United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ORDER AND OPINION
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Defendant PFG Transco, Inc. Defendant
Performance Food Group, Inc., and PFGC, Inc.'s
(collectively, “PFG”) Motion to Dismiss (Dkt.
The Court, having considered the relevant pleadings, finds
the motion is granted in part and denied in part.
5, 2013, Plaintiff Felton Thomas began working as a
dispatcher for PFG, working out of the 500 Metro Park Drive,
McKinney, Texas warehouse. According to the terms of his
employment, the parties agreed to mandatory, final, and
binding arbitration of disputes for on-the-job injuries
pursuant to PFG's Texas Injury Benefit Plan (the
“Benefit Plan”) as a non-subscriber under the
Texas Workers' Compensation Statute. Plaintiff signed an
acknowledgment of having agreed to mandatory arbitration of
such disputes by arbitration (Dkt. #7-1, Exhibit 3). Appendix
A to the Benefit Plan states:
The Employer hereby adopts a mandatory company policy
requiring that the following claims or disputes must be
submitted to final and binding arbitration under this
Appendix: (A) any legal or equitable claim or dispute
relating to enforcement or interpretation of the arbitration
provisions in a Receipt, Safety Pledge and Arbitration
Acknowledgement form or this Appendix; and (B) any legal or
equitable claim by or with respect to an Associate for any
form of physical or psychological damage, harm or death which
relates to an accident, occupational disease, or cumulative
trauma (including, but not limited to, claims of negligence
or gross negligence or discrimination; claims for intentional
acts, assault, battery, negligent
hiring/training/supervision/retention, emotional distress,
retaliatory discharge, or violation of any other noncriminal
federal, state or other governmental common law, statute,
regulation or ordinance in connection with a job-related
injury, regardless of whether the common law doctrine was
recognized or whether the statute, regulation or ordinance
was enacted before or after the effective date of this
Appendix). This includes all claims listed above that an
Associate has now or in the future against an Employer, its
officers, directors, owners, Associates, representatives,
agents, subsidiaries, affiliates, successors, or assigns. . .
The determination of whether a claim is covered by this
Appendix shall also be subject to arbitration under this
Appendix. Neither an Associate nor an Employer shall be
entitled to a bench or jury trial on any claim covered by
(Dkt. #7-1, Exhibit 1 at p. 58).
December 6, 2017, PFG filed a motion to dismiss (Dkt. #7). On
December 18, 2017, Plaintiff filed his response (Dkt. #8). On
December 28, 2017, PFG filed a reply (Dkt. #11).
Federal Arbitration Act (“FAA”) expresses a
strong national policy favoring arbitration of disputes, and
all doubts concerning the arbitrability of claims should be
resolved in favor of arbitration.” Wash. Mut. Fin.
Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004).
The FAA, “leaves no place for the exercise of
discretion by a district court, but instead mandates that
district courts shall direct the parties to proceed to
arbitration on issues as to which an arbitration agreement
has been signed.” Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 218 (1985).
considering a motion to compel arbitration, the Court must
address two questions. Graves v. BP America, Inc.,
568 F.3d 221, 222 (5th Cir. 2009) (citing Fleetwood
Enterprises Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th
Cir. 2002)). “First, whether there is a valid agreement
to arbitrate, and second, whether the dispute in question
falls within the scope of the arbitration agreement.”
Id. Concerning the first question of contract
validity, the Court should apply “ordinary state-law
principles that govern the formation of contracts.”
Id. (citing First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944 (1995)). The second question
of scope is answered “by applying the ‘federal
substantive law of arbitrability . . . .'”
Id. (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)).
ruling on a motion to compel arbitration, the Court must
first determine whether there is a valid agreement to
arbitrate applying ordinary state-law principles that govern
the formation of contracts. Graves, 568 F.3d at 222.
“In applying state law, however, due regard must be
given to the federal policy favoring arbitration.”
Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th
Cir. 1996). “In determining whether the parties agree
to arbitrate a certain matter, courts apply the contract law
of the particular state that governs the agreement.”
Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260,
264 (5th Cir. 2004). The Court finds Texas contract law
applies. Under Texas law, a binding contract exists
when each of the following elements are established: (1) an
offer; (2) an acceptance; (3) a meeting of the minds; (4) a
communication that each part consented to the terms of the
contract; (5) execution and delivery of the contract with the
intent that it be mutual and binding; and (6) consideration.
Advantage Physical Therapy, Inc. v. Cruse, 165
S.W.3d 21, 24 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
does not argue that the Arbitration Agreement is not a valid
agreement to arbitration. Plaintiff asserts that this lawsuit
involves two separate collisions “that happened
virtually at the same time, (the first collision caused by
PFG, and the second collision caused immediately thereafter
by Defendant, Navigators Logistics, Inc.,
(‘Navigators'))”, and Navigators is not a
signatory to the arbitration agreement (Dkt. #7 at pp. 1-2).
Defendant Kenneth Paul Lockhart (“Lockhart”), the
driver for Navigators, is alleged to be an employee of
Navigators, acting in the full course and scope of his
employment during the second collision. Thus, Lockhart is
also not a signatory to the arbitration agreement. Plaintiff
argues that his arbitrable claims against PFG and
non-arbitrable claims against ...