Shields et al v. General Mills, Inc.

MOTION to Dismiss/General and to Compel Arbitration on an Individual Basis

D. Minn.May 12, 2017

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA William Shields, Laurie Bluhm, Charles Nix, Cheryl Mason, Ann Albertson, Peter Kokemueller, Linda Kloeckner, Laura Hapsch, Cheryl O’Fallon, Nancy Karls, Paige Miller, Carol Andraschko, Matthew Lorence, Susan Hayes Jacobson, Rick Marvig, Annette Olson, Robin Feenie, Ami Anderson, Paul Fazio, Kimberly Christ, Chris Muntifering, Behroze Mistry, Theresa Panchyshyn, Juanda White, Karen Cope, Jacki Filippi, Ivan Martinez, Karen Guerrieri, and Jim Buccellato, for and in behalf of themselves and other persons similarly situated, Plaintiffs, vs. General Mills, Inc., Defendant. Court File No. 16cv954 (MJD/LIB) DEFENDANT’S MOTION TO DISMISS AND TO COMPEL ARBITRATION ON AN INDIVIDUAL BASIS Defendant General Mills, Inc. respectfully moves the Court under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(e), 20 and 21, the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and based on the ruling of the Eighth Circuit Court of Appeals in the matter of Elizabeth McLeod et al. v. General Mills, Inc., Case No. 15-3540, for an Order: 1. Granting Defendant’s Motion to Dismiss and to Compel Arbitration on an Individual Basis in its entirety; 2. Striking the collective action allegations and compelling each Plaintiff who signed a Release Agreement with an individual arbitration agreement CASE 0:16-cv-00954-MJD-KMM Document 32 Filed 05/12/17 Page 1 of 4 to submit his or her claims to arbitration on an individual basis in accordance with his or her agreement to arbitrate; 3. Dismissing Plaintiffs’ Complaint; and 4. Awarding Defendant its reasonable expenses incurred in bringing this Motion. Should this matter not be dismissed in its entirety upon this motion, Defendant moves that an Order be entered by the Court striking the collective action claims from the Complaint, compelling each Plaintiff to submit his or her claims to arbitration on an individual basis in accordance with his or her agreement to arbitrate and staying the instant proceeding until the individual arbitrations are completed. This Motion is made on the grounds that all but one of the above-named Plaintiffs1 signed a Release Agreement containing an arbitration clause, whereby each Plaintiff expressly agreed to submit all of the claims asserted in the Complaint to arbitration on an individual basis and not on a class or collective basis. In direct contravention of these agreements, Plaintiffs brought this action in federal district court as a purported collective action under the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit 1 Plaintiff Linda Kloeckner did not sign a Release Agreement with an arbitration agreement, but the Complaint as drafted attempts to combine her alleged claims with those of individuals who signed agreements to proceed only in individual arbitration proceedings and as such, cannot proceed in this manner. For that reason, Kloeckner’s claims are improperly joined and should be dismissed without prejudice pursuant to Fed. R. Civ. P. 21. Alternatively, the Court should require Kloeckner to file a more definite statement under Fed. R. Civ. P. 12(e). CASE 0:16-cv-00954-MJD-KMM Document 32 Filed 05/12/17 Page 2 of 4 Protection Act. As further discussed in Defendant’s supporting Memorandum of Law, identical individual arbitration agreements in the case Elizabeth McLeod et al. v. General Mills, Inc., No. 15-cv-00494 (JRT/HB), were held by the Eighth Circuit to be valid and enforceable written agreements requiring the individual arbitration of Plaintiffs’ ADEA claims asserted in the Complaint (Eighth Circuit Case No. 15-3540). Accordingly, Defendant respectfully moves the Court to dismiss this action, strike Plaintiffs’ collective action allegations and compel individual arbitration of Plaintiffs’ claims. This Motion is based upon Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(e), 20 and 21, the Federal Arbitration Act, 9 U.S.C. §1 et seq., and upon all supporting memoranda, documents, and affidavits that will be filed and served in accordance with Local Rule 7.1, and upon all the files, records, and proceedings herein. Dated: May 12, 2017 CASE 0:16-cv-00954-MJD-KMM Document 32 Filed 05/12/17 Page 3 of 4 s/Marko J. Mrkonich . Marko J. Mrkonich (#125660) Kathryn Mrkonich Wilson (#283605) Susan K. Fitzke (#294032) LITTLER MENDELSON, P.C. 1300 IDS Center, 80 South 8th Street Minneapolis, MN 55402.2136 Telephone: 612.630.1000 mmrkonich@littler.com kwilson@littler.com sfitzke@littler.com Keith C. Hult (IL#021284452) LITTLER MENDELSON, P.C. 321 North Clark Street, Suite 1000 Chicago, IL 60654 Telephone: 312.372.5520 khult@littler.com ATTORNEYS FOR DEFENDANT GENERAL MILLS, INC. Firmwide:147486037.4 040218.2267 CASE 0:16-cv-00954-MJD-KMM Document 32 Filed 05/12/17 Page 4 of 4