Mantooth v. Bavaria Inn Rest., Inc.

Decision Date16 May 2018
Docket NumberCivil Action No. 17-cv-1150-WJM-MEH
PartiesCHADA MANTOOTH, GALE RAFFAELE, ALEXIS NAGLE, and NICOLE BUJOK, individually and on behalf of all others similarly situated, Plaintiffs, v. BAVARIA INN RESTAURANT, INC., d/b/a Shotgun Willie's, and DEBRA MATTHEWS, Defendants.
CourtU.S. District Court — District of Colorado

Judge William J. Martínez


Plaintiffs Chada Mantooth, Gale Raffaele, Alexis Nagle, and Nicole Bujok ("Plaintiffs") allege that Defendants Bavaria Inn Restaurant Inc. d/b/a Shotgun Willie's ("Shotgun Willie's") and its owner Debra Matthews ("Matthews") (jointly, "Defendants") improperly classified Plaintiffs as independent contractors and violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), the Colorado Wage Claim Act, Colo. Rev. Stat. §§ 8-4-101 et seq. ("CWCA"), and Colorado common law. (ECF. No. 1.) Currently before the Court are four motions, including Defendants' Renewed Motion to Compel Individual Arbitration and Dismiss or Stay Proceedings ("Motion to Compel"). (ECF No. 57.) Defendants argue that the terms of contracts between Plaintiffs and Shotgun Willie's and the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., require Plaintiffs to bring their claims in individual arbitration proceedings.

For the reasons explained below, the Court grants in part Defendants' Motion to Compel. The Court finds that Plaintiffs' claims must be submitted to individual arbitration, although certain provisions of the arbitration clause must in the interest of justice be severed. Because this dispute must be submitted to arbitration, the Court denies the other pending motions, ECF Nos. 43, 44, and 83, as moot. However, with respect to ECF No. 43, Plaintiffs' Expedited Motion to Proceed as a Conditional Collective Action, Provide Notice, and Toll All Statutes of Limitations, dismissal is without prejudice to the refiling of the motion if there is a legal basis to do so after the disposition of the arbitration.


Plaintiffs are four individuals who, on behalf of themselves and those similarly situated, sued Defendants for violations of the FLSA, the CWCA, and Colorado common law. (ECF No. 1.) In their Complaint, Plaintiffs allege that Defendants—an adult entertainment club and its owner—improperly classified them as independent contractors rather than employees. Specifically, Plaintiffs allege that, because they were actually employees and not independent contractors, Defendants violated the FLSA and CWCA by failing to pay a proper minimum wage or overtime, requiring that Plaintiffs share tips, charging fees for Plaintiffs to work at Shotgun Willie's, and charging Plaintiffs "inappropriate fines." (ECF No. 1 ¶¶ 110, 116-120, 128, 133-138.)

Though not alleged in the Complaint, both parties acknowledge in their briefing that Plaintiffs signed "Entertainment License Agreements" ("Agreements"). (ECF Nos. 57 & 86.) These Agreements disclaim any employer-employee relationship and classify Plaintiffs as licensees. (ECF No. 57-2 ¶ 13.C.)

The Agreements also contain an arbitration provision ("arbitration clause"), written in bold and all capital letters, that commits the parties to arbitrate "any controversy, dispute, or claim . . . arising out of this agreement." (Id. ¶ 22.)1 The parties also delegate exclusive authority regarding arbitrability to an arbitrator: "The arbitrator shall have exclusive authority to resolve any disputes over the validity and/or enforceability of any part of this agreement, including this paragraph 22 to arbitrate any and all claims." ("delegation clause") (Id. ¶ 22.A.)

The parties also agreed to certain terms related to the arbitrator and costs of the arbitration. The arbitration "shall be administered by a neutral arbitrator agreed upon by the parties." (Id. ¶ 22.A.) The only other condition for selecting the arbitrator is that either party may "request an arbitrator experienced in the adult entertainment industry." (Id. ¶ 22.A.) The arbitration clause also contains four provisions concerning the cost and fees arising out of the arbitration:

"The costs of the arbitration shall be borne equally by the entertainer and the club unless the arbitrator concludes that a different allocation is required by law." (Id. ¶ 22.A.)
"In the event that any party challenges, or is required to initiate proceedings to enforce, the arbitration requirements of this paragraph 22, the prevailing party to such challenges and/or enforcement proceedings shall be entitle to an award of all costs, including actual and reasonable attorney fees, incurred in litigation such issues." (Id. ¶ 22.D.)
"Any ruling arising out of a claim between the parties shall, to the extent not precluded by applicable law, award costs incurred for the proceedings and reasonable attorney fees to the prevailing party." (Id. ¶ 22.E.)• The arbitrator "shall be permitted to award, subject only to the restrictions contained in this paragraph 22, any relief available in a court." (Id. ¶ A.)

Less than two months after Plaintiffs filed their Complaint (ECF No. 1), in late June 2017, Defendants moved to compel arbitration. (ECF No. 23.) Before this Court ruled on the motion, the parties agreed to limited discovery regarding the formation of the Agreements. (ECF No. 34.) The Court granted an unopposed request to defer briefing and consideration of the initial motion to compel and denied that motion without prejudice, subject to later re-filing. (ECF No. 38.) In October 2017, Defendants renewed their motion to compel (ECF No. 57), and it is that motion which is now before the Court.


Pursuant to § 2 of the Federal Arbitration Act ("FAA"), a written agreement to submit a controversy to arbitration "shall be valid, irrevocable, and enforceable." 9 U.S.C. § 2. Congress enacted the FAA to statutorily enshrine a "liberal federal policy favoring arbitration" in response to judicial hostility to arbitration agreements. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); see also Hall Street Assocs. LLC v. Mattel, Inc., 552 U.S. 576, 581 (2008). An arbitration agreement stands on equal footing with other contracts and a court is required to enforce such an agreement according to its terms. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010). Such an agreement is generally enforced as written, "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Grounds for invalidation of an arbitration agreement include contract defenses, such as fraud, duress, or unconscionability. Rent-A-Center, 561 U.S. at 68.

The Court looks to Colorado contract law to determine whether an arbitration agreement is enforceable. THI of New Mexico at Hobbs Center, LLC v. Patton, 741 F.3d 1162, 1167 (10th Cir. 2014) (stating that an arbitration can be voided on state law grounds for revoking a contract). Colorado courts consider the following to decide whether a contract or provisions thereof are unconscionable:

(1) the use of a standardized agreement executed by parties of unequal bargaining power; (2) the lack of an opportunity for the customer to read or become familiar with the document before signing it; (3) the use of fine print in the portion of the contract containing the provision in question; (4) the absence of evidence that the provision was commercially reasonable or should reasonably have been anticipated; (5) the terms of the contract, including substantive fairness; (6) the relationship of the parties, including factors of assent, unfair surprise, and notice; and (7) the circumstances surrounding the formation of the contract, including setting, purpose, and effect.

Bernal v. Burnett, 793 F. Supp. 2d 1280, 1286 (D. Colo. 2011) (citing Davis v. M.L.G. Corp., 712 P.2d 985, 991 (Colo. 1986)). The Davis factors, so named for the Colorado Supreme Court case which set forth the relevant factors to be considered on this issue, require both procedural and substantive unconscionability for a contract to be unenforceable. Vernon v. Qwest Commc'ns. Int'l, Inc., 857 F. Supp. 2d 1135, 1157 (D. Colo. 2012).

Challenges to an arbitration agreement must specifically contest the formation of the arbitration clause; a challenge to the contract as a whole is not sufficient. Rent-A-Center, 561 U.S. at 72 ("[U]nless [plaintiff] challenged the delegation provision specifically, we must treat it as valid under § 2 [of the FAA], and must enforce it under §§ 3 and 4, leaving any challenge to the validity of the Agreement as a whole for thearbitrator."); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967). If the party opposing arbitration does not specifically challenge the validity of the arbitration provision and the contract contains a savings clause, the agreement to arbitrate may be severed from the remainder of an otherwise-unenforceable contract. Rent-A-Center, 561 U.S. at 70-71; see Santich v. VCG Holding Corp., 2017 WL 4251944 (D. Colo. Sept. 26, 2017). "[D]oubts are to be resolved in favor of arbitrability." Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1514 (10th Cir. 1995).

An arbitration agreement may delegate issues of arbitrability to an arbitrator. Rent-A-Center, 561 U.S. at 68-69 ("We have recognized that parties can agree to arbitrate 'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy."). A so-called "delegation clause" is "simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce," and is generally enforced as any other arbitration agreement under the FAA. Id. at 70. As with challenges to an arbitration clause, a party resisting delegation of arbitrability must specifically direct arguments at the delegation clause; otherwise the argument is for the arbitrator to resolve. See i...

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