Harris v. International

Filing 21

ORDER adopting in part and rejecting in part the Report and Recommendation 19 , denying Harris's motion to amend 15 & 17 , and granting Fujitsu's Motion to Dismiss 9 . Harris's complaint is dismissed. Signed by Judge Samuel H. Mays, Jr on 3/9/2018. (Mays, Samuel) Modified on 3/9/2018 (Mays, Samuel).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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MATTHEW LEWIS HARRIS,
Plaintiff,
v.
FUJITSU AMERICA
INTERNATIONAL,
Defendant.

No. 17-cv-2563-SHM-cgc

ORDER

Before the Court is the Magistrate Judge’s Report and
Recommendation (the “Report”), filed on February 21, 2018.
(ECF No. 19.)

The Report recommends denying Defendant Fujitsu

America International’s (“Fujitsu”) Motion to Dismiss, or in
the Alternative to Stay, and Compel Arbitration (the “Motion to
Dismiss”) (ECF No. 9).

The Report also recommends denying

Plaintiff Matthew Lewis Harris’s two motions for leave to amend
complaint (ECF Nos. 15 & 17).
2017.

(ECF No. 20.)

Fujitsu objected on February 26,

Harris has not objected, and the deadline

to do so has passed.
For the following reasons, the Report is ADOPTED in part
and REJECTED in part.

Harris’s motions for leave to amend

complaint are DENIED.

Fujitsu’s Motion to Dismiss is GRANTED.

Harris’s complaint is DISMISSED.
I.

Background
On August 7, 2017, Harris filed a pro se complaint against

Fujitsu, alleging violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Compl., ECF No. 1 ¶
1.)

Plaintiff alleges that he was discriminated against based

on his race, retaliated against, and suffered defamation of
character (Id. ¶¶ 3, 6.)

He alleges that his employment was

terminated after he reported harassment.

(Id. ¶¶ 9-10.)

Fujitsu filed its Answer on August 24, 2017.

(ECF No. 8.)

The same day, Fujitsu filed the Motion to Dismiss, seeking to
dismiss or stay based on a 2008 Agreement to Arbitrate between
the parties (the “Arbitration Agreement”).

(ECF No. 9; ECF No.

8-1.)
On September 28, 2017, United States Magistrate Judge
Charmian G. Claxton ordered Harris to show cause within 14 days
why the Court should not “file a Report and Recommendation
recommending that the District Court enter an Order granting
the Motion.”

(ECF No. 47.)

Harris responded to the Magistrate Judge’s order on
October 11, 2017.

(ECF No. 14.)
2

On November 28, 2017, Harris filed a Motion for Leave to
File Amended Complaint, seeking to add three individual
defendants and bring a claim for “malice and retribution.”
(ECF No. 15.)

Fujitsu responded on December 1, 2017.

(ECF No.

16.)
On December 18, 2017, Harris filed another Motion for
Leave to File Amended Complaint, seeking to add three
defendants, bring a claim for “malice and retribution,” and
bring a claim under the Tennessee Public Protection Act, T.C.A.
§§ 50-1-34, et seq.
December 21, 2017.

(ECF No. 17.)

Fujitsu responded on

(ECF No. 18.)

On February 21, 2018, the Magistrate Judge entered the
Report.

(ECF No. 19.)

It recommends denying Harris’s motions

to amend and Fujitsu’s Motion to Dismiss.

(Id.)

The Report

concludes that, as to a claim for “malice and retribution,”
Harris’s “proposed amended [complaint] is futile not only
because it fails to state a basis in the law but is also futile
given the Agreement to Arbitrate.”

(Id. at 111.)

The Report

concludes that Harris’s attempt to add three individual
defendants is futile because “[o]fficers, supervisors, managers
and employees are not individually liable under Title VII.”
(Id. at 111-12.)

The Report also concludes that Harris’s

Tennessee Protection Act claim is futile because “[i]t does not

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allege any public communication regarding the conduct or action
taken to promote the public interest.”

(Id. at 113.)

The Report recommends denying Fujitsu’s Motion to Dismiss
because the Arbitration Agreement is “not attached to or
referenced in the Plaintiff’s Complaint,” and thus cannot be
considered on motion to dismiss.

(Id. at 113-14.)

Fujitsu objected on February 26, 2018.

(ECF No. 20.)

Harris has not objected to the Report.
II.

Standard of Review

Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.

See United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

For

dispositive matters, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has
been properly objected to.”

See Fed. R. Civ. P. 72(b)(3); 28

U.S.C. § 636(b)(1).
After reviewing the evidence, the court is free to accept,
reject, or modify the magistrate judge’s proposed findings or
recommendations.

28 U.S.C. § 636(b)(1).
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The district court is

not required to review -- under a de novo or any other standard
-- those aspects of the report and recommendation to which no
objection is made.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

The district court should adopt the magistrate judge’s findings
and rulings to which no specific objection is filed.

Id. at

151.
III. Analysis
A. Motions to Amend
The parties do not object to the Report’s findings or
conclusion as to Harris’s motions to amend.
the Report is ADOPTED.

That portion of

Arn, 474 U.S. at 150.

B. Motion to Dismiss
Fujitsu objects to the Magistrate Judge’s conclusion “that
the Court cannot consider the arbitration agreement because it
is not contained in the pleadings and that to do so converts
Fujitsu’s [motion to dismiss] into a motion for summary
judgment.”

(ECF No. 20 at 117.)

Fujitsu argues that the

Magistrate Judge erred in concluding “that[,] because the time
for discovery has not expired, [Fujitsu’s Motion to Dismiss]
should be denied without prejudice.”

(Id.)

The Magistrate Judge declined to consider the Arbitration
Agreement because it “is not attached to or referenced in the
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Plaintiff’s Complaint.”

(ECF No. 19 at 113.)

She recommends

denying Fujitsu’s Motion to Dismiss without prejudice so that
it can “be refiled as a Motion for Summary Judgment at the
conclusion of the discovery period.”

(Id. at 115.)

Consideration of a motion to dismiss under Federal Rules
of Civil Procedure 12(b)(6) and 12(c) is confined to the
pleadings. 1

See Jones v. City of Cincinnati, 521 F.3d 555, 562

(6th Cir. 2008) (holding that consideration of matters outside
the pleadings requires conversion of the Rule 12(b)(6) motion
to dismiss to a motion for summary judgment) (citing Fed. R.
Civ. P. 12(d)); see also Max Arnold & Sons, LLC v. W.L. Hailey
& Co., 452 F.3d 494, 503 (6th Cir. 2006) (holding same in
context of Rule 12(c) motion to dismiss).

Assessing the facial

sufficiency of a complaint ordinarily must be undertaken
without resort to matters outside the pleadings.

Wysocki v.

Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
“[D]ocuments attached to the pleadings become part of the
pleadings and may be considered on a motion to dismiss.”
Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508
F.3d 327, 335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c));
see also Koubriti v. Convertino, 593 F.3d 459, 463 n.1 (6th
Cir. 2010).

Even if a document is not attached to a complaint

1

An answer is a pleading under the Federal Rules of Civil Procedure.
Talmer Bank & Tr. v. Malek, 651 F. App'x 438, 441 (6th Cir. 2016) (citing
Fed. R. Civ. P. 7(a)(2)).

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or answer, “when a document is referred to in the pleadings and
is integral to the claims, it may be considered without
converting a motion to dismiss into one for summary judgment.”
Commercial Money Ctr., 508 F.3d at 335–36.
When a party moves to compel arbitration at the motion to
dismiss stage, “it is beyond question that a court . . . is not
constrained to consider only the allegations of plaintiff’s
complaint.”

Powers v. Charles River Labs., Inc., No. 16-CV-

13668, 2017 WL 4324942, at *4 (E.D. Mich. Sept. 29, 2017); see
Fason v. Terminix, No. 2:13-CV-2978-SHL-CGC, 2014 WL 4181593,
at *6 (W.D. Tenn. Aug. 20, 2014) (concluding it is “‘proper for
this court to consider matters outside the pleadings’” for
motions to compel arbitration at the motion to dismiss stage
(quoting Nexteer Auto. Corp. v. Korea Delphi Auto. Sys. Corp.,
No. 13-CV-15189, 2014 WL 562264, at *5 (E.D. Mich. Feb. 13,
2014)).

Looking beyond the pleadings is necessary because a

motion to compel arbitration calls into question the Court’s
subject-matter jurisdiction.

The Court must “undertake a

limited review of evidence to determine whether it has the
authority to hear a case or compel arbitration.”

Andrews v. TD

Ameritrade, Inc., 596 F. App’x 366, 371 (6th Cir. 2014) (citing
Javitch v. First Union Secs., Inc., 315 F.3d 619, 625–26 (6th
Cir. 2003)).

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Fujitsu’s Motion to Dismiss does not clearly state the
federal rule on which it relies.

Nevertheless, consideration

of the Arbitration Agreement is both necessary and appropriate.
Fujitsu alleges in its Answer that “Plaintiff’s claims are
subject to a final and binding arbitration pursuant to a
signed, written agreement to arbitrate disputes (copy attached
as Exhibit 1) and only the arbitrator may exercise jurisdiction
over Plaintiff’s claims.”

(ECF No. 8 ¶ 2.)

Attached to

Fujitsu’s Answer is a copy of the Arbitration Agreement.
No. 8-1.)

(ECF

The Arbitration Agreement is referenced in and

attached to the pleadings, and thus can be considered in
deciding Fujitsu’s Motion to Dismiss.

Fujitsu’s objection to

the Magistrate Judge’s conclusion that the Arbitration
Agreement could not be considered because it was not a part of
the pleadings is well-taken.

That portion of the Report is

REJECTED.
C. Enforceability of Arbitration Agreement
The Arbitration Agreement may be considered in deciding
Fujitsu’s Motion to Dismiss.

The Court must determine whether

it is enforceable.
“Any doubts about whether an [arbitration] agreement is
enforceable, including defenses to arbitrability, should be

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resolved in favor of arbitration.”

Johnson v. Long John

Silver's Rests., Inc., 320 F.Supp.2d 656, 663 (M.D. Tenn. 2004)
(internal citation omitted); see EEOC v. Waffle House, Inc.,
534 U.S. 279, 289 (2002) (holding that the Federal Arbitration
Act (“FAA”) strongly favors arbitration).

“In deciding whether

to compel arbitration of a federal statutory claim, we first
consider whether the statutory claim is generally subject to
compulsory arbitration.

If the claim is not exempt from

arbitration, we must then consider whether the arbitration
agreement is valid.”

Morrison v. Circuit City Stores, Inc.,

317 F.3d 646, 665 (6th Cir. 2003) (citing Floss v. Ryan's
Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir. 2000)).
“[A]bsent a showing of fraud, duress, mistake, or some other
ground upon which a contract may be voided, a court must
enforce a contractual agreement to arbitrate.”

Haskins v.

Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir. 2000).
The Arbitration Agreement here was signed by Harris on
August 4, 2008.

(ECF No. 8-1 at 26.)

It provides:

If there is any dispute with [Fujitsu], in any way
arising out of the termination of your employment,
any demotion, or arising out of any claim of
discrimination, unlawful harassment including sexual
harassment, . . . or violations of public policy, or
as to all the preceding any related claims of
defamation or infliction of emotion distress, you and
[Fujitsu] agree to waive their respective right to a
jury or judge trial and to instead submit all such
disputes exclusively to final and binding arbitration
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pursuant to the provisions of the Federal Arbitration
Act.
(Id. at 20.)

The Arbitration Agreement further provides that

it “does not prohibit . . . filing any claim, complaint, or
petition with the Equal Employment Opportunity Commission
(“EECO”), or similar state agency.

Any right to sue letter

issued by the EEOC or such agency, shall mean a right to
proceed to arbitration under this Agreement.”

(Id.)

The claim

is arbitrable.
The parties do not dispute that they agreed to arbitrate
certain claims under the Arbitration Agreement or that the
scope of the Arbitration Agreement extends to Harris’s Title
VII claims.

There is no showing of fraud, duress, mistake, or

some other ground on which a contract may be void.

The

Arbitration Agreement is valid.
The Court “must enforce the contractual agreement to
arbitrate.”

Haskins, 230 F.3d at 239.

Agreement is enforceable.

The Arbitration

Fujitsu’s Motion to Dismiss is

GRANTED.
IV.

Conclusion

For the foregoing reasons, the Report is ADOPTED in part
and REJECTED in part.

Harris’s motions to amend are DENIED.

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Fujitsu’s Motion to Dismiss is GRANTED.

Harris’s complaint is

DISMISSED.

So ordered this 9th day of March, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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