Digiovanni-Fisher v. Gold's Holding Corp.

MOTION to Dismiss Case and, MOTION to Compel Arbitration

E.D. La.July 27, 2016

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DANIELLE E. DIGIOVANNI-FISHER, Plaintiff, versus GOLD’S HOLDING CORP., Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action File No. 16-10338 Magistrate Judge Daniel E. Knowles, III. District Judge Jay C. Zainey DEFENDANTS’ MOTION TO DISMISS AND COMPEL ARBITRATION NOW INTO COURT, come Defendants Gold’s Louisiana, LLC and Gold’s Holding Corp., and respectfully move this Court to dismiss this matter and compel arbitration, pursuant to Rules 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. 1 Plaintiff Danielle DiGiovanni-Fisher, a former employee of Defendant Gold’s Louisiana, LLC, is asserting discrimination and retaliation claims against Defendants under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) and the Louisiana Employment Discrimination Law (La. R.S. § 301 et seq.). While employed by Gold’s Louisiana LLC, Plaintiff executed a Mutual Agreement to Arbitrate Claims on an Individual Basis (“Agreement”) in which she agreed that any and all claims arising out of her employment, 1 Gold’s Holding Corp. is not a proper defendant in this litigation, as it is not Plaintiff’s employer. However, Gold’s Holding Corp. is covered by the arbitration agreement that governs Plaintiff’s claims and therefore seeks to compel arbitration. Exhibit A. Gold’s Holding Corp. is appearing solely and specifically for these purposes, with full reservation and without any waiver of its rights, as it intends to raise all available defenses once this matter commences in the proper forum. Case 2:16-cv-10338-JCZ-DEK Document 10 Filed 07/27/16 Page 1 of 3 2 including those arising from federal or state anti-discrimination laws, are subject to arbitration. Accordingly, and for the reasons described in the memorandum accompanying this Motion, this Court should dismiss Plaintiff’s claims and compel arbitration. WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff’s claims with prejudice and compel arbitration. Also, based on Plaintiff’s refusal to voluntarily arbitrate in light of a clearly stated agreement, Defendants respectfully request that this Court award any attorney’s fees and costs incurred in connection with the filing of this motion and/or other equitable relief that it deems appropriate. Respectfully submitted, /s/ Monique Gougisha Doucette _______ Monique Gougisha Doucette, LA #28057 Katherine E. Pizzini, LA #34033 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Attorneys for Defendants Gold’s Louisiana, LLC and Gold’s Holding Corp. Case 2:16-cv-10338-JCZ-DEK Document 10 Filed 07/27/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss and Compel Arbitration has been served on all counsel of record via the Court’s Electronic Filing System. This 27th day of July, 2016. /s/ Monique Gougisha Doucette _____________ Monique Gougisha Doucette Case 2:16-cv-10338-JCZ-DEK Document 10 Filed 07/27/16 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DANIELLE E. DIGIOVANNI-FISHER, Plaintiff, versus GOLD’S HOLDING CORP., Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action File No. 16-10338 Magistrate Judge Daniel E. Knowles, III. District Judge Jay C. Zainey DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS AND COMPEL ARBITRATION Pursuant to Rules 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure and the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., Defendants Gold’s Holding Corp. and Gold’s Louisiana, LLC (hereinafter “Gold’s Gym” when referring to Plaintiff’s employer Gold’s Louisiana, LLC) respectfully move that this Court dismiss this matter and compel arbitration. In the alternative, Defendants respectfully request that this Court stay these proceedings pending the outcome of arbitration. The claims alleged in Plaintiff Danielle DiGiovanni-Fisher (“Plaintiff”)’s complaints arise from her employment at Gold’s Gym and are covered by an arbitration agreement executed by both Parties in June 2014. Dismissal is appropriate because the Parties have contractually agreed that the federal courts are not the venue in which they will resolve disputes “arising from” Plaintiff’s employment at Gold’s Gym. Furthermore, dismissal is proper because Plaintiff has failed to state a claim upon which relief may be granted, as the sole remedy available to Plaintiff is through arbitration. Finally, the FAA requires that this Court compel arbitration of claims covered by any agreement governed by the FAA, and the arbitration agreement in this case is governed by the FAA. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 1 of 9 2 Since there is a valid and enforceable agreement to arbitrate between the Parties, and the dispute in question falls within the scope of that agreement, it is wholly appropriate for this Court to dismiss this matter and compel arbitration pursuant to the Parties’ arbitration agreement. I. RELEVANT BACKGROUND Plaintiff is a former Fitness Service Manager at the Gold’s Gym in Harvey, Louisiana, where she was hired in June 2014. See, Complaint (Rec. Doc. 2 at ¶ 3). In connection with her employment by Gold’s Gym, Plaintiff entered into a Mutual Agreement to Arbitrate Claims on and Individual Basis (“Agreement”) in which she agreed that all claims arising out of her employment by Gold’s Gym would be subject to arbitration. 1 The Agreement provided in pertinent part: The Company and the Employee hereby consent to the resolution by arbitration on an individual basis of all claims or controversies arising out of Employee’s application with, employment with, or termination from, the Company…The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract, express or implied; tort claims; claims for discrimination, harassment, or retaliation of any kind; and claims for violation of any federal, state or other statute, ordinance, regulation, or common law. Plaintiff executed the Agreement on June 1, 2014. 2 The Agreement incorporates the Gold’s Gym Dispute Resolution Program (“Program”) which sets forth, in detail, the process by which any claims relating to Plaintiff’s employment by Gold’s Gym shall be arbitrated. 3 The Program is governed by the Federal Arbitration Act, (“FAA”), 9 U.S.C. § 1 et seq. 4 Plaintiff was terminated from her employment by Defendant Gold’s Louisiana, LLC in October 2014. (Rec. Doc. 2 at ¶ 16). On June 15, 2016, Plaintiff filed the instant lawsuit against 1 See Mutual Agreement to Arbitrate Claims on an Individual Basis and Dispute Resolution Program, both attached as Exhibit A. 2 Exhibit A. 3 Exhibit A. 4 Exhibit A, Section 2. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 2 of 9 3 Gold’s Holding Corp. alleging claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e, et seq.) and the Louisiana Employment Discrimination Law (La. R.S. 23 § 301, et seq.). (Rec. Doc. 2 at ¶¶ 22-33). 5 On July 8, 2016, Plaintiff amended her Complaint to add Gold’s Louisiana, LLC as a Defendant. (Rec. Doc. 8). 6 Specifically, the complaints allege that, while she was employed by Gold’s Gym, Plaintiff was subjected to a hostile work environment on the basis of her sex and that she was terminated in retaliation for reporting sexual harassment. (Rec. Doc. 2 at ¶¶ 22-33; Rec. Doc. 8 at ¶¶ 24-35). Both claims arise directly out of Plaintiff’s employment with Gold’s Gym and fall squarely within the categories of claims that Plaintiff agreed to submit to arbitration. Dismissal of Plaintiff’s claims is therefore proper, and Plaintiff should be compelled to arbitrate this dispute. II. LEGAL ARGUMENT The Agreement at issue in this case is governed by the Federal Arbitration Act which requires that all claims covered by any agreement to arbitrate be subjected to arbitration. The claims in Plaintiff’s complaints clearly arise from her employment with Gold’s Gym, and are therefore covered by the Agreement. It is accordingly proper for this Court to dismiss Plaintiff’s claims pursuant to the Federal Arbitration Act and order that the parties submit to arbitration. A. The Legal Standard for Compelling Arbitration. It is well settled that the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., “compels judicial enforcement of a wide range of arbitration agreements,” including those contained in 5 Gold’s Holding Corp. is not a proper defendant in this litigation, as it is not Plaintiff’s employer. However, Gold’s Holding Corp. is covered by the arbitration agreement that governs Plaintiff’s claims and therefore seeks to compel arbitration. Exhibit A. Gold’s Holding Corp. is appearing solely and specifically for these purposes, with full reservation and without any waiver of its rights, as it intends to raise all available defenses once this matter commences in the proper forum. 6 Plaintiff is employed by Gold’s Louisiana, LLC, the properly named defendant in this matter. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 3 of 9 4 employment contracts. 7 Particularly in the context of employment-related claims, arbitration agreements are favored because they “allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts.” 8 Section 4 of the FAA provides that when a party petitions the court to compel arbitration under a written arbitration agreement, the Court shall order arbitration in such cases where: The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. 9 The provisions of Section 4 of the FAA are mandatory. The Supreme Court has held that the FAA “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.” 10 Consequently, courts must compel arbitration when a valid arbitration agreement exists. 11 The FAA reflects “a liberal federal policy favoring arbitration agreements.” 12 The FAA creates a strong presumption in favor of enforcing arbitration agreements and requires that “due 7 See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111, 119 (2001). 8 Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 122 (2001). 9 9 U.S.C. § 4. 10 See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). 11 Id. (emphasis in original). 12 Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In fact, the Supreme Court recently reiterated that long-standing federal policy in favor of enforcing arbitration agreements in Nitro-Lift Technologies, L.L.C. v. Howard, 133 S.Ct. 500 (2012). Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 4 of 9 5 regard must be given to the federal policy favoring arbitration.” 13 Ambiguities as to the scope of an arbitration clause are resolved in favor of arbitration. 14 The United States Supreme Court has held that courts are required to “rigorously enforce agreements to arbitrate.” 15 The Fifth Circuit employs a two-part test when adjudicating a motion to compel arbitration. Specifically, the courts consider: (1) whether there is a valid agreement to arbitrate between the parties and (2) whether the dispute in question falls within the scope of that arbitration agreement. 16 In this case, the Agreement between Plaintiff and Defendants satisfies both of these elements, as there is clearly a valid agreement to arbitrate the claims raised in Plaintiff’s Complaint. Dismissal of Plaintiff’s claims is, therefore, proper. B. The Agreement Is Valid under General Principles of Louisiana Contract Law. While the FAA governs the federal substantive law of whether a claim is subject to arbitration, the validity of an arbitration agreement is determined under state contract formation law. 17 The Louisiana Civil Code allows persons who have a lawsuit or differences with one another to bind themselves reciprocally to an agreement to arbitrate. 18 The Code requires that 13 Volt Info. Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 475–76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). 14 Id. 15 Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). 16 American Heritage Life Ins. Co. v. Lang, 321 F.3d 533 (5th Cir. 2003) (citing Webb v. Investacorp, 89 F.3d 252, 258 (5th Cir. 1996). The Fifth Circuit also holds that, as a preliminary matter, the claims in the arbitration agreement must be arbitrable (i.e., there must not be federal statute or policy that renders the claims nonarbitrable). See, Washington Mut. Fin. Group v. Vailey, 364 F.3d 260,263 (5th Cir. 2004). The claims in this case are clearly arbitrable as the contract in question affects interstate commerce. See, e.g., Jones v. Tenet Health Network, Inc. 1997 WL 180384 (E.D. La. 1997) (holding that a contract is arbitrable under the FAA if it facilitates or effects commerce even tangentially.”). 17 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). 18 La. Civ. Code. art. 3099. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 5 of 9 6 the agreement must be reduced to writing. 19 The choice to arbitrate is expressed contractually and the Louisiana legislature has dictated that the choice itself to arbitrate is binding on the parties. 20 Specifically, the Louisiana Revised Statutes provide that any written contract to settle by arbitration is valid, irrevocable, and enforceable for any controversy within its scope. 21 The Louisiana Supreme Court has expressed strong public policy favoring arbitration agreements. 22 The Agreement at issue in this lawsuit was executed freely and voluntarily by Plaintiff in consideration for employment by Gold’s Gym. Accordingly, the Agreement is valid—and in fact, favored—under the general principles of Louisiana contract law. C. The Claims in Plaintiff’s Complaint Are Covered by the Arbitration Agreement. The Agreement between Plaintiff and Gold’s Gym provides that all claims arising out of her employment by Gold’s Gym are subject to arbitration. 23 Plaintiff’s complaints alleges claims of sexual harassment and retaliation under Title VII and the Louisiana Employment Discrimination Law (La. R.S. 23 § 301, et seq.). (Rec. Doc. 2 at ¶¶ 22-33; Rec. Doc. 8 at ¶¶ 24- 35). Plaintiff alleges that she was subject to a hostile work environment on the basis of sex because of the conduct of the Gold’s Gym branch manager with whom she was assigned to work. She also alleges that she was terminated in retaliation for making complaints about the branch manager’s conduct. As such, Plaintiff’s claims arise from her employment by Gold’s Gym. Furthermore, these claims are expressly covered by the arbitration agreement between Plaintiff and Gold’s Gym. Section 1 of Exhibit A provides “The claims covered by this 19 La. Civ. Code. art. 3100. 20 See La. R.S. 9:4201. 21 Id. See also, Mack Energy Co. v. Expert Oil & Gas, L.L.C., 2014-1127 (La. 1/28/15), 159 So. 3d 437, 441. 22 National Tea Co. v. Richmond, 548 So.2d 930, 932 (La. 1989). 23 Exhibit A. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 6 of 9 7 Agreement include…claims for discrimination, harassment or retaliation of any kind.” 24 Accordingly, the claims are subject to the enforceable arbitration agreement executed by the Parties and should be dismissed. D. Dismissal Is Appropriate under Rule 12 of Federal Rules of Civil Procedure. Dismissal is appropriate under either Rule 12(b)(3) or 12(b)(6) of the Federal Rules of Civil Procedure because the Parties have contractually agreed that the federal courts are not the venue in which they will resolve disputes “arising from” Plaintiff’s employment by Gold’s Gym. The Eastern District of Louisiana has held that a motion to dismiss under Rule 12(b)(3) is a proper procedural vehicle to dispose of claims that are subject to agreements to arbitrate. 25 Additionally, dismissal under Rule 12(b)(6) is also a proper procedural mechanism, as Plaintiff has failed to state a claim upon which relief may be granted by this Court because the sole remedy available to Plaintiff is through arbitration. Indeed, Section 4 of the Agreement states “[f]or claims covered by this Agreement, arbitration on an individual basis is the parties’ exclusive remedy.” 26 In the alternative, the FAA provides that this Court shall stay these proceedings pending the outcome of the arbitration. 27 However, because all (and not merely some) of the claims asserted in Plaintiff’s complaints are subject to arbitration, Defendants respectfully submit that it advances the interests of judicial economy to dismiss the Plaintiff’s claims outright rather than issuing a stay. 24 Exhibit A, Section 1. 25 Sinners and Saints, LLC v. Noire Blanc Films, LLC, 937 F.Supp.2d 835 (E.D. La. 2013). 26 Exhibit A, Section 4. 27 9 U.S.C. § 3. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 7 of 9 8 III. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that this Court grant their Motion by dismissing Plaintiff’s claims and compelling arbitration. Or, in the alternative, Defendants request that this Court stay these proceedings relating to Plaintiff’s claim pending the outcome of arbitration pursuant to the FAA. Finally, based on Plaintiff’s refusal to voluntarily arbitrate in light of a clearly stated agreement, Defendants also respectfully request that this Court award any attorney’s fees and costs incurred in connection with the filing of this motion and/or other equitable relief that it deems appropriate. Respectfully submitted, /s/ Monique Gougisha Doucette _______ Monique Gougisha Doucette, LA #28057 Katherine E. Pizzini, LA #34033 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Attorneys for Defendants Gold’s Louisiana, LLC and Gold’s Holding Corp. Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants’ Motion to Dismiss and Compel Arbitration has been served on all counsel of record via the Court’s Electronic Filing System. This 27th day of July, 2016. /s/ Monique Gougisha Doucette _____________ Monique Gougisha Doucette 25598382.1 Case 2:16-cv-10338-JCZ-DEK Document 10-1 Filed 07/27/16 Page 9 of 9 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 1 of 6 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 2 of 6 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 3 of 6 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 4 of 6 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 5 of 6 Case 2:16-cv-10338-JCZ-DEK Document 10-2 Filed 07/27/16 Page 6 of 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DANIELLE E. DIGIOVANNI-FISHER, Plaintiff, versus GOLD’S HOLDING CORP., Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action File No. 16-10338 Magistrate Judge Daniel E. Knowles, III. District Judge Jay C. Zainey DEFENDANTS’ NOTICE OF SUBMISSION ON MOTION TO DISMISS AND COMPEL ARBITRATION PLEASE TAKE NOTICE that Defendants Gold’s Louisiana, LLC and Gold’s Holding Corp., submit their Motion to Dismiss and Compel Arbitration for consideration by the Honorable Jay C. Zainey, on the 24th day of August, 2016 at 9:00 a.m., at 500 Poydras Street, New Orleans, Louisiana 70130. Respectfully submitted, /s/ Monique Gougisha Doucette _______ Monique Gougisha Doucette, LA #28057 Katherine E. Pizzini, LA #34033 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Attorneys for Defendants Gold’s Louisiana, LLC and Gold’s Holding Corp. Case 2:16-cv-10338-JCZ-DEK Document 10-3 Filed 07/27/16 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendants’ Notice of Submission on Motion to Dismiss and Compel Arbitration has been served on all counsel of record via the Court’s Electronic Filing System. This 27th day of July, 2016. /s/ Monique Gougisha Doucette _____________ Monique Gougisha Doucette 25612140.1 Case 2:16-cv-10338-JCZ-DEK Document 10-3 Filed 07/27/16 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DANIELLE E. DIGIOVANNI-FISHER, Plaintiff, versus GOLD’S HOLDING CORP., Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil Action File No. 16-10338 Magistrate Judge Daniel E. Knowles, III. District Judge Jay C. Zainey ORDER Considering Defendant’s Motion to Dismiss and Compel Arbitration, it is hereby ORDERED that Defendant’s Motion to Dismiss and Compel Arbitration is granted. New Orleans, Louisiana this _______ day of _________________, 2016. UNITED STATES DISTRICT JUDGE 25620638.1 Case 2:16-cv-10338-JCZ-DEK Document 10-4 Filed 07/27/16 Page 1 of 1