United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER SETTING JURY TRIAL
R. MARTINEZ, UNITED STATES DISTRICT JUDGE
day, the Court considered Defendant Coca-Cola Southwest
Beverages LLC's [hereinafter "Defendant"]
"Motion to Dismiss and Compel Arbitration" (ECF No.
10) [hereinafter "Motion to Compel"], on January
24, 2019; Plaintiff Gilbert Rosales's [hereinafter
"Plaintiff'] "Response to Defendant's
Motion to Dismiss and Compel Arbitration, with Objections to
Defendant's Proffers of Evidence" (ECF No. 14)
[hereinafter "Response"], filed on February 7,
2019; and Defendant's "Reply in Support of its
Motion to Dismiss and Compel Arbitration" (ECF No. 17)
[hereinafter "Reply"], filed on February 14, 2019,
in the above-cap tioned cause. After due consideration, the
Court is of the opinion that a jury trial should be set to
determine whether the parties agreed to arbitrate this
dispute, for the reasons that follow.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of an employment dispute. Plaintiff was
employed by Defendant as a maintenance mechanic. Am. Compl.
2, Jan. 3, 2019, ECF No. 7. Plaintiff is over fifty-five
years old and was born with the disability of having an extra
vertebra. Id. at 2-3. Plaintiff alleges that
managers and employees employed by Defendant harassed and
discriminated against him on the basis of age. Id.
at 3. Additionally, Plaintiff asserts that he faced
discrimination and retaliation because of his disability.
Id. at 4-5. Plaintiff filed suit in state court on
October 8, 2018, alleging disability and age discrimination
and retaliation in violation of state and federal law. Not.
of Removal 1-2, Nov. 20, 2018, ECF No. 1. On November 20,
2018, Defendant removed the case to federal court.
instant Motion to Compel was filed on January 24, 2019. In
its Motion to Compel, Defendant alleges that a valid and
enforceable arbitration agreement exists and requires that
Plaintiffs claims be submitted to arbitration. Mot. 1.
Defendant provides its Dispute Resolution Agreement, which
expressly applies to disputes arising under the
"Americans With Disabilities Act, Age Discrimination in
Employment Act, . . . and state statutes, if any, addressing
the same or similar subject matters." Id. Ex. A
(Dispute Resolution Agreement), § 1.
Defendant provides an affidavit of Lisa Marie Cano, who is a
"Human Resources Business Partner and Q custodian of
records." Id. Ex. 1. In the affidavit, Ms. Cano
testifies that, during the onboarding process, Plaintiff was
provided an opportunity to review the Dispute Resolution
Agreement and either electronically sign or opt-out of the
agreement within 30 days. Id. Further, Ms. Cano
testifies that Plaintiff accessed the Dispute Resolution
Agreement electronically as part of an online module
completed at Defendant's facility. Id. Ms. Cano
asserts that Defendant entered his unique employee
identification No. to access the module. Id.
According to Ms. Cano, after completing the module, Plaintiff
had the "option to accept" and then "executed
the Agreement." Id. Defendant also provides an
electronic printout that contains Plaintiffs name and
employee identification No. and purportedly reflects that
Plaintiff completed the computer module containing the
company's Dispute Resolution Agreement on October 24,
2017. Id. Ex. C. According to Ms. Cano, the record
was created in the ordinary course of business. Id.
does not dispute that his claims are in the scope of the
alleged agreement. See Resp. However, Plaintiff avers that
Defendant has failed to establish that a valid,
electronically signed arbitration agreement exists.
Id. at 3. Plaintiff denies viewing or signing any
physical or electronic Dispute Resolution Agreement.
Id. at 4, Ex. C. Additionally, Plaintiff asserts
that Defendant's proffered evidence demonstrating that
Plaintiff viewed and signed the arbitration agreement should
not be admissible because it contains hearsay and violates
the best evidence rule. Id. at 5-6.
addition to challenging the arbitration agreement's
validity, Plaintiff raises procedural challenges to
Defendant's Motion. Plaintiff contends that, even if this
case must be arbitrated, the proper procedure for enforcing
an arbitration agreement is a stay-rather than dismissal-of
the action. Id. at 11. Further, Plaintiff asserts
that Defendant has waived the right to arbitration by
removing the case to federal court. Id. at 12.
Federal Arbitration Act ("FAA") § 2 provides
A written provision in any maritime transaction or a 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. § 2. This provision "reflect[s] both a
liberal policy favoring arbitration'. . . and the
'fundamental principle that arbitration is a matter of
contract."' AT&T Mobility LLC v.
Conception, 563 U.S. 333, 339 (2011) (quoting first
Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983), and then Rent-A-Ctr.,
W., Inc. v. Jackson, 561 U.S. 63, 67 (2010)).
considering a motion to compel arbitration pursuant to the
FAA, courts employ a two-step analysis. "First, a court
must 'determine whether the parties agreed to arbitrate
the dispute in question.'" Tittle v. Enron
Corp., 463 F.3d 410, 418 (5th Cir. 2006) (quoting
Webb v. Investacorp., Inc., 89 F.3d 252, 258 (5th
Cir. 1996)). "Second, a court must determine
'whether legal constraints external to the parties'
agreement foreclosed the arbitration of those
claims."' Fleetwood Enters., Inc. v.
Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Ply mouth,
473 U.S. 614, 628 (1985)).
first step of the analysis-whether the parties agreed to
arbitrate the dispute in question-consists of two distinct
prongs: "(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." Tittle, 463 F.3d at 418-19 (quoting Webb,
89 F.3d at 258). "[I]n determining whether the parties
agreed to arbitrate a certain matter, courts apply the
contract law of the particular state that governs the
agreement." Washington Mut. Fin. Grp., LLC v.
Bailey, 364 F.3d 260, 264 (5th Cir. 2004).
Plaintiffs Evidentiary Challenges
offers two challenges regarding the admissibility of
Defendant's record reflecting Plaintiffs purported
electronic acknowledgment of the arbitration
agreement: (i) that Defendant's record is hearsay
and fails to satisfy the business records exception and (ii)
that Defendant's record fails to satisfy the best
evidence rule. Ultimately, the Court concludes that
Defendant's record depicting Plaintiffs acknowledgment of
the arbitration agreement is admissible.
Defendant's record satisfies the business records
exception to the hearsay rule.
is a statement that "a party offers in evidence to prove
the truth of the matter asserted in the statement."
Fed.R.Evid. 801(c)(2). Hearsay is not admissible unless an
exception to the hearsay rule applies. See Fed.R.Evid. 802.
avers that the exhibits attached to the affidavit are
"not hearsay" because they are instead
"communications relevant to the making of a
contract." Resp. 6. Signed contracts may be admissible
as non-hearsay to show that the document exists but not for
the truth of the matter asserted therein. See
Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12
F.3d 527, 540 (5th Cir. 1994) ("Signed instruments such
as wills, contracts, and promissory notes are writings that
have independent legal significance and are not
the printout does not appear to have independent legal
significance, and it is not a signed instrument. Instead,
Defendant offers the document to show the truth of the matter
that it asserts. Specifically, in part, the printout contains
the following information: "SB011724 Gilberto Rosales
Dispute Resolution Agreement 10/24/2017 21:22."
Defendant provides the printout in order to demonstrate that
the information it contains is true-that is, that a person
using Plaintiffs unique employee number, which is associated
with Plaintiffs name, accessed the Dispute Resolution
Agreement module and then completed the module on October 24,
2017. Since the document is offered to prove its truth, the
Court is of the opinion that Defendant's record is
the record is hearsay, the Court is of the opinion that the
printout should nonetheless be admissible for purposes of the
Motion to Compel because the document satisfies the business
records exception. An exception to the hearsay rule exists
for "records of a regularly conducted