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
3
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