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Parish v. Macy's Retail Holdings, Inc.

United States District Court, N.D. Texas, Fort Worth Division

November 14, 2017

JANET PARISH, Plaintiff,



         Before the court for consideration is the motion that plaintiff, Janet Parish, filed October 24, 2017, titled "Plaintiff's Motion to Stay and Compel Arbitration, " After having considered such motion, the response thereto of defendant, Macy's Retail Holdings, Inc. ("Macy's"), plaintiff's reply, the entire record of the above-captioned action, and pertinent legal authorities, the court has concluded that such motion should be denied.


         Grounds of the Motion to Stay and Compel Arbitration

         Plaintiff relied on the oft-repeated proposition that the Federal Arbitration Act ("Act") requires that a written arbitration clause in any "contract evidencing a transaction involving commerce . . . shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity in the revocation of any contract." 9'U.S.C. § 2. Apparently there is no disagreement between the parties that plaintiff would be entitled to arbitrate her dispute with Macy's unless she has taken some action that has caused her to lose that right. Plaintiff anticipated in her motion that Macy's would contend that she had waived her right to arbitration by her litigation conduct in the instant action. She argued that there was no waiver, and that in any event Macy's has not been prejudiced by her failure to timely assert her right to arbitration.

         Plaintiff alleged in her motion that she first learned on October 20, 2017, when Macy's produced a summary plan description ("SPD") of its Injury Benefit Plan ("Plan"), that the Plan contained an arbitration provision and that the claims she has asserted in this action are subject to binding arbitration pursuant to that provision. Plaintiff acknowledged that she received on May 22, 2017, a single-page Receipt, Safety Pledge, and Arbitration Acknowledgement ("Acknowledgment"), but that Macy's did not produce the SPD referenced in that document until October 20, 2017. She alleged that she did not know before that date that the Plan contained a binding arbitration agreement. According to her, when she received the SPD on October 20, 2017, she "learned for the first time that there was an arbitration provision relating to any claim related to physical or psychological damage, even those under common law as asserted in this case." Doc. 50 at 2-3. She contended that "[h]ad [she] known there was a binding arbitration provision that applied to her claims, she would have elected arbitration back in May, 2017." Id. at 3. Somewhat in the alternative, plaintiff contended that even if her assertion of a right to arbitration was untimely, she cannot be held to have waived that right inasmuch as Macy's has not been prejudiced by her untimeliness.


         Macy's' Response to Plaintiff's Motion

         Macy's questioned the timeliness of plaintiff's arbitration request; and, as plaintiff had anticipated, Macy's responded that by substantially invoking the judicial process through her prosecution of this action to the prejudice of Macy's, plaintiff waived her right to insist on arbitration. Macy's gave a chronology of things that have occurred in this litigation, including the taking of depositions that are not recorded in the clerk's record of this action, starting on January 5, 2017, and going through the filing by plaintiff of her motion to stay and compel arbitration. According to Macy's, plaintiff's conduct was such that it constituted overt acts in court that evinced a desire to resolve the arbitrable dispute through litigation rather than arbitration.

         Macy's alleged that it has suffered prejudice, noting that "prejudice" in the applicable context means "the inherent unfairness in terms of delay, expense, or damage to a party's legal position that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate the same issue." Doc. 57 at 4-5 (citing Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480 (5th Cir. 2009)). According to Macy's, the prejudice it suffered includes having incurred over $175, 000 in defense costs defending plaintiff's prosecution in this action.


         History of the Litigation

         As the following litigation history discloses, when viewed from the standpoint of court activity, this litigation has been active since its early-January 2017 filing:[1]

         This action was initiated in state court on January 5, 2017, by the filing by plaintiff of a pleading against Macy's, seeking to recover damages by reason of a slip-and-fall accident plaintiff had on March 9, 2015, at Macy's' Hulen Mall department store, where plaintiff served as an employee. Macy's answered plaintiff's state court pleading on January 27, 2017. Plaintiff filed an amended state court pleading on February 6, 2017. On February 8, 2017, Macy's removed the action to this court based on diversity of citizenship and amount in controversy.

         On March 10, 2017, the court ordered plaintiff to file an amended complaint for the purpose of causing plaintiff's pleading to satisfy the pleading requirements of the Federal Rules of Civil Procedure, the Local Civil Rules of this court, and the undersigned judge's specific requirements. The amended complaint was filed, with a jury demand, on March 23, 2017. Plaintiff sought to recover monetary damages for injuries she suffered as a result of the slip and fall. She alleged that Macy's' actions related to her slip-and-fall accident constituted gross negligence. Macy's answered the amended complaint on April 7, 2017 .

         On April 10, 2017, the court issued an eleven-page Status Report Order that had as a goal bringing to the surface any issues that would need to be considered by the court in advance of trial. It defined procedures that would encourage settlement activity by the parties, and certain pretrial procedures that would have to be followed during the pendency of this action.

         On May 9, 2017, the parties filed a Joint Status Report and Discovery Control Plan in which they stated their respective factual and legal positions in this action, and informed the court that there were no pending motions but that Macy"s anticipated filing a motion for protective order, that plaintiff anticipated filing a motion for spoliation instructions, and that both parties anticipated filing motions for summary judgment to narrow the issues in this case. The parties requested a trial date of June 11, 2018; and, they provided a proposed discovery plan that detailed deadlines for accomplishment of discovery activities in which they proposed to engage, starting on May 22, 2017, and concluding on May 8, 2018. On May 9, 2017, the court issued a scheduling order, which provided a discovery deadline of September 25, 2017, a motion deadline of thirty days ahead of the pretrial conference, a pretrial conference date of October 16, 2017, and jury trial date of December 18, 2017.

         On May 23, 2017, plaintiff added to her legal representation through the entry of an appearance by another attorney on her behalf. On May 26, 2017, the parties jointly filed a motion to amend the scheduling order, which was denied. The parties filed their disclosure and designation of expert testimony on June 19, 2017 .

         On September 12, 2017, the parties jointly moved for an extension of the discovery deadline fixed by the scheduling order. On September 13, 2017, the court granted that motion by extending the deadline, for conducting oral depositions to October l, 2017, and by ordering that each side arrange for its retained experts to be available to give their oral depositions by that date.

         On September 15, 2017, plaintiff filed her motion for sanctions due to spoliation and noncompliance with discovery obligations, to which Macy's responded on October 12, 2017. Plaintiff replied to the response on October 16, 2017. The sanctions plaintiff sought by her September 15, 2017 motion, if granted, would have had a significant adverse impact on Macy's' defense prospects in this action.

         Macy's filed on September 18, 2017, its second amended answer, in response to plaintiff's amended complaint; and, on September 25, 2017, Macy's designated its lead counsel.

         On October 10, 2017, the parties jointly filed a report of a settlement conference they had on October 5, 2017, at which plaintiff, her counsel, Macy's' counsel, and a corporate representative of Macy's negotiated for two hours in an attempt to reach a settlement.

         Macy's filed on October 12, 2017, its motion to reopen discovery and for leave to file a motion for sanctions, both of which requests were based on the failure of plaintiff to. disclose in her discovery responses involvement by plaintiff in an automobile accident that occurred on April 30, 2017, before the discovery responses were made. On October 16, 2017, plaintiff filed her partial opposition to such motion.

         On October 13, 2017, the court received from the parties a proposed pretrial order. It made no mention of anything having to do with arbitration. It listed the pending motions as being plaintiff's motion for sanctions due to spoliation and noncompliance with discovery obligations, and Macy's' motion to reopen discovery. Plaintiff devoted four pages of the proposed order to a detailed statement of her claims. The parties provided a list of facts established by pleadings, by stipulations, or by admissions; an agreed list of the alternate issues of fact to be decided by the fact finder; an agreed list of the contested issues of law; a list of each party's expert witnesses, and a summary of the opinions to be given by each. Two retained experts and six non-retained experts were listed as expert witnesses for plaintiff; and, Macy's listed two retained experts, and said that it cross-designated all of plaintiff's listed retained and non-retained experts, reserving the right to elicit testimony from each of them, whether by direct examination or cross-examination. Under the heading "additional matters that would aid in the disposition of the case, " the parties stated that they contemplated filing motions in limine, that Macy's anticipated filing a motion for leave to file a motion for summary judgment as to punitive damages, and that plaintiff anticipated a motion to quash depositions by written questions to CIGNA and Internal Revenue Service, and a motion for protective order. The parties said that they anticipated that the trial would last four to five days, and they requested that an agreed jury questionnaire be submitted to the venire panel.

         The proposed pretrial order made disclosures that help explain why plaintiff initially preferred to have her case decided by a jury rather than an arbitrator, and why Macy's has incurred such large legal expense in defense of plaintiff's claims. It disclosed that plaintiff proposes to have expert testimony that her medical-type expenses related to her slip-and-fall accident will total approximately $2, 500, 000, and that, in addition to an intent to ask a jury to award her that amount, she has plans to ask the jury to award her additional amounts for loss of earnings in the past, loss of earning capacity in the future, physical impairments sustained in the past, physical impairment she will sustain in the future, physical pain and mental anguish she has sustained in the past, and physical pain and mental anguish she will sustain in the future. The appearance is that plaintiff will be asking the jury to award her for actual damages in an amount in excess of $3 million.

         A pretrial conference was conducted on October 16, 2017, during which the pending motions were discussed, plaintiff's counsel was directed by the court to provide defense counsel information related to whatever injury claim plaintiff might have made as a result of her April 2017 automobile accident, and the court authorized Macy's to conduct a deposition of plaintiff related to the automobile accident and whatever injuries plaintiff claimed she suffered as a result of the accident. The court expressed dissatisfaction with the proposed pretrial order the parties presented to the court, and discussed supplementation that would be required for ...

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