D'antuono v. Serv. Rd. Corp..

• Decision Date: 25 May 2011
• Docket Number: No. 3:11cv33 (MRK).,3:11cv33 (MRK).
• Citation: 17 Wage & Hour Cas.2d (BNA) 1429,789 F.Supp.2d 308
• Court: U.S. District Court — District of Connecticut
• Parties: Dina Nicole D'ANTUONO, Ramona P. Cruz, Karen Vilnit, Plaintiffs,v.SERVICE ROAD CORP.; Cousin Vinnie's Back Room, Inc., Defendants.

789 F.Supp.2d 308

17 Wage & Hour Cas.2d (BNA) 1429

Dina Nicole D'ANTUONO, Ramona P. Cruz, Karen Vilnit, Plaintiffs,

v.SERVICE ROAD CORP.; Cousin Vinnie's Back Room, Inc., Defendants.

No. 3:11cv33 (MRK).

United States District Court, D. Connecticut.

May 25, 2011.

Richard Eugene Hayber, Hayber Law Firm LLC, Hartford, CT, Sara Smolik, Shannon Liss–Riordan, Stephen Churchill, Lichten & Liss–Riordan, P.C., Boston, MA, for Plaintiffs.Allan S. Rubin, Christina A. Daskas, Jackson Lewis LLP, Southfield, MI, David R. Golder, William Joseph Anthony, Jackson Lewis, Hartford, CT, Paul Decamp, Jackson Lewis LLP, Reston, VA, for Defendants.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

Arbitration is currently one of the most important issues in the federal courts. During October Term 2009, the United States Supreme Court decided a total of ninety-two merits cases, see Final Stats OT09, SCOTUSblog.com, http:// www. scotusblog. com/ wpcontent/ uploads/ 2010/ 07/ Final– Stats– OT 09– 0707101. pdf (July 17, 2010), and four of the ninety-two merits cases presented arbitration-related questions. See Granite Rock Co. v. International Brotherhood of Teamsters, ––– U.S. ––––, 130 S.Ct. 2847, 2853, 177 L.Ed.2d 567 (2010); Rent–A–Center West, Inc. v. Jackson, ––– U.S. ––––, 130 S.Ct. 2772, 2775, 177 L.Ed.2d 403 (2010); Stolt–Nielsen S.A. v. AnimalFeeds International Corp., ––– U.S. ––––, 130 S.Ct. 1758, 1764, 176 L.Ed.2d 605 (2010); Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, ––– U.S. ––––, 130 S.Ct. 584, 591, 175 L.Ed.2d 428 (2009). Three of those four cases presented issues specifically related to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.See Granite Rock, 130 S.Ct. at 2857; Rent–A–Center, 130 S.Ct. at 2775; Stolt–Nielsen, 130 S.Ct. at 1764. The United States Supreme Court decided yet another FAA case this past April, see AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, 131 S.Ct. 1740, 1744, 179 L.Ed.2d 742 (2011), and it will hear at least two more FAA cases during its next Term. See CompuCredit Corp. v. Greenwood, –––U.S. ––––, 131 S.Ct. 2874, ––––, 179 L.Ed.2d 1187, 2011 WL 220683, at *1 (2011) (granting petition for certiorari); Stok & Associates, PA v. Citibank, NA, ––– U.S. ––––, 131 S.Ct. 1556, 1556, 179 L.Ed.2d 299 (2011) (granting petition for certiorari).

The case pending before this Court presents difficult questions regarding the formation and enforceability of an arbitration agreement in a unique factual context. According to Plaintiffs, Defendants Service Road Corp. (“Service Road”) and Cousin Vinnie's Back Room, Inc. (“Cousin Vinnie's”) own and operate the Gold Club and the Gold Club Connection—together, “the Clubs”—in Groton, Connecticut.¹ The Gold Club is a bar that features topless female dancers as entertainment; the Gold Club Connection is an nightclub that features fully nude female dancers as entertainment. Plaintiffs Dina Nicole D'Antuono, Ramona P. Cruz, and Karen Vilnit are exotic dancers who have performed at the Clubs—the Court uses the phrase exotic dancers throughout this Memorandum of Decision because that is the phrase that Plaintiffs use to describe their occupation in the Complaint. See Compl. [doc. # 1] ¶ 1. When they performed at the Clubs, Plaintiffs were classified as tenants who rented performance space from the Clubs. See Tab 1 to First Genna Decl. [doc. # 13–1] at 5. They allege that they were really the Clubs' employees, and they seek both unpaid wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and other damages under Connecticut employment laws.

Service Road and Vinnie's have filed a Motion to Dismiss and/or Stay this Action; to Compel Arbitration; and to Strike Class and Collective Action Allegations [doc. # 12] from Plaintiffs' Complaint [doc. # 1]. For the reasons set forth below, Defendants' motion is GRANTED IN PART and DENIED IN PART. The Court DENIES Defendants' motion insofar as it seeks an order to compel Ms. Cruz to arbitrate her claims against Defendants, since there is nothing in the record before the Court to show that she even implicitly agreed to arbitration. However, the Court GRANTS Defendants' motion insofar as it seeks an order to compel Ms. D'Antuono and Ms. Vilnit to arbitrate their claims against Defendants, and on an individual basis rather than on a collective or class basis. Ms. D'Antuono and Ms. Vilnit undisputedly agreed to arbitration. In light of Defendants' concession that they will not seek to enforce the two most objectionable provisions in the arbitration agreement, see Notice [doc. # 52], the Court concludes that there is no ground under either Connecticut law or under the federal common law of arbitrability that permits the Court to invalidate Ms. D'Antuono's or Ms. Vilnit's agreement, including the provision requiring them to arbitrate their claims on an individual basis. As a result of the Court's decision, Plaintiffs' Motion for Clarification [doc. # 53] is also DENIED as moot.

I.

The Court sets forth only those facts that are necessary for purposes of resolving the pending motion. According to Plaintiffs' Complaint as well as various declarations filed in opposition to the pending motion, Ms. D'Antuono performed at the Clubs from December 2007 until February 2010, see D'Antuono Decl. [doc. # 26–2] ¶ 1; Ms. Cruz performed at the Clubs from August 2008 until December 2008, see Cruz Decl. [doc. # 26–4] ¶ 1; and Ms. Vilnit performed at the Clubs from December 2007 until November 2009, see Vilnit Decl. [doc. # 26–3] ¶ 1. Defendants assert in support of the pending motion that it is their “normal business practice to have [every exotic dancer] execute a ... Lease” setting forth the terms of the relationship between the exotic dancer and the Clubs. First Genna Decl. [doc. # 13–1] ¶ 6. Defendants further claim that it is their policy to always “explain to the [exotic dancer] that [the Lease] ... governs the relationship between [the exotic dancer] and the [C]lubs.” Bergeron Decl. [doc. # 38–1] ¶ 4.

Ms. D'Antuono, who began performing at the Clubs in December 2007, signed an “Entertainment Lease” (“Lease”) on November 4, 2008. Tab 1 to First Genna Decl. [doc. # 13–1] at 5, 8. However, according to Ms. D'Antuono's declaration, November 4, 2008 was the first day that anyone at the Clubs ever asked her to sign a Lease. See D'Antuono Decl. [doc. # 26–2] ¶ 5. On that date, during the middle of Ms. D'Antuono's performance shift, manager Miranda Bergeron asked Ms. D'Antuono to accompany her to the Clubs' office to update her paperwork. See id. Ms. Bergeron told Ms. D'Antuono that the Lease stated that Ms. D'Antuono was a subcontractor of the Clubs and worked for herself. See id. ¶ 6. Ms. D'Antuono signed the Lease and left the office to continue performing within five minutes after she arrived. See id. ¶ 8.

Ms. Vilnit, who also began performing at the Clubs in December 2007, signed the same form Lease on September 17, 2008, about two months before Ms. D'Antuono. See Tab 1 to First Genna Decl. [doc. # 13–1] at 10, 13. According to Ms. Vilnit, September 17, 2008 was the first day that anyone at the Clubs ever asked her to sign a Lease. See Vilnit Decl. [doc. # 26–3] ¶¶ 4–7. On that date, during the middle of Ms. Vilnit's performance shift, Ms. Bergeron asked Ms. Vilnit to accompany her to the Clubs' office to complete tax-related paperwork. See id. ¶¶ 4–5. Ms. Bergeron presented Ms. Vilnit with the Lease, and Ms. Vilnit signed it quickly and left the office to continue performing within five minutes after she arrived. See id. ¶ 7.

Ms. Cruz, who began performing at the Clubs in August 2008, never signed a Lease. According to Ms. Cruz, she showed up at one of the Clubs and was allowed to start performing the very same day. See Cruz Decl. [doc. # 26–4] ¶ 3. All that she was required to do was to show her identification, and fill out a form asking for her legal name, her stage name, and her home address. No one—not Ms. Bergeron or anyone else—ever asked her to sign the Lease or any other contract. See id. ¶¶ 2–3.

Defendants contend that Ms. Cruz never actually performed at the Clubs, and point out that she is named as a plaintiff in several similar cases pending before other courts, some involving the same plaintiffs' lawyers. See Bergeron Decl. [doc. # 38–1] ¶ 10 (asserting that no one at the Clubs remembers Ms. Cruz). To the extent that there is a dispute about whether Ms. Cruz actually performed at the Clubs, that dispute is not related to the pending motion, but instead goes to the merits of this case. For the time being, the Court need not consider whether she actually performed at the Clubs for a brief period at the end of 2008, as she alleges.

Defendants have not provided the Court with any admissible materials that contradict Ms. D'Antuono's and Ms. Vilnit's accounts of the circumstances under which they signed the Lease. Ms. Bergeron recalls presenting copies of the Lease to Ms. D'Antuono and Ms. Vilnit, and while she insists that it was not her intention to present the Lease in a “rushed or coercive manner,” she does not contest that both signed the Lease within five minutes after she first showed it to them. Bergeron Decl. [doc. # 38–1] ¶¶ 5–7. Paul Genna, an officer of Service Road and Cousin Vinnie's, recalls that he received a telephone call from one of his managers asking if Ms. Vilnit could have permission to take a copy of the Lease home before she signed it, so that she could have an attorney review it. See Second Genna Decl. [doc. # 38–2] ¶ 4. Mr. Genna recalls that he told the manager that Ms. Vilnit could indeed take the Lease home if she wished, but does not recall whether Ms. Vilnit actually took the Lease home. See id. Mr. Genna's recollection is not inconsistent with Ms. Bergeron's or Ms. Vilnit's declaration. See Vilnit Decl. [doc. # 26–3] ¶ 7.

Neither Ms. Bergeron nor Mr. Genna contests that Ms. D'Antuono and Ms. Vilnit were first shown the Lease...