United States District Court, D. Maryland
JUSTIN B. OSHER
PEOPLES BANK AND TRUST COMPANY, et al.
Catherine C. Blake United States District Judge.
B. Osher has sued Peoples Bank & Trust Company
(“Peoples Bank” or “PBTC”) for
failure to pay minimum wage and overtime wages pursuant to
the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq. (“FLSA”). Now pending before the
court is Peoples Bank's motion to dismiss or stay
proceedings and compel arbitration. The motion has been fully
briefed, and no oral argument is necessary. See
Local Rule 105.6. For the reasons explained below, the motion
will be denied.
a banking institution with an office in Owings Mills,
Maryland. Compl. ¶ 3. Osher was hired to work as a loan
officer in the Owings Mills location in April 2014. (Osher
Aff ¶ 1-2.) Osher was hired by PBTC after his former
employer closed its mortgage offices and PBTC re-opened his
office as its own branch. (Id. ¶ 1.)
mid-June, 2014 through June 14, 2016, Osher worked as the
full-time processor of reverse mortgages in the Owings Mills
branch. (Id. ¶ 4.) Osher alleges that
he was paid on a commission-only basis, with no hourly wage
or salary, and that he received no overtime compensation
despite regularly working more than 40 hours per week.
(Id. ¶ 3, 5.)
employment contract between Osher and PBTC contained an
arbitration clause that states, in part:
Disputes Subject to Arbitration.
With the exception of claims by Employer or Employee for
injunctive relief, Employee agrees that any dispute,
controversy, claim, or difference between Employer and
Employee which directly or indirectly relates to or arises
out of this Agreement, or its breach, shall be subject to
arbitration in the Town of Ryan, OK in accordance with the
then governing rules of the American Arbitration Association.
It is the intention of the parties that this Agreement shall
be enforceable under the Federal Arbitration Act and at
common law. Each party shall bear its own costs, expenses and
fees, including without limitation, attorneys' fees and
experts' fees with respect to any such arbitration.
The types of disputes or controversies intended by the
parties to be subject to arbitration shall include, but not
be limited to, (i) any claim which directly or indirectly
relates to or arises out of this Agreement, (ii) any and all
torts including defamation, libel, slander, false light,
intentional infliction of emotional distress, tortuous
interference, negligence, assault, battery, invasion of
privacy, and any other violation of a legal duty not based in
contract which gives rise to damages of whatever nature,
Severability of Disputes. Employee
agrees that in the event a dispute, controversy, claim, or
difference which is subject to arbitration is alleged or
plead in connection with any dispute … described in
this Agreement between Employer and Employee, the
non-arbitrable dispute … shall be severable by either
party and litigated in a judicial proceeding separate and
apart from the dispute, controversy, claim, or difference
subject to arbitration. If Employee contends that the
dispute… alleged or plead is interwined with the
dispute… subject to arbitration. [sic] Employee agrees
to waive the arbitration requirements contained in this
Agreement at Employer's request.
Attorney Fees. If Employee brings a
claim in court that should have been brought in arbitration
pursuant to this Agreement, Employee agrees to pay
Employer's attorney fees, costs and expenses associated
with transferring the matter to arbitration, including any
filing fees charged by the arbitration tribunal.
(Employment Agreement at 3, ECF No. 15-2.)
left his employment with PBTC on June 14, 2016 and filed this
suit on October 13, 2016. Peoples Bank filed its motion to
dismiss or stay proceedings and compel arbitration on April
24, 2017. (ECF No. 15.) Osher filed its response in
opposition on June 2, 2017. (ECF No. 20.) Peoples Bank filed
its reply on June 30, 2017. (ECF No. 23.)
Federal Arbitration Act (“FAA”) directs federal
courts, “on application of one of the parties, ”
to stay proceedings “brought ... upon any issue
referable to arbitration under an agreement in writing for
such arbitration.” 9 U.S.C. § 3. Thus,
“where a valid arbitration agreement exists and the
issues in a case fall within its purview, ” the court
must grant a motion to compel arbitration. Adkins v.
Labor Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002).
Arbitration clauses are “separable from the rest of the
contract and […] allegations that go to the validity
of the contract in general, as opposed to the arbitration
clause in particular, are to be decided by the arbitrator,
not the court.” Prima Paint Corp. v. Flood &
Conklin Mfg. Co., 388 U.S. 395, 409 (1967) (Black, J.,
dissenting) (internal citations and quotation marks omitted).
Courts in this district have applied a summary judgment
standard to the question of whether a contract to arbitrate
was formed. See, e.g., Brent v. Priority 1 Auto Grp., BMW
of Rockville, 98 F.Supp.3d 833, 834-35 (D.Md. 2015)
(“[W]hen a party moves to compel ...