Binienda v. Atwells Realty Corp. et al
Filing
107
MEMORANDUM AND ORDER denying 83 Motion to Compel Arbitration and to Dismiss (and denying 83 Motion to Stay, in the Alternative); denying as moot 85 Motion to Stay. So Ordered by Chief Judge William E. Smith on 3/9/2018. (Jackson, Ryan)
Case 1:15-cv-00253-WES-PAS Document 107 Filed 03/09/18 Page 1 of 11 PageID #: 938
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
SAMANTHA BINIENDA, on behalf of
)
herself and all others similarly
)
situated,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 15-253 WES
)
ATWELLS REALTY CORP. and
)
THE ONE, INC.,
)
all d/b/a CLUB DESIRE and LUST
)
VIP,
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Defendants
Atwells
Realty
Corp.
and
The
One,
Inc.
(collectively, “Defendants”) moved to dismiss this action and
compel arbitration (ECF No. 83), and to stay the action and amend
the pre-trial scheduling order (ECF No. 85).
For the reasons that
follow, both motions are DENIED.
I.
Background
The facts as they relate to Defendants’ motions are simple
and undisputed.
Plaintiff Samantha Binienda (“Plaintiff”) began
performing as an exotic dancer at Defendants’ club in November
2013.
On June 20, 2015, Plaintiff brought this putative class
action, alleging, inter alia, that Defendants misclassified exotic
dancers as independent contractors instead of employees, which
Case 1:15-cv-00253-WES-PAS Document 107 Filed 03/09/18 Page 2 of 11 PageID #: 939
resulted in violations of the Fair Labor Standards Act, 29 U.S.C.
§
201
et
seq.,
and
Rhode
Island
state
law.
Both
parties
participated in the litigation, engaging in discovery and filing
pre-trial motions.
During discovery, both parties discussed whether Plaintiff
had
ever
signed
Defendants’
Contractor Agreement.
standard
Entertainers
Independent
Gerard DiSanto II (“DiSanto”), Defendants’
general manager, testified that he did not know whether all of the
dancers at the club had signed such a contract, and that many
signed contracts had gone missing in the disorderly records room.
Defs.’ Mot. To Compel 2 (ECF No. 83-1).
During Plaintiff’s
deposition on March 31, 2017, she was asked if she ever signed the
standard contract, to which she replied, “No, I never did.
I can
specifically remember the first day I worked there, and I never
signed a contract.”
Id.
After discovery closed, both parties filed cross-motions for
summary judgment and cross-motions for class certification.
some
point
Entertainers
in
June
or
Independent
July
of
Contractor
2017,
DiSanto
Agreement,
At
located
which
had
the
been
signed by Plaintiff on November 5, 2013 (“Binienda Contract”).
July
20,
2017,
twenty-five
Complaint,
Defendants
arbitration
pursuant
filed
to
an
months
after
Plaintiff
the
instant
motion
arbitration
2
provision
filed
to
On
the
compel
within
the
Case 1:15-cv-00253-WES-PAS Document 107 Filed 03/09/18 Page 3 of 11 PageID #: 940
Binienda
Contract. 1
In
response,
Plaintiffs
contend
that
Defendants waived their arbitration rights under the contract by
waiting more than two years to move to compel arbitration.
II.
Discussion
A.
Threshold Matter
The parties dispute whether this Court or an arbitrator should
decide the issue of waiver.
For the reasons that follow, this
decision remains with the Court.
The Supreme Court in BG Group PLC v. Republic of Argentina
explained that this threshold question — whether this Court or an
arbitrator should decide the waiver issue — is guided by a set of
presumptions.
134 S. Ct. 1198 (2014).
First, “courts presume
that the parties intend courts, not arbitrators, to decide what we
have called disputes about ‘arbitrability’ . . . such as ‘whether
1
Paragraph 10 of the Binienda Contract provides:
The entertainer/independent contractor agrees that all
claims and disputes arising under or relating to this
agreement shall be settled by binding arbitration in the
state of Rhode Island pursuant to the Federal
Arbitration Act (the “FAA”). The arbitration shall be
conducted on a confidential basis pursuant to the
Commercial Arbitration Rules of the American Arbitration
Association. . . . The Entertainer waives her right to
litigate any controversy, dispute, claim or any other
matter in a court of law, and waive the right to jury
trial.
(Ex. A to Defs.’ Mot. to Dismiss and Compel
Arbitration 2 (ECF No. 83-2).)
3
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the parties are bound by a given arbitration clause.’”
Id. at
1206.
intend
However,
“courts
presume
that
the
parties
arbitrators, not courts, to decide disputes about the meaning and
application of particular procedural preconditions for the use of
arbitration,”
such
arbitrability.”
as
“waiver,
delay,
or
a
like
defense
to
Id. at 1207.
Although the Court in BG Group included “waiver” among the
issues that arbitrators are presumed to decide, a review of prior
Supreme Court and First Circuit precedent convinces this Court
that the “waiver” contemplated in BG Group is not the litigationconduct waiver that Plaintiffs allege in the instant case.
Traditionally, litigation-conduct waiver has been decided by
the court, not an arbitrator.
Marie v. Allied Home Mortg. Corp.,
402 F.3d 1, 14 (1st Cir. 2005).
with
this
decision.
very
issue
in
The First Circuit was presented
Marie,
which
predates
the
BG
Group
The Marie court grappled with two earlier Supreme Court
decisions: Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,
(2002), and Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003)
(plurality opinion).
In Howsam, the arbitration provision provided that a dispute
was not eligible for arbitration if more than six years had elapsed
since the event giving rise to the dispute.
537 U.S. at 82.
The
Court held that “condition[s] precedent to arbitrability” and
4
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procedural questions such as “waiver, delay, or a like defense to
arbitrability . . . are presumptively not for the judge, but for
an arbitrator, to decide.”
six-year
time
limit
was
Id. at 84-85.
a
procedural
The Court held that the
condition
precedent
to
arbitrability, and therefore, a matter for the arbitrator to
decide.
Id. at 84-85.
In Green Tree, the parties disputed whether
their arbitration agreement permitted class arbitration.
at 452.
539 U.S.
The Court held that “[a]rbitrators are well situated to
answer that question” because it “does not concern . . . judicial
procedures,” but rather, it “concerns contract interpretation and
arbitration procedures.”
Id. at 452-53.
“The Court in both Howsam and Green Tree . . . stressed issues
of comparative expertise.
In the face of contractual silence,
courts should presume that parties intend to give their disputes
to
the
most
able
decisionmaker
on
a
contractual and public policy reasons.”
given
issue,
both
for
Marie, 402 F.3d at 10.
The Marie court also noted that “the Howsam and Green Tree rules
exist partly ‘to avoid . . . delay.’”
Id. at 14 (quoting Shaw's
Supermarkets, Inc. v. United Food & Commercial Workers Union, Local
791, 321 F.3d 251, 255 (1st Cir. 2003)).
Finding that the district
court was in the best position to decide issues of litigationconduct waiver, the Marie court held “that the Supreme Court in
Howsam and Green Tree did not intend to disturb the traditional
5
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rule that waiver by conduct, at least where due to litigationrelated activity, is presumptively an issue for the court.” Marie,
402 F.3d at 14.
Contrary to Defendants’ argument, BG Group simply restates
the Howsam and Green Tree rules.
Compare BG Group, 134 S. Ct. at
1207
presumptively
(holding
that
arbitrators
decide
“waiver,
delay, or a like defense to arbitrability”) with Howsam, 537 U.S.
at 84 (holding that “conditions precedent to arbitrability” and
procedural questions such as “waiver, delay, or a like defense to
arbitrability” are presumptively for an arbitrator to decide) and
Green Tree, 539 U.S. at 453 (holding that arbitrators are wellsuited to answer questions of arbitration procedures).
Nothing in
BG Group undercuts the holding in Marie, that the Supreme Court
did not intend to alter traditional rule that courts presumptively
decide issues of litigation-conduct waiver.
See Vine v. PLS Fin.
Servs., Inc., 689 F. App'x 800, 803 (5th Cir. 2017) (noting that
“a
majority
of
the
[circuit
court]
decisions
addressing
litigation-conduct waiver pre-date BG Group, but the logic of those
decisions interpreting Howsam is equally applicable to BG Group”).
For the foregoing reasons, the Court will decide the merits
of Plaintiff’s litigation-conduct waiver argument.
6
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B.
Waiver
“Federal law favors agreements to arbitrate,” Joca-Roca Real
Estate, LLC v. Brennan, 772 F.3d 945, 946 (1st Cir. 2014), yet “an
arbitration provision has to be invoked in a timely manner or the
option is lost,” Rankin v. Allstate Ins. Co., 336 F.3d 8, 12 (1st
Cir. 2003).
“Where we are dealing with a forfeiture by inaction
(as opposed to an explicit waiver), the components of waiver of an
arbitration clause are [1] undue delay and [2] a modicum of
prejudice to the other side.”
Id.
In analyzing these factors,
“reasonable doubts as to whether a party has waived the right to
arbitrate should be resolved in favor of arbitration.”
In re Tyco
Int'l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005).
1.
Undue Delay
Undue delay is determined by factors including: “the length
of the delay, the extent to which the party seeking to invoke
arbitration has participated in the litigation, the quantum of
discovery
and
other
litigation-related
activities
that
have
already taken place, [and] the proximity of the arbitration demand
to an anticipated trial date.”
Joca-Roca, 772 F.3d at 948.
Consideration of these factors reveals that Defendants unduly
delayed
asserting
their
arbitration
rights.
See
id.
at
949
(holding that “[u]ndue delay [was] manifest” because discovery was
nearly complete, a motion for summary judgment was imminent, and
7
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trial was less than two months away).
Here, Plaintiff filed her
complaint in June 2015, discovery ended in January 2017, Defendants
filed a motion for summary judgment in May 2017, Plaintiff filed
her motions for summary judgment and class certification in June
2017, and then Defendants moved to compel arbitration in July 2017.
These facts are even more compelling than Joca-Roca because when
Defendants filed the motion to compel arbitration, discovery was
complete, motions for summary judgment were filed, and trial would
soon follow.
Defendants put forth numerous arguments, none of which carry
the day.
Defendants first argue that they continually asserted
their arbitration rights during pre-trial conferences and in their
proposed amended Answer.
However, the First Circuit has held that
these actions only “articulate [Defendants’] potential intentions
to raise the arbitrability . . . as an affirmative defense,” but
they are not assertions of the right to arbitration.
Lomas v.
Travelers Prop. Cas. Corp. (In re Citigroup, Inc.), 376 F.3d 23,
27 (1st Cir. 2004).
Defendants first asserted their right when
they filed the motion to compel arbitration on July 20, 2017.
See
id.
Defendants next contend that their two-year delay in bringing
the motion to compel arbitration was not undue because during
Plaintiff’s deposition, she denied ever signing an agreement.
8
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Defendants argue that because of Plaintiff’s denial, Defendants
had no incentive to search for a phantom agreement, and had no
basis by which to compel arbitration.
However, the deposition
took place on March 31, 2017, one year and nine months after the
suit
commenced,
so
Plaintiff’s
representation
can,
at
most,
account for the three-month delay between the March deposition and
June or July, when Defendants found the Binienda Contract.
Defendants’
argument
that
Plaintiff’s
unclean
hands
Thus,
bars
her
waiver argument is not convincing.
Next, Defendants rely on Tristar Fin. Ins. Agency, Inc. v.
Equicredit Corp. of Am. in support of their argument that they
could not assert their right to arbitration because they could not
locate the Binienda Contract.
97 F. App’x 462 (5th Cir. 2004).
However, in that case, the defendant was in the process of “winding
down its business and vastly downsizing its staff . . . and did
not have the ready access to important documents that would be
expected of a typical ongoing corporate enterprise.”
Id. at 465.
Here, Defendants have no such excuse for their inability to locate
the Binienda Contract for more than two years.
The Binienda
Contract was in Defendants’ possession for the entirety of this
case.
Absent extenuating circumstances, business owners are
presumed to possess a baseline level of constructive knowledge of
the documents in their custody.
Cf. id. at 466 (“We do not condone
9
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a party’s failure to apprise itself of its own key documents in
litigation.”).
Lastly, Defendants argue there was no undue delay because
they did not knowingly sit on their arbitration rights.
However,
a showing of bad faith is not necessary to find undue delay.
See
In re Citigroup, 376 F.3d at 27 (finding undue delay when defendant
waited eighteen months to file a motion to compel arbitration);
Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 221-22
(1st Cir. 1995) (finding waiver after one year delay).
2.
Prejudice
“When a defendant has failed to timely invoke its rights, and
during that delay, the litigation has proceeded into discovery, it
cannot, particularly in the context of a class action, claim that
the
class
prejudice.”
members
subject
to
arbitration
will
not
suffer
In re Citigroup, 376 F.3d at 28; see also In re Tyco
Int'l, 422 F.3d at 46 (requiring a showing of a “modicum of
prejudice”).
Here, Plaintiff points to the time and money spent
on two years of litigation that would be wasted if this Court
compels arbitration.
At the time Defendants moved to compel
arbitration, discovery had been complete for five months, and
Plaintiff had already responded to Defendants’ summary judgment
motion, and filed one of her own.
10
The parties have advanced far
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enough in the litigation that Plaintiff would be prejudiced if she
were compelled to arbitrate her claims.
III.
Conclusion
For the reasons discussed above, the Court DENIES Defendants’
Motion To Dismiss and Compel Arbitration (ECF No. 83).
The Court
also DENIES Defendants’ Motion to Stay (ECF No. 85) as moot.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 9, 2018
11
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