Compere v. Nusret Miami, LLC

• Decision Date: 20 August 2019
• Docket Number: Case No. 1:19-cv-20277-KMM
• Citation: 396 F.Supp.3d 1194
• Parties: Melissa COMPERE, on behalf of herself and all others similarly situated, Plaintiff, v. NUSRET MIAMI, LLC, d/b/a Nusr-Et Steakhouse, a Florida limited liability company, Nusret Gokce, an individual, Defendants.
• Court: U.S. District Court — Southern District of Florida

396 F.Supp.3d 1194

Melissa COMPERE, on behalf of herself and all others similarly situated, Plaintiff,

v.NUSRET MIAMI, LLC, d/b/a Nusr-Et Steakhouse, a Florida limited liability company, Nusret Gokce, an individual, Defendants.

Case No. 1:19-cv-20277-KMM

United States District Court, S.D. Florida.

Signed August 20, 2019

Robert William Brock, II, Law Office of Lowell J. Kuvin, Miami, FL, for Plaintiff.

Jonathan Alan Beckerman, Miguel Angel Morel, Littler Mendelson, PC, Miami, FL, for Defendants.

ORDER ON DEFENDANTS' MOTIONS TO COMPEL ARBITRATION

K. MICHAEL MOORE, UNITED STATES CHIEF DISTRICT JUDGE

THIS CAUSE came before the Court upon Defendants Nusret Miami, LLC ("Nusret Miami") and Nusret Gokce's ("Gokce") (collectively, "Defendants") Motion to Compel Arbitration as to Plaintiff Melissa Compere ("Plaintiff" or "Compere") and Opt-In Plaintiffs Valdo Sulaj ("Sulaj") and Diego Vargas ("Vargas") ("First Mot. to Compel") (ECF No. 38) and Defendants' Motion to Compel Arbitration as to Opt-In Plaintiff Slagjana Kovachevska ("Kovachevska") ("Second Mot. to Compel") (ECF No. 52) (collectively, "Motions to Compel"). The Parties filed their respective responses and replies.¹ The matter is now ripe for review.

I. BACKGROUND

On January 18, 2019, Plaintiff filed a Collective Action Complaint on behalf of herself and all others similarly situated asserting claims for unpaid minimum wage and overtime compensation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. , and declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. See ("Compl.") (ECF No. 1). Because this case is styled as a collective action, other similarly situated individuals may opt in and join Compere as a plaintiff to the action. 29 U.S.C. § 216(b). Thus far, seven individuals have opted in. ("Notices of Consent to Join") (ECF Nos. 15, 20, 39, 44, 54, 56).

Compere, the named plaintiff in this action, worked at Nusret Steakhouse² in various positions between October 17, 2018 and November 16, 2018, when her employment was terminated. Declaration of Belen Rodriguez ("Rodriguez Decl.") (ECF No. 38–1) ¶ 10. Vargas is currently employed as a meat cutter at Nusret Steakhouse. Id. ¶ 12. He was hired on October 10, 2017. Id. Sulaj began working at Nusret Steakhouse on October 10, 2017 and worked as a meat cutter when his employment was terminated on May 17, 2018. Id. ¶ 11. Kovachevska began working as a bartender at Nusret Steakhouse in October 2017. (ECF No. 52–1).³

Defendants have provided offer letters signed by Compere, Sulaj, and Kovachevska. ("Offer Letters") (ECF Nos. 38–1, 52–1).⁴ Each of the Offer Letters state the following with respect to arbitration:

Prior to your commencement of employment with the Restaurant, you will be required to sign an Arbitration Agreement. We have enclosed a copy of the Arbitration Agreement for your review.

You acknowledge that this Offer and the Arbitration Agreement, contain the entire agreement of the parties with respect to this subject matter and supersedes any previous discussions or negotiations.

Id. Defendants have not provided copies of the arbitration agreements allegedly attached to each of the signed Offer Letters.

Defendants have not provided an offer letter signed by Vargas. However, Defendants have provided a copy of an arbitration agreement signed by Vargas, which states that "all controversies, disputes, or claims arising out of Employee's employment by Nusret Miami ... whether contractual, in tort, or based upon statute, shall be exclusively decided by binding arbitration and held pursuant to the Federal Arbitration Act (‘FAA’) before the American Arbitration Association (‘AAA’)." ("Vargas Arbitration Agreement") (ECF No. 38–1). The Vargas Arbitration Agreement lists examples of claims subject to arbitration, including claims under the FLSA, and includes a class and collective action waiver. Id.

In addition to the Motions to Compel, on March 4, 2019, Defendant Nusret Miami filed a Partial Answer (ECF No. 8) and a Partial Motion to Dismiss (ECF No. 9), making no mention of arbitration. Nusret Miami has since moved to amend its Partial Answer to add an affirmative defense that Plaintiff's claims are subject to binding arbitration. (ECF No. 36). On March 12, 2019, Plaintiff filed a Motion to Certify 216(b) Collective Action. ("Mot. to Certify") (ECF No. 19).⁵ On March 29, 2019, Defendant Gokce filed a Partial Answer asserting an affirmative defense that Plaintiff's claims are subject to binding arbitration. (ECF No. 32). In support of Defendants' response to Plaintiff's Motion to Certify, Defendants deposed Compere, Vargas, and Sulaj. First Mot. to Compel at 3. Now, Defendants move to compel arbitration as to Compere and three Opt-In Plaintiffs: Vargas, Sulaj, and Kovachevska (the "Opt-In Plaintiffs").⁶

II. LEGAL STANDARD

There is an "emphatic federal policy in favor of arbitral dispute resolution." Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc. , 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). The Federal Arbitration Act ("FAA") governs the validity of an arbitration agreement. Bhim v. Rent-A-Center, Inc. , 655 F. Supp. 2d 1307, 1309 (S.D. Fla. 2009) (citation omitted). "The FAA establishes a ‘federal policy favoring arbitration ... requiring that [courts] rigorously enforce agreements to arbitrate.’ " Davis v. Prudential Sec., Inc. , 59 F.3d 1186, 1192 (11th Cir. 1995) (alteration in original) (quoting Shearson/Am. Express, Inc. v. McMahon , 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) ). The FAA provides that a court must either stay or dismiss a lawsuit and compel arbitration upon a showing that "(a) the plaintiff entered into a written arbitration agreement that is enforceable ‘under ordinary state-law’ contract principles and (b) the claims before the court fall within the scope of that agreement." Lambert v. Austin Ind. , 544 F.3d 1192, 1195 (11th Cir. 2008) (quoting 9 U.S.C. §§ 2 – 4 ). Pursuant to this policy, courts must construe "any doubts concerning the scope of arbitrable issues ... in favor of arbitration." Mitsubishi , 473 U.S. at 626, 105 S.Ct. 3346 (citation omitted). Thus, the party opposing arbitration has the burden, "not unlike that of a party seeking summary judgment," of showing why the court should not compel arbitration. Bhim , 655 F. Supp. 2d at 1311 (citations omitted).

However, the party seeking to compel arbitration has the initial burden of "producing the [a]rbitration [a]greement and establishing the contractual relationship necessary to implicate the FAA and its provisions granting this Court authority to dismiss or stay Plaintiff's cause of action and to compel arbitration." Fantis v. Flywheel Sports, Inc. , No. 18-24934-CIV-UNGARO/O'SULLIVAN, 2019 WL 1582957, at *2, n.2 (S.D. Fla. Mar. 11, 2019) (citations omitted), report and recommendation adopted , No. 18-CV-24934-UU, 2019 WL 2245417 (S.D. Fla. Apr. 29, 2019), appeal docketed , No. 19-11690 (11th Cir. Apr. 30, 2019). "Thus, with respect to the threshold question of whether an [arbitration] agreement between the parties exists at all, the initial burden is on the defendant to prove the existence of a contract by a preponderance of the evidence." Id. Whether a valid agreement to arbitrate exists is a matter of state contract law. Id. at *1. Under Florida law, a valid contract requires offer, acceptance, and consideration. Id.

III. DISCUSSION

Defendants make two arguments in support of their Motions to Compel: (1) any issues related to the arbitrability of the present disputes should be delegated to the arbitrator and (2) the Vargas Arbitration Agreement is a valid and enforceable contract requiring that Vargas, Compere, Sulaj, and Kovachevska arbitrate their claims. See First Mot. to Compel at 5–12; Second Mot. to Compel at 5–12. In response, Plaintiff argues that (1) Defendants waived the right to arbitrate, and alternatively (2) no agreement to arbitrate exists between Defendants and Compere, Sulaj, or Kovachevska. See First Resp.; Second Resp.

A. Delegation to the Arbitrator

First, Defendants argue that questions regarding the existence of a valid arbitration agreement and whether a party has waived its right to compel arbitration should be decided by the arbitrator—not the Court. First Mot. to Compel at 8–9, 13; Second Mot. to Compel 8–9, 12–13. Specifically, Defendants argue that the incorporation by reference of the AAA's Employment Dispute Resolution Rules ("AAA Rules") in the Vargas Arbitration Agreement is a clear and unmistakable delegation of these questions to the arbitrator. First Mot. to Compel at 8–9; Second Mot. to Compel 8–9.

Generally, questions of arbitrability are for the courts to decide "unless there is clear and unmistakable evidence that the parties intended to submit such questions to an arbitrator." JPay, Inc. v. Kobel , 904 F.3d 923, 930 (11th Cir. 2018) (citation and internal quotation marks omitted). Reference to the AAA Rules "alone serves as a clear and unmistakable delegation of questions of arbitrability to an arbitrator." Id. at 936. Here, the Vargas Arbitration Agreement references the AAA Rules. See Vargas Arbitration Agreement. Therefore, there appears to be a valid delegation clause in the Vargas Arbitration Agreement.

However, because the Parties dispute whether an agreement to arbitrate exists between Nusret Miami and Compere, Sulaj, and Kovachevska, the Court must first make a threshold determination as to whether a contract has been formed before assessing any such delegation clause as to these employees. See Henry Schein, Inc. v. Archer & White Sales, Inc. , ––– U.S. ––––, 139 S. Ct. 524, 530, 202 L.Ed.2d 480 (2019) ("To be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists.") (citation omitted); Seminole Cty. Tax Collector v. Domo, Inc. , No. 6:18-CV-1933-OrL-40DCI, 2019 WL 1901019, at *9 (M.D. Fla. Feb. 13, 2019) ("Having found that a valid agreement to...