain opt-in plaintiffs and to reconsider the motion to compel arbitration are DENIED. [DE #77 and #79] ....,.. ,_ This~ day of July 2014. ~--------------Senior United States District Judge At Greenville, NC #26 3

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