Adams v. Energy Transfer Partners et al

Filing 36

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS Granting 19 MOTION to Compel Arbitration and Stay Pending Case, Re: 28 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

ENTERED
May 30, 2017
David J. Bradley, Clerk

ANITA S ADAMS,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:16-CV-400
§
ENERGY TRANSFER PARTNERS, et al, §
§
Defendants.
§
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendant Stripes, LLC’s Motion to Compel
Arbitration and Stay Pending Case (D.E. 19). On April 3, 2017, Magistrate Judge B.
Janice Ellington issued her Memorandum and Recommendation (M&R, D.E. 28),
recommending that the motion to compel be granted and that this case be stayed pending
the arbitration. Plaintiff Anita Adams’ response to the motion was filed pro se. She is
now represented by counsel and has filed an objection to the M&R and a motion to
clarify (D.E. 31). The identical document was also filed as a response to the motion to
compel arbitration (D.E. 30).

The Court strikes D.E. 30 as an untimely response.

Defendant responded to Plaintiff’s objection and motion to clarify. (D.E. 33).
Plaintiff opposed Defendant’s motion to compel arbitration on the basis that after
her employer was acquired in a merger, she became an employee of Energy Transfer
Partners (ETP) and ETP is not a party to the arbitration agreement. D.E. 22, 31. This
argument has now been withdrawn.

D.E. 31, p. 1 (“Plaintiff now abandons that

[successor employer] argument”). Plaintiff states that she objects to the M&R, but fails
to state any reason for the objection. She simply states that the motion to compel
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arbitration should be denied.

Alternatively, she moves the Court to enter an order

clarifying certain procedural issues regarding the arbitration.
Defendant argues that a motion to compel arbitration is a nondispositive matter for
purposes of Federal Rule of Civil Procedure 72. Thus the Magistrate Judge’s M&R is
subject to the deferential “clearly erroneous or contrary to law” standard of review rather
than de novo review. Fed. R. Civ. P. 72(a) & (b). The Fifth Circuit has not decided
whether such a motion is a dispositive or nondispositive motion. The First and Third
Circuits and at least two district courts in Texas have held that such matters are
nondispositive. PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 13 (1st Cir. 2010); Virgin
Islands Water & Power Auth., 561 Fed. Appx. 131, 134 (3d Cir. 2014); Tige Boats, Inc.
v. Interplastic Corp., No. 1:15-CV-0114-P-BL, 2015 WL 9268423, at *1 (N.D. Tex. Dec.
21, 2015); Archer & White Sales, Inc. v. Henry Schein, Inc., No 2:12-cv-572-JRG, 2016
WL 7157421, at *2 (E.D. Tex. Dec. 7, 2016); but see ECOR Solutions, Inc. v. Malcolm
Pirnie, Inc., No. 02-CV-1103 (GTE/DRH), 2009 WL 2424553, at *1 n.1 (N.D.NY. Jan.
21, 2009) (“In this circuit, motions to compel arbitration are treated as dispositive
motions . . . .”), report & recommendation adopted, 2009 WL 2424552 (Aug. 5, 2009).
The Court agrees with those holdings, and will review the Magistrate Judge’s
recommendation under the clearly erroneous or contrary to law standard of review. The
Court need not apply the more stringent review merely because the Magistrate Judge
issued a recommendation. Tige Boats, 2015 WL 9268423, at *3 (citing Segal v. L.C.
Hohne Contractors, Inc., 303 F. Supp. 2d 790, 794-96 (S.D. W. Va. 2004)). The proper
standard of review is determined by the nature of the matter considered. Id.
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After reviewing the M&R, the Court finds no clear error or that it is contrary to
law. The Court ADOPTS the M&R, GRANTS the motion to compel arbitration, and
STAYS this action pending arbitration.
Regarding Plaintiff’s motion to clarify, she requests: (1) that the arbitration be
conducted under Dispute Solution, Inc.’s (DSI’s) rules or the American Arbitration
Association’s (AAA’s) employment rules, and (2) that the arbitrator determine the
number of depositions that each side may take. The Court finds that these are procedural
issues to be decided by the arbitrator, not the Court. “Once it is determined . . . that the
parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’
questions which grow out of the dispute and bear on its final disposition should be left to
the arbitrator.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964); see also
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 685 (2010); Cooper v.
WestEnd Capital Mgmt., L.L.C., 832 F.3d 534, 546 (5th Cir. 2016). The Court DENIES
the motion to clarify.
In the prayer paragraph, Plaintiff requests, without explanation, an award of
attorney’s fees, interest, costs, and other relief to which she might be entitled. This
request is DENIED.
The parties are ORDERED to file with the Court, on or before November 30,
2017, and every six months thereafter, status reports advising the Court whether the
dispute has been resolved and whether this action should remain pending.
ORDERED this 30th day of May, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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