Drake v. Mallard Creek Polymers, Inc.

Filing 14

ORDER that defendants Objections to Memorandum and Recommendation re 12 , be calendared for an evidentiary hearing by the Clerk of Court. Signed by District Judge Max O. Cogburn, Jr on 11/17/2014. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00350-MOC-DSC
JAMIE TODD DRAKE,

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Plaintiff,
Vs.
MALLARD CREEK POLYMERS, INC.,
Defendant.

ORDER

THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. In the Memorandum and Recommendation, the
magistrate judge advised the parties of the right to file objections within 14 days, all in
accordance with 28, United States Code, Section 636(b)(1)(c). Objections have been
filed within the time allowed.
In the Memorandum and Recommendation, Judge Cayer recommended that
defendant’s Motion to Compel Arbitration of this employment dispute be denied. Judge
Cayer found that the evidence presented by defendant was insufficient to satisfy its initial
burden of showing that the parties entered into a valid agreement to arbitrate. M&R
(#11) at 4. Apparently, defendant lost the second page of the two-page arbitration
agreement, which is the signature page. Judge Cayer found that the affidavit of Jane
Billingsley, a former management employee of defendant, was insufficient to meet such
burden. In relevant part, Ms. Billingsley averred that she would not have checked off
receipt of the arbitration agreement unless she had actually received it and that the
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handwriting appearing on the first page of the agreement is plaintiff’s handwriting. She
does not explain how she is able to recognize such handwriting some 14 years after the
form was completed. In his responsive declaration, plaintiff averred that he does
not remember being presented with, or signing, the arbitration agreement
that Mallard Creek Polymers, Inc. included in their motion. That
agreement clearly does not bear my signature.
Drake Decl. (#9-1) at ¶ 4. Plaintiff does not address whether his handwriting appears on
the first page of the arbitration agreement.
First, this court is no proponent of arbitration in lieu of access to a judicial forum,
especially where one party enters the agreement simply to secure employment or a loan.
Such economic compulsion creates an uneven playing field, especially for the
economically disadvantaged. However, this court recognizes that federal law presently
mandates enforcement of valid arbitration agreements and follows that law. Perry v.
Thomas, 482 U.S. 483, 489 (1987). It is equally clear from Fourth Circuit decisions that
agreements to arbitration employment disputes – even those that touch on important
federal rights such as those found under the FMLA – are subject to arbitration, Safrit v.
Cone Mills Corp., 248 F.3d 306, 308 (4th Cir.2001), “no matter how sympathetic [the

employee’s] claims” may be. Singletary v. Enersys, Inc., 57 Fed.Appx. 161, 163-165,
2003 WL 264703, * 2 (4th Cir. 2003).
Second, while the loss of a signature page certainly creates a hurdle for the party
seeking to enforce the agreement, state law provides methods for proving the existence of
a contract or parts of it where the contract is lost. In discussing proof of a lost contract
under the Florida statute of frauds (which is nearly identical to North Carolina’s), the
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Florida Court of Appeals held, as follows:
The absence of a lost or destroyed document does not necessarily
preclude proof of its contents. It is clear that such proof must be clear,
strong and unequivocal. In the cited case, the proof of the contents of the
lost instrument was an exact copy.
Where the contents of a claimed lost document are relied upon to
avoid the Statute of Frauds, each step in the proof to avoid the statute must
be carefully examined. In the case now before us, the existence of the
writing was denied by the testimony of the defendants. There is no fact in
evidence to support the plaintiff's claim of its existence. The attorney
involved had no recollection of its existence. No copy of other evidence of
the contents was submitted. Plaintiff's recollection concerned only the
purpose for drafting the document. The very purpose of the Statute of
Frauds is defeated where the sole proof of the existence and contents of a
document relied upon to avoid the Statute is the testimony of the plaintiff.
Weinsier v. Soffer, 358 So.2d 61, 3 (Fla.App., 1978) (citations omitted). Inasmuch as a
signature to a contract constitutes a part of the “contents” of the document, a party
attempting to prove the existence of a contract would need to present clear and
convincing extrinsic or parol evidence that the party sought to be held to the agreement
signed the contract. Zander v. Ogihara Corp., 213 Mich. App. 438, 444 (1995) (citing 2
Corbin on Contracts, § 529, p. 326). In both Weinsier and Zander, the appellate courts
determined that the proponent of the lost contract could not overcome the statute of
frauds “solely on the basis of their own self-serving testimony.” Zander, 213 Mich. App.
at 445; see also Woodruff Oil & Fertilizer Co. v. Portsmouth Cotton Oil Refining Corp.
246 F. 375, 378 (4th Cir. 1917) (holding that the “statute [of frauds] does not prohibit
proof of a contract of sale by parol evidence of the contents of a lost document signed by
the party to be charged.”). Here, defendant has come forward with the affidavit of a
former employee, one page of the agreement upon which plaintiff purportedly wrote his
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name, and facsimile copies of similar agreements entered into by other employees.
Defendant objects to the recommendation that its Motion to Compel Arbitration be
denied, arguing as follows:
Although the Magistrate Judge stated that the evidence was
“inadequate,” the Court never explained why the evidence should be
deemed so. The competent evidence submitted proves that Plaintiff signed
each of the documents presented to him and when they were returned to
Ms. Billingsley, she indicated that the document had been returned by
marking it on the checklist. That list shows the Arbitration Agreement was
signed and returned.
Objection (#12) at 3.
At this point, the court cannot say whether there is or is not clear and convincing
evidence to prove that plaintiff actually signed the arbitration agreement. Indeed, each
side of this dispute has left the court with less than a complete picture of what occurred.
On one side, Ms. Billingsley failed to aver how she was able to recognize plaintiff’s
handwriting on the first page of the agreement and on the other, plaintiff has failed to
declare that the handwriting appearing on the first page of the agreement is not his or
explain why, if such is his handwriting, it would be on that document unless his signature
in fact appeared on page two of the instrument.
The core issue presented is not capable of resolution on competing affidavits as it
is impossible for a court, as the finder of fact as to whether a contract exists, Harris v.
Ray Johnson Constr. Co., 139 N.C.App. 827, 829 (2000), to determine credibility without
observing the demeanor of the witnesses. Davis v. Zahradnick, 600 F.2d 458, 460 (4th
Cir.1979); American Metal Forming Corp. v. Pittman, 52 F.3d 504, 507 (4th Cir.1995).
For that reason, the court will set defendant’s Objection on for an evidentiary hearing.
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Plaintiff and Ms. Billingsley shall personally appear at that hearing and be ready to
testify.
ORDER
IT IS, THEREFORE, ORDERED that defendant’s “Objections to Memorandum
and Recommendation” (#12) be calendared for an evidentiary hearing by the Clerk of
Court.
Signed: November 17, 2014

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