United States District Court, E.D. Texas, Tyler Division
ORDER AND REASONS
the Court is “Defendant Senior Living Properties, LLC
D/B/A Lindale Healthcare Center's Motion to Compel
Arbitration and Stay Proceedings.” Rec. Doc. 18.
Plaintiff timely filed a response memorandum. Rec. Doc. 19.
Defendant then filed a reply memorandum. Rec. Doc. 20. For
the reasons discussed below, IT IS ORDERED
that the motion (Rec. Doc. 18) is GRANTED.
BACKGROUND AND PROCEDURAL HISTORY
case arises out of alleged violations of the Fair Labor
Standards Act (“FLSA”). Rec. Doc. 1 at
¶ 1. Specifically, Darlene Griffin
(“Griffin”) worked for Senior Living Properties,
LLC, doing business as Lindale Healthcare Center
(“Defendant”). Id. at ¶¶ 1-3.
In her original complaint, Griffin alleged that Defendant
repeatedly violated FLSA Sections 6 and 7 by failing to pay
her and similarly situated employees for the hours worked and
by failing to pay her for overtime hours worked at a rate not
less than one and one-half times the regular hourly rate of
pay. Id. at ¶ 8. She accordingly requested
“her unpaid wages, overtime, liquidated damages, all
equitable relief, attorney fees, and litigation
expenses/costs, including expert witness fees and
expenses.” Id. at ¶ 1.
August 1, 2017, Plaintiff filed an amended complaint adding
Tara Kumpe (“Kumpe”) as a Plaintiff. Rec. Doc. 13
at ¶ 2.
Griffin and Kumpe signed arbitration agreements whereby they
agreed “to voluntarily promise and irrevocably agree
(after completing the facilities [sic] Problem Resolution
Procedure) to arbitrate any dispute or claim arising or
related to employment . . . .” Rec. Docs. 18-1 at 3;
18-2 at 3. The agreement further provides that it applies to
“claims by employee[s] against the Company . . .
including . . . [a]ny federal . . . laws . . . providing for
the collection or recovery of unpaid wages, minimum wage or
overtime pay, or prohibiting retaliation for making a wage
response to Defendant's motion to compel arbitration,
Plaintiffs argue (1) Defendant waived their right to compel
arbitration by failing to timely raise the issue; (2) the
agreements contain a mediation provision and “[n]either
party has [the] right to compel arbitration when [the]
agreement expressly requires mediation as a precondition for
requesting arbitration and neither party has requested
mediation”; and (3) the agreement is unconscionable and
therefore cannot be enforced. Rec. Doc. 19 at 3.
is favored in the law.” Grigson v. Creative Artists
Agency, L.L.C., 210 F.3d 524, 526 (5th Cir. 2000)
(citing Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25 (1983)). Section 2 of the
Federal Arbitration Act (“FAA”) provides that
“[a] written provision in any . . . contract evidencing
a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or
transaction . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C.
to the courts, § 2 “is a congressional declaration
of a liberal federal policy favoring arbitration agreements,
notwithstanding any state substantive or procedural policies
to the contrary.” Moses H. Cone Mem'l
Hosp., 460 U.S. at 24 (citing § 2). It was
“Congress's clear intent . . . to move the parties
to an arbitrable dispute out of court and into arbitration as
quickly and easily as possible.” Id. at 22.
Essentially, the FAA “establishes that, as a matter of
federal law, any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration”
(id. at 24-25) and “where the contract
contains an arbitration clause, there is a presumption of
arbitrability” (Tittle v. Enron Corp., 463
F.3d 410, 418 (5th Cir. 2006) (quoting AT&T Techs.,
Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650
(1986)) (citing Primerica Life Ins. Co. v. Brown,
304 F.3d 469, 471 (5th Cir. 2002) (noting that any doubts
regarding arbitrability should be resolved in favor of
arbitration) (citing Southland Corp. v. Keating, 465
U.S. 1, 10 (1984)))).
§ 2 contains a savings clause that provides that an
agreement to arbitrate is “enforceable, save upon
such grounds as exist at law or in equity for the revocation
of any contract.” § 2 (emphasis added).
Accordingly, to determine if the parties agreed to arbitrate,
the court should consider “(1) whether a valid
agreement to arbitrate between the parties exist; and (2)
whether the dispute in question falls within the scope of
that arbitration agreement.” Pennzoil Expl. &
Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1065 (5th
Cir. 1998) (citing Webb v. Investacorp, Inc., 89
F.3d 252, 258 (5th Cir. 1996); In re Hornbeck Offshore
(1984) Corp., 981 F.2d 752, 754 (5th Cir. 1993);
Midwest Mech. Contractors, Inc. v. Commonwealth Constr.
Co., 801 F.2d 748, 750 (5th Cir. 1986)); see also
Jones v. Haliburton Co., 583 F.3d 228, 233-34 (5th Cir.
2009) (citations omitted). “If both questions are answered
in the affirmative, our court then asks whether ‘any
federal statute or policy renders the claims
nonarbitrable.'” Jones, 583 F.3d at 234
court is satisfied that a dispute is subject to arbitration
pursuant to a written arbitration agreement, the court shall,
on application of one of the parties, “stay the trial
of the action until such arbitration has been had in
accordance with the terms of the agreement . . . .” 9
U.S.C. § 3.
DID DEFENDANT WAIVE THE RIGHT TO COMPEL ARBITRATION?
may waive their right to arbitrate a dispute by “
substantially invok[ing] the judicial process  to the
detriment or prejudice of the other party.”
Nicholas v. KBR, Inc., 565 F.3d 904, 907 (5th Cir.
2009) (quoting Miller Brewing Co. v. Fort Worth Distrib.
Co., 781 F.2d 494, 496-97 (5th Cir. 1986)). A party may
“invoke the judicial process” by “initially
pursuing litigation of claims then reversing course and
attempting to arbitrate those claims” or by otherwise
taking “some overt act in Court that evinces a desire
to resolve the arbitrable dispute through litigation rather
than arbitration.” Id. (quoting Gulf Guar.
LifeIns. Co. v. Conn. Gen. Life Ins. Co., 304
F.3d 476, 484 (5th Cir. 2002)). A party is prejudiced by such
an invocation if it resulted “in delay, extra expense,
and/or damage to his legal position.” Cochran v.
Nabors Drilling Techs. USA Inc., No. 16-1633, 2017 WL
2427794, at *2 (W.D. La. June 2, 2017) (citing In re
Mirant Corp., 613 F.3d 584, 591 (5th Cir. 2010)). Three
factors “are particularly relevant to the prejudice
determination: (1) whether discovery occurred relating to
arbitrable claims; (2) the time and expense incurred in