Mellick v. CVS Foundation, Inc., et al.

Filing 26

ORDER denying 13 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Compel Arbitration; granting 19 Motion to Strike. Signed by Chief Judge James C. Dever III on 1/31/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:16-CV-821-D

SUSAN M. MELLICK,
Plaintiff,

v.
CVS PHARMACY, INC.,
CVS FOUNDATION, INC.,
f/k/a CVS CORPORATION;
and CVS RX SERVICES, INC.,
Defendants.

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ORDER

On November 4, 2016, defendants CVS Pharmacy, Inc., CVS Foundation, Inc., f/k/a CVS
Corporation, and CVS Rx Services, Inc. ("CVS" or "defendants"), filed a joint motion to dismiss
and to compel arbitration of plaintiffs claims [D.E. 13]. On December 2, 2016, plaintiff Susan M.
Mellick ("Mellick" or "plaintiff') responded in opposition [D.E. 17]. On December 16, 2016,
defendants filed a motion to strike the affidavits ofLarry V. Powell and Susan M. Mellick [D.E. 19].
On December 16, 2016, defendants replied to Mellick's response in opposition to CVS' motion to
dismiss [D.E. 21].
The arbitration policy at issue provides (among other things) that:

1. Mutual Obligation to Arbitrate. Under this Policy, CVS Health (including its
subsidiaries) and its Employees agree that any dispute between an Employee and
CVS Health that is covered by this Policy ("Covered Claims") will be decided by
a single arbitrator through final and binding arbitration only and will not be
decided by a court or jury or any other forum, except as otherwise provided in
this Policy. This Policy is an agreement to arbitrate disputes covered by the
Federal Arbitration Act (9 U.S.C. §§ 1-16). Employees accept this Policy by
continuing their employment after becoming aware of the Policy.
2. Claims Covered by This Policy. Except as otherwise stated in this Policy,
Covered Claims are any and all legal claims, disputes or controversies that CVS
Health may have, now or in the future, against an Employee or that an Employee

may have, now or in the future, against CVS Health, its parents, subsidiaries,
successors or affiliates, or one of its employees or agents, arising out of or related
to the Employee's employment with CVS Health or the termination of the
Employee's employment.
Covered Claims include but are not limited to disputes regarding ... harassment,
discrimination, retaliation and termination arising under the Civil Rights Act of
1964, Americans with Disabilities Act, Age Discrimination in Employment Act,
Family Medical Leave Act, Fair Labor Standards Act ... and other federal, state
and local statutes, regulations and other legal authorities relating to employment.
Covered Claims also include disputes arising out of or relating to the validity,
enforceability or breach of this Policy, except as provided below regarding the
Class Action Waiver.
[D.E. 14-1] 7-8. Mellick has not plausibly alleged that CVS obtained the arbitration policy by
fraud or overreaching.

See,~'

Carnival Cruise Lines. Inc. v. Shute, 499 U.S. 585,595 (1991);

Scherkv. Alberto-Culver Co., 417U.S. 506,519-20 (1974); cf. Fed. R. Civ. P. 9(b). Moreover,
neither federal arbitration law, North Carolina contract law, nor North Carolina public policy
invalidate the arbitration policy.

See,~'

MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1,

9-12 (1972); O'Neil v. Hilton Head Hosp., 115 F.3d 272, 275-76 (4th Cir. 1997); Johnson v.
Circuit City Stores, 148 F.3d 373, 377-79 (4th Cir. 1998); Howard v. Oakwood Homes Corp.,
134 N.C. App. 116, 121-22,516 S.E.2d 879, 881-83 (1999). Finally, Mellick has not plausibly
alleged that the claims at issue are not suitable for arbitration.

See,~'

Rent-A-Ctr., W .. Inc.

v. Jackson, 130 S. Ct. 2772, 2776-81 (2010); Buckeye Check Cashing. Inc. v. Cardegna, 546
U.S. 440, 443-46 (2006); Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91-92
(2000).
"[A] s a matter of federal law, any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration .... " Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24-25 (1983); see Am. Recovery Corp. v. Computerized Thermal Imaging. Inc., 96
F.3d 88,92 (4th Cir. 1996). Plaintiffs claims fall within the arbitration clause. Moreover, even
if the language of the arbitration policy were ambiguous, any doubt would be resolved in favor
of arbitration.

See,~'

Moses H. Cone, 460 U.S. at 24-25; Choice Hotels Int'l. Inc. v. BSR
2

Porter Hayden Co. v. Century Indem. Co., 136 F.3d 380, 381-82 (4th Cir. 1998); Nat'l Ass'n.
of Assoc. Publishers v. Prince Publ'g. Inc., No. 6:96-CV-1063, 1997 WL 34588520, at *2-4
(M.D.N.C. May 8, 1997) (unpublished). Thus, defendants' motion to compel arbitration is
granted.
In sum, the court DENIES defendants' motion to dismiss without prejudice and
GRANTS defendants' motion to compel arbitration. See [D.E. 13]. The court GRANTS
defendants' motion to strike [D.E. 19].
SO ORDERED. This _jJ_ day of January 2017.

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