United States District Court, S.D. Ohio, Western Division
JERRY E. MCCLURE, Plaintiff,
HUKARIASCENDENT, INC., Defendant.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE
civil action is now before the Court on Defendant's
motion to compel arbitration and stay proceedings pending
arbitration (Doc. 12) and the parties' responsive
memoranda. (Docs. 13, 15).
Jerry E. McClure (“McClure”), who resides in
Florida, was employed by Defendant HukariAscendent Services,
LLC (“Hukari”), a technical and professional
services company, for four months approximately two years
ago, from November 28, 2016 to February 22, 2017. (Complaint,
Doc. 1, PageID 3 at ¶¶ 16, 18, 19; Lawless Decl.,
Doc. 11, PageID 35 at ¶¶ 4, 7, 8). Prior to
starting work at a temporary assignment in Portsmouth, Ohio
as a Design Engineer II, McClure signed an Employment
Agreement (“Agreement”) setting forth the terms
and conditions of his employment. (Doc. 11, Lawless Decl.
PageID 38-42). Included in that Agreement was a provision
requiring that all disputes relating to his employment by
Hukari be resolved in binding arbitration. Id.
agreeing that he would arbitrate any dispute relating to his
employment with Hukari, on December 11, 2018, McClure
instituted this action claiming that Hukari paid him only
straight time, rather than time-and-a-half, for hours worked
by him over forty in a week. (Complaint, Doc. 1, PageID 1-9).
McClure seeks to bring a collective action pursuant to and
for violations of the Fair Labor Standards Act, 29 U.S.C.
§ 216(b), (“FLSA”), and to bring a class
action pursuant to Rule 23 of the Federal Rules of Civil
Procedure for violations of the Ohio Minimum Fair Wage
Standards Act, O.R.C. §§ 4111.01, et seq., and the
Ohio Prompt Pay Act, § 4113.15.
now seeks to enforce the terms of the arbitration clause
agreed to by the parties, and moves under the Federal
Arbitration Act, 9 U.S.C. §§ 1, et seq.,
for an order compelling arbitration of McClure's claims
and dismissing this action.
does not oppose arbitration of his claims, but requests the
Court deny Hukari Motion to Dismiss, and instead stay the
case and order the parties to proceed with arbitration as
agreed. A stay is not necessary and dismissal is appropriate
when all of the issues raised in the district court must be
submitted to arbitration. Green v. Ameritech Corp.,
200 F.3d 967, 973 (6th Cir. 2000). At this time, Plaintiff
contends it is unclear if all the issues raised by Plaintiff
are subject to the decision of an arbitrator. Specifically,
Plaintiff brings this claim as a collective and class action
under the FLSA and Rule 23. The arbitration provision
requires Plaintiff to submit any dispute or claim arising out
of or relating to his employment to arbitration, but it does
not address the claims he brings on behalf of the class, nor
does it contain a class waiver. (See Doc. 12).
such, Plaintiff contends it is unclear if all members of the
classes will be required to submit their claims to
arbitration, and what role, if any, an arbitrator may have on
class certification, notice and settlement procedures.
See Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d
966, 971 (8th Cir. 2017) (“recent cases have strongly
hinted at the Supreme Court's ultimate conclusion: the
question of class arbitration is substantive in nature and
requires judicial determination”). Because the
arbitration provision does not address these facets,
Plaintiff claims that prudence supports a stay rather than
response to Plaintiff's arguments, Defendant asserts that
Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66
(2012) requires dismissal. Although the claims in Genesis
HealthCare were mooted by a Rule 68 offer of judgment,
subsequent cases have applied Genesis HealthCare's
holding when the named plaintiff's claims were ordered to
arbitration. See White v. Turner, No. H-15-1485,
2016 1090107, at *4 (S.D. Tex. 55 2 Mar. 21, 2016)
(“The claims that both [plaintiffs] have asserted or
might assert against [defendant] cannot proceed because they
are subject to binding arbitration agreements. There is no
representative plaintiff, or even an opt-in or
consented-to-join plaintiff, who has any claims against
[defendant]. As such, Defendant contends that Genesis
HealthCare requires this court to dismiss the
prospective claims against [defendant] as moot.”);
Cooper v. Terminix Int'l Co., No. 4:17-CV-367,
2018 WL 1998973, at *6 (S.D. Tex. April 11, 2018); Beery
v. Quest Diagnostics, Inc., No. 12-CV-00231 KM MCA, 2013
WL 3441792, at *3 (D.N.J. July 8, 2013).
Court has discretion to stay or dismiss the instant matter.
See 9 U.S.C. § 3 (mandating courts to stay
proceedings pending completion of arbitration); Hensel v.
Cargill, Inc., No. 99-3199, 1999 WL 993775, at *4 (6th
Cir. Oct.19, 1999) (permitting courts to dismiss actions in
which all claims are referred to arbitration). However, under
the guidance of Genesis Healthcare the Court finds
that dismissal is appropriate.
reasons explained herein, IT IS RECOMMENDED
THAT Defendant's motion to compel arbitration
and dismiss (Doc. 12) should be GRANTED and
this matter TERMINATED on the active docket
of this Court.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to this Report & Recommendation
(“R&R”) within FOURTEEN (14)
DAYS of the filing date of this R&R. That period
may be extended further by the Court on timely motion by
either side for an extension of time. All objections shall
specify the portion(s) of the R&R objected to, and shall
be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent's
objections within FOURTEEN (14) DAYS after
being served with a copy of those objections. Failure to make
objections in ...