Myers v. TRG Customer Solutions, Inc.

Filing 86

MEMORANDUM & ORDER: For the reasons set forth herein, the plaintiff's Motion to Toll (Doc. No. 72 ) and Renewed Motion to Toll (Doc. No. 77 ) are DENIED WITHOUT PREJUDICE to the parties' ability to litigate the issue in arbitration. Myers' Motion to Stay (Doc. No. 77 ) is GRANTED, and IBEXs Renewed Motion to Dismiss (Doc. No. 79 ) is DENIED. This matter is STAYED PENDING ARBITRATION. The Clerk is DIRECTED to CLOSE this file administratively, subject to reopening upon application by the parties. Signed by District Judge Aleta A. Trauger on 2/5/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) Modified on 2/5/2018 (afs).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
MYLEE MYERS, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
TRG CUSTOMER SOLUTIONS, INC.
d/b/a IBEX GLOBAL SOLUTIONS,
Defendant.

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Case No. 1:17-cv-00052
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Before the court are (1) Plaintiff’s Motion for Entry of an Order Tolling the Statute of
Limitations for Opt-In Plaintiffs (“Motion to Toll”) (Doc. No. 72); (2) Plaintiff’s Motion to Stay
Action Pending Arbitration, and Renewed Motion for Entry of an Order Tolling the Statute of
Limitations for Opt-In Plaintiffs (“Motion to Stay” and “Renewed Motion to Toll”) (Doc. No.
77); and (3) Defendant’s Renewed Motion to Dismiss the Action (Doc. No. 79).
The motions have been fully briefed and are ripe for review. For the reasons set forth
herein, the plaintiff’s Motion to Toll (Doc. No. 72) and Renewed Motion to Toll (Doc. No. 77)
are DENIED WITHOUT PREJUDICE; (2) the plaintiff’s Motion to Stay (Doc. No. 77) is
GRANTED; and (3) the defendant’s Renewed Motion to Dismiss (Doc. No. 79) is DENIED.
I.

Procedural Background
Plaintiff Mylee Myers filed 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”), seeking to recover unpaid wages owed to her and similarly situated
employees who have worked at IBEX’s call centers in the United States. During the pendency of

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her Motion for Conditional Certification and for the Issuance of Court-Supervised Notice to
members of the conditionally certified class (Doc. No. 8), several putative collective-action
plaintiffs filed Notices of Consent to Become Party Plaintiffs. (Doc. Nos. 13-1, 17-1, 23-1, 24-1,
43-1, 46-1, 51-1, 52-1.) In addition, IBEX filed a Motion to Compel Arbitration and to Dismiss
the Action, alleging the existence of a valid and enforceable arbitration agreement that required
individual arbitration of the claims asserted in Myers’ Complaint. (Doc. No. 57.)
On November 15, 2017, this court entered an Order (Doc. No. 75) denying without
prejudice Myers’ Motion for Conditional Certification and the Issuance of Court-Supervised
Notice (Doc. No. 8) and granting IBEX’s Motion to Compel Arbitration. However, the court
denied without prejudice that portion of IBEX’s motion seeking dismissal of this case in its
entirety. In the same Order, the court granted 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. In addition, the court invited the defendant to renew its motion to
dismiss in the event that no motion to amend was filed within that time frame. (Doc. No. 75.)
The plaintiff has now confirmed that she does not intend to file a motion to amend the
Complaint, effectively conceding that all opt-in plaintiffs signed arbitration agreements similar to
Myers’. The defendant, accordingly, renews its request that this action be dismissed rather than
stayed pending arbitration. The plaintiff requests that the matter be stayed instead of being
dismissed. She also moves for an order tolling the statute of limitations for all opt-in plaintiffs as
of the dates they filed their opt-in consent notices, regardless of whether they subsequently
choose to pursue their claims in arbitration.
II.

Plaintiff’s Motion to Stay and Defendant’s Motion to Dismiss
The Federal Arbitration Act (FAA) provides that,
[i]f any suit or proceeding be brought in any of the courts of the United States
upon any issue referable to arbitration under an agreement in writing for such

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arbitration, the court in which such suit is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties 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. In other words, a court generally should stay an action being referred to
arbitration—rather than dismiss it—but, as the Sixth Circuit has recognized, only if three
conditions are met: “First, the issue [being referred] must be arbitrable. Second, one of the
parties must apply for a stay. Third, the party requesting the stay cannot be in default in
proceeding with the arbitration.” Hilton v. Midland Funding, LLC, 687 F. App’x 515, 518 (6th
Cir. 2017). In apparent recognition that § 3 implies a situation in which one or more—but not
all—issues raised in an action are arbitrable, the appellate court has also acknowledged that,
when all claims and issues are subject to mandatory arbitration, courts may dismiss the action
rather than stay it. See, e.g., Andrews v. TD Ameritrade, Inc., 596 F. App’x 366, 372 (6th Cir.
2014) (“[W]here there is nothing for the district court to do but execute the judgment, dismissal
is appropriate.” (internal quotation marks and citation omitted)).
In its Renewed Motion to Dismiss, the defendant argues that, because all claims against
IBEX asserted in the Complaint are subject to arbitration, dismissal rather than a stay is
appropriate. In response, the plaintiff argues that it is within the court’s discretion whether to
dismiss or stay, under the circumstances presented here, and that a stay is appropriate in this case
for two reasons. First, she argues, the United States Supreme Court is likely to issue a decision
within the next few months resolving the circuit split on the central question governing the
enforceability of the plaintiff’s arbitration agreement—that is, whether a collective action waiver
in the context of FLSA claims violates the National Labor Relations Act and is, on that basis,
unenforceable. And second, the plaintiff asserts that the claims she and the opt-in plaintiffs have
raised in this case are related to the claims asserted in two related pending cases: Andrews, et al.

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v. TRG Customer Solutions, Inc., d/b/a IBEX Global Solutions, No. 1:14-cv-135 (M.D. Tenn.);
and Cronk, et al. v. TRG Customer Solutions, Inc., d/b/a IBEX Global Solutions, No. 1:17-cv-59
(M.D. Tenn.). Andrews is stayed pending the collective arbitration of the claims of more than
3,600 opt-in plaintiffs, while Cronk is pending before this court in a posture virtually identical to
that of this case. The plaintiff here argues that this case should be stayed pending arbitration to
permit the court to “best exercise [its] management and oversight role over these related cases.”
(Doc. No. 81, at 3.)
The court will exercise its discretion to stay this matter rather than dismiss it pending
arbitration, in light of appeals pending before both the Sixth Circuit and the Supreme Court, the
resolution of which should definitively resolve the question of whether the waiver of the ability
to bring a collective action like the one at issue here is enforceable. Accordingly, that portion of
the plaintiff’s motion seeking a stay will be granted (Doc. No. 77), and the defendant’s Renewed
Motion to Dismiss (Doc. No. 79) will be denied.
III.

Plaintiff’s Motion for Equitable Tolling
The FLSA incorporates a two-year statute of limitations (three years for actions “arising

out of a willful violation” of the statute) running from the date of accrual until the date an action
“commence[s].” 29 U.S.C. § 255. An FLSA action is “commenced in the case of any individual
claimant,” for purposes of tolling the running of the statute of limitations, on the date when any
individual opt-in claimant files a consent form to become a party plaintiff in an FLSA collective
action. 29 U.S.C. § 256(b). The question raised is whether the opt-in plaintiffs are protected by
the filing of their opt-in notices in this case, when the named plaintiff’s claims have been
referred to arbitration and the opt-in plaintiffs likely will voluntarily pursue arbitration.
The plaintiff argues that “a possible change in forum to individual arbitration . . . risks
creating ambiguity regarding the date that the statute of limitations on the [opt-in] Plaintiffs’

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claims are tolled.” (Doc. No. 73.) She requests that this court dispel the possibility of any such
ambiguity by entering an Order expressly finding and holding that the statute of limitations for
any opt-in plaintiffs who pursue individual arbitration in the wake of the court’s Order granting
the defendant’s Motion to Compel Arbitration remains tolled from the date they filed their opt-in
notices. In her renewed Motion to Toll (Doc. No. 77), the plaintiff clarifies that she does not seek
“equitable” tolling but a legal finding that the statute of limitations ceases to run on a plaintiff’s
FLSA claims upon the filing of an opt-in notice, 29 U.S.C. §§ 255 & 256, and that “a simple
change of forum” from district court to arbitration should not result in a loss of the benefit
incurred by the commencement of the action in district court.
In response, the defendant argues that (1) a dismissal without prejudice places the parties
back in the same position in which they started, as if the lawsuit had never been filed; (2) the
question of whether the statute of limitations stopped running, and remains tolled, from the date
the opt-in notices were filed is a question for the arbitrator in the first instance; and (3) the
plaintiff offers no legal support for her proposition that this court should order that the statute of
limitations has been tolled by the filing of opt-in notices. It insists that the opt-in plaintiffs “are
not entitled to special protection because all of them either (1) now concede that they must
pursue their claims in arbitration; or (2) refuse to be a named plaintiff in this action” and,
therefore, that “[t]he running of the statute of limitations is the natural consequence of Plaintiffs’
failure to maintain this action.” (Doc. No. 78, at 5.)
In fact, neither party presents the court with binding precedent or persuasive authority
relevant to the issue presented here. The court nonetheless finds that the plaintiff’s Motion to
Toll and Renewed Motion to Toll should be denied. The court agrees with the defendant that the
questions of when the statute of limitations begins to run for any individual claimant and whether
the limitations period should be tolled are matters that must be addressed in the first instance by

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the arbitrator.
The arbitration agreement at issue here expressly pertains to “any disputes arising out of
[the employee’s] employment or termination of employment,” including, but not limited to, “any
claims covered by . . . the FLSA.” (Doc. No. 27-6, at 4.) The agreement further provides that
“[a]ll disputes will be resolved by a single Arbitrator selected from a list provided
by AAA pursuant to AAA rules. The Arbitrator has the authority to rule on any
motion regarding discovery or the pleadings, including motions to dismiss and for
summary judgment, and, in doing so, shall apply the standards set forth in the
Federal Rules of Civil Procedure, and to order any and all equitable or legal relief
which a party could obtain from a court of competent jurisdiction on the basis of
the claims made in the dispute.
(Id. at 2.) Clauses of this breadth have regularly been held to require the arbitrator, rather than
the court, to rule on such matters as the application and tolling of the statute of limitations. See,
e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (“[I]n the absence of an
agreement to the contrary, issues of substantive arbitrability . . . are for a court to decide and
issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches,
estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the
arbitrators to decide.” (quoting Revised Uniform Arbitration Act of 2000 § 6 cmt. 2, available
online at http://www.uniformlaws.org/Act.aspx?title=Arbitration%20Act%20(2000)); see also
id. (applying the same principle to the case before it, holding that the interpretation of a timelimit provision in the NASD rules “was a matter presumptively for the arbitrator, not for the
judge” (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)
(finding a presumption under the FAA that the arbitrator should decide “allegation[s] of waiver,
delay, or a like defense to arbitrability”)); Smith v. Dean Witter Reynolds, Inc., No. 02-6158,
2004 WL 1859623, at *3 (6th Cir. Aug. 18, 2004) (holding under Howsam that the arbitrator
should decide whether the limitations period in NYSE Rule 603, which applied to the arbitration,
should be tolled); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1109 (11th Cir. 2004)

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(“Generally speaking, courts are empowered to resolve disputes that solely involve whether a
particular claim should be resolved in court or arbitration. Arbitrators, [on] the other hand, are
empowered, absent an agreement to the contrary, to resolve disputes over whether a particular
claim may be successfully litigated anywhere at all (due to concerns such as statute of
limitations, laches, justiciability, etc.), or has any substantive merit whatsoever.”); Shearson
Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 121 (2d Cir. 1991) (holding that the district
court erred in dismissing claim as time-barred, because “it is up to the arbitrators, not the court,
to decide the validity of time-bar defenses”).
The arbitration clause here is sufficiently broad to grant the arbitrator, rather than the
court, the authority both to apply the statute of limitations and to determine whether it should be
tolled in any particular case.
IV.

Order
For the reasons set forth herein, the plaintiff’s Motion to Toll (Doc. No. 72) and Renewed

Motion to Toll (Doc. No. 77) are DENIED WITHOUT PREJUDICE to the parties’ ability to
litigate the issue in arbitration.
Myers’ Motion to Stay (Doc. No. 77) is GRANTED, and IBEX’s Renewed Motion to
Dismiss (Doc. No. 79) is DENIED. This matter is STAYED PENDING ARBITRATION. The
Clerk is DIRECTED to CLOSE this file administratively, subject to reopening upon application
by the parties.
It is so ORDERED.
ENTER this 5th day of February 2018.

ALETA A. TRAUGER
United States District Judge