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Osher v. Peoples Bank and Trust Co.

United States District Court, D. Maryland

December 14, 2017

JUSTIN B. OSHER
v.
PEOPLES BANK AND TRUST COMPANY, et al.

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Justin 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.

         BACKGROUND

         PBTC is 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.)

         From 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.)

         The 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.)

         Osher 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.)

         ANALYSIS

         The 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 ...


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