Smith v. Kellogg Company et al

MOTION to Compel Arbitration

D. Nev.September 15, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP Tami D. Cowden (8994) cowdent@gtlaw.com 3773 Howard Hughes Parkway Suite 400 North Las Vegas, Nevada 89169 Tel: (702) 792-3773 Fax: (702) 792-9002 James N. Boudreau (PA 77891), pro hac vice boudreauj@gtlaw.com Christiana L. Signs (PA 317851), pro hac vice signsc@gtlaw.com 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Tel: (215) 988-7800 Fax: (215) 988-7801 James Nelson (CA 116442), (pro hac vice pending) nelsonj@gtlaw.com 1201 K. Street, Suite 1100 Sacramento, CA 95814 Tel: (916) 442-1111 Fax: (916-448-1709 Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BRIAN SMITH, on behalf of himself and those similarly situated persons, Plaintiffs, v. KELLOGG COMPANY and KELLOG SALES COMPANY, Defendants. CASE NO. 2:17-cv-01914 APG-GWF MOTION TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Kellogg Company and Kellogg Sales Company (collectively, “Kellogg”), by and through their undersigned attorneys, move pursuant to Sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. §§ 3-4 (“FAA”), for an order dismissing this action without prejudice and compelling Plaintiff Brian Smith to arbitrate his single claim against Kellogg in accordance with the terms of his agreement to arbitrate. In exchange for eligibility to receive enhanced severance and retention benefits, Mr. Smith agreed to arbitrate “any controversy, claim or dispute” he may have arising out of his employment with Kellogg on an individual basis. Notwithstanding his valid agreement to arbitrate, Mr. Smith filed this lawsuit in court, alleging that Kellogg violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) by filing to pay him overtime wages. Per his agreement and the FAA, Mr. Smith must arbitrate this FLSA claim, which clearly concerns his employment with Kellogg. Kellogg thus asks this Court to: (a) issue an order compelling individual arbitration; and (b) dismiss this case without prejudice so Mr. Smith can pursue his claim, if at all, in arbitration. Kellogg makes this Motion based on the accompanying Memorandum of Points and Authorities, the attached Declaration of Patrick Cronin, all pleadings in this action, and any other written and oral argument the Court may entertain. DATED: September 15, 2017 GREENBERG TRAURIG, LLP By: /s/ Tami D. Cowden Tami D. Cowden (8994) cowdent@gtlaw.com 3773 Howard Hughes Parkway, Suite 400 North Las Vegas, Nevada 89169 James N. Boudreau (PA 77891) (pro hac vice) boudreauj@gtlaw.com Christiana L. Signs (PA 317851) (pro hac vice) signsc@gtlaw.com Two Commerce Square 2001 Market Street Philadelphia, PA 19103 James Nelson (CA 116442) (pro hac vice) nelsonj@gtlaw.com 1201 K Street, Suite 1100 Sacramento, CA 95814 Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 2 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Brian Smith (“Mr. Smith”) asserts a single count for alleged violation(s) of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). Specifically, he alleges that Defendants Kellogg Company and Kellogg Sales Company (“Kellogg”) failed to pay him overtime wages (even though he worked in an exempt position). The problem is that, in March 2017, months before he filed this lawsuit, Mr. Smith and Kellogg agreed that they would arbitrate any disputes between them arising out of Mr. Smith’s employment with Kellogg. Specifically, they agreed to submit such disputes on an individual basis only to binding arbitration before JAMS (Judicial Arbitration Mediation Services). The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”), which unquestionably applies, leaves little room for discretion. If parties have previously agreed to arbitrate a particular kind of claim, then a district court must enforce that agreement and compel any such claim asserted in federal court to arbitration. 9 U.S.C. §§ 3-4. Moreover, the FAA requires that courts compel arbitration “in accordance with the terms of the agreement” to arbitrate. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011). Because his single FLSA claim against Kellogg indisputably arises out of his employment with Kellogg, and because the parties agreed to arbitrate on an individual basis only, this means the Court must compel Mr. Smith to submit his FLSA claim to individual arbitration. With no other claims in the case, the Court should dismiss the action. II. MR. SMITH FILED THIS LAWSUIT NOTWITHSTANDING HIS AGREEMENT TO ARBITRATE ANY DISPUTES WITH KELLOGG. Plaintiff Brian Smith lives in North Las Vegas, Nevada. (ECF No. 1, ¶16). He began working for Kellogg in Nevada in April 2014. (Id. at ¶17). In February 2017, Kellogg knew that it would be eliminating certain positions in or around August 2017 as a result of its decision to transition part of its business from a direct-store-delivery distribution model to a warehouse model.1 Kellogg wanted to give employees in these positions advanced notice; yet at the same time, it wanted to retain these employees through the transition.2 Thus, 1 Exhibit A, Declaration of Patrick Cronin (“Cronin Decl.”) at ¶4. 2 Id. Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 3 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Kellogg gave affected employees advanced notice of the changes and an option to stay on until a date- certain for additional compensation and benefits, provided such employees signed a Continued Employment/Incentive Agreement & General Release (“Incentive Agreement”).3 Mr. Smith is one of the employees to whom Kellogg offered an Incentive Agreement. On or about March 1, 2017, Kellogg presented him with one, and he signed it on March 4, 2017.4 By that Agreement, the parties agreed Mr. Smith would continue to work through August 18, 2017.5 In consideration for his continued work and other promises set forth in the Agreement, Kellogg promised to pay Mr. Smith certain: (a) incentive and retention payments; and (b) severance compensation and benefits pursuant to the terms of its Kellogg Company Severance Benefit Plan.6 After the parties signed the Incentive Agreement, Kellogg proceeded to pay Mr. Smith accordingly. By check dated April 14, 2017, Mr. Smith received $1,600 in retention benefits per the Agreement’s terms.7 Mr. Smith’s Continued Employment/Incentive Agreement & General Release contains an arbitration provision.8 Pursuant to that provision, Mr. Smith and Kellogg agreed to resolve any disputes concerning Mr. Smith’s employment with Kellogg “in individual arbitration before JAMS (Judicial Arbitration Mediation Services) subject to JAMS’ Streamlined Arbitration Rules and Procedures.”9 The Incentive Agreement also contains a choice-of-law provision and several sections related to the voluntariness of the Agreement. The choice-of-law provision states that Michigan law governs.10 There is also a paragraph entitled “Knowing and Voluntary Action.” It states that Mr. Smith acknowledges he has been advised to consult with an attorney before signing the Agreement, and that he has read the Agreement in full.11 It also states he acknowledges that he was given a period of at least 21 days to consider the Agreement, and that he understands its meaning and application.12 By signing the 3 Id. at ¶5. 4 Exhibit 2 to Cronin Decl.; Cronin Decl. ¶7. 5 Ex. 2 to Cronin Decl. at ¶5. 6 Ex. 2 to Cronin Decl. at ¶2(b) and (c). 7 Cronin Decl. ¶8. 8 Ex. 2 to Cronin Decl. at ¶15(c). 9 Id. JAMS’ Streamlined Arbitration Rules and Procedures state that, to commence arbitration, a party must submit to JAMS and serve on the opposing party a Demand for Arbitration describing that party’s claims. See Rules 6(e) and 7(b), JAMS Streamlined Arbitration Rules & Procedures, JAMSADR.COM, https://www.jamsadr.com/rules-streamlined-arbitration/#Rule2 (eff. July 1, 2014). 10 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶15(c). 11 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶19. 12 Id. Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 4 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Agreement, Mr. Smith represented that he was doing so of his “own free will with the intent of being bound by it.”13 The Incentive Agreement also contains a revocation period, stating Mr. Smith may revoke it at any time within seven (7) days of signing, and that the Agreement does not become effective until after the revocation period expires.14 On July 13, 2017, a little more than four months after he signed the Incentive Agreement (and after having received the first retention installment), Mr. Smith filed this lawsuit. (ECF No. 1). He asserts a single FLSA claim, alleging Kellogg failed to properly pay him for his work. (Id. at ¶¶ 1-7, 46- 50). III. THE COURT MUST COMPEL INDIVIDUAL ARBITRATION. A. The FAA And Supreme Court Precedent Require Courts To Enforce Valid Arbitration Agreements That Encompass The Disputes Before Them. The FAA mandates that federal courts compel the arbitration of claims parties have agreed to arbitrate. Under the Act, an arbitration agreement is presumptively “valid, irrevocable, and enforceable.” 9 U.S.C. § 2. The FAA thus embodies the “liberal federal policy favoring arbitration agreements” and “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (citing 9 U.S.C. § 2). Section 3 of the FAA states that if a party brings a matter “referable to arbitration” in court, then “the court in which the suit is pending, upon being satisfied that the issue involved . . . is referable to arbitration . . . shall . . . 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. Section 4 authorizes a “party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate” to petition a federal district court “for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. Like Section 3, Section 4 is mandatory, not discretionary; it requires that, “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” Id. 13 Id. 14 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶20. Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Indeed, the Supreme Court has made clear: “[b]y its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original); see also, e.g., Coleman v. Assurant, Inc., 508 F. Supp. 2d 862, 865 (D. Nev. 2007) (quoting Dean Witter Reynolds). A district court’s role under the FAA is therefore “limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic, Sys. Inc., 207 F.3d 1126, 1130 (9th Cir. 2000); see also United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 766 (9th Cir. 2002). B. Mr. Smith Is Party To A Valid Agreement To Arbitrate. Courts must determine the validity of an arbitration agreement as a matter of contract. AT & T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 648-49 (1986). They generally make such determinations by looking to state law governing contract formation. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (federal courts should apply ordinary state-law principles that govern contract formation in determining validity of an agreement to arbitrate); Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1044 (9th Cir. 2009) (“In determining whether parties have agreed to arbitrate a dispute, we apply ‘general state-law principles of contract interpretation, while giving due regard to the federal policy in favor of arbitration by resolving ambiguities as to the scope of arbitration in favor of arbitration.’”) (citing Wagner v. Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir. 1996)). There are two potentially relevant sets of state law here. First, according to the Complaint, the events giving rise to Mr. Smith’s claim occurred in Nevada. Second, the Continued Employment/Incentive Agreement, which contains the arbitration provision, contains a choice-of-law provision stating Michigan law applies. Under either Nevada or Michigan law, however, the result is the same; the arbitration agreement between Mr. Smith and Kellogg is valid and enforceable. Under Michigan law, the essential elements for an enforceable contract are: “(1) [the] parties are competent to contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” Innovation Ventures v. Liquid Mfg., 885 N.W.2d 861, reh’g denied sub nom. Innovation Ventures, L.L.C. v. Liquid Mfg., L.L.C., 884 N.W.2d 573 (Mich. 2016). First, there is no Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 reason to believe that either Mr. Smith or Kellogg were incompetent to enter into the agreement. Second, it is well-established that arbitration is a proper subject for an agreement between an employer and an employee. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). Third, there is plenty of legal consideration for Mr. Smith’s agreement to arbitrate. This includes, first and foremost, Kellogg’s promise to pay Mr. Smith incentive and retention payments, as well as severance payments and benefits.15 See Hall v. Small, 705 N.W.2d 741, 743-44 (Mich. Ct. App. 2005) (“Where there is no specific recitation of separate consideration for the [contractual provision], but it is part of a larger contract involving multiple promises, the basic rule of contract law is that whatever consideration is paid for all of the promises is consideration for each one.”) (internal citations omitted). The legal consideration for Mr. Smith’s agreement to arbitrate also includes Kellogg’s return agreement to arbitrate any disputes it has against Mr. Smith.16 Where an arbitration agreement binds both employer and employee, the mutual promises to arbitrate constitute sufficient consideration. Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 974 (6th Cir. 2007); accord Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (“When both parties have agreed to be bound by arbitration, adequate consideration exists and the arbitration agreement should be enforced.”); Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 544 (4th Cir. 2005) (same); Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 Fed. App’x. 812, 819 (10th Cir. 2008) (same). That both parties agreed to arbitrate any disputes between them also satisfies the fourth requirement - “mutuality of obligation.” . Seawright, 507 F.3d at 974; see also Astourian v. Jorgensen Ford Sales, Inc., No. 08-10059, 2008 WL 2478334, at *3 (E.D. Mich. June 16, 2008) (stating where contract contemplated arbitration of disputes initiated by either party, it satisfied mutuality element of Michigan contract law). Fifth, because both Mr. Smith and Kellogg signed the Agreement, and because Mr. Smith signed it of his “own free will with the intent of being bound by it,”17 the “mutuality of agreement” or “meeting of the minds” element is satisfied as well. See, e.g., Tillman v. Macy's, Inc., 735 F.3d 453, 459 (6th Cir. 2013) (“The question of mutual assent ‘is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind.’”) (internal citations omitted). 15 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶2(b) and (c). 16 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶15(c). 17 Ex. 2 to Cronin Decl. at ¶19. Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 7 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Turning to Nevada law, “[a]n enforceable contract requires ‘an offer and acceptance, meeting of the minds, and consideration.’” Anderson v. Sanchez, 373 P.3d 860, 863 (Nev. 2016) (internal citations omitted). The offer and acceptance requirements are satisfied because, in or around March 2017, Kellogg presented Mr. Smith with the Continued Employment/Incentive Agreement & General Release, and Mr. Smith considered it and ultimately agreed to sign it.18 The meeting of the minds element is satisfied because both Mr. Smith and Kellogg reviewed, considered, and signed the Agreement, with Mr. Smith expressly representing that he signed it of his “own free will with the intent of being bound by it.”19 Cf. Certified Fire Prot. Inc. v. Precision Constr., 283 P.3d 250, 255 (Nev. 2012) (“A meeting of the minds exists when the parties have agreed upon the contract's essential terms.”) (internal citations omitted). As discussed supra, the consideration element is also satisfied because Kellogg promised to pay Mr. Smith incentive and retention payments, as well as severance payments and benefits, in exchange for the promises he made in the Agreement, which included a promise to arbitrate. In addition, Kellogg made a return promise to arbitrate. In sum, regardless of whether analyzed under Michigan or Nevada law, the arbitration provision in the Continued Employment/Incentive Agreement is a valid agreement to arbitrate. C. The Arbitration Agreement Encompasses Mr. Smith’s FLSA Claim. Not only did Mr. Smith and Kellogg enter into a valid agreement to arbitrate, that agreement encompasses the single claim Mr. Smith asserts in this lawsuit. Mr. Smith alleges Kellogg violated the FLSA by failing to pay him overtime when it employed him in a certain position. (ECF No. 1, ¶¶1-7, 46- 50). The arbitration agreement between Mr. Smith and Kellogg encompasses “any controversy, claim or dispute between the parties, directly or indirectly, concerning . . . Employee’s employment with Kellogg.”20 Because Mr. Smith’s FLSA claim concerns his employment with Kellogg, it comes within the scope of his agreement to arbitrate. D. The Arbitration Agreement Requires Individual Arbitration. As set forth above, there is a valid agreement to arbitrate that encompasses Mr. Smith’s claim against Kellogg; as a result, there is no question the Court must order arbitration. But the FAA also 18 Cronin Decl. ¶7. 19 Ex. 2 to Cronin Decl. at ¶19. 20 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶15(c). Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 8 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 requires that the Court enforce the arbitration agreement between Mr. Smith and Kellogg according to its terms. Cf. 9 U.S.C. §4; Concepcion, 563 U.S. 333, 344. Here, as the terms of the parties’ Agreement make clear, the parties agreed to resolve any disputes between them “in individual arbitration.”21 Thus, Mr. Smith waived his ability to bring his FLSA claim on a collective basis. (Cf. ECF No. 1, ¶¶20-23, purporting to assert claim on behalf of collective group). The United States Supreme Court has repeatedly upheld such class and collective action waivers in the context of arbitration agreements. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) (enforcing arbitration agreement even though federal statute at issue - the same statute at issue here, 29 U.S.C. § 216(b) - authorized collective actions); Am. Exp. Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013) (holding courts cannot invalidate arbitration agreements on the grounds that they do not permit class arbitration of federal law claims); accord Concepcion, 563 U.S. at 348 (holding FAA preempts California law barring enforcement of class action waivers). The Ninth Circuit has followed suit. For example, in Johnmohammadi v. Bloomingdales, Inc., it upheld an employee’s agreement to arbitrate disputes with her employer, which included a class action waiver, rejecting the employee’s argument that the waiver somehow violated her rights under the National Labor Relations Act (“NLRA”). 755 F.3d 1072, 1075 (9th Cir. 2014). More recently, in Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted, 137 S. Ct. 809, 196 L. Ed. 2d 595 (2017), the Ninth Circuit affirmed that class action waivers in wholly voluntary arbitration agreements - like the one at issue here - do not violate the NLRA. What is more, individual arbitration is the only kind of arbitration to which Kellogg agreed.22 This means that the court must compel Mr. Smith to arbitrate in his individual capacity. The Supreme Court has made abundantly clear that a court cannot compel class or collective arbitration where, as here, the parties have not agreed to it. Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 687 (2010). E. The Court Should Dismiss Mr. Smith’s Complaint. The only remaining question is what to do with Mr. Smith’s claim against Kellogg in this Court. Though Circuit Courts are split on whether district courts should stay or dismiss claims sent to 21 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶15(c). 22 Incentive Agreement, Ex. 2 to Cronin Decl. at ¶15(c). Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 9 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 arbitration, the Ninth Circuit has recognized that, “when the practical realities of arbitration and litigation suggest either that no arbitration will actually take place or that the arbitration will be so different in character as to make staying the original action useless,” dismissal is proper. MediVas, LLC v. Marubeni Corp., 741 F.3d 4, 9 n.4 (9th Cir. 2014). For example, it has upheld a district court’s dismissal after ordering arbitration where all of the claims in the action came within the arbitration agreement. Sparling v. Hoffman Const. Co., 864 F.2d 635, 638 (9th Cir. 1988). In light of the law in the Ninth Circuit, courts in this district regularly dismiss actions that they compel to arbitration. See, e.g., Rojas v. Lewis Brisbois Bisgaard & Smith LLP, No. 2:13-CV-01256-GMN, 2015 WL 356287, at *2 (D. Nev. Jan. 27, 2015); Gann v. J.C. Penney Corp., No. 3:12-CV-00142-RCJ, 2012 WL 2792328, at *5 (D. Nev. July 9, 2012). This Court should follow suit. Mr. Smith must arbitrate his single FLSA claim on an individual basis. Because no claims will remain before this Court, dismissal is proper. IV. CONCLUSION For the foregoing reasons, the Court should grant Kellogg’s motion and compel this action, in its entirety, to individual arbitration, further dismissing this case. DATED: September 15, 2017 GREENBERG TRAURIG, LLP By: /s/ Tami D. Cowden Tami D. Cowden (8994) cowdent@gtlaw.com 3773 Howard Hughes Parkway, Suite 400 North Las Vegas, Nevada 89169 James N. Boudreau (PA 77891) (pro hac vice) boudreauj@gtlaw.com Christiana L. Signs (PA 317851) (pro hac vice) signsc@gtlaw.com Two Commerce Square 2001 Market Street Philadelphia, PA 19103 James Nelson (CA 116442) (pro hac vice pending) nelsonj@gtlaw.com 1201 K Street, Suite 1100 Sacramento, CA 95814 Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 10 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 CERTIFICATE OF SERVICE Pursuant to Fed. R. Civ. P. 5(b), I hereby certify that on September 15, 2017, service of the foregoing Motion to Compel Arbitration; Memorandum of Points and Authorities in Support was made this date through the Court’s CM/ECF electronic filing system, and served upon all counsel of record through the Court’s electronic filing system. /s/ Andrea Lee Rosehill An employee of Greenberg Traurig, LLP Case 2:17-cv-01914-APG-GWF Document 55 Filed 09/15/17 Page 11 of 11