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Mould v. NJG Food Service, Inc.

United States District Court, Fourth Circuit

December 11, 2013

JEFFREY B. MOULD Plaintiff
v.
NJG FOOD SERVICE INC., Defendants

MEMORANDUM AND ORDER

James K. Bredar United States District Judge

Plaintiff Scott Clempner brought this suit against Defendants NJG Food Service, Inc., OC Crabbag, LLC, Albert Levy, and Nolen Grave (collectively, “Defendants”) for violations of the Fair Labor Standards Act of 1928 (“FLSA”), 19 U.S.C. §§ 201 et seq. and the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Labor & Employment §§ 3-401 et seq. Presently before the Court is a motion by Defendants to dismiss Plaintiff Scott Clempner from this action and compel him to submit his claims to arbitration, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (JKB-13-2183, ECF No. 22)[1].

I. BACKGROUND

Clempner, along with Plaintiffs Jeffrey B. Mould, Kathleen Yanek, Julianne Lodowski, and Taylor Schlette, was a server at the Crab Bag. (ECF No. 33 ¶3; ECF No. 91 ¶¶ 3, 4, 5, 6.) Clempner was employed there from March 2011 until his resignation on September 29, 2013.

Plaintiff Mould filed his complaint in the present case on May 1, 2013. (ECF No. 1.) On July 26, 2013, Plaintiffs Yanek and Lodowski filed their complaint against Defendants. (JKB- 13-2183.) On November 12, 2013, Plaintiff Mould’s action and Plaintiff Yanek and Lodowski’s action were consolidated under this caption for all purposes, including trial. (ECF No. 74).

On October 3, 2013, Plaintiffs Yanek and Lodowski filed a motion for leave to file a second amended complaint that added Clempner as a named plaintiff. (JKB-13-2183, ECF No. 18.) On November 5, this Court granted Plaintiffs Yanek and Lodowski’s motion. (ECF No. 90). On the basis of Plaintiffs Yanek and Lodowski’s motion, on October 21, 2013, Defendants filed the motion to compel arbitration with regard to Clempner that is presently before the Court. (JKB-13-2183, ECF No. 22.)

Both parties agree that on June 24, 2013, Clempner signed an “arbitration policy” with Defendants. (JKB-13-2183, ECF No. 22-1.) In relevant part, this arbitration contract provides that:

As a condition of continued employment, and in exchange for One U.S. Dollar ($1.00) and the mutual promises expressed herein, both Scott Clempner (“employee”) and N.J. Food Service, Inc. and OC Crab Bag, LLC (“d/b/a the Crab Bag”) collectively agree that is [sic] preferable to choose to arbitrate any dispute that we may have instead of litigating in court before a judge or jury.
Therefore, we agree that [sic] to arbitrate any and all claims between employee and The Crab Bag, arising out of the employment relationship, except such claims arising under criminal laws, and worker compensation or unemployment insurance statutes.

(Id.) On the basis of this arbitration policy, Defendants argue that this Court should dismiss Clempner from this action and compel him to arbitrate his claims.

II. LEGAL STANDARD

Under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 4, “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.” PC Const. Co. v. City of Salisbury, 871 F.Supp.2d 475, 478 (D. Md. 2012). A petitioner must demonstrate:

(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect[, ] or refusal of the defendant to arbitrate the dispute.

Id. (quoting Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th Cir. 2002)). “[C]ourts must be mindful that the FAA reflects ‘a liberal federal policy favoring arbitration agreements.’” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Either a stay and order to compel arbitration or dismissal may be the appropriate remedy where a party has failed to ...


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