United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court in the above-entitled matter is Plaintiff's
Motion to Compel Arbitration and to Stay or Dismiss, (Dkt.
24), Defendant's Motion to Permit Discovery, (Dkt. 30),
and the responsive filings thereto. Having considered the
filings, relevant law, and the entire case file, the Court
issues the following Order.
Alexander Dubose Jefferson & Townsend LLP
(“Plaintiff” or “ADJT”) is a law firm
specializing in appellate representation. (Compl., Dkt. 1,
¶ 7). Defendant Susan Vance (“Defendant” or
“Ms. Vance”) was a non-equity partner at ADJT
until her employment was terminated on November 16, 2016.
(Id. ¶ 1). On February 22, 2017, ADJT filed
suit against Ms. Vance pursuant to the Computer Fraud and
Abuse Act, the Texas Uniform Trade Secrets Act, and the Texas
Theft Liability Act. (Id. ¶¶ 17-30). On
March 15, 2017, Ms. Vance filed an Original Answer and
Counterclaims, advancing claims for conversion, negligence,
breach of contract, and violations of the anti-discrimination
and anti-retaliation provisions of Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment
Act. (Answer, Dkt. 13, ¶¶ 95-120).
filed the instant motion, which seeks to compel all claims in
this matter to arbitration and to stay or dismiss this
proceeding, on April 19, 2017. (Mot. Compel, Dkt. 24). On May
3, 2017, Ms. Vance filed a Response and Request for
Pre-Arbitration Discovery, contending-among other things-that
ADJT “has failed to show the existence of a valid
arbitration agreement.” (Vance Resp. Mot. Compel, Dkt.
27, at 1). She subsequently filed a Motion to Permit
Discovery, seeking a court order permitting her to conduct
“limited pre-arbitration discovery” regarding (1)
whether the arbitration provision in question is procedurally
unconscionable, is substantively unconscionable, was
fraudulently obtained, or rests on an illusory promise; and
(2) whether ADJT has waived its right to arbitrate. (Mot.
Permit Discovery, Dkt. 30).
Federal Arbitration Act (“FAA” or “the
Act”) permits an aggrieved party to file a motion to
compel arbitration when an opposing party has “failed,
neglected, or refused to comply with an arbitration
agreement.” 9 U.S.C. § 4; Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991).
The Act represents a “liberal federal policy favoring
arbitration agreements.” Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983);
see also Primerica Life Ins. Co. v. Brown, 304 F.3d
469, 471 (5th Cir. 2002) (stating that the FAA
“expresses a strong national policy favoring
arbitration of disputes”).
court's consideration of a motion to compel arbitration
pursuant to the FAA is subject to a two-step inquiry.
Webb v. Investacorp, Inc., 89 F.3d 252, 257-258 (5th
Cir. 1996). The Court must first determine whether the
parties agreed to arbitrate the dispute. Id. at 258
(citing Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)). That
determination involves two questions: (1) whether there is a
valid agreement to arbitrate between the parties; and (2)
whether the dispute in question falls within the scope of
that arbitration agreement. Graves v. BP Am., Inc.,
568 F.3d 221, 222 (5th Cir. 2009); Webb, 89 F.3d at
258. The Court must then determine whether any legal
constraints foreclose arbitration of those claims.
Mitsubishi Motors, 473 U.S. at 628; Brown v.
Pac. Life Ins. Co., 462 F.3d 384, 396 (5th Cir. 2006).
contract law governs the inquiry into whether there is a
valid agreement to arbitrate between the parties. First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
(1995); see also Morrison v. Amway Corp., 517 F.3d
248, 254 (5th Cir. 2008). According to state law, “[a]n
employer may enforce an arbitration agreement entered into
during an at-will employment relationship if the employer
establishes that the employee received notice of its
arbitration policy and accepted it.” In re Dillard
Dep't Stores, Inc., 198 S.W.3d 778, 780 (Tex. 2006)
(citing In re Halliburton Co., 80 S.W.3d 566, 568
(Tex. 2002)). “If the employee receives notice and
continues working with the knowledge of the modified
employment terms, the employee accepts them as a matter of
arbitration provision at issue in this case, which the
parties refer to as the ADJT Dispute Resolution Program
(“the Dispute Resolution Program”), states that
it “govern[s] all disputes that may arise between
employees and ADJT.” (Dispute Resolution Program, Dkt.
24-1, at 5). The Dispute Resolution Program also states that
“[a]ll legal disputes directly or indirectly arising
out of or relating to the employment relationship . . . not
otherwise resolved through negotiation or mediation, shall be
submitted by ADJT or by the employee for final, binding
arbitration . . . .” (Id.).
evaluate the parties' respective arguments regarding the
enforceability of the Dispute Resolution Program, the Court
must first consider whether there is a valid agreement to
arbitrate between the parties. See Graves, 568 F.3d
at 222; Webb, 89 F.3d at 258. Central to that
inquiry is whether ADJT has established that Ms. Vance
received notice of the arbitration policy and accepted its
terms. See In re Dillard, 198 S.W.3d at 780 (Tex.
2006) (citing In re Halliburton, 80 S.W.3d at 568).
notice can be express or implied. Doe v. Columbia N.
Hills Hosp. Subsidiary, L.P., No. 02-16-275-CV, 2017 WL
1089694, at *4 (Tex. App.-Fort Worth Mar. 23, 2017) (no pet.
h.). The Court will thus first consider whether ADJT has
established that Ms. Vance received express notice; if
necessary, it will then turn to whether Ms. Vance received