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Morgan v. Umh Properties

United States District Court, N.D. Ohio, Eastern Division

August 1, 2018

SUSAN MORGAN, etal., Plaintiffs,
v.
UMH PROPERTIES, Defendant.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss, or in the Alternative, Stay Proceedings Pending Arbitration. (ECF #5). Plaintiffs filed an Opposition to the Motion, and Defendant filed a Reply in support. (ECF #11, 1 4). After a thorough review of all of the briefs, supporting documents, and relevant law, the Court finds as follows.

         FACTS[1]

         Plaintiff. Susan Morgan was employed by UMH Properties ("UMH") from May 2016 through April 2018. In connection with her hiring, she was required to execute an arbitration agreement which she signed on May 23. 2016. The Agreement states, in relevant part, as follows:

In consideration of the undersigned's (the "Employee") employment with UMH Properties, Inc., (the "Company"), the parties agree that any and all disputes, claims or controversies arising from or relating to the employee's employment or termination of employment with the Company, including the validity of this arbitration agreement and all other clauses contained in the Employee Manual... shall be resolved by binding arbitration. Arbitration in accordance with the terms of this agreement is the required and exclusive forum for the resolution of all disputes relating to employment including .. . compensation.... Such disputes include.. .claims, demands or action under ... the Fair Labor Standards Act.
Prior to arbitration, the Company's Legal Department and the Employee (or the Employee's attorney) will, either verbally or in writing, discuss resolution of the matter.... If the matter is not resolved through such discussions, an arbitration demand shall be served by either party upon the other party.
... [A]n arbitrator shall be selected by the Company with the Employee's consent, which consent shall not be unreasonably withheld. Costs attributable to the arbitrator shall be paid for by the Company, in accordance with the Employment Arbitration Rules and mediation Procedures of the American Arbitration Association ("AAA")(www.adr.org). If an arbitrator is not agreed upon ... either party may petition the AAA to request a list of arbitrators and the parties shall select one of the arbitrators on the list....
The remedies available to the employee and the Company during the arbitration proceeding shall be the same as the remedies available under the statute(s) upon which any claim(s) is based, and that could be awarded by any court or administrative agency. The arbitrator's determination shall be final and binding on the parties.
The Employee is required to pay any administrative filing fee and related costs associated with his or her submission of a disputed issue to arbitration. The cost of the arbitrator shall be borne by the Company. Each party shall bear its own attorneys' fees and costs, unless otherwise provided by statute upon which the claim is based.
... Any arbitration hearing will take place at 3499 Route 9N, Suite 3C, Freehold, New Jersey, unless otherwise agreed in writing by all parties. The arbitrator shall have all powers provided by law, this clause and the agreement of the parties. These powers shall include all legal and equitable remedies including, but not limited to money damages, declaratory and injunctive relief.
THE UNDERSIGNED EMPLOYEE VOLUNTARILY AND KNOWINGLY, AND FREE FROM DURESS OR COERCION, WAIVES ANY RIGHT THAT THE EMPLOYEE MAY HAVE TO LITIGATE IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM. FURTHER, THE EMPLOYEE WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO THIS ARBITRATION. THE ARBITRATOR'S DECISION WILL BE FINAL AN D BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY NOT BE AVAILABLE IN ARBITRATION. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION BASIS.
Should any one or more of the provisions contained in this arbitration agreement be found to be invalid, illegal or unenforceable, the enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

         On April 25, 2018, Plaintiff filed this collective action against UMH alleging that it maintained a practice and policy of failing to include commissions and/or bonuses earned by Plaintiff and other similarly-situated hourly, non-exempt employees in their regular rate of pay, for purposes of calculating their overtime compensation. She claims that this practice violates the Fair Labor ...


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