Opinion
17-cv-07475 (NG) (SMG)
2020-08-26
Felina SMITH, Plaintiff, v. ALLSTATE POWER VAC, INC., and Jane and John Doe #1 - 10, Defendants.
Drew William Sumner, Sumner Law LLP, White Plains, NY, Daniel M. Felber, Law Offices of Daniel Felber, New York, NY, for Plaintiff. Ariadne Anna Panagopoulou Alexandrou, Elior Daniel Shiloh, Gregory I. Radwan, Lewis Brisbois Bisgaard & Smith LLP, Rebecca Ann Goldstein, Littler-Mendelson, New York, NY, for Defendants.
Drew William Sumner, Sumner Law LLP, White Plains, NY, Daniel M. Felber, Law Offices of Daniel Felber, New York, NY, for Plaintiff.
Ariadne Anna Panagopoulou Alexandrou, Elior Daniel Shiloh, Gregory I. Radwan, Lewis Brisbois Bisgaard & Smith LLP, Rebecca Ann Goldstein, Littler-Mendelson, New York, NY, for Defendants.
OPINION & ORDER
GERSHON, United States District Judge:
Plaintiff Felina Smith sues her former employer Allstate Power Vac, Inc. ("APV") and Jane and John Doe #1–10, presently unknown employees of APV. Plaintiff alleges that she was the victim of sex discrimination while she was employed by APV as a truck driver and brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. , New York State's Human Rights Law, §§ 296, et seq. , New York City's Human Rights Law, N.Y. Admin. Code §§ 8-107, et seq. , and under common law for intentional infliction of emotional distress.
Defendant has moved to compel arbitration under the Federal Arbitration Act ("FAA" or "the Act"), 9 U.S.C. §§ 1 et seq. , or alternatively, to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(c). Defendant also seeks to amend its answer under Rule 15 in connection with both requests for relief. Plaintiff, in opposition, argues that under Michigan arbitration law defendant waived its right to compel arbitration by litigating in this court and that the arbitration agreement is unenforceable under Michigan contract law principles. As discussed below, I have determined that the issue is first, whether or not the FAA applies in this case, and then, if it does not, whether under Michigan arbitration law the defendant waived its right to arbitrate by litigating in this court.
I. Relevant Background
Plaintiff was hired by APV as a truck driver in April 2014. On April 18, 2014, plaintiff signed and dated an arbitration agreement ("the arbitration agreement" or "the DRA"). Pursuant to the DRA, plaintiff agreed to arbitrate all disputes with her employer, including any dispute alleging employment discrimination. The DRA establishes a 180-day statute of limitations to file a demand for arbitration, and contains a Michigan choice of law provision. The DRA states in relevant part:
EQ encourages the prompt and inexpensive resolution of disputes with applicants and current and former employees. Therefore, as a condition of employment and/or continued employment, EQ asks its applicants and employees to agree to this Dispute Resolution Agreement ("Agreement") for all claims and disputes (including claims or disputes alleging illegal discrimination or violation of other state or federal laws relating to employment matters) they may have concerning, arising from or relating to their application for, employment with, and/or termination of employment from EQ, except as specifically noted below. By signing this Agreement, you agree as follows:
....
6. I agree to file any demand for arbitration within 180 days (or in less time if any applicable law so requires) of the event and/or employment practice or action complained of, and I waive any longer state or federal statutes of limitation to the contrary (except those requiring a shorter period), to the extent permitted by Michigan law. I understand that the statute of limitations for claims arising out of an employment action may be longer than 180 calendar days. I agree that any employer action that is the subject of an action, including but not limited to those related to discrimination, benefits, termination of employment, or other terms or conditions of employment is barred if it is not filed within the 180 day period (or in less time if any applicable law so requires). I agree that the 180 day period (or applicable shorter period) is reasonable and will not be extended for any reason, including continuing violations. I waive the application of continuing violations doctrines.
7. This Agreement does not prohibit me from timely filing a charge of discrimination under federal law with the EEOC. The EEOC's right to investigate is maintained. However, filing a charge or claim with an administrative agency[,]
including the EEOC or internally with EQ, does not toll (hold in abeyance) the 180 calendar day period for my filing a demand for arbitration. If I wish to obtain individual relief, I understand that any arbitration demand must be filed within 180 days of the action complained of (or in less time if an applicable statute of limitations so requires). The enforceability of the waiver of longer statutory periods will be determined by Michigan law, not by AAA's Rules or its Due Process Protocol.
....
10. This Agreement shall be governed by Michigan law. If any portion of this Agreement is ruled unenforceable, all remaining portions of this agreement shall remain valid. This Agreement reflects the entire agreement between me and EQ with respect to the subject matter hereof, and this Agreement supersedes all prior or contemporaneous oral or written understandings, statements, representations, or promises with respect to the subject matter hereof. I agree that this Agreement may not be modified except in a writing signed by me and EQ's Director of Human Resources.
APV terminated plaintiff's employment in less than a year, on December 11, 2014. Plaintiff subsequently filed a complaint with the Equal Opportunity Employment Commission ("EEOC"). According to plaintiff's complaint, on August 18, 2017, the EEOC issued a final determination that Plaintiff "was a victim of sex (gender-female) discrimination when she was the victim of disparate treatment based on her sex, in violation of Title VII." Complaint at ¶ 25 (internal quotation marks omitted). Upon issuing its determination, the EEOC attempted conciliation, but failed in obtaining adequate relief for plaintiff. The EEOC issued plaintiff a right to sue letter dated September 26, 2017, and plaintiff filed this lawsuit on December 22, 2017.
On September 14, 2018, defendant filed a request for a pre-motion conference, raising an arbitration defense for the first time. At the conference, I granted the parties leave to conduct limited discovery in connection with defendant's anticipated motion to compel arbitration.
II. Legal Standard
"Courts deciding motions to compel [arbitration] apply a standard similar to that applicable for a motion for summary judgment." Meyer v. Uber Techs., Inc. , 868 F.3d 66, 74 (2d Cir. 2017) (internal quotation marks omitted). Under the summary judgment standard, the court considers "all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with ... affidavits, and draws all reasonable inferences in favor of the non-moving party." Id. (internal quotation marks and citations omitted). "[W]here the undisputed facts in the record require the matter of arbitrability to be decided against one side or the other as a matter of law, [courts] may rule on the basis of that legal issue and avoid the need for further court proceedings." Id. (internal quotation marks omitted).
III. Discussion
A. The FAA's Applicability
Section 1 of the FAA excludes from the Act's coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. The phrase "or any other class of workers engaged in foreign or interstate commerce" is sometimes referred to as the residuary exemption. The Supreme Court has interpreted the residuary exemption to exempt from the FAA "contracts of employment of transportation workers," Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 119, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), and lower courts interpreting 9 U.S.C. § 1 have found that truck drivers engaged in interstate transportation of goods constitute transportation workers under Section 1. See, e.g., Kowalewski v. Samandarov , 590 F. Supp. 2d 477, 482–83 (S.D.N.Y. 2008) (collecting cases).
Because plaintiff worked as a truck driver for APV, I ordered defendant to show cause why its motion to compel arbitration should not be denied under Section 1 of the FAA. New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532, 537, 202 L.Ed.2d 536 (2019) (a court should determine whether a contract referencing arbitration "falls within or beyond the boundaries of" § 1 "before ordering arbitration"). In response, plaintiff argued that she is exempted under Section 1 because she worked as a truck driver transporting waste and business supplies in interstate commerce and that the DRA is preempted because it conflicts with Congress's express purpose in enacting Section 1. Defendant countered by arguing that I need not decide whether plaintiff is exempted by Section 1 because, even if she is, the DRA is enforceable under state law; it further argued that plaintiff does not fall within Section 1 because her job duties involved driving and operating the front end of a truck used for cleaning out manholes and did not require her to move goods in interstate commerce.
I subsequently asked the parties to submit evidence supporting their respective positions. Plaintiff submitted an affidavit in which she states that: approximately ninety-five percent of defendant's waste is sent to an out-of-state disposal facility; during her employment, defendant collected large amounts of waste from the Metropolitan Transportation Authority and Consolidated Edison, and that most, if not all, of this waste was transported outside New York State; during the course of her employment with defendant, she would routinely clean up waste at various locations, and then either plaintiff or a co-worker would deliver the waste to New Jersey for disposal; she frequently delivered waste out of state during her tenure with defendant; and she occasionally transported defendant's business supplies between New Jersey and New York. Smith Affidavit of June 30, 2020 at ¶¶ 9, 15–20. In response to plaintiff's affidavit, defendant offered the declaration of Glenn Burke, Director of Field Service Operations for defendant. Burke's declaration states that plaintiff was primarily responsible for operating the truck that cleaned out manholes, but that, upon the completion of that task, another employee would typically transport the accumulated waste. Burke acknowledges that defendant's records show that plaintiff transported waste out of state on two occasions. The declaration further states that there are no records demonstrating that plaintiff ever delivered business supplies. Burke Declaration of July 21, 2020 at ¶¶ 6–9, 23 ("Burke Dec." or "Burke Declaration"). The Burke Declaration concedes that the defendant does transport waste out of state to a facility in New Jersey. Id. at ¶¶ 11–12.
"A plaintiff opposing arbitration under the FAA has the burden of demonstrating the exemption." Vargas v. Delivery Outsourcing, LLC , 2016 WL 946112, at *3 (N.D. Cal. Mar. 14, 2016) (internal quotation marks omitted). "If there is one area of clear common ground among the federal courts to address this question, it is that truck drivers—that is, drivers actually involved in the interstate transportation of physical goods—have been found to be ‘transportation workers’ for purposes of the residuary exemption in Section 1 of the FAA." Kowalewski , 590 F. Supp. 2d at 482–83. Here, plaintiff has produced evidence demonstrating that, while working as a truck driver for defendant, she frequently transported waste, and occasionally transported business supplies, in interstate commerce. She has thus presented ample evidence under the summary judgment standard that she is a transportation worker exempted by Section 1. Although defendant points out that the work schedules she relies upon do not definitively show that she transported goods interstate as frequently as she claims, many of the work entries are ambiguous on this point and do not demonstrate that she did not transport waste interstate on those days; and defendant admits that she did so on at least two occasions. As for transporting business supplies, the Burke Declaration notes only the lack of documentary evidence supporting this fact, but does not otherwise contest the truthfulness of plaintiff's claim.
That said, even if I were to assume the contentions in the Burke Declaration are true—that is, that plaintiff personally delivered waste in interstate commerce only twice, and never delivered business supplies—I would still find plaintiff exempt from the FAA. Defendant's position is that plaintiff should not fall within the residuary exemption because, while she was responsible for extracting the waste from manholes in New York, another employee was typically responsible for driving the waste to the out-of-state disposal facility. Defendant thus attempts to draw a distinction between plaintiff—who, based on the Burke Declaration, typically only removed waste—and other employees who were responsible for driving the waste out of state.
Defendant suggests that the waste would sometimes remain in-state, but does not say how often this would occur, and has not refuted plaintiff's sworn statement that ninety-five percent of the waste handled by defendant was moved out of state.
The residuary exemption, however, is not limited to only "those truck drivers who physically move" goods in interstate commerce. Palcko v. Airborne Express, Inc. , 372 F.3d 588, 593 (3d Cir. 2004). "[H]ad Congress intended the residual clause of the exemption to cover only those workers who physically transported goods across state lines, it would have phrased the FAA's language accordingly." Id. at 593–94 ; accord Waithaka v. Amazon.com, Inc. , 966 F.3d 10, 26 (1st Cir. 2020) ; Papetti v. Compagnie Nationale Air France , 1998 WL 667932, at *2 (E.D.N.Y. Aug. 14, 1998), aff'd sub nom. Papetti v. Societe Air France , 225 F.3d 646 (2d Cir. 2000). In Palcko , the Third Circuit defined transportation workers as "those other classes of workers who are actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical effect part of it." Palcko , 372 F.3d at 593. Applying this standard, the Court found that a supervisor of truck drivers who never herself moved goods in interstate commerce, but managed individuals who did, qualified as a transportation worker because "[s]uch direct supervision of package shipments makes Palcko's work ‘so closely related [to interstate and foreign commerce] as to be in practical effect part of it.’ " Id. (alteration in original). In Int'l Bhd. of Teamsters Local Union No. 50 v. Kienstra Precast , LLC, 702 F.3d 954, 958 (7th Cir. 2012), the Seventh Circuit found that truckers who primarily worked intrastate, and only occasionally crossed state lines, still fell within the residuary exemption because "there is no basis in the text of § 1 for drawing a line between workers who do a lot of interstate transportation work and those who cross state lines only rarely; both sorts of worker are ‘engaged in foreign or interstate commerce.’ " And in a very recent case the First Circuit concluded that "last-mile delivery workers who haul goods on the final legs of interstate journeys are transportation workers ‘engaged in ... interstate commerce,’ regardless of whether the workers themselves physically cross state lines." Waithaka v. Amazon.com, Inc. , 966 F.3d 10, 26 (1st Cir. 2020).
Here, plaintiff presents an even clearer case for application of the residuary exemption. By driving a truck that extracted waste for removal across state lines, plaintiff's activities were not just "closely related" to interstate commerce—they were directly a part of it. Palcko , 372 F.3d at 593. And she herself at times drove the truck interstate. In sum, there is no justification in the text of Section 1 to exclude plaintiff from the residuary exemption. She was fundamentally involved in the interstate movement of goods, and therefore she was a transportation worker exempted by Section 1.
The cases relied upon by defendant are not, upon analysis, to the contrary. Unlike in Hill v. Rent-A-Ctr., Inc. , 398 F.3d 1286 (11th Cir. 2005), Bissonette v. Lepage Bakeries Park St., LLC , 460 F.Supp.3d 191, (D. Conn. May 14, 2020), Rogers v. Lyft, Inc. , 452 F.Supp.3d 904 (N.D. Cal. 2020), and Kowalewski , 590 F. Supp. 2d 477, it is beyond dispute that Smith worked in a trucking industry that transported cargo interstate. Her waste transportation activities were a fundamental, not merely incidental, aspect of her job. Cf. Hill , 398 F.3d at 1289–90. And, unlike the plaintiff in Eastus v. ISS Facility Services, Inc. , 960 F.3d 207, 212 (5th Cir. 2020), Smith actually transported goods in interstate commerce by truck. Finally, unlike the plaintiffs in Rogers , 452 F.Supp.3d at 916, there is nothing "happenstance" about plaintiff's interstate trips, which she did at the behest of her employer, which utilizes a waste disposal facility in New Jersey.
For these reasons, even if I were to accept the assertions in the Burke declaration as true, plaintiff still falls within the residuary exemption and, accordingly, the FAA does not govern this motion.
That plaintiff is exempt from the FAA does not mean, as plaintiff argues, that state arbitration law is preempted and that the arbitration agreement is therefore unenforceable. Multiple courts have rejected this proposition. See, e.g., Diaz v. Michigan Logistics Inc. , 167 F. Supp. 3d 375, 381 (E.D.N.Y. 2016) (stating that the "inapplicability of the FAA does not render the parties’ arbitration provision unenforceable"); Michel v. Parts Auth., Inc. , 2016 WL 5372797, at *3 (E.D.N.Y. Sept. 26, 2016) ("Even assuming the FAA does not apply, New York state law governing arbitration does apply"); Shanks v. Swift Transp. Co. Inc. , 2008 WL 2513056, at *4 (S.D. Tex. June 19, 2008) ("While the FAA does not require arbitration, the question remains whether the exemption of Section 1 operates as a form of reverse preemption, so as to prohibit arbitration of the dispute altogether. Plainly, it does not. The weight of authority shows that even if the FAA is inapplicable, state arbitration law governs."). As plaintiff has failed to produce any authority to the contrary, I decline to find the arbitration agreement unenforceable on this ground.
The inapplicability of the FAA does have implications for this case, however. In cases where the FAA is applied, the issue of waiver by litigation is typically governed by the "body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Doctor's Assocs., Inc. v. Distajo , 107 F.3d 126, 130 (2d Cir. 1997) (internal quotation marks omitted). Where the FAA is not applicable, it follows that state arbitration law should be applied, including with respect to the waiver by litigation analysis. See Oliveira v. New Prime, Inc. , 424 F. Supp. 3d 206, 208 (D. Mass. 2019) ; Travel Express Investments, Inc. v. Hemani , 2009 WL 10670424, at *3 (M.D. Fla. May 12, 2009). Because the FAA does not apply, and because the arbitration agreement contains a Michigan choice of law provision, that neither party disputes, I will apply Michigan arbitration law to the waiver analysis.
While defendant initially asserted that the federal substantive law of arbitrability governs the waiver analysis, it now contends, that if the FAA does not apply, the arbitration agreement must be enforced under New York or Michigan arbitration law.
B. Waiver by Litigation Under Michigan Law
Plaintiff does not dispute that the DRA, by its terms, applies to her claims. Rather, plaintiff principally contends that, under Michigan law, defendant has waived its right to compel arbitration by participating in this litigation. Under Michigan law, "[w]aiver of a contractual right to arbitrate is disfavored." Madison Dist. Pub. Sch. v. Myers , 247 Mich.App. 583, 637 N.W.2d 526, 529 (2001). To successfully assert waiver, a plaintiff "must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the right to arbitrate, and prejudice resulting from the inconsistent acts." Id.
Defendant does not, and cannot, assert that it was unaware of its arbitration rights, which it drafted into the DRA. The first element is satisfied.
Regarding the second element, plaintiff asserts that defendant engaged in multiple acts inconsistent with its right to compel arbitration, including seeking an extension of time to answer; filing an answer without asserting arbitration as an affirmative defense; participating in the court's case management plan; attending a case management conference; engaging in discovery, including obtaining documents and interrogatory responses; and failing to raise an arbitration defense until approximately nine months into the litigation.
Defendant actively participated in the scheduling of the parties’ depositions, but the only depositions that occurred in this action took place after I ordered limited discovery on the arbitration issue.
Defendant's failure to raise an arbitration defense in its answer supports a finding of waiver under Michigan law. In Miller v. Duchene , 2017 WL 6542566, at *3 (Mich. Ct. App. Dec. 21, 2017), the court stated that "under a plain application of the court rules ... defendants waived a defense based on the agreement to arbitrate, where they failed to raise the defense in their answer or affirmative defenses, [or] in a motion filed prior to their answer." Accord Boynton v. Medallion Homes Ltd. P'ship , 2003 WL 1950477, at *2 (Mich. Ct. App. Apr. 24, 2003) ; Madison , 637 N.W.2d at 529 ; Hendrickson v. Moghissi, 158 Mich.App. 290, 404 N.W.2d 728, 732 (1987) ; Joba Const. Co. v. Monroe Cty. Drain Com'r , 150 Mich.App. 173, 388 N.W.2d 251, 254 (1986). Michigan courts also hold that proceeding with discovery is inconsistent with arbitration and can constitute waiver because discovery is generally not available in arbitration. See SCA Servs., Inc. v. Gen. Mill Supply Co. , 129 Mich.App. 224, 341 N.W.2d 480, 483 (1983) ; Miller , 2017 WL 6542566, at *3. I agree with the plaintiff that defendant's demonstrated willingness to proceed in a judicial forum is inconsistent with its right to arbitration. The first two Madison factors are satisfied.
With respect to this point, defendant asserts that the DRA and American Arbitration Association's rules provide for reasonable discovery. Even if true, Michigan courts consistently treat participating in discovery as an action that is inconsistent with a party's arbitration rights. See, e.g. , Miller , 2017 WL 6542566, at *3.
As for prejudice, Michigan courts often look to the amount of time the case was litigated before the arbitration issue was raised, as well as the amount of litigation activity that occurred prior to that point. Here, plaintiff expended time and resources through approximately nine months of litigation.
Michigan courts have found waiver where a defendant proceeded with litigation for similar periods of time. In N. W. Michigan Const., Inc. v. Stroud , 185 Mich.App. 649, 462 N.W.2d 804, 805 (1990), the Michigan Court of Appeals found that an eight-month period between a defendant's answer, which included an arbitration defense, and the defendant filing its motion to dismiss on the grounds of arbitration, caused waiver, despite the defendant filing a pre-trial statement that mentioned arbitration in the interim. (Where a defendant, as in Stroud , raises the arbitration defense in its answer, thereby putting the court and the other side on notice, Michigan courts consider the amount of time between the answer and the defendant moving on arbitration grounds in determining whether waiver has occurred. See Lesniak v. Archon Builders, LLC , 2019 WL 6977110, at *6–7 (Mich. Ct. App. Dec. 19, 2019).) And where the defendant fails to include the arbitration defense in its answer, waiver has been found where the action was pending for just over a year before the defendant acted on its arbitration rights. See Miller , 2017 WL 6542566, at *1–2. Defendant offers no excuse for its approximately nine-month delay, which is mystifying considering that defendant drafted the DRA, and that the DRA, at all relevant times, appears to have been in its possession at its corporate offices in Rahway, New Jersey. See Perez Deposition at 29–30.
Compounding the prejudice caused by defendant's delay in asserting an arbitration defense is that, during that time, the parties were actively engaged in the discovery process. Both parties had requested documents, and both parties had prepared and transmitted discovery responses. The parties also participated in the court's case management plan. Pursuant to that plan, the parties attended a status conference before the assigned magistrate judge, the Honorable Steven M. Gold. Plaintiff represents, and defendant does not refute, that, when Judge Gold asked defendant about the dispositive issues in the case, defendant did not mention arbitration. Defendant subsequently filed a joint status letter addressed to Judge Gold, which again made no mention of arbitration. Plaintiff also notes that she was required to pay the court's filing fee of $400, to pay $165.27 for duplication and Bates stamping of documents, and lost wages because she had to spend time preparing discovery responses with counsel.
Defendant's conduct in this litigation "reflects a clear disregard for concerns of expedient dispute resolution and conservation of judicial resources." Madison , 637 N.W.2d at 535. In light of the time and resources plaintiff has expended over the approximately nine months this case was pending prior to defendant raising the arbitration issue, I find that plaintiff would be prejudiced by defendant's actions if this case were sent to arbitration. Plaintiff has therefore met her burden of satisfying the three Madison factors. Defendant has waived its right to arbitration under Michigan law.
I note, however, that plaintiff is not prejudiced by the DRA's statute of limitations, which precludes her from now filing a demand for arbitration. As noted above, the prejudice inquiry under Michigan law requires the plaintiff to demonstrate that she has been prejudiced by defendant's acts inconsistent with the right to arbitration. See Madison , 637 N.W.2d at 529–530. Here, the 180-day statute of limitations expired before plaintiff filed this action, and the timing of defendant's motion therefore had no effect on plaintiff's ability to arbitrate her claims.
C. Defendant's Alternative Motion for Judgment on the Pleadings and its Motion to Amend its Answer
In the alternative to its motion to compel arbitration, defendant moves under Rule 12(c) for dismissal of this action because the 180-day statute of limitations in the arbitration agreement has expired. But the plain meaning of the DRA is that plaintiff only waived "any longer state or federal statutes of limitations to the contrary" related to bringing an arbitration. The DRA, by its terms, imposes a statute of limitations on arbitrations and expresses no restriction on the statute of limitations applicable to claims brought in court. In sum, the text of the arbitration agreement makes clear that the 180-day period applies only to demands for arbitration, not to actions filed in court. See DRA at §§ 6–7. Because the arbitration agreement does not impose an abbreviated statute of limitations for claims brought in this forum, I do not need to consider whether plaintiff knowingly and voluntarily waived any longer statutes of limitations for her claims. Accordingly, defendant's alternative motion is denied.
Defendant's Rule 12(c) motion requires me to look beyond the pleadings and examine the text of the DRA. A court may convert a motion into one for summary judgment typically only if the parties are provided notice and a reasonable opportunity to respond. Klauber Bros., Inc. v. WW, LLC , 2019 WL 2754623, at *2 (S.D.N.Y. July 2, 2019). But here, both parties "should reasonably have recognized the possibility" that I would consider the DRA and convert defendant's motion into one for summary judgment. Hernandez v. Coffey , 582 F.3d 303, 307 (2d Cir. 2009). As such, formal notice is not required and conversion is proper. Id.
Regarding defendant's motion to amend its answer, Federal Rule of Civil Procedure 15(a)(2) provides that the court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15. But a court need not "grant leave to amend ... when amendment would be futile." Ellis v. Chao , 336 F.3d 114, 126 (2d Cir. 2003). Because defendant seeks to amend its answer to add the arbitration and statute of limitations defenses—defenses that, in this opinion, I have rejected—amendment would be futile. Thus, defendant's motion to amend its answer is also denied.
IV. Conclusion
For the reasons set forth above, defendant's motion to compel arbitration, its alternative motion for judgment on the pleadings (converted into a motion for summary judgment), and its motion to amend its answer are denied. The parties are directed to promptly complete all remaining discovery under the supervision of Judge Gold.