Myers v. TRG Customer Solutions, Inc.
MEMORANDUM signed by District Judge Aleta A. Trauger on 11/15/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
MYLEE MYERS, individually and on
behalf of all others similarly situated,
TRG CUSTOMER SOLUTIONS, INC.
d/b/a IBEX GLOBAL SOLUTIONS,
Case No. 1:17-cv-00052
Judge Aleta A. Trauger
Plaintiff Mylee Myers brings this action under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq., individually and on behalf of all similarly situated current and former
employees of the defendant, TRG Customer Solutions, Inc., doing business as IBEX Global
Solutions (“IBEX”). She seeks to recover unpaid wages owed to her and similarly situated
employees who have worked at IBEX’s call centers in the United States. Now before the court is
IBEX’s Motion to Compel Arbitration and to Dismiss the Action. (Doc. No. 57.) Also still
pending is the plaintiff’s Motion for Conditional Certification and the Issuance of CourtSupervised Notice (Doc. No. 8), the resolution of which the court previously deferred.
For the reasons set forth herein, the court will grant the defendant’s motion to compel
plaintiff Mylee Myers to pursue individual arbitration of her claims but will deny the motion to
dismiss the case in its entirety. The Motion for Conditional Certification will be denied without
Procedural and Factual Background
IBEX is a privately held company that operates more than twenty call centers in at least
seven countries, including ten call centers in the United States. (Compl. ¶ 12; Decl. of Paul
Inson, Doc. No. 27-1 ¶ 4.) Myers resides in Steubenville, Ohio. She worked for IBEX as a
customer service representative at its Pittsburgh, Pennsylvania call center from November 2013
through September 2014. She worked as a supervisor at the same call center from September
2014 through June 2015. (Compl. ¶ 6.) The Complaint does not include factual allegations
regarding the circumstances under which the plaintiff’s employment ended.
For purposes of the defendant’s Motion to Compel, Myers does not dispute that she
signed a document titled Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate
Acknowledgment and Acceptance on November 3, 2013, in which she “acknowledge[d] that
[she had] received and read the Direct Dialogue Program and Mutual Agreement to
Mediate/Arbitrate and will abide by it as a condition of [her] employment.” (Doc. No. 27-6, at
7.) The Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate (“DDP”), to which
the Acknowledgment and Acceptance is attached, contains the following language:
The Company and Employee mutually consent to the resolution, by final and
binding arbitration, of any and all claims or controversies (“claim”) that the
Company may have against Employee or that Employee may have against the
Company . . . , whether or not arising out of the employment relationship (or its
termination), including but not limited to, any claims arising out of or related to
this Agreement to Arbitrate (this “Agreement”) or the breach thereof.
(Doc. No. 27-6, at 2 (emphasis in original).) The DDP states that it shall survive the termination
of the employee’s employment. (Id. at 3.) The DDP does not contain any language either
expressly permitting or prohibiting a collective action arbitration.
Myers filed her Collective Action Complaint initiating this lawsuit on June 1, 2017. The
next day, she filed a Motion for Conditional Certification and for the Issuance of CourtSupervised Notice to members of the conditionally certified class (Doc. No. 8). During the
pendency of that motion, several putative collective-action plaintiffs filed Notices of Consent to
Become Party Plaintiff. (See Doc. Nos. 13-1, 17-1, 23-1, 24-1, 43-1, 46-1, 51-1, 52-1 (“I hereby
consent . . . to become a party plaintiff in the above-captioned FLSA lawsuit. I understand that I
will be bound by the judgment of the Court to all issues in this lawsuit, including the fairness of
On August 24, 2017, the court entered an Order deferring ruling on the Motion for
Conditional Certification and directing the parties to confer and discuss the possibility of
reaching an agreement regarding collective action and arbitrability. The parties were directed to
file a Joint Status Report within fourteen days of entry of that Order. The court noted that, if the
parties concluded by that time that they would be unable to reach an agreement, the court would
set a briefing schedule for the defendant’s anticipated motion to compel arbitration. In the
Memorandum accompanying that Order, the court notified the parties that it did not read the
Sixth Circuit’s ruling in National Labor Relations Board v. Alternative Entertainment, Inc., 858
F.3d 393 (6th Cir. 2017), as barring waivers of the right to bring a collective action under the
Shortly after the entry of that Order, the parties notified the court that they would not be
able to reach an agreement on the issues of conditional certification and arbitrability. In light of
that conclusion, the defendant filed its Motion to Compel and supporting documentation (Doc.
Nos. 57, 58). In accordance with a scheduling Order entered by the court (Doc. No. 60), the
plaintiff filed her Response in Opposition (Doc. No. 62), and the defendant filed a Reply (Doc.
Thereafter, the plaintiff submitted a Notice of Filing (Doc. No. 66), giving notice of
IBEX’s alleged failure to comply with filing deadlines in two arbitration proceedings
commenced by individuals who did not opt into this case. The plaintiff, through counsel, alleges
that “IBEX’s conduct” in these arbitrations “is not an isolated matter” and that IBEX has
“exhibited a pattern of failing to abide by its agreements to arbitrate.” (Doc. No. 66, at 2.) IBEX
filed a Response to the Notice of Filing, objecting to the Notice as an attempt to “subvert this
Court’s rules by disguising an unauthorized sur-reply . . . as a nebulous ‘Notice of Filing’” and
also generally objecting to the substance of the Notice of Filing. (Doc. No. 67.) The plaintiff
responded by filing a Motion for Leave to File Reply and Notice of Filing or, in the Alternative,
for Leave to File Sur-Reply and Supplemental Argument, with the attached proposed Reply.
(Doc. No. 68.) This motion requests leave to reply to IBEX’s Response to the plaintiff’s Notice
of Filing and, alternatively, requests that the court grant leave retroactively to file the Notice of
Filing as a sur-reply, and to file the Reply to the Response to the Notice of Filing as a
supplemental argument. The Reply itself (Doc. No. 70) responds to the factual allegations in the
Although the court already granted the Motion for Leave to File Reply, the court finds
that the Notice of Filing (Doc. No. 66), Response (Doc. No. 67), and Reply (Doc. No. 70) are
irrelevant to consideration of the Motion to Compel and generally improper. The court has not
relied on any of these filings in ruling on the Motion to Compel Arbitration.
Standard of Review
Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16, where a litigant
establishes the existence of a valid agreement to arbitrate, the district court must grant the
litigant’s motion to compel arbitration and stay or dismiss proceedings until the completion of
arbitration. Glazer v. Lehman Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005) (citing 9 U.S.C. §§
3–4). The FAA creates a strong presumption in favor of arbitration, O.J. Distrib., Inc. v. Hornell
Brewing Co., 340 F.3d 345, 355 (6th Cir. 2003), and any doubts regarding arbitrability must be
resolved in favor of arbitration. Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th Cir. 2003).
Nevertheless, an arbitration agreement may be voided for the same reasons for which any
contract may be invalidated under state law, “provided the contract law applied is general and
not specific to arbitration clauses.” Id. at 393. “In order to show that the validity of the agreement
is in issue, the party opposing arbitration must show a genuine issue of material fact as to the
validity of the agreement to arbitrate, a showing that mirrors the summary judgment standard.”
Great Earth Cos. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002) (internal quotation marks
Generally, the court must make four “threshold determinations” before compelling
[F]irst, it must determine whether the parties agreed to arbitrate; second, it must
determine the scope of that agreement; third, if federal statutory claims are
asserted, it must consider whether Congress intended those claims to be
nonarbitrable; and fourth, if the court concludes that some, but not all, of the
claims in the action are subject to arbitration, it must determine whether to stay
the remainder of the proceedings pending arbitration.
See Fazio, 340 F.3d at 392 (quoting Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000)).
The defendant argues that the court should grant its Motion to Compel Arbitration
because: (1) the plaintiff signed the DDP, a valid agreement to arbitrate; (2) her claims in this
lawsuit fall within the scope of the arbitration agreement; and (3) the DDP does not address, and
therefore precludes, arbitration as a collective action. The defendant also argues that the court
should dismiss the case after referring it to arbitration, as the court’s retention of jurisdiction
during the pendency of arbitration would serve no purpose. The plaintiff, for her part, does not
dispute that she signed the DDP when she was hired by IBEX, and she does not contest the
enforceability or validity of the agreement on the basis that it lacks mutuality, was signed under
duress, or is otherwise void or voidable for any of the other standard reasons provided by state
law for challenging the enforceability of a contract. Nor does she contend that her claims fall
outside the scope of the agreement to arbitrate.
The only real issue is under the third of the threshold questions identified above: whether
Congress intended the plaintiff’s federal statutory claims under the FLSA to be non-arbitrable
and, in particular, whether an arbitration agreement that does not permit the plaintiff to pursue
collective-action arbitration is enforceable. In that regard, the plaintiff and the defendant agree
that the DDP is silent on the topic of whether collective arbitration is permissible. Based on
Huffman v. Hilltop Companies, LLC, 747 F.3d 391 (6th Cir. 2014), the defendant argues—and
the plaintiff assumes, for purposes of the defendant’s Motion to Compel—that the DDP will be
construed to prohibit collective arbitration because it does not expressly permit it. The plaintiff
nonetheless argues that the defendant’s attempt to force her into individual arbitration should be
denied based on NLRB v. Alternative Entertainment, Inc., in which the Sixth Circuit held that “an
arbitration provision requiring employees covered by the NLRA individually to arbitrate all
employment-related claims is not enforceable.” Alt. Ent’mt, 858 F.3d at 408. (See Doc. No. 62, at
In making this argument, the plaintiff takes issue with the court’s previously expressed
rationale for concluding, albeit in a non-binding opinion, that the holding in Alternative
Entertainment does not extend to the facts here. Specifically, she contends that (1) it makes no
difference whether the plaintiff is a current, as opposed to former, IBEX employee, because she
was an employee at the time she signed the DDP; (2) a collective action under the FLSA
qualifies as “concerted activity” protected by the National Labor Relations Act (“NLRA”); and
(3) the holding in Alternative Entertainment is not limited to claims expressly brought under the
NLRA and applies to the facts of this case.
The plaintiff also argues that, even if the court concludes that the DDP signed by plaintiff
Myers is binding, the court should compel only Myers to arbitration but grant leave to the other
opt-in plaintiffs to move to amend their complaint to substitute one or more new named
plaintiffs. The plaintiff insists that IBEX has not provided signed DDP agreements for several of
the opt-in plaintiffs and that these individuals have no recollection of having signed any such
agreement. Accordingly, she argues, the court and the opt-in plaintiffs should not simply accept
IBEX’s word that these opt-ins signed valid and enforceable arbitration agreements.
In its Reply, the defendant contends that, if Myer’s individual claims become moot, the
court should dismiss the action as a whole, leaving the opt-in plaintiffs free to pursue their own
actions if they choose.
In Alternative Entertainment, which arose from a labor dispute involving changes in
certain employees’ compensation and their ability to discuss their concerns about salary and
wages with each other, the Sixth Circuit held that an arbitration provision expressly prohibiting
collective actions violated Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. §
Section 7 states that “[e]mployees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” Id. Further, “[c]ontractual provisions that ‘illegal[ly] restrain’
employees’ rights under the NLRA are unenforceable.” Alt. Ent’mt, 858 F.3d at 401 (quoting
Nat’l Licorice Co. v. NLRB, 309 U.S. 350, 360, 365 (1940)). The Sixth Circuit construed “other
concerted activities” to include collective “resort to administrative and judicial forums” for the
purpose of “achiev[ing] more favorable terms or conditions of employment.” Alt. Ent’mt, 585
F.3d at 402 (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565–66 (1978); Brady v. Nat’l Football
League, 644 F.3d 661, 673 (8th Cir. 2011)). The court framed the issue before it as implicating
both the NLRA and the FAA and as requiring a determination of whether the arbitration
provision, with its collective action waiver, was enforceable under both of those statutory
schemes. It ultimately held that
an arbitration provision requiring employees covered by the NRLA individually
to arbitrate all employment-related claims is not enforceable. Such a provision
violates the NLRA’s guarantee of the right to collective action and, because it
violates the NRLA, falls within the FAA’s saving clause.
Alt. Ent’mt, 585 F.3d at 408.1
The few district courts within the Sixth Circuit confronted directly with the task have
been divided in their interpretation of Alternative Entertainment. This court has previously
concluded that a collective action under the FLSA does not qualify as “‘concerted activit[y]’
protected by the NLRA” and, therefore, that Alternative Entertainment has no bearing on this
type of case. Doe #1 v. Deja Vu Consulting Inc., No. 3:17-CV-00040, 2017 WL 3837730, at *12
(M.D. Tenn. Sept. 1, 2017). The court in Pyle v. VXI Global Solutions, Inc., No. 5:17-CV-220,
The Sixth Circuit recognized a circuit split on this issue. The Seventh and Ninth Circuits
have held that arbitration provisions mandating individual arbitration of employment-related
claims violate the NLRA and fall within the FAA’s saving clause. See Lewis v. Epic Sys. Corp.,
823 F.3d 1147, 1160 (7th Cir. 2016); Morris v. Ernst & Young, LLP, 834 F.3d 975, 985–86 (9th
Cir. 2016). The Fifth and Eighth Circuits have held, to the contrary, that arbitration provisions
mandating individual arbitration of employment-related claims do not violate the NLRA and are
enforceable under the FAA. See Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1018 (5th Cir.
2015) (reaffirming its earlier holding in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir.
2013)); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 776 (8th Cir. 2016) (reaffirming its
earlier holding in Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013)). In 2017, the
Supreme Court granted writs of certiorari in Morris, Lewis, and Murphy Oil and consolidated the
three cases. 137 S. Ct. 809 (2017). That decision remains pending.
2017 WL 5132765 (N.D. Ohio Nov. 6, 2017), under factually similar circumstances, granted the
defendant’s motion to compel individual arbitration on the basis that “the decision in Alternative
Entertainment was not intended to apply to arbitration agreements that are silent on the issue of
classwide arbitration.” Id. at *5. That is, where, as here, the arbitration agreement does not
contain an “illegal” “express waiver of the right to classwide arbitration,” the agreement is
governed by those decisions from the Supreme Court and the Sixth Circuit holding that “a party
may not be compelled under the FAA to submit to class arbitration unless there is a contractual
basis for concluding that the party agreed to do so.” Id. at *4 (quoting Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010)) (emphasis in original).2 Conversely, in
Hubbard v. Dolgencorp, LLC, No. 1:17-CV-1133-STA-EGB, 2017 WL 4323588 (W.D. Tenn.
Sept. 28, 2017), the district court was unpersuaded by this court’s Doe #1 opinion and the prior
Order in the case at bar. In Hubbard, the named plaintiffs in a putative FLSA collective action
had signed voluntary arbitration agreements that contained express waivers of the right to bring a
collective action. The court there found, based on Alternative Entertainment, that these collective
action waivers violated the NLRA and were therefore unenforceable.3
This court holds, under the circumstances presented here, that Alternative Entertainment
is not controlling. First, the court is persuaded by the rationale in Pyle. The arbitration agreement
at issue here, unlike in Alternative Entertainment, does not contain an express waiver of the right
to collective action; the DDP is instead silent on that question. The Supreme Court has held that
The Pyle court also noted that it agreed with this court’s conclusion in Doe #1 v. Déjà
Vu Consulting, Inc. that “enforcing the provisions of the FLSA through a collective action does
not constitute ‘concerted activit[y]’ under the NLRB” and, therefore, that the motion to compel
arbitration in that case “could be granted for this additional reason.” Pyle, 2017 WL 5132765, at
The court also concluded that the collective-action waivers were severable from the
remainder of the arbitration agreements at issue. It therefore granted the defendants’ motion to
compel arbitration but allowed the plaintiffs to pursue their claims collectively.
“it cannot be presumed the parties consented to [classwide arbitration] by simply agreeing to
submit their disputes to an arbitrator.” Stolt-Nielsen, 559 U.S. at 680. Based on Stolt-Nielsen, the
Sixth Circuit has repeatedly held that, when an arbitration agreement is silent regarding the
availability of classwide arbitration, the agreement must be construed as prohibiting classwide
arbitration. Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, 734 F.3d 594, 596 (6th Cir.
2013) (holding in the context of a commercial billing dispute that an arbitration clause that was
silent on the topic did not authorize classwide arbitration); Huffman v. Hilltop Cos., 747 F.3d
391, 398–99 (6th Cir. 2014) (extending the holding in Reed Elsevier to apply in the case of a
plaintiff who sought to pursue a collective action under the FLSA, stating: “[T]he parties’
arbitration clause nowhere mentions classwide arbitration. We therefore conclude that the
arbitration clause does not authorize classwide arbitration, and hold that the plaintiffs must
proceed individually.” (internal citation omitted)). The Sixth Circuit’s decision in Alternative
Entertainment, of course, could not overrule the Supreme Court’s decision in Stolt-Nielsen, nor
did it purport to overrule Reed-Elsevier or Huffman. These cases remain binding on this court,
and Alternative Entertainment simply has no bearing here based on the facts presented.
Second, even if the arbitration agreement did contain an express waiver of the right to
bring a collective action,4 the court remains persuaded that a collective action under the FLSA
does not qualify as “concerted activit[y]” protected by the NLRA. As this court previously
IBEX asserts that, beginning in 2015, all new customer service representatives and
technical support staff members have been required to sign a revised Direct Dialogue Program
and Mutual Agreement to Arbitrate (“Revised DDP”), which, besides requiring arbitration of any
employment-related claims, includes an express waiver of “any right” to pursue any claim on a
class basis or as a collective or representative action and purports to require that all claims “be
mediated and arbitrated as individual claims.” (Doc. No. 27, at 4.) Plaintiff Myers did not sign a
Revised DDP, and it is unclear whether any of the opt-in plaintiffs did.
The NLRA protects the right of employees “to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection.” 29
U.S.C. § 157. While class or collective actions might qualify as concerted
activities in some contexts, the language of the statute implies that the “other
concerted activities” protected by the statute are activities related to collective
bargaining and the achievement of “more favorable terms or conditions of
employment.” Alt. Ent’mt, 585 F.3d at 402. Pursuing litigation for the purpose of
requiring an employer to comply with federal law is not the same as seeking more
favorable terms or conditions of employment by contract.
Doe #1, 2017 WL 3837730, at *12.
And finally, the court finds that the reach of Alternative Entertainment is limited to
claims brought “under the NLRA”—that is, claims concerning unfair labor practices that fall
within the purview of the NLRB:
The facts of Alternative Entertainment arose from that particular arena. It was
brought by the NLRB, seeking enforcement of a prior decision and order by the
NLRB in a classic labor dispute, and the court was not called upon to address the
confluence of the FLSA and the FAA.
Doe #1, 2017 WL 3837730, at *12. For this reason, too, the court finds that Alternative
Entertainment is not applicable here.5
Because the plaintiff’s objection to the defendant’s motion is premised entirely on the
applicability of Alternative Entertainment to her factual circumstances, the court finds that the
defendant’s Motion to Compel Arbitration must be granted, and the plaintiff will be compelled to
The court previously observed that Alternative Entertainment likely was not applicable
to this case for another reason as well: that the plaintiff did not qualify as an employee under the
NLRA, because she was no longer employed by the defendant when she filed suit, and there is
no indication that her employment ceased as a result of a labor dispute or an unfair labor
practice. 29 U.S.C. § 152(3). The Hubbard court observed that “focusing on a plaintiff’s status at
the time of filing suit, and not at the time she executed the arbitration agreement, would lead to
perhaps inconsistent outcomes.” Hubbard, No. 1:17-CV-1133-STA-EGB, 2017 WL 4323588, at
*8 (W.D. Tenn. Sept. 28, 2017). This court agrees, but finds that the potential for inconsistent
outcomes is perhaps the result of extending Alternative Entertainment to cases that are not
clearly governed by the NLRA. Nonetheless, while it remains true that the named plaintiff in this
case does not qualify as an “employee” as defined by the NLRA, the court does not rely on the
plaintiff’s status to reach its holding here.
pursue her claims in the context of an individual arbitration proceeding.
Whether to Dismiss
The plaintiff contends that, even if the court determines that her individual arbitration
agreement is enforceable and that the Motion to Compel Arbitration should be granted, “that still
leaves the claims of the other twelve plaintiffs who have affirmatively opted into this litigation.”
(Doc. No. 62, at 12.) IBEX maintains that all of its employees, including the opt-in plaintiffs,
have signed either a DDP that does not contain an express waiver of the right to bring a
collective action, or a Revised DDP, which does. However, those waivers are not in the record as
yet, and the plaintiff maintains that at least some of the opt-in plaintiffs did not sign arbitration
The plaintiff argues that, in the absence of signed, enforceable agreements to arbitrate,
the opt-in plaintiffs should be permitted to proceed with this case, rather than starting over and
filing a new lawsuit. She points out that permitting them to do so would further the interests of
judicial economy and the preservation of party resources. (Id. at 13 (citing Sogevalor, S.A. v.
Penn. Cent. Corp., 137 F.R.D. 12, 14 (S.D. Ohio 1991) (“Requiring plaintiff . . . to file a new
action upon dismissal of this case would needlessly consume the additional resources of all the
parties and of the Court.”); Miller v. Jackson, No. 3:10-cv-1078, 2011 WL 1060737, at *6 (M.D.
Tenn. Mar. 21, 2011) (granting motion for leave to add new FLSA named plaintiffs, emphasizing
that, unlike Rule 23 putative class members, every FLSA opt-in plaintiff is a “party plaintiff,
with equal status upon opting in”). The plaintiff requests that she be granted thirty days within
which to move to amend the Complaint to add one or more new named plaintiffs.
In Reply, the defendant contends that dismissal is required because the named plaintiff’s
claims have become moot prior to collective-action certification. (See Doc. No. 65, at 7–8 (citing
Genesis Healthcare Corp, v. Svmczvk, 569 U.S. 66, 73 (2013) (addressing collective action
claims under the FLSA and recognizing the general principal that collective-action claims
become moot when the individual claims become moot); Aleman v. Innovative Elec. Servs.
L.L.C., No. 14-cv-868 (KBF), 2014 WL 4742726, at *3 (S.D.N.Y. Sept. 15, 2014) (applying
Genesis Healthcare to find the collective action mooted by the dismissal of the named plaintiff’s
claims, “notwithstanding the fact that several potential plaintiffs ha[d] filed opt-in notices”).
In Genesis Healthcare, the Supreme Court held that an FLSA collective action brought
by a single employee was no longer justiciable when the single plaintiff’s individual claim
became moot as the result of an offer of judgment by the employer-defendant in an amount
sufficient to make the plaintiff whole. That is, the collective action suit became moot when the
individual plaintiff’s individual claim became moot, because she lacked any personal interest in
representing others in the action. 569 U.S. at 73. It was undisputed there, however, that no
additional plaintiffs had opted in at the time the offer of judgment was made. Id. at 70. In
reversing the appellate court’s conclusion that the collective action was not mooted by the offer
of judgment and that the district court should permit the plaintiff to seek “conditional
certification,” the Court expressly recognized that, in FLSA actions, “[t]he sole consequence of
conditional certification is the sending of court-approved written notice to employees, who in
turn become parties to a collective action only by filing written consent with the court, § 216(b).”
Id. at 75 (internal citation omitted).
In other words, conditional certification, per se, does not have a substantial effect on a
collective action, but the filing of an opt-in consent does: “These opt-in employees are party
plaintiffs, unlike absent class members in a Rule 23 class action.” O’Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald
Co. v. Gomez, 136 S. Ct. 663 (2016). See also Miller v. Jackson, No. 3:10-1078, 2011 WL
1060737, at *6 (M.D. Tenn. March 21, 2011) (“[A]ll opt-in plaintiffs in an FLSA collective
action are ‘party plaintiffs,’ with equal status upon opting-in.” (citing O’Brien, 575 F.3d at 583)).
Because there are opt-in plaintiffs in this case, unlike in Genesis Health, the court cannot
conclude that compelling arbitration of the named plaintiff’s claims automatically requires
dismissal of the entire case.
Moreover, the cases upon which IBEX relies involved mootness and thus the court’s loss
of subject-matter jurisdiction. The defendant offers no support for the suggestion that granting a
motion to compel arbitration of the named plaintiff’s claims in this case deprives the court of
subject-matter jurisdiction over the claims of opt-in plaintiffs. Here, even though the named
plaintiff will be compelled to pursue her claims in an individual arbitration, the opt-in plaintiffs’
claims remain pending. And it is an open question whether all of the opt-in plaintiffs signed valid
and enforceable arbitration agreements. Accordingly, the court will not dismiss this action in its
entirety and will instead grant the plaintiff thirty days within which to file a motion to substitute
the named plaintiff with one or more appropriate plaintiffs who believe in good faith that they
did not sign arbitration agreements.
For the reasons set forth herein, IBEX’s Motion to Compel Arbitration and to Dismiss the
Action (Doc. No. 57) will be granted in part and denied in part. The court will grant that portion
of the motion seeking to compel arbitration of plaintiff Mylee Myers’ claims, but will deny that
portion of the motion seeking dismissal of this action in its entirety. The court will grant the
plaintiff thirty days within which to file a motion to amend the Complaint to substitute
appropriate named plaintiffs from among the current opt-in plaintiffs. If no motion to amend is
filed within that time frame, the defendant may renew its motion to dismiss. The court will also
deny without prejudice the pending Motion for Conditional Certification and the Issuance of
Court-Supervised Notice (Doc. No. 8)
An appropriate Order is filed herewith.
ALETA A. TRAUGER
United States District Judge
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