Ortiz v. True Food Kitchen Holdings LLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [9] Jacob Ortiz, on behalf of himself and all No. CV-22-01821-PHX-DGC 10 others similarly situated, 11 Plaintiffs, ORDER 12 v. 13 True Food Kitchen Holdings, LLC, et al., 14 Defendants. [16] 17 Plaintiff Jacob Ortiz alleges violations of the Fair Labor Standards Act (“FLSA”) 18 and the Virginia Minimum Wage Act against Defendants True Food Kitchen Holdings, 19 LLC and FRC Balance, LLC. Doc. 1. Defendants have filed a motion to compel 20 arbitration, dismiss this action, and strike the collective and class allegations. Doc. 19. 21 The motion is fully briefed, and no party has requested oral argument. For reasons stated 22 below, the Court will grant the motion. 23 I. Background. 24 In March 2019, Plaintiff was hired by Defendants True Food Kitchen and FRC 25 Balance, operators of a full-service restaurant with locations throughout the country. 26 Doc. 1, ¶ 30; Doc. 19 at 2. Plaintiff’s employment has since terminated. See Doc. 1 at 9, 27 ¶ 35. Plaintiff worked at Defendants’ Fairfax, Virginia location. Doc. 1, ¶ 35. Plaintiff 28 was a tipped employee and earned $2.13 per hour, the tipped minimum wage. Id. 1 Plaintiff claims that Defendants failed to inform him of the FLSA’s “tipped 2 employee” provisions as required by law. Id. ¶ 38. He alleges Defendants deducted the 3 price of his uniform from his wages and caused his earnings to fall below the tipped 4 minimum wage. Id. ¶ 53. Plaintiff also alleges that Defendants required performance of 5 non-tip producing work, including “sweeping floors, mopping floors, taking out trash, 6 wiping walls, doing dishes, and polishing silverware.” Id. ¶ 40. He claims that he 7 performed non-tip producing work for over 20% of his time and for periods longer than 30 8 minutes. Id. ¶¶ 41-43. Plaintiff brings his FLSA claims as a collective action and his state9 law claims as a class action. Doc. 1. 10 Defendants filed the motion to dismiss and compel arbitration in lieu of answering 11 the complaint. Doc. 19. Defendants contend that Plaintiff agreed to arbitrate this dispute 12 in a written agreement signed on March 22, 2019 (the “Agreement”). Doc. 19-1, ¶ 8. 13 II. Legal Standard. 14 The Federal Arbitration Act (“FAA”) “provides that arbitration agreements ‘shall 15 be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity 16 for the revocation of any contract.’” Chalk v. T-Mobile USA, Inc., 560 F.3d 1087 , 1092 17 (9th Cir. 2009) (quoting 9 U.S.C. § 2 ). Because arbitration is a matter of contract, “a party 18 cannot be required to submit to arbitration any dispute which he has not agreed so to 19 submit.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986) 20 (citation omitted). Absent a valid contract defense, the FAA “leaves no place for the 21 exercise of discretion by a district court, but instead mandates that district courts shall 22 direct the parties to proceed to arbitration on issues as to which an arbitration agreement 23 has been signed.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985). 24 Defendants have “the burden under the FAA to show (1) the existence of a valid, 25 written agreement to arbitrate; and, if it exists, (2) that the agreement to arbitrate 26 encompasses the dispute at issue.” Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320 , 27 1323 (9th Cir. 2015) (citation omitted). If a valid agreement to arbitrate encompasses the 28 dispute, the FAA requires the court “to enforce the arbitration agreement in accordance 1 with its terms.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2 2000). “If the court finds that an arbitration clause is valid and enforceable, the court 3 should stay or dismiss the action to allow the arbitration to proceed.” Kam–Ko Bio–Pharm 4 Trading Co. Ltd–Australasia v. Mayne Pharma, 560 F.3d 935, 940 (9th Cir. 2009). 5 III. Defendants’ Motion. 6 Defendant cites language from the Agreement clearly requiring Plaintiff to arbitrate 7 all disputes, including wage claims. Doc. 19. Plaintiff contends that Defendants have not 8 produced the Agreement and therefore have failed to meet their burden. Doc. 23 at 3-4. 9 Defendants’ motion cited to and quoted from the Agreement (Doc. 19 at 2-3, 7), and stated 10 that it was attached as Exhibit A to the declaration of Josh Seguin, which was attached to 11 the motion as Exhibit 1 (id. at 2, 7). The declaration of Mr. Seguin described the 12 Agreement by date and signatures and stated that a correct copy was attached. Doc. 19-1 13 at 2. In fact, the Agreement was not attached to the declaration. Id. Defendants later filed 14 a notice of errata enclosing the Agreement and explaining that they inadvertently omitted 15 it from their original filing. Doc. 24 (Ex. A). In addition, Defense counsel had provided 16 Plaintiff’s counsel with a copy of the Agreement a month before filing the motion. See 17 Doc. 27-1 at 3-5. 18 Plaintiff does not dispute that the Agreement exists and that he signed it. Nor does 19 he claim that he was prejudiced by its inadvertent omission from Defendant’s original 20 filing. Doc. 23. The Court will not deny Defendants’ motion because of an unintended 21 and relatively minor filing error. See Taylor Holland LLC v. MVMT Watches, Inc., No. 22 2:15-CV-03578-SVW-JC, 2016 WL 6892097 , at *2 n.4 (C.D. Cal. Aug. 11, 2016) 23 (considering a movant’s notice of errata because there was no evidence of bad faith or 24 undue prejudice). 25 The Agreement is dated March 22, 2019 and signed by Plaintiff and his former 26 supervisor. Doc. 24-1 at 3. It provides: [27] [A]ny claim or controversy arising from, or relating in any way to, 28 Employee’s employment relationship or application or consideration for employment with the Company . . . which would otherwise be brought in [1] court, including, but not limited to, all alleged violations of federal, state or 2 local law, shall be submitted to, and shall be resolved through, final and binding arbitration[.] [3] 4 Doc. 24-1 at 2. The Agreement expressly included “wage payment claims.” Id. After 5 signing, Plaintiff was afforded 30 days to opt out of the arbitration requirement. Id. at 3 . 6 The declaration of Mr. Seguin, Director of People at True Food Kitchen, provides 7 these additional facts: [8] On March 22, 2019, Mr. Ortiz acknowledged and signed a written arbitration 9 agreement agreeing to arbitrate any claims arising out of or relating to his employment with FRC. A true and complete copy of Mr. Ortiz’s signed [10] Arbitration Agreement is attached hereto as Exhibit A . . . . True Food and 11 FRC do not have any record of Mr. Ortiz opting out of the Arbitration Agreement . . . . The standard company practice for True Food and FRC has [12] been, at all times since approximately April 2017, to require its employees, 13 including Servers and Bartenders, to sign Arbitration Agreements[.] 14 Doc. 19-1 at 2. 15 Plaintiff does not assert that the terms of the Agreement were unclear, unexplained, 16 or waived, or that he opted out within 30 days. Nor does he argue that his wage claim 17 somehow falls outside the Agreement. 18 Instead, Plaintiff argues that Mr. Seguin’s declaration is inadmissible hearsay. This 19 argument is not persuasive. Defendants bring their motion under Rule 12(b)(1). Doc. 19 20 at 3. Such a motion may rely on affidavits. See Green v. United States, 630 F.3d 1245 , 21 1248 n.3 (9th Cir. 2011) (“On a motion to dismiss for lack of subject matter jurisdiction 22 under Fed. R. Civ. P. 12(b)(1), proof of jurisdictional facts may be supplied by affidavit, 23 declaration, or any other evidence properly before the court, in addition to the pleadings 24 challenged by the motion.”).1 [25] 26 1 Some cases raise serious questions about whether motions to compel arbitration may be brought under Rule 12(b)(1). See, e.g., Wolff v. Tomahawk Mfg., No. 3:21-CV27 880-SI, 2022 WL 377926 , at *4-5 (D. Or. Feb. 8, 2022). The Court need not address this issue because use of Mr. Seguin’s affidavit is appropriate even if Defendants are correct [28] that Rule 56 controls, as discussed below. 1 Plaintiff contends that the motion must be addressed under Rule 56. Doc. 23 at 22 4. But that rule also permits the use of affidavits. See Fed. R. Civ. P. 56(c)(1)(A). If an 3 affidavit contains evidence that would be inadmissible hearsay were the declarant to testify 4 in court, the hearsay may not be relied upon. See 2 Gensler, Federal Rules of Civil 5 Procedure, Rules and Commentary, Rule 56, at 181 (2023). But Mr. Seguin avows that he 6 can testify through his familiarity with Defendants’ business records (Doc. 19-1, ¶ 5), that 7 Defendants’ standard practice was to require new employees to sign arbitration agreements 8 (id. ¶ 10), that Defendants kept these agreements in computer systems containing personnel 9 information (id. ¶¶ 3-4), that the records were kept in the ordinary course of business (id. 10 ¶ 5), and that the Agreement is a true and correct copy of the arbitration contract signed 11 by Plaintiff (id. ¶ 8). Such testimony, if given by Mr. Seguin in court, would overcome 12 any hearsay objection to the Agreement. See Fed. R. Evid. 803(6). And Mr. Seguin’s other 13 material statements in the declaration are based on his familiarity with Defendants’ 14 business practices and would not be out-of-court hearsay declarations if given in court. 15 Plaintiff’s hearsay response to Defendants’ motion is not well taken. 16 The Agreement clearly shows an intent to arbitrate all employment-related claims, 17 including “wage payment claims.” Doc. 24-1 at 3. Plaintiff’s individual FLSA and state 18 law claims are wage disputes. Plaintiff makes no argument that would enable the Court to 19 deny Defendant’s motion to compel arbitration of his claims. 20 IV. Motion to Strike. 21 Defendants move to strike Plaintiff’s collective and class allegations, arguing that 22 the Agreement renders Plaintiff incapable of a collective or class action. Doc. 19 at 9.2 23 The Agreement includes this provision: [24] In accordance with this agreement, both the Employee and the 25 Company . . . shall only be entitled to pursue a claim in arbitration against the other in their individual capacities, and not as a plaintiff, class member, 26 private attorney general, or class representative in any purported class and/or [27] 2 Eleven individuals joined Plaintiff’s collective action by filing consent notices. [28] Doc. 1 at 22; Doc. 13. collective and/or private attorney general and/or representative action [1] proceeding. [2] 3 Doc. 24-1 at 3. 4 Plaintiff contends that this collective and class action may continue without him 5 because the 11 opt-in plaintiffs were conferred party status upon filing their consent 6 notices. Doc. 23 at 5. But this argument says nothing about Plaintiff’s class claim, which 7 cannot be satisfied by opt-in plaintiffs and which will lack the required class representative 8 when Plaintiff’s claims are sent to arbitration as clearly required by the Agreement. 9 Nor does the Court find Plaintiff’s opt-in argument persuasive with respect to the 10 FLSA collective action claim. Plaintiff cites cases from outside the Ninth Circuit that stand 11 for the broad proposition that opt-in plaintiffs who have filed a consent notice in FLSA 12 actions acquire the same status as the original plaintiff. See, e.g., id. at 6 (citations omitted). 13 The Ninth Circuit acknowledged this point in Campbell v. City of Los Angeles, 903 F.3d 14 1090 (9th Cir. 2018): “[T]here is no statutory distinction between the roles or nomenclature 15 assigned to the original and opt-in plaintiffs” after opt-in plaintiffs file consent notices with 16 the court. Id. at 1104 (citation omitted). 17 But Campbell concerned whether opt-in plaintiffs could appeal an order 18 decertifying a collective action. Id. at 1105. The Ninth Circuit did not address whether 19 opt-in plaintiffs may carry on an FLSA suit when the original plaintiff is dismissed on the 20 basis of an arbitration agreement. Plaintiff cites no law to support this proposition. And 21 the fact remains that a collective action under the FLSA is a representative action. The 22 named plaintiff sues on behalf of all others. See 29 U.S.C. § 216 (b) (“An action to recover 23 the liability . . . may be maintained against any employer. . . by any one or more employees 24 for and in behalf of himself or themselves and other employees similarly situated.”) 25 (emphasis added). Plaintiff does not explain how this case can proceed without him as the 26 representative lead plaintiff, and he makes no attempt to identify an alternative lead 27 plaintiff. 28 As another judge on this Court has explained: [T]he named Plaintiffs – York and Pearson – brought a collective and class [1] action to this Court in direct contravention of the Arbitration Agreements 2 they signed, which contained express collective and class action waivers. It is unclear to the Court how the named Plaintiffs are proper plaintiffs in this [3] collective action, having waived their right to bring such an action. Indeed, 4 upon this Order compelling York and Pearson to individual arbitrations, the lawsuit is left without lead plaintiffs capable of a collective action. The [5] purported opt-in Plaintiffs are attempting to use the tools of a collective 6 action to become a part of this lawsuit that was in essence improperly brought as a collective action. For these reasons, the Court will grant Defendants’ 7 request to strike the class and collective action claims in this matter. See 8 Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 , 1415-19 (2019). [9] York v. Dave & Buster’s Inc., No. CV-21-01130-PHX-JJT, 2022 WL 2491228 , at *2 (D. [10] Ariz. June 3, 2022). [11] Plaintiff is bound by the Agreement to arbitrate his claims against Defendants. The [12] Court accordingly will compel arbitration and dismiss his claims, leaving this case with no [13] named plaintiff to represent and litigate the purported collective action. The Court [14] accordingly will strike the collective and class claims. Id. at *3 ; see also Longnecker v. [15] Am. Exp. Co., No. 2:14-cv-0069-HRH, 2014 WL 4071662 , at *4 (D. Ariz. Aug. 18, 2014) [16] (“[N]either the remedial purposes of the FLSA, nor the interests of judicial economy, [17] would be advanced if [the court] were to overlook facts which generally suggest that a [18] collective action is improper.”).3 [19] V. Dismissal of the Complaint. [20] Because Plaintiff expressly consented to “final and binding arbitration,” Doc. 24-1 [21] at 2, the Court sees no point in staying this litigation. The Court will compel arbitration [22] and dismiss Plaintiff’s claims. Kam–Ko Bio-Pharm Trading Co., Ltd.-Austl., 560 F.3d 935 [23] at 940 (finding that the court has discretion to dismiss or stay the action to allow arbitration [24] to proceed); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (affirming [26] 27 3 In light of this ruling, the Court need not address Defendants’ evidence, produced for the first time in their reply, that the opt-in plaintiffs also signed arbitration agreements. [28] See Doc. 27-1. 1 | dismissal to allow arbitration); Sparling v. Hoffman Const. Co., 864 F.2d 635 , 638 (9th Cir. 2| 1988) (same). 3 IT IS ORDERED: 4 1. The motion to compel arbitration and dismiss the complaint (Doc. 19) is 5 granted. Plaintiff Jacob Ortiz and Defendants shall proceed to arbitration 6 under the terms of the Agreement. 7 2. The collective and class allegations are stricken. 8 3. The Clerk is directed to terminate this action. 9 Dated this 27th day of March, 2023. [10] punk 6, Cnr phtl [12] David G. Campbell 13 Senior United States District Judge