United States District Court, W.D. Texas, Austin Division
STEPHANIE DURAN and ROSA RESENDEZ, Individually and on behalf of other employees similarly situated
CONN APPLIANCES, INC. (d/b/a Conn's)
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE.
INTERIM  REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
the Court are Defendant's Motion to Compel Arbitration
and Dismiss Proceedings pursuant to Federal Rule of Civil
Procedure 12(b)(1), (3) or (6) (Dkt. No. 13); Defendant's
First Supplement to its Motion (Dkt. No. 15); Plaintiffs'
Response (Dkt. No. 17); and Defendant's Reply (Dkt. No.
19). Also before the Court are Plaintiffs' Motion for
Conditional Certification (Dkt. No. 26); Defendant's
Response (Dkt. No. 33); Plaintiffs' Reply (Dkt. No. 36).
The District Court referred the motions to the undersigned
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. §636(b)(1)(B), Fed.R.Civ.P. 72, and Rule 1(d) of
Appendix C of the Local Rules.
Stephanie Duran and Rosa Resendez, on behalf of themselves
and all others similarly situated, filed this lawsuit against
Defendant Conn Appliances, Inc., alleging minimum wage and
overtime violations under the Fair Labor Standards Act, 29
U.S.C. §§ 201-219, and the federal Portal-to-Portal
Pay Act, 29 U.S.C. §§ 251-262, (collectively
“FLSA”). Plaintiffs are former Conn's sales
associates, and allege that Conn's failed to pay them the
overtime wages they were due by: (1) not paying overtime
premium compensation for all overtime hours worked, (2) not
including commissions and/or bonuses in calculating
Plaintiffs' regular rates of pay (for hourly plus
commission/bonus pay only), and (3) deducting expenses from
Plaintiffs' paychecks which cut into the overtime premium
compensation Plaintiffs were owed. Plaintiffs request that
the Court conditionally certify this action under §
216(b) of the FLSA for classes of: (1) sales associates paid
hourly and/or commission for overtime wage and minimum wage
violations, and (2) sales associates paid commission only for
overtime wage and minimum wage violations. Dkt. No. 26.
motion argues that Duran and Resendez's claims are
subject to binding arbitration. In their Supplemental Motion,
Conn's adds that Louis Pena, who filed a Notice of
Consent to Join the suit as a plaintiff two weeks after suit
was filed (Dkt. No. 14), should also be compelled to
arbitrate his claims against Conn's. Dkt. No.
As supplemented, the motion thus requests that Duran,
Resendez and Pena be ordered to arbitrate their dispute with
Conn's. Plaintiffs respond that arbitration is not
mandated because (1) Conn's has failed to prove that the
Plaintiffs were provided with, and agreed to, the arbitration
clause, (2) Conn's did not address whether the additional
Opt-In Plaintiffs are parties to the arbitration clause, and
(3) Conn's has not shown a basis for individual
arbitrations. Given the potential jurisdictional implications
of the arbitration issue, the Court addresses that issue
first. See Reyna v. Int'l Bank of
Commerce, 839 F.3d 373, 377 (5th Cir. 2016).
STANDARD OF REVIEW
enacted the FAA Act in response to widespread judicial
hostility to arbitration. CompuCredit Corp. v.
Greenwood, 565 U.S. 95, 97 (2012). As relevant here, the
A written provision in any maritime transaction or 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. The FAA requires courts to enforce
arbitration agreements according to their terms.
CompuCredit Corp., 565 U.S. at 98. The FAA
establishes “a liberal federal policy favoring
arbitration agreements.” Id. (quoting
Moses H. Cone Memorial Hospital v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)). “That is the case
even when the claims at issue are federal statutory claims,
unless the FAA's mandate has been ‘overridden by a
contrary congressional command.'” Id.
(quoting Shearson/American Express Inc. v. McMahon,
482 U.S. 220, 226 (1987)).
[W]here the contract contains an arbitration clause, there is
a presumption of arbitrability in the sense that “[a]n
order to arbitrate the particular grievance should not be
denied unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation
that covers the asserted dispute. Doubts should be resolved
in favor of coverage.”
AT&T Techs., Inc. v. Commc'ns Workers of
Am., 475 U.S. 643, 650 (1986). Because of the strong
presumption in favor of arbitration, the party opposing
arbitration bears the burden of proving that the agreement is
invalid or that the claims are outside the scope of the
agreement. Carter v. Countrywide Credit Indus.,
Inc., 362 F.3d 294, 297 (5th Cir. 2004).
Motion to ...