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.)

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

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