United States District Court, S.D. Texas, Houston Division
Jethro Cooper, individually and on behalf of all others similarly situated, Plaintiffs,
Terminix International Company, and Terminix International, Inc., Defendants.
MEMORANDUM AND RECOMMENDATION
CHRISTINA A. BRYAN, UNITED STATES MAGISTRATE JUDGE.
dispute is before the court on Defendants' Motion to
Dismiss and Compel Arbitration (Dkt. 14). The court
recommends that the motion be granted in full as to Plaintiff
Cooper, and that the Motion to Dismiss be granted without
prejudice as to the individuals who filed consents to opt-in
Terminix has employed Cooper as a
pest control technician since 2003. On December 4, 2017,
Cooper filed this action against Terminix under the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq.
(FLSA) seeking unpaid overtime on behalf of himself and all
others similarly situated. An order for conditional
certification of a collective action has not been entered,
but several individuals have filed consent forms to join this
action as plaintiffs. See Dkts. 4-11, 26.
seeks to compel Cooper to arbritate his FLSA claims and to
dismiss this case. Cooper contends that the arbitration
agreement he signed is unenforceable, and that even if he
must arbitrate, the claims of individuals who have filed
consents to join this action should not be dismissed.
Legal Standards For Motion to Compel
conduct a two-part inquiry when deciding whether parties
should be compelled to arbitrate a dispute. First, the court
must determine whether the parties agreed to arbitrate, and
next the court must determine whether any federal statute or
policy prohibits arbitration. OPE Int'l LP v. Chet
Morrison Contractors, Inc., 258 F.3d 443, 445
(5th Cir. 2001). In deciding the first inquiry,
i.e., whether the parties have agreed to arbitrate
the dispute, the court must determine (1) whether there is a
valid arbitration agreement, and (2) whether the specific
dispute in question falls within the scope of that agreement.
Id. The first determination, whether a valid
agreement exists, is made on the basis of "ordinary
state law principles that govern the formation of
contracts." Morrison v. Amway Corp., 517 F.3d
248, 254 (5th Cir. 2008). The second
determination, the scope of the arbitration clause, is made
in accordance with the strong presumption in favor of
arbitration, and doubts must be resolved in favor of
arbitration. Pennzoil Exploration and Prod. Co. v. Ramco
Energy Ltd., 139 F.3d 1061, 1068 (5th Cir.
1998); Moses H. Cone Mem. Hosp. v. Mercury Const.
Corp., 460 U.S. 1, 24-25 (1983).
court has no discretion to deny arbitration of claims that
are subject to a valid arbitration provision. Bhatia v.
Johnson, 818 F.2d 418, 421 (5th Cir. 1987).
If all claims asserted in a case are subject to arbitration,
dismissal is the proper remedy, not a stay pending
arbitration. Alford v. Dean Witter Reynolds, Inc.,
975 F.2d 1161, 1164 (5th Cir. 1992); Ruiz v.
Donahoe, 784 F.3d 247, 249-50 (5th Cir.
Defendant's motion to compel arbitration and dismiss
contends that the arbitration agreement is invalid because it
is illusory. He further argues that it is invalid because it
infringes his substantive FLSA rights. Because there is a
strong federal policy in favor of arbitration, a party
seeking to invalidate an arbitration agreement, here Cooper,
bears the burden to establish invalidity. Carter v.
Countrywide Credit Indus., 362 F.3d 294, 297
(5th Cir. 2004).
The parties agreed to arbitrate
There is a valid arbitration agreement
and Terminix have entered two agreements relating to
Cooper's employment, a 2014 Compensation Plan Summary
signed February 19, 2014, and a 2012 We Listen Dispute
Resolution Plan (We Listen Plan) signed November 15, 2011.
Although the Compensation Plan is contingent on an employee
signing the We Listen Plan, the arbitration agreement
Terminix seeks to enforce is contained in the
Listen Plan contains the following provision:
I HEREBY WAIVE MY RIGHT TO A COURT OR JURY TRIAL AND AGREE
THAT THE PLAN IS THE EXCLUSIVE REMEDY THE COMPANY AND I HAVE
FOR RESOLUTION OF DISPUTES. Accordingly, I may not pursue
relief for any Dispute in any federal or state court of law
except as stated in the Plan. If I do file a claim in any
federal or state court, the Company may seek a stay or
dismissal of the claim and compel arbitration and the dispute
resolution steps under the Plan. I UNDERSTAND AND AGREE THAT
MY SOLE AND FINAL LEGAL REMEDY IS BINDING ARBITRATION. The
only exception is that either party may seek an injunction is
a court if interim and/or immediate relief is necessary to
preserve the status quo or the meaningfulness of the
arbitration process pending the outcome in arbitration, to
the extent allowable under federal or state law.
Dkt. 19-2 at ¶ 8 (emphasis in original).
The arbitration agreement is not illusory
case, the issue of whether a valid arbitration agreement
exists is governed by Tennessee law. Dkt. 19-2 at ¶ 13
(". . . this Plan shall be construed, interpreted, and
its validity and enforceability determined, strictly in
accordance with the Federal Arbitration Act... and the laws
of the State of Tennessee"). The Tennessee Supreme Court
defines a contract "as an agreement upon sufficient
consideration to do or not do a particular thing."
Green v. Justice, No. 03A01-9512-CV-00445, 1996 WL
323689, at *2 (Tenn. Ct. App. June 13, 1996) (citing
Smith v. Pickwick Elec. Co-op.367 S.W.2d 775, 780
(Tenn. 1963)); see also Moody Realty Co. v. Huestis,237 S.W.3d 666, 674 (Tenn. Ct. App. 2007) ("A contract
'must result from a meeting of the minds of the parties
in mutual assent to the terms, must be based upon a
sufficient consideration, free from fraud or undue ...