Emam v. CVS Foundation, Inc. et al

Filing 23

ORDER denying without prejudice 12 Motion to Dismiss for Failure to State a Claim and GRANTING defendants' motion to compel arbitration; granting 20 Motion to Strike. Signed by Chief Judge James C. Dever III on 4/10/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-897-D

MOHAMED EMAM,
Plaintiff,

v.
CVS FOUNDATION, INC.,
CVS PHARMACY, INC.,
and CVS RX SERVICES, INC.,
Defendants.

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ORDER

On December 21,2016, defendants CVS Foundation, Inc., CVS Pharmacy, Inc., and CVS
Rx. Services, Inc., ("CVS" or "defendants"), filed ajointmotion to dismiss and to compel arbitration

of Mohamed Emam's ("Emam" or ''plaintiff'') claims [D.E. 12]. On January 13, 2017, Emam
responded in opposition [D.E. 19]. On January 27, 2017, defendants moved to strike the affidavits
of Larry V. Powell and Mohamed Emam [D.E. 20]. On January 27, 2017, defendants replied to
Emam's response in opposition [D.E. 22].
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 Clai1,11s 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. 13-1] 7-8. Emam has not plausibly alleged that defendants obtained the arbitration policy
by fraud or overreaching.

See,~'

Carnival Cruise Lines. Inc. v. Shute, 499 U.S. 585, 595

(1991); Scherk v. Alberto-Culver Co., 417 U.S. 506, 519-20 (1974); cf. Fed. R. Civ. P. 9(b).
Moreover, North Carolina public policy and North Carolina contract law do not invalidate the
arbitration clause.

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.3d373, 377-79 (4thCir.1998);Howard v. OakwoodHomesCor:p., 134N.C.App.
116, 121-22, 516 S.E.2d 879, 881-83 (1999). Finally, Emamhas not plausibly alleged that the
claims at issue are not suitable for arbitration.

See,~'

Rent-A-Ctr.. W .. Inc. v. Jackson, 561

U.S. 63,67-75 (2010); BuckeyeCheckCashing;lnc. v. Cardegna, 546U.S.440,443-46(2006);
Green Tree Fin. Cor:p.-Ala. v. Randolph, 531 U.S. 79,91-92 (2000).
"[A]sa 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. Cor:p.,
460 U.S. 1, 24-25 (1983); see Am. RecoveryCor:p. 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 is ambiguous, any doubt is resolved in favor of arbitration.

See,~'

Moses H.

Cone Mem'l Hosp., 460 U.S. at 24-25; Choice Hotels Int'l. Inc. v. BSR Tropicana Resort. Inc.,
252 F .3d 707, 711 (4th Cir. 2001 ). Accordingly, all of plaintiffs claims are arbitrable. See
Peabody Holding Co. v. United Mine Workers of Am .• lnt'l Union, 665 F.3d 96, 104-07 (4th
Cir. 2012); Porter Hayden Co. v. Century Indem. Co., 136 F.3d 380, 381-82 (4th Cir. 1998);

2

Nat'lAss'nofAssoc. Publishers v. PrincePubl'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. 12]. The court GRANTS
defendants' motion to strike [D.E. 20].
SO ORDERED. This to day of April2017.

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