LIN v. BRODHEAD et al
Filing
27
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 10/9/2012. RECOMMENDED that Defendants' Motion to Stay Proceedings Pending Arbitration or, in the Alternative, to Dismiss the Complaint for Lack of Subject Mat ter Jurisdiction and Improper Venue (Docket Entry 8 ) be denied in part in that the Court should not compel arbitration at this time, but instead should hold a bench trial to determine whether Plaintiff received disclaimer language that would preclude a conclusion that the Parties reached an agreement to arbitrate. ORDERED that Plaintiff's Motions to Amend the Complaint (Docket Entries 16 , 23 ) are DEFERRED pending resolution of the arbitrability issue. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WEN-CHOUH LIN,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
RICHARD BRODHEAD, DEBORAH
JAKUBS, and DUKE UNIVERSITY,
Defendants.
1:09CV882
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge on Defendants’ Motion to Stay Proceedings Pending
Arbitration or, in the Alternative, to Dismiss the Complaint for
Lack of Subject Matter Jurisdiction and Improper Venue (Docket
Entry 8), and Plaintiff’s Motions to Amend (Docket Entries 16, 23).
(See Docket Entries dated Feb. 18, 2010, June 23, 2010, and Dec. 1,
2011; see also Docket Entry dated Jan. 23, 2010 (assigning case to
undersigned Magistrate Judge).)
For the reasons that follow,
Defendants’ Motion to Stay or Dismiss should be denied in part and
Plaintiff’s Motions to Amend will be deferred.
I.
Background
According to the Complaint, Defendant Duke University (“the
University”) hired Plaintiff, an Asian male over the age of 40, in
1968.
(Docket Entry 1, ¶¶ 9, 11, 12, 14.)
asserts
that
“[b]etween
1984
and
1989
The Complaint further
the
Plaintiff
filed
complaints of discrimination with [the] U.S. Equal Employment
Opportunity Commission [(‘EEOC’)], alleging non-promotion, unequal
pay, and unfair tuition benefits for children.”
(Id. ¶ 15.)
On
January 9, 2009, the University allegedly notified Plaintiff that
it would eliminate his position for purposes of outsourcing,
effective January 8, 2010. (Id. ¶ 16.) The Complaint alleges that
Plaintiff was “the only one whose position was eliminated by
outsourcing in 2009 without reassignment and/or compensation.”
(Id. ¶ 20.)
It further asserts that “no other similarly situated
employees outside the protected classes with less seniority than
the Plaintiff’s were targeted for the reduction in force as the
Plaintiff was, or were targeted for the reduction in force like the
Plaintiff
but
Plaintiff.”
were
reassigned
to
other
positions
unlike
the
(Id. ¶ 21.)
Plaintiff filed the instant lawsuit against the University,
the University President, and the University Librarian and Vice
Provost
for
Library
Affairs
(see
id.
¶¶
4,
6,
7)
claiming
“entitle[ment] to relief under Title VII [of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. (‘Title VII’)] and
[the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623
(‘ADEA’)] for his employer’s unlawful discriminatory conduct and
retaliation, including but not limited to for the Employer’s
disparate treatment of the Plaintiff for engaging in protected
activities.”
(Id. ¶ 25.)
2
Defendants filed the instant Motion to Compel Arbitration
(Docket Entry 8), to which Plaintiff has responded (Docket Entry
11) and Defendants have replied (Docket Entry 13).
Plaintiff
subsequently filed the instant Motions to Amend (Docket Entries 16,
23), which the Parties likewise have fully briefed (see Docket
Entries 18, 20, 25, 26).
II.
A.
The
Federal
establishes
“a
agreements.”
Discussion
Motion to Compel Arbitration
Arbitration
liberal
Act
federal
(“FAA”),
policy
9
U.S.C.
favoring
§§
1-16,
arbitration
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 24 (1983).
The FAA “mandates that district courts
shall direct the parties to proceed to arbitration on issues as to
which an arbitration agreement has been signed. . . .
Thus, . . .
agreements to arbitrate must be enforced . . . .”
Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in
original).
In determining whether to compel arbitration, a court
should consider:
“(1) the existence of a dispute between the parties,
(2) a written agreement that includes an arbitration
provision which purports to cover the dispute, (3) the
relationship of the transaction, which is evidenced by
the agreement, to interstate or foreign commerce, and
(4) the failure, neglect or refusal of [a party] to
arbitrate the dispute.”
Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002)
(quoting Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir.
3
1991)). If the court concludes a valid arbitration agreement which
covers the dispute at issue exists, it must “stay the trial of the
action until such arbitration has been had in accordance with the
terms of the agreement . . . .”
9 U.S.C. § 3.
If, however, “the
making of the arbitration agreement . . . be in issue, the court
shall proceed summarily to the trial thereof.”
9 U.S.C. § 4.
Put
differently, “when a question of fact arises as to the presence of
an agreement to arbitrate, the issue may not be determined on the
affidavits; rather a trial, either bench or jury, is required.”
Minter v. Freeway Food, Inc., No. 1:03CV00882, 2004 WL 735047, at
*2 (M.D.N.C. Apr. 2, 2004) (unpublished) (Bullock, J.).
“‘In the context of motions to compel arbitration brought
under the Federal Arbitration Act . . . courts apply a standard
similar to that applicable to a motion for summary judgment.’” Id.
(quoting Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003)).
Accordingly, the Court should compel arbitration “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
Such a genuine dispute exists if the evidence
presented could lead a reasonable factfinder to return a verdict in
favor of the non-moving party.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
In making this determination, the Court
must view the evidence and any reasonable inferences therefrom in
4
a light most favorable to the non-moving party.
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party may discharge its burden by identifying an
absence of evidence to support the non-moving party’s case.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-moving
party then must “set forth specific facts showing that there is a
genuine issue for trial.”
Matsushita Elec. Indus., 475 U.S. at
586-87 (citation omitted) (emphasis in original).
In this regard,
the non-moving party must convince the Court that evidence exists
upon which a finder of fact could properly return a verdict in
favor of the non-moving party. Anderson, 477 U.S. at 252 (citation
omitted); see also Francis v. Booz, Allen & Hamilton, Inc., 452
F.3d 299, 308 (4th Cir. 2006) (“Mere unsupported speculation is not
sufficient to defeat a
summary judgment motion if the undisputed
evidence indicates that the other party should win as a matter of
law.”).
In
determining
whether
a
party
agreed
to
arbitrate
a
particular dispute, “the court should apply ‘ordinary state-law
principles that govern the formation of contracts.’” Johnson v.
Circuit City Stores, 148 F.3d 373, 377 (4th Cir. 1998) (quoting
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
(1995)).
Under North Carolina law, “[a] valid contract requires
[1] offer, [2] acceptance, [3] consideration and [4] no defenses to
formation.” Koltis v. North Carolina Dep’t of Human Res., 125 N.C.
5
App. 268, 271, 480 S.E.2d 702, 704 (1997) (citing Copy Prods., Inc.
v. Randolph, 62 N.C. App. 553, 555, 303 S.E.2d 87, 88 (1983)).
Moreover, “North Carolina has a strong public policy favoring the
settlement of disputes by arbitration. [Said] strong public policy
requires that the courts resolve any doubts concerning the scope of
arbitrable issues in favor of arbitration.” Johnston Cnty. v. R.N.
Rouse & Co., Inc., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992).
In this case, the only material question at issue concerns
whether the Parties entered into an agreement to arbitrate their
disputes.
(See Docket Entry 11 at 1-3.)
As to that matter,
Plaintiff acknowledges that in May of 2006 he received a copy of
the Duke Staff Handbook (“the Handbook”). (Docket Entry 12-2, ¶ 2;
Docket Entry 12-3 at 2.)
The Handbook gives an overview of the
University’s Dispute Resolution Process (see Docket Entry 9-6 at
3), which includes: (1) a “Face-to-Face Discussion” with the staff
member and his supervisor, (2) consideration by a Dispute Review
Panel of three University staff members in the event the discussion
does not result in a resolution, and (3) arbitration “[i]f the
decision that is rendered as a result of the Dispute Review Panel
leaves the dispute unresolved and the dispute relates to or
involves involuntary termination, or includes allegations of sexual
harassment or discrimination” (id.).
The Handbook further states
that “[a]ny claim based in whole or in part on federal, state or
6
local laws whether statutory or common law shall be addressed
through this procedure.”
The
Handbook
also
(Id. (emphasis added).)
contains
a
“Disclaimer,”
although
the
Parties disagree about the version of the Disclaimer in the
Handbook provided to Plaintiff in May of 2006.
(See Docket Entry
9 at 4 (citing Docket Entry 9-6 at 4); Docket Entry 11 at 2 (citing
Docket Entry 12-4 at 3).)
The Disclaimer in the Handbook that
Defendants contend Plaintiff received reads as follows:
Except as provided in the applicable grievance or dispute
resolution procedures, information contained in any
handbook, manual or document prepared for or relating to
non-exempt and exempt staff is for informational purposes
only and shall not be construed as a contract. Agreement
to the terms of the applicable grievance or dispute
resolution procedure, as may be periodically amended and
which is available upon request from the Office of Human
Resources, is a condition of employment and continuing
employment.
(Docket Entry 9-6 at 4 (emphasis added).)
In contrast, in the
version of the Handbook Plaintiff claims to have received, the
Disclaimer states:
The policies set forth in this handbook are not intended
to create a contract, nor are they to be construed as
constituting contractual obligations of any kind, and the
handbook is certainly not to be considered as an
employment contract between Duke and any of its staff.
(Docket Entry 12-4 at 3 (emphasis added).)
Both versions of the
Disclaimer state that, “while this handbook strives to be a wideranging information resource, it should not be understood as a
full-replacement
of
Duke’s
official
7
policies
or
of
its
more
comprehensive procedures and guidelines.”
(Docket Entry 9-6 at 4;
Docket Entry 12-4 at 3.)
On June 7, 2006, Plaintiff signed a form entitled “Duke Staff
Handbook: Acknowledgement of Receipt” (“Acknowledgement”) (see
Docket Entry 9-7) which states: “My initials and signature indicate
that I have reviewed and had the opportunity to discuss with a
supervisor any questions that I have had regarding the content of
this handbook” (id. at 2 (emphasis in original)).
Plaintiff’s
initials appear next to each policy or document listed on the form,
including “DISPUTE RESOLUTION PROCESSES,” and his signature appears
at the bottom.
(Id.; see also Docket Entry 12-2, ¶ 3.)
Plaintiff,
however, claims:
my supervisor, Lois Schultz, presented to me [a] one page
sheet containing the Acknowledgement and [sic] Receipt
page of the Duke Staff Handbook and requested me to sign.
So, I did.
No one, including my supervisor Ms. Schultz or anyone
else, went over the Handbook with me. No one explained
or informed me of the Dispute Resolution Process (DRP)
when the Handbook was provided to me, including the
Defendants’
belated
assertion
that
agreement
to
participate in the DRP constituted part of conditions of
my employment or continuing employment, that by signing
the Acknowledgement and [sic] Receipt I was entering into
an arbitration agreement (for any dispute arising from my
employment), or that an employee such as I must utilize
DRP with final and binding arbitration decision and
without recourse to or prior to litigation at the
federal, state, or municipal court.
(Docket Entry 12-2, ¶¶ 3-4.)
Under North Carolina law, “unilaterally promulgated employment
manuals or policies do not become part of the employment contract
8
unless expressly included in it.”
Walker v. Westinghouse Elec.
Corp., 77 N.C. App. 253, 259-60, 335 S.E.2d 79, 83-84 (1985)
(citations omitted); see also Katsifos v. Pulte Home Corp., No.
COA03-429, 163 N.C. App. 204 (table), 592 S.E.2d 620 (table), 2004
WL 384368, at *2 (Mar. 2, 2004) (unpublished) (holding that
employee handbook which included disclaimer stating “nothing in
this handbook is intended to create or constitute an employment
agreement” did not “create[] a contract”).
“may
be
supplemented
by
additional
Although a contract
agreements
which
are
enforceable,” Martin v. Vance, 133 N.C. App. 116, 121, 514 S.E.2d
306, 309 (1999), before such additions become valid “there must be
a mutual agreement between the parties as to the terms” (id.).
“‘If a question arises concerning a party’s assent to a written
instrument, the court must first examine the written instrument to
ascertain the intention of the parties.’”
Id. (quoting Routh v.
Snap-On Tools Corp., 108 N.C. App. 268, 273, 423 S.E.2d 791, 795
(1992)).
Nothing in the Acknowledgement indicates that, by signing,
Plaintiff agreed to adhere to any policies or procedures, either as
provided
in
the
representations
Acknowledgement
of
Handbook
the
simply
reviewed the Handbook.
Acknowledgement
or
as
explained
University’s
states
that
the
through
policies;
employee
(See Docket Entry 9-7 at 2.)
explain
that
the
9
Dispute
other
rather,
the
received
and
Nor does the
Resolution
Process
constitutes a mandatory part of the employee’s contract, much less
that the employee agrees to such terms.
1
(See id.)1
Plaintiff points to Kummetz v. Tech Mold, Inc., 152 F.3d
1153 (9th Cir. 1998), to support his argument that the
Acknowledgement “failed to mention any waiver of or precondition to
exercising litigation rights at the court, or any requirement to
participate in DRP” and therefore “there is in [sic] no way in
which Plaintiff can be construed as having entered an arbitration
agreement . . . .” (Docket Entry 11 at 7-8.) In Kummetz, the
plaintiff signed a form acknowledging receipt of the Employment
Information Booklet provided by his employer. Kummetz, 152 F.3d at
1154. The form indicated that the plaintiff understood that he was
“‘covered by and must abide by the contents of [the] Booklet,’”
although the Booklet “‘in no way constitutes an employment contract
. . . .’” Id. The arbitration provision contained in the Booklet
was unambiguous: “‘The Company and the employee shall submit to
arbitration, as provided in the Dispute Resolution Policy, any
alleged unlawful employment discrimination, termination or
employment tort or benefit claim during or following employment.
The parties waive all rights to a trial, with or without a jury,
for resolution of any dispute covered by this policy.’”
Id.
Nevertheless, the Ninth Circuit concluded that, because the
acknowledgement form did not mention the arbitration provision,
“the presence of the [arbitration] clause in the Booklet is
insufficient . . . to effect a waiver [of the plaintiff’s
litigation rights under the Americans with Disabilities Act (‘the
ADA’)].
Only if [the employer] had specifically called [the
plaintiff’s] attention to the arbitration clause in the Booklet
would the clause suffice in the face of the uninformative
Acknowledgement.” Id. at 1155-56. Although Kummetz bears many
similarities to this case, this Court must look, not to Ninth
Circuit law about what circumstances warrant arbitration of ADA
claims, but rather to North Carolina law regarding the
circumstances necessary to establish an agreement to arbitrate.
See Johnson, 148 F.3d at 377. As discussed below, North Carolina
law indicates that an individual who signs a document, like the
Acknowledgement, has notice of the contents of the related
materials. Martin, 133 N.C. App. at 121-22, 514 S.E.2d at 310.
Furthermore, the Ninth Circuit clarified that it “[did] not mean to
suggest that one who is aware that he or she is entering a contract
may avoid its effect by failing to read it.” Kummetz, 152 F.3d at
156. Rather, “nothing in the Acknowledgement that [the plaintiff]
signed or the circumstances of record suggested that [the
plaintiff] was entering a contract.” Id. In the instant case, as
discussed below, Plaintiff may have entered into an agreement to
10
If Plaintiff received the Handbook containing the Disclaimer
he claims (i.e., the one stating that “[t]he policies set forth in
this handbook are not intended to create a contract” (Docket Entry
12-4 at 3)), he did not enter into an arbitration agreement.
See
Katsifos, 2004 WL 384368, at *2.
If, on the other hand, the
Disclaimer
read
presented
to
Plaintiff
as
Defendants
allege,
Plaintiff’s signing of the Acknowledgement would establish an
agreement to arbitrate, because:
(1)
that disclaimer language clearly states that “[a]greement to
the terms of the . . . dispute resolution procedure . . . is
a condition of employment and continuing employment” (Docket
Entry 9-6 at 4); and
(2)
by signing the Acknowledgement, Plaintiff asserted that he
“reviewed . . . the content of this handbook,” including the
dispute resolution processes (Docket Entry 9-7 at 2 (emphasis
in original)).
Despite Plaintiff’s protestations that no one explained the
handbook or dispute resolution policy to him, in North Carolina,
“‘one who signs a paper writing is under a duty to ascertain its
contents, and in the absence of a showing that he was wilfully
misled or misinformed by the defendant as to these contents . . .
he is held to have signed with full knowledge and assent as to what
arbitrate by signing the Acknowledgement (depending upon the nature
of the Disclaimer contained in the Handbook he received).
11
is therein contained.’”
Martin, 133 N.C. App. at 121-22, 514
S.E.2d at 310 (quoting Gas House Inc. v. Southern Bell Tel. Co.,
289 N.C. 175, 180, 221 S.E.2d 499, 503 (1976)).
Furthermore, “the
Court of Appeals of North Carolina has held . . . that continuing
employment after learning of the existence of a [dispute resolution
procedure] constitutes an employee’s agreement to be bound by an
arbitration agreement.” Hightower v. GMRI, Inc., 272 F.3d 239, 242
(4th Cir. 2001) (citing Howard v. Oakwood Homes Corp., 134 N.C.
App. 116, 120-21, 516 S.E.2d 879, 882-83 (1999)).2
Plaintiff in
this case continued his employment for at least two and a half
years after signing the Acknowledgement. If Plaintiff received the
version of the disclaimer language Defendants allege the University
provided him, he agreed to arbitrate the instant claim.
Defendants
Plaintiff
argue
received,
that,
neither
regardless
the
of
Disclaimer
which
nor
Disclaimer
the
Handbook
“purport[ed] to negate the plain language of the Dispute Resolution
Policy,
which
Plaintiff
admits
that
he
acknowledging in writing he received. . . .
2
received
and
admits
On their face, the
In Howard, the terms of the dispute resolution program
“unambiguously bound [the plaintiff] to the agreement should she
continue employment” through a specified date. Howard, 134 N.C.
App. at 120, 516 S.E.2d at 882. The materials provided to the
plaintiff reflected that the dispute resolution program represented
the exclusive means of resolving disputes concerning termination,
although the plaintiff did not sign any acknowledgement or
agreement. Id. at 117. Those facts differ from this case in that
the Parties dispute what disclaimer language regarding the dispute
resolution processes Plaintiff received.
12
[University’s] policies and procedures themselves are binding on
employees, not the summary provisions of the Handbook.”
Entry 13 at 4.)
(Docket
However, nothing in the Acknowledgement indicates
that Plaintiff received notice of the actual Dispute Resolution
Policy; rather it indicates Plaintiff reviewed the procedures
outlined in the Handbook.
(See Docket Entry 9-7 at 2.)
alone,
the
University’s
“unilaterally
manuals
or
policies”
not
do
promulgated
constitute
part
of
Standing
employment
Plaintiff’s
employment contract “unless expressly included in it.”
Walker, 77
N.C. App. at 259-60, 335 S.E.2d at 83-84. Whether the University’s
dispute resolution policy became a part of Plaintiff’s contract
thus depends on which version of the Disclaimer appeared in the
Handbook he received.
As a final matter, Plaintiff argues that, whether or not an
agreement to arbitrate existed, the dispute resolution procedures
were denied to him.
(See Docket Entry 11 at 3-6.)
Plaintiff’s
allegations, however, do not support that conclusion.
In this
regard, Plaintiff admits that the letter informing him of the
elimination of his position also stated that he had recourse to the
“rights of Staff Affected by Reduction in Force.”
also Docket Entry 12-5 at 2.)
(Id. at 4; see
These rights included “‘[t]he right
to question, through the Duke Dispute Resolution Process, the
specific provisions of the reduction-in-force process and how they
were applied to the staff member.’” (Docket Entry 11 at 4 (quoting
13
Docket Entry 12-6 at 2).)
Plaintiff asserts that he then received
a follow-up letter stating that in fact “‘the documentation on
Continuing
Appointment
overrides
the
University
Policy
on
Reductions in Force.’” (Docket Entry 11 at 4 (quoting Docket Entry
12-7 at 2).)
Plaintiff
Pursuant to the Continuing Appointment policy,
allegedly
believed
the
reassign him to a new position.
University
would
attempt
to
(Id.; see also Docket Entry 12-7
at 2 (explaining Continuing Employment procedures and stating
University would “work with [Plaintiff] to reassign [him] to
another position should a position for which [he was] qualified
become available”).)
According to Plaintiff, he thus “was lead [sic] to believe
that under the University policy on Continuing Appointment, his
rights including the right to a resource through DRP (provided
under Defendants’ Rights of Staff Affected by a Reductions-in-Force
policy) was [sic] not available and was [sic] superseded by
Continuing Appointment policy.”
Docket
Entry
Appointment
benefits
12-7
does
for
position.”).)
at
not
staff
2-3
(Docket Entry 11 at 5; see also
(“The
documentation
contain
other
affected
by
provisions
an
on
Continuing
for
additional
elimination
of
their
Although the letter in question indicates that “the
process outlined in the documentation on Continuing Appointment
overrides the University Policy on Reductions in Force” (Docket
Entry 12-7 at 2), it does not specifically refer to or revoke the
14
dispute resolution process (see id. at 2-3).
Furthermore, nothing
in the documentation on Continuing Appointment forecloses resort to
the dispute resolution process.
(See Docket Entry 12-8.)
These
circumstances do not support an inference that Plaintiff suffered
a
denial
of
access
to
the
University’s
dispute
resolution
procedure.
In sum, a material question of fact exists concerning whether
the Parties actually reached an agreement to arbitrate.
As a
result, that issue requires resolution by trial. See 9 U.S.C. § 4;
Minter, 2004 WL 735047, at *2.
“If no jury trial be demanded by
the party [opposing arbitration] . . . the court shall hear and
determine such issue.”
9 U.S.C. § 4.
Plaintiff did not timely
demand trial by jury of this issue pursuant to either 9 U.S.C. § 4
or Federal Rule of Civil Procedure 38.
14.)
(See Docket Entries 11,
Accordingly, trial of this issue should proceed before the
Court.
See Starr Elec. Co., Inc. v. Basic Const. Co., 586 F. Supp.
964, 967 (M.D.N.C. 1982) (Gordon, C.J.).
B. Motions to Amend
Plaintiff filed a Motion to Amend (Docket Entry 16) whereby he
requests leave to add a Title VII unequal pay claim to his
Complaint (id. at 1-3).
He then filed a second Motion for Leave to
Amend (Docket Entry 23) in which he seeks to add a paragraph noting
that the EEOC issued a right to sue letter on August 23, 2011 (id.
at 1).
15
Should the Court determine that an agreement to arbitrate
exists between the Parties, the Court would lack jurisdiction to
address Plaintiff’s Motions to Amend. See Joyner v. GE Healthcare,
C.A. No. 4:08-2563-TLW-TER, 2009 WL 3063040, at *4 (D.S.C. Sept.
18, 2009) (unpublished) (adopting report and recommendation of
Magistrate Judge finding arbitration clause enforceable and absence
of jurisdiction to rule on motion to amend complaint).
The Court
therefore will defer ruling on the Motions to Amend pending
resolution of the arbitration issue.
III.
Conclusion
A material factual dispute exists as to whether Plaintiff
agreed to an arbitration provision.
Accordingly, the Court should
hold a bench trial to resolve which version of the disclaimer
language the University provided to Plaintiff.
IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Stay
Proceedings Pending Arbitration or, in the Alternative, to Dismiss
the Complaint for Lack of Subject Matter Jurisdiction and Improper
Venue (Docket Entry 8) be denied in part in that the Court should
not compel arbitration at this time, but instead should hold a
bench trial to determine whether Plaintiff received disclaimer
language that would preclude a conclusion that the Parties reached
an agreement to arbitrate.
16
IT IS ORDERED that Plaintiff’s Motions to Amend the Complaint
(Docket Entries 16, 23) are DEFERRED pending resolution of the
arbitrability issue.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 9, 2012
17
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