STARNES v. CONDUENT INCORPORATED, et al

Filing 26

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 7/18/2018. For the reasons stated herein, Defendants' motion to file sur-reply, (Doc. 21 ), is GRANTED. FURTHER that Defendants' motion to compel arbitration and dismi ss, (Doc. 12 ), is GRANTED, and this action is DISMISSED WITHOUT PREJUDICE to the arbitration proceedings. FURTHER that Plaintiff's motion for jury trial, (Doc. 16 ), is DENIED. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DE’ANDRE STARNES,

)
)
Plaintiff,
)
)
v.
)
)
CONDUENT INCORPORATED and
)
XEROX COMMERCIAL SERVICES, LLC, )
)
Defendants.
)

1:17CV495

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Compel
Arbitration and Dismiss or in the Alternative, to Stay
Proceedings Pending Arbitration, filed by Defendants Conduent
Incorporated (“Conduent”) and Xerox Commercial Services, LLC
(“XCS”) (collectively, “Defendants”). (Doc. 12.) Pro se
Plaintiff De’Andre Starnes (“Plaintiff”) responded, (Doc. 15),
and Defendants replied, (Doc. 17). Plaintiff then filed a second
response raising new arguments, (Doc. 20), and Defendants filed
a Motion for Leave to File Sur-Reply Memorandum, (Doc. 21). Also
before the court is Plaintiff’s Motion to Demand Jury Trial.
(Doc. 16.) For the following reasons, Defendants’ motion to file
a sur-reply, (Doc. 21), will be granted, Defendants’ motion to

compel arbitration, (Doc. 12), will be granted, and Plaintiff’s
motion for a jury trial, (Doc. 16), will be denied.
I.

BACKGROUND
Plaintiff, proceeding pro se, filed this Complaint against

his employer, 1 bringing claims under the Family Medical Leave Act
(“FMLA”) and the Americans with Disability Act Amendments Act of
2008 (“ADAAA”) as well as claims of discrimination based upon
sex and race. (See Complaint (“Compl.”) (Doc. 1) at 1-4.) 2 This
court has jurisdiction. See 28 U.S.C. § 1331.
Plaintiff specifically alleges that he “was denied timely
access to reasonable accommodations” by his employer, in
violation of FMLA and the ADAAA. (Compl. (Doc. 1) at 3.)
Plaintiff further alleges that he has “spoken with a coworker
[who] did not have these issues when she took time off for her
medical issues[,]” (id.), giving rise to the claims of
discrimination.

1

XCS was a subsidiary of Xerox Business Services, which was
itself a subsidiary of Xerox Corporation. (See Defs.’ Mot. to
Compel Arbitration & Dismiss or in the Alternative, to Stay
Proceedings Pending Arbitration (“Defs.’ Mot.”), Ex. A,
Declaration of Shirley Pierce (Doc. 12-2) at 1-2.) XCS was spun
off to Conduent, Inc. (Id.)
2

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
- 2 -

Defendants responded by moving to compel arbitration.
(Defs.’ Mot. to Compel Arbitration & Dismiss or in the
Alternative, to Stay Proceedings Pending Arbitration (“Defs.’
Mot.”) (Doc. 12).) In support of the motion, Defendants
submitted the declaration of Shirley Pierce, Vice-President of
Human Resources for Conduent Business Services, LLC. (Defs.’
Mot., Ex. A (Doc. 12-2).) Pierce describes Plaintiff’s
application for employment. The application by Plaintiff was
made in 2015 “utilizing Defendants’ electronic application and
new hire onboarding process.” (Id. at 3.) According to Pierce,
applicants “electronically acknowledge” and agree to company
policies, including the Dispute Resolution Plan and Rules
(“DRP”). (Id. at 2-3.)
The DRP provides that it “applies to any [d]ispute.”
(Defs.’ Mot., Ex. A-1 (Doc. 12-3) at 8.) A “dispute” is defined
as
all legal and equitable claims, demands, and
controversies, of whatever nature or kind, whether in
contract, tort, under statute, regulation, or
ordinance, or some other law, between persons (which
include Employees, Applicants and the Company) bound
by the DRP or by an agreement to resolve Disputes
under the DRP, or between a person bound by the DRP
and a person or entity otherwise entitled to its
benefits, including, but not limited to, any matters
with respect to:
....

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7.

Any other matter related to or concerning
the relationship between the Applicant and
the Company and/or the Employee and the
Company alleging violation of any federal,
state or other governmental law, statute,
regulation, or ordinance, or common law, or
contract violation, including but not
limited to the Age Discrimination in
Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, the
Americans with Disabilities Act, the Family
Medical Leave Act, the Fair Labor Standards
Act, the Employee Retirement Income Security
Act (“ERISA”), the Uniformed Services
Employment Reemployment Rights Act
(“USERRA”), and the Worker Adjustment
Retraining and Notification Act (“WARN”),
including, by way of example and without
limitation, allegations of: unlawful
retaliation, including whistleblower
retaliation, discrimination or harassment
based on race, sex, religion, creed, color,
marital status, sexual orientation,
citizenship, national origin, age, veteran
or military status, disability status, or
other legally protected characteristics;
wrongful discharge; constructive discharge;
workers’ compensation retaliation;
defamation; fraud; invasion of privacy;
infliction of emotional distress; promissory
estoppel; equitable estoppel; negligence,
negligent misrepresentation; breach of
contract; quasi-contract; equitable relief;
failure to pay wages including overtime;
claims for benefits, or membership with
regard to any employee benefit plan[.]

(Id. at 6-7.) The DRP provides certain processes that may be
utilized such as the Open Door process or the Internal
Conference option. (Id. at 8.) The DRP then states that “[t]o
the extent allowed under the law, each Dispute not otherwise

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resolved by the Parties shall be arbitrated on an individual
basis.” (Id.)
According to Pierce, Plaintiff “affirmatively agreed to be
bound by the DRP in order for his application for employment to
be considered.” (Defs.’ Mot., Ex. A (Doc. 12-2) at 3.) Following
Plaintiff’s receipt of an offer of employment, Plaintiff
electronically signed several documents (the “Offer Paperwork”),
including an “Offer Acknowledgment Form,” a three-page
“Acknowledgement of Application of Employment,” and an
“Agreement to be Bound by the Xerox Business Services Dispute
Resolution Plan and Rules (“DRP”) Otherwise Referred to as the
Offeree Arbitration Agreement or ‘Agreement.’” (See id. at 3-4.)
Of particular note, the Offer Acknowledgment Form, signed
electronically by Plaintiff, contains the following provision:
Having been accepted for employment and as part of my
acceptance, I CONSENT TO THE EXCLUSIVE FINAL AND
BINDING RESOLUTION BY ARBITRATION UNDER THE DRP OF ALL
DISPUTES (as defined in the DRP) INCLUDING LEGAL
CLAIMS, past, present or future, arising out of,
relating to, or concerning my employment with Xerox
Business Services, LLC . . . .
TO THE EXTENT ALLOWED UNDER THE LAW, AND EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT OR THE DRP, XBS
AND I AGREE THAT:
•

DISPUTES WILL BE ARBITRATED RATHER THAN DECIDED
BY A COURT OR JURY. I AM WAIVING MY RIGHT TO A
JUDGE OR JURY TRIAL.

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(Defs.’ Mot., Ex. A-3 (Doc. 12-5) at 9-10.) The copy reflects a
signature of “De Andre Starnes” with a date of September 26,
2015, and a specific IP Address. (Id. at 12.)
Pierce describes the electronic online process as one in
which Plaintiff was required to create and utilize a “personally
created, private password” in order to complete the application
process. (Defs.’ Mot., Ex. A (Doc. 12-2) at 3.) The documents
electronically signed by Plaintiff were all executed using the
personal, private password that was not accessible to
Defendants. (Id. at 3-4.)
II.

DEFENDANTS’ MOTION FOR LEAVE TO FILE A SUR-REPLY
Defendants move for leave to file a sur-reply in light of

Plaintiff’s filing of a second response to Defendants’ motion to
compel arbitration. (See Defs.’ Mot. for Leave to File Sur-Reply
Mem. (Doc. 21) at 1.) Plaintiff did in fact file a second
response, (Pl.’s Reply (Doc. 20)), raising new arguments and
expanding upon arguments made in the first response, after
Defendants’ reply was filed. (Compare Pl.’s Resp. (Doc. 15),
with Pl.’s Reply (Doc. 20).)
Plaintiff’s second response is clearly improper. Local Rule
7.3 controls motion practice and permits a motion and brief, LR
7.3(a), a response, LR 7.3(f), and a reply brief, LR 7.3(h).
Plaintiff is not permitted to file serial responses to a motion.
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This court has considered simply striking Plaintiff’s second
response. However, Plaintiff is proceeding pro se and is not
held to the same high standards as attorneys. See Hughes v.
Rowe, 449 U.S. 5, 10 n.7 (1980). While Plaintiff’s clear failure
to follow the rules is not acceptable 3, in this instance, the
court will accept Plaintiff’s second response and, in the
interest of fairness, permit the filing of Defendants’
sur-reply.
Plaintiff then filed a third memorandum in response to the
motion to compel arbitration. (Pl.’s Mem. (Doc. 23).) Even
allowing for Plaintiff’s pro se status, this court cannot find
any basis upon which to conclude that a pro se party would
genuinely or reasonably believe these types of serial filings
are permissible. In order to avoid depriving Defendants unfairly
of an opportunity to respond to Plaintiff’s arguments, this
third memorandum will only be considered to the extent it cites
further legal authority in support of arguments previously made
in the first two responses.

3

Plaintiff, like many pro se parties, has shown some
ability to substantively research and cite cases in support of
favorable legal analysis. However, also like many pro se
parties, Plaintiff does not appear to have researched applicable
procedural rules. While not held to the same standards as
attorneys, “pro se litigants are not entitled to a general
dispensation from the rules of procedure[.]” Jones v. Phipps, 39
F.3d 158, 163 (7th Cir. 1994).
- 7 -

III. DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND PLAINTIFF’S
MOTION FOR A JURY TRIAL
Defendants move to compel arbitration pursuant to 9 U.S.C.
§ 4 and to dismiss Plaintiff’s Complaint, or in the alternative,
to stay Plaintiff’s claims pending arbitration pursuant to
9 U.S.C. § 3. (Defs.’ Mot. (Doc. 12) at 1.)
A.

Legal Standard

Under the Federal Arbitration Act (“FAA”), a written
arbitration agreement “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.” 9 U.S.C. § 2. Federal
policy strongly favors arbitration, and the FAA represents “a
liberal federal policy favoring arbitration agreements” and
applies “to any arbitration agreement within the coverage of the
[FAA].” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24 (1983).
To compel arbitration under § 4 of the FAA, a litigant must
show “(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
the defendant to arbitrate the dispute.” Adkins v. Labor Ready,

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Inc., 303 F.3d 496, 500–01 (4th Cir. 2002) (citation omitted).
The parties must have entered into a valid agreement to
arbitrate, and the dispute in question must fall within the
scope of the arbitration agreement. Chorley Enters., Inc. v.
Dickey’s Barbecue Rests., Inc., 807 F.3d 553, 563 (4th Cir.
2015) (citation omitted). Dismissal may be appropriate if all
claims asserted in a complaint are subject to arbitration.
Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252
F.3d 707, 709-10 (4th Cir. 2001).
B.

Analysis
1.

Existence of a Dispute Between the Parties

The first element Defendants must show under Adkins, the
existence of a dispute between the parties, is undisputed.
Plaintiff filed suit raising a number of claims arising during
his employment and alleging damages. Defendants have responded
by moving to compel arbitration. Therefore, a dispute exists
between the parties.
2.

Written Agreement that Includes an Arbitration
Agreement Purporting to Cover the Dispute

As to the second element under Adkins, the issue of whether
an arbitration agreement exists between the parties, is
generally a question of state contract law. See First Options of
Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Adkins, 303 F.3d

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at 501 (“Whether a party agreed to arbitrate a particular
dispute is a question of state law governing contract
formation.”). “We apply ordinary state law principles governing
the formation of contracts, including principles concerning the
‘validity, revocability, or enforceability of contracts
generally.’ We also apply the federal substantive law of
arbitrability, which governs all arbitration agreements
compassed by the FAA.” Muriithi v. Shuttle Express, Inc., 712
F.3d 173, 178-79 (4th Cir. 2013) (citations omitted). 4 In
considering these principles,
“courts should remain attuned to well-supported claims
that the agreement to arbitrate resulted from the sort
of fraud or overwhelming economic power that would
provide grounds for the revocation of any contract.”
For instance, “generally applicable contract defenses,
such as fraud, duress, or unconscionability, may be
applied to invalidate arbitration agreements without
contravening § 2.”
Am. Gen. Life & Accident Ins. Co. v. Wood, 429 F.3d 83, 87 (4th
Cir. 2005) (citations omitted).

4

Although the online nature of the contract could suggest a
choice of law issue, no party disputes that North Carolina law
applies. In North Carolina, the place where a contract is formed
is determined by the “place at which the last act was done by
either of the parties essential to a meeting of minds.” See Key
Motorsports, Inc. v. Speedvision Network, L.L.C., 40 F. Supp. 2d
344, 347 (M.D.N.C. 1999) (quoting Fast v. Gulley, 271 N.C. 208,
212, 155 S.E.2d 507, 510 (1967)). It appears Plaintiff’s
signature in North Carolina was the last act done essential to a
meeting of the minds.
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Like the federal government, see Muriithi, 712 F.3d at
179, North Carolina has a strong public policy favoring
arbitration and, where there is any doubt concerning the
existence of an arbitration agreement, it should be resolved in
favor of arbitration. Martin v. Vance, 133 N.C. App. 116, 120,
514 S.E.2d 306, 309 (1999).
The parties do not dispute the interpretation of the
language of any of the documents at issue. Instead, Plaintiff
raises or disputes certain factual matters relating to the
creation and formation of an arbitration agreement. Plaintiff
alleges that the webpage wherein he was required to acknowledge
reading the DRP did not contain a link to the DRP, that he had
no opportunity to bargain for his interests, that the recruiter
threatened him with termination, and that he experienced duress.
(Pl.’s Resp. (Doc. 15) at 2.) Plaintiff further argues that
notarized certifications of the documents have not been
provided, the documents are not signed by Defendants, no
consideration was provided, and the promises are illusory due to
the employer’s unilateral right to modify the plan. (Id. at 8-9;
see generally Pl.’s Reply (Doc. 20).) Plaintiff summarily
“den[ies] that an agreement to arbitrate was formed between
myself and the defendants and demand[s] a jury trial.” (Mot. to
Demand Jury Trial (Doc. 16) at 1.)
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In deciding a motion to compel arbitration, “courts apply a
standard similar to that applicable to a motion for summary
judgment.” Minter v. Freeway Food, Inc., No. 1:03CV00882, 2004
WL 735047, at *2 (M.D.N.C. Apr. 2, 2004) (quoting Bensadoun v.
Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003)). Summary judgment
is proper when the moving party demonstrates with specific
evidence “that there is no genuine dispute as to any material
fact[.]” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City
of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).
With respect to the right to a jury trial, the Fourth
Circuit has explained that the FAA provides this right
when “the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same be in
issue.” 9 U.S.C. § 4 (1994). However, “[a] party
resisting arbitration cannot obtain a jury trial
merely by demanding one; rather he bears the burden of
showing that he is entitled to a jury trial under § 4
of the [Act]”. “To establish a genuine issue entitling
a party to a jury trial, ‘an unequivocal denial that
the agreement [to arbitrate] had been made [is]
needed, and some evidence should [be] produced to
substantiate the denial.’”
Drews Distrib., Inc. v. Silicon Gaming, Inc., 245 F.3d 347, 352
n.3 (4th Cir. 2001) (second and third citations omitted). “Just
as in summary judgment proceedings, a party cannot avoid
compelled arbitration by generally denying the facts upon which
the right to arbitration rests; the party must identify specific
evidence in the record demonstrating a material factual dispute
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for trial.” Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th
Cir. 2002) (citation omitted).
Here, Defendant has put forward evidence including Pierce’s
declaration, (Defs.’ Mot., Ex. A (Doc. 12-2)), made under
penalty of perjury under 28 U.S.C. § 1746. (Id. at 1.) Plaintiff
denies that an agreement to arbitrate exists and states that
“all statements made by me, under the penalty of perjury, are
true and correct[,]” (Mot. to Demand Jury Trial (Doc. 16) at 2),
but failed to submit a declaration or other evidence in response
to Defendants’ motion. Nevertheless, even construing Plaintiff’s
pro se pleadings as factual statements, Plaintiff fails to raise
a genuine issue of material fact sufficient to defeat
Defendants’ motion or to entitle Plaintiff to a jury trial.
Most notably, Plaintiff does not dispute or deny the
critical fact that the employment documents were signed online
by Plaintiff using a personal, private password. Plaintiff’s
conclusory allegations that “Mrs. Pierce has failed to produce
notarized certifications as to the forensic integrity of the
documents submitted” and that Plaintiff “question[s] the
authenticity of the documents, and Mrs. Pierce’s

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qualifications[,]” (Pl.’s Resp. (Doc. 15) at 8), fall short of
raising genuine issues of material fact. 5
Next, Plaintiff states that he completed the required
paperwork after accepting employment, rather than before. (See
Pl.’s Resp. (Doc. 15) at 2 (“During the hiring process, after
accepting the job, I was given access to Xerox’s online new-hire
packet to complete the required paperwork.”).) However, the
documents reflect that Plaintiff, using his private, personal
password, executed the documents, accepted the offer of
employment, and signed and dated the forms all on September 26,
2015. (See Defs.’ Mot., Ex, A-3 (Doc. 12-5) at 1, 4, 6, 8, 12,
13.) Plaintiff does not dispute this fact. The first document,
“Offer Acknowledgement Form,” lists the employment start date as
October 9, 2015. (See id. at 1.)
Plaintiff points to Defendants’ document showing “activity
that occurred on the record as early as June and July of
2015[,]” (Pl.’s Resp. (Doc. 15) at 8), but this document
reflects only dates pertaining to a screening assessment in
Plaintiff’s application for employment, (Defs.’ Mot., Ex. A-2
(Doc. 12-4) at 8-9). Additionally, Plaintiff does not dispute

5

Plaintiff’s objections with respect to authenticity are
more in the nature of challenges to the sufficiency of the
evidence but in any event are insufficient to raise an issue of
fact.
- 14 -

that he, as part of completing that document, acknowledged that
he agreed to be bound to Defendants’ dispute resolution plan.
(Id. at 8-9.) Plaintiff’s general allegation is not supported by
competent evidence and is undermined by Plaintiff’s
acknowledgement of the October start date by electronic
signature on September 26, 2015. (See Defs.’ Mot., Ex. A-3 (Doc.
12-5) at 1.)
Next, Plaintiff suggests he did not receive the DRP by
vaguely stating that “[o]ne of the web pages presented
information where I was required to acknowledge that I read the
DRP. The page did not present a link to the DRP.” (Pl.’s Resp.
(Doc. 15) at 2; see also id. at 9 (“I was not presented with a
link to the Dispute Resolution Plan.”).) Plaintiff’s allegations
are insufficient to create a genuine issue of material fact as
to the existence of an agreement to arbitrate for several
reasons.
First, Plaintiff does not deny that he was asked to
acknowledge that he read the DRP, nor does he deny that he
indeed acknowledged he had read, reviewed, and agreed to the
DRP. As to whether Plaintiff actually received the DRP, this
court does not find Plaintiff’s statement contrary to Pierce’s
declaration, which states that “[a]n electronic link to a
complete copy of the DRP was provided with the Arbitration
- 15 -

Agreement.” (Defs.’ Mot., Ex. A (Doc. 12-2) at 4.) Plaintiff’s
allegation that no link was provided on an unidentified web page
is too lacking in any description to contradict Pierce’s
declaration, especially when contrasted to Plaintiff’s
acknowledgment in the employment documents that he had “received
and read or ha[s] had the opportunity to read this Agreement and
the attached and/or electronically linked DRP.” (Defs.’ Mot.,
Ex. A-3 (Doc. 12-5) at 12.) Plaintiff’s allegations are only
sufficient to dispute, at most, whether he received a link to
the DRP on an unidentified web page.
Second, Pierce describes a very specific “onboarding
process” in which Plaintiff first acknowledged the DRP in the
“Policy Consent” section of his application, (Defs.’ Mot., Ex. A
(Doc. 12-2) at 3; Ex. A-2 (Doc. 12-4) at 7), the “Arbitration
Agreement” section of his Offer Paperwork, (Id., Ex. A (Doc.
12-2) at 4; Ex. A-3 (Doc. 12-5) at 9-12), and the Employee
Guidebook, (Id., Ex. A (Doc. 12-2) at 4-5; Ex. A-5 (Doc. 12-7)
at 4). None of the facts, as described by Pierce, are
specifically denied or disputed by Plaintiff. Even if Plaintiff
did not receive a “link to the DRP” on a non-specified web page,
that allegation fails to rebut Pierce’s declaration and
Plaintiff’s acknowledgement that he had read the DRP as

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contained in the documents that he electronically signed.
(Defs.’ Mot., Ex. A-3 (Doc. 12-5) at 12.)
Third, even assuming a dispute of fact arises as to whether
the DRP link was included in Plaintiff’s electronic application
packet, the Acknowledgement of Dispute Resolution Agreement form
acknowledged and signed by Plaintiff contains an express
arbitration agreement, stating as follows:
Having been accepted for employment and as part of my
acceptance, I CONSENT TO THE EXCLUSIVE FINAL AND
BINDING RESOLUTION BY ARBITRATION UNDER THE DRP OF ALL
DISPUTES (as defined in the DRP) INCLUDING LEGAL
CLAIMS, past, present or future, arising out of,
relating to, or concerning my employment with Xerox
Business Services, LLC . . . .
(Defs.’ Mot., Ex. A-3 (Doc. 12-5) at 9.) Plaintiff does not
deny, or dispute, that this arbitration agreement was included
in the materials he acknowledged and signed. The law of North
Carolina is well established that persons have a duty to read
and understand the contracts they sign. See Leonard v. S. Power
Co., 155 N.C. 10, 10, 70 S.E. 1061, 1063 (1911) (“[T]he law will
not relieve one who can read and write from liability upon a
written contract, upon the ground that he did not understand the
purport of the writing, or that he has made an improvident
contract, when he could inform himself and has not done so.”).
Plaintiff’s arguments, even accepting his statements as
fact for purposes of this motion, do not create a material issue
- 17 -

of fact. This court finds that Plaintiff reviewed and accepted
the conditions of his employment prior to his employment with
Defendants; those conditions of employment included, inter alia,
the dispute resolution process as described in the DRP and an
arbitration agreement; and Plaintiff had knowledge of and the
opportunity to review the DRP and arbitration agreement prior to
and as a condition of his employment.
Next, Plaintiff suggests the arbitration agreement was not
supported by consideration. (Pl.’s Resp. (Doc. 15) at 8-9.) This
court disagrees.
An arbitration agreement is supported by adequate
consideration “where both parties agree[] to be bound by the
arbitration process.” Johnson v. Circuit City Stores, 148 F.3d
373, 378 (4th Cir. 1998); see Martin, 133 N.C. App. at 122, 514
S.E.2d at 3109 (“Mutual binding promises provide adequate
consideration to support a contract.”). Furthermore, continued
employment is sufficient consideration with respect to an
arbitration agreement, which is required to be in writing but
not signed. Howard v. Oakwood Homes Corp., 134 N.C. App. 116,
121-22, 516 S.E.2d 879, 883 (1999).
Defendants agreed to be bound by the same terms in the
Arbitration Agreement, agreeing to arbitrate disputes rather
than submit them to a court or jury. (See, e.g., Defs.’ Mot.,
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Ex. A-3 (Doc. 12-5) at 10.) This mutual agreement to be bound is
sufficient consideration. This court finds, both as a matter of
fact and law, that Plaintiff applied for employment with
Defendants, that Defendants extended Plaintiff an offer of
employment subject to certain conditions including, inter alia,
an agreement to arbitrate, and Plaintiff accepted that offer. An
agreement to arbitrate exists between the parties.
Next, Plaintiff raises, at least generally, the issue of
duress. (See, e.g., Pl.’s Resp. (Doc. 15) at 2 (“Prior to me
gaining access to the intake website, the recruiter working with
me threatened my position with termination. . . . Like myself,
[a] typical person would experience a certain amount of duress
and feel forced to sign the agreement . . . .”).) Plaintiff also
alleges issues as to the illusory nature of the contract. (See
id. at 9-10.)
In North Carolina, “[a] threatened violation of a
contractual duty ordinarily is not in itself coercive, but if
failure to receive the promised performance will result in
irreparable injury to business, the threat may involve duress.”
Rose v. Vulcan Materials Co., 282 N.C. 643, 665, 194 S.E.2d 521,
536 (1973) (citation omitted). To establish economic duress,
parties must show:

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(1) a threatened breach that the promised performance
will not be received and that breach will result in
irreparable injury; (2) the threat is effective
because of economic power not derived from the
contract itself; (3) the threatened party could not
enter into a contract with a third party replacing the
threatening party . . . ; and (4) there is no
immediate legal remedy available.
Superior Performers, Inc. v. Meaike, No. 1:13CV1149, 2015 WL
3823818, at *4 (M.D.N.C. June 19, 2015) (citation omitted).
Plaintiff’s allegation of termination if he did not execute the
agreement, standing alone, fall far short of establishing a
defense based upon economic duress.
Finally, Plaintiff contends that the agreement is
unenforceable because it allowed the employer to unilaterally
revoke or modify its terms with notice and because he had no
power to attempt to bargain for better terms. (Pl.’s Resp. (Doc.
15) at 9-10; Pl.’s Reply (Doc. 20) at 2-3.) A promise is
illusory if a defendant reserves “an unlimited right to
determine the nature or extent of his performance[.]”
Wellington-Sears & Co. v. Dize Awning & Tent Co., 196 N.C. 748,
752, 147 S.E. 13, 15 (1929). While the DRP does allow Defendants
to amend the DRP on thirty days’ notice, that power is expressly
limited as the amendment does not “apply to a Dispute that was
made known to the Company prior to the time the amendment
becomes effective.” (Defs.’ Mot., Ex. A-1 (Doc. 12-3) at 10.)

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For the reasons explained in Curtis v. GE Capital Corp., Civil
No. 5:12CV133–RLV, 2013 WL 4212932, at *4 (W.D.N.C. Aug. 15,
2013), and Joyner v. GE Healthcare, C.A. No. 4:08–2563–TLW–TER,
2009 WL 3063040, at *4 (D.S.C. Sept. 18, 2009), this court finds
the arbitration agreement is not illusory. The modification
provision does not provide Defendants with “an unlimited right
to determine the nature or extent of [their] performance[.]” See
Wellington-Sears, 196 N.C. at 752, 147 S.E. at 15.
In the case at hand, this court finds the arbitration
agreement, as expressly stated in the employment documents and
the DRP, constitutes a valid contract between the parties. As to
the second part of the second Adkins element - whether the
agreement includes an arbitration provision that purportedly
covers the dispute - the requirement is also satisfied. Claims
subject to arbitration under the DPR specifically include
[a]ny other matter related to or concerning the
relationship between the Applicant and the Company
and/or the Employee and the Company alleging violation
of any federal, state or other governmental law,
statute, regulation, or ordinance, or common law, or
contract violation, including but not limited to . . .
Title VII of the Civil Rights Act of 1964, as amended,
the Americans with Disabilities Act, the Family
Medical Leave Act, . . . including, by way of example
and without limitation, allegations of: unlawful
retaliation, including whistleblower retaliation,
discrimination or harassment based on race, sex,
religion, creed, color, marital status, sexual
orientation, citizenship, national origin, age,
veteran or military status, disability status, or
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other legally protected characteristics; wrongful
discharge; [or] constructive discharge [.]
(Defs.’ Mot. (Doc. 12-3) at 6-7.) Plaintiff’s FMLA, ADAAA, and
discrimination claims fall squarely within the plain language of
the arbitration provision.
3.

Relationship to Interstate Commerce

The third requirement under Adkins, that the transaction
have a relationship to interstate or foreign commerce, evidenced
by the agreement, is also undisputed. “[T]he reach of the [FAA]
is broad. . . . The Supreme Court has interpreted this provision
as exercising the full scope of Congress’s commerce-clause
power.” Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d
690, 697 (4th Cir. 2012) (citations omitted). While diversity of
citizenship alone is not enough to classify a transaction, “the
FAA does not impose a burden upon the party invoking the FAA to
put forth specific evidence proving the interstate nature of the
transaction,” nor does a court need to “identify any specific
effect upon interstate commerce, so long as ‘in the aggregate
the economic activity in question would represent “a general
practice . . . subject to federal control.”’” Id. at 697-98
(citations omitted).
The nature of the employment agreement itself reflects an
effect on interstate commerce, as Plaintiff, a North Carolina

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resident, was employed to work from his home, (Defs.’ Mot., Ex.
A-2 (Doc. 12-4) at 1), in a remote tech support capacity, (Pl.’s
Resp. (Doc. 15) at 1), for a company serving facilities and
people inside and outside North Carolina utilizing interstate
mail and travel systems, (Defs.’ Mot., Ex. A (Doc. 12-2) at 2).
In the absence of a response or objection from Plaintiff, this
court accepts the representations of interstate commerce set
forth in the agreement. Further, but not dispositive, the
agreement is between a North Carolina individual and companies
in New Jersey and Connecticut. (Compl. (Doc. 1) at 1-2.) In
concert, these factors show that the third requirement is
satisfied.
4.

Refusal to Arbitrate

Finally, Plaintiff has refused to arbitrate the dispute.
This is clear as Plaintiff has not engaged in the process for
arbitration set forth in the agreement and has instead filed
suit. Defendants have filed a declaration from Maryjo Lovie
Roberts explaining in some detail the efforts of Defendants to
engage in arbitration with Plaintiff and Plaintiff’s refusal to
do so. (See generally Defs.’ Mot., Ex. B (Doc. 12-8).)
Thus, the four elements for compelling arbitration under
the FAA have been met in this case and this court will grant
Defendants’ motion to compel arbitration. Plaintiff has not met
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his burden to entitle him to a jury trial under the FAA, and
therefore, Plaintiff’s motion demanding a jury trial will be
denied.
C.

Stay Pending Arbitration

“[W]here a valid arbitration agreement exists and the
issues in a case fall within its purview[,]” Adkins, 303 F.3d at
500 (citations omitted), the district court shall, upon
application of one of the parties, “stay the . . . action until
such arbitration has been had in accordance with the terms of
the agreement,” 9 U.S.C. § 3. As found herein, a valid, written
arbitration agreement exists between the parties, and all of
Plaintiff’s claims fall within the substantive scope of the
agreement.
Despite the language of § 3, courts, including the Fourth
Circuit, have noted that dismissal is a proper remedy when all
claims presented in a lawsuit are arbitrable. See, e.g., Choice
Hotels, 252 F.3d at 709–10 (citing Alford v. Dean Witter
Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)). Here,
Defendants move to dismiss the case.
Neither party has presented a compelling reason for this
court to stay this case pending arbitration. All of Plaintiff’s
claims are arbitrable, there is no suggestion any enforcement of
an arbitration award by this court is necessary, and Plaintiff’s
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prior refusals to arbitrate do not suggest this court should
stay this matter for an indefinite period while Plaintiff
considers whether to proceed with his claims in arbitration.
Accordingly, this case should be dismissed.
D.

Defendants’ Claim for Attorneys’ Fees

In addition to compelling arbitration, Defendants seek
attorneys’ fees pursuant to Fed. R. Civ. P. 11(b). While
Defendants may be justifiably frustrated with having to defend
its agreed-upon arbitration provision, Rule 11 directs the
inquiry to an opposing party’s knowledge, information, and
belief. Fed. R. Civ. P. 11(b) (“By presenting to the court a
pleading . . . an attorney or unrepresented party certifies that
to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances
. . . .”). Plaintiff does not deny being advised of his
arbitration obligations by opposing counsel. Nevertheless, in
nearly every contractual dispute, parties are in disagreement
over the meaning and requirements of contractual terms. Under
the circumstances here, this court does not find an award under
Rule 11 appropriate.
IV.

CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that

Defendants’ motion to file sur-reply, (Doc. 21), is GRANTED.
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IT IS FURTHER ORDERED that Defendants’ motion to compel
arbitration and dismiss, (Doc. 12), is GRANTED, and that this
action is hereby DISMISSED WITHOUT PREJUDICE to the arbitration
proceedings.
IT IS FURTHER ORDERED that Plaintiff’s motion for jury
trial, (Doc. 16), is DENIED.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 18th day of July, 2018.

_____________________________________
United States District Judge

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