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Shirk v. Gonzales

United States District Court, D. New Mexico

May 29, 2018

KRISTINE SHIRK, Plaintiff,
v.
JACKIE GONZALES, SPECIALTY RETAILERS, INC. d/b/a BEALLS, Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendants' Motion to Compel Arbitration under 9 U.S.C. § 3, or, Alternatively, Under the New Mexico Arbitration Act. [Doc. 1');">19');">1');">19] The Court, having considered the submissions, the relevant law, and otherwise being fully informed in the premises, hereby GRANTS the Motion.

         BACKGROUND

         Defendants bring this Motion to Compel Arbitration. [Doc. 1');">19');">1');">19] Defendants argue that when Plaintiff accepted employment with Defendant Specialty Retailers, she agreed to a “Dispute Resolution Program, ” which requires that dispute be submitted to arbitration. [Doc. 1');">19');">1');">19, p. 2] Plaintiff, however, resists arbitration on several grounds. First, she asserts that the Court need not apply the Federal Arbitration Act (FAA) because “Plaintiff was not engaged in interstate commerce” - instead she was “a clerk who sold makeup over the counter in a small town.” [Doc. 22');">22');">22');">22, p. 1');">1] Plaintiff further argues that the arbitration agreement is unconscionable under New Mexico law because “the only disputes that are subject to the arbitration agreement are those claims that likely may be brought by employees.” [Doc. 22');">22');">22');">22, p. 3] Plaintiff also argues that Defendant Jacque Gonzales is not a party to the arbitration agreement, and thus her claims against Defendant Gonzales do not need to be arbitrated. [Doc. 22');">22');">22');">22, pp. 5-6] Finally, Plaintiff submits that Defendant Specialty Retailers has refused to provide her with a copy of her personnel file to date, which Plaintiff states “may contain information or evidence or other agreements or personnel rules bearing on the issues raised herein[.]” [Doc. 22');">22');">22');">22, p. 7] Thus, Plaintiff requests this Court to “stay resolution of this motion pending some nominal discovery by the Plaintiff.” [Doc. 22');">22');">22');">22, p. 7] The Court addresses the parties arguments below, though not in the order set out in their briefs.

         ANALYSIS

         Discovery

         Plaintiff asks this Court to “stay resolution of this motion pending some nominal discovery by the Plaintiff.” [Doc. 22');">22');">22');">22, p. 7] Plaintiff states that her personnel file “would presumably contain this arbitration agreement, any other agreements she executed with Defendants, and anything else relating to her employment with Defendants.” [Doc. 22');">22');">22');">22, p. 7] Plaintiff thus submits that her “personnel file may contain information or evidence or other agreements or personnel rules bearing on the issues raised herein.” [Doc. 22');">22');">22');">22, p. 7]

         Plaintiff has not demonstrated that the discovery she requests would assist her in opposing Defendant's Motion to Compel Arbitration.

In enacting the FAA, Congress intended that proceedings to compel arbitration be “expeditious and summary, ” “with only restricted inquiry into factual issues.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 1');">1');">460 U.S. 1');">1, 22');">22');">22');">22, 1');">103 S.Ct. 927');">1');">103 S.Ct. 927, 74 L.Ed.2d 765 (1');">19');">1');">1983). To obtain discovery in opposition to a motion to compel arbitration, the arbitration opponent must at least show how discovery would “assist[ ] them in opposing the motion to compel arbitration.” Wolff v. Westwood Mgmt., LLC, 1');">17');">558 F.3d 51');">17, 521');">1 (D.C.Cir. 2009).

THI of New Mexico at Hobbs Ctr., LLC v. Spradlin, 1');">13');">532 Fed.Appx. 81');">13, 81');">19');">1');">19 (1');">10th Cir. 201');">13) (unpublished decision). Instead, she makes an overly broad request for her entire personnel file. Moreover, while she states that she “may” have executed some other agreements with Defendants, but she does not state the subject of those hypothetical agreements, or how they would contradict the “Dispute Resolution Program, ” or otherwise have any bearing on the Motion to Compel Arbitration. As such, Plaintiff has not met her burden of demonstrating that she needs discovery to assist her in opposing the Motion to Compel Arbitration. Plaintiff's requests for discovery and to stay this matter are denied.

         Whether the Contract Involves Interstate Commerce

         The FAA defines commerce as:

commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation.

9 U.S.C. § 1');">1. The FAA goes on to declare that:

[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, 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 Supreme Court has construed the words “involving commerce” as used in the FAA “as broadly as the words ‘affecting commerce, '” which “normally mean a full exercise of constitutional power.” Allied-Bruce Terminix Cos. v. Dobson, 1');">13 U.S. 265');">51');">13 U.S. 265 277 (1');">19');">1');">1995). Thus,

[b]ecause the statute provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause, ” Perry v. Thomas, 482 U.S. 483, 490, 1');">107 S.Ct. 2520');">1');">107 S.Ct. 2520, 96 L.Ed.2d 426 (1');">19');">1');">1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce”-that is, “within the flow of interstate commerce, ” Allied-Bruce Terminix Cos., supra, at 273, 1');">11');">15 S.Ct. 834');">1');">11');">15 S.Ct. 834 (internal quotation marks, citation, and emphasis omitted).

Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003). “Congress' Commerce Clause power may be exercised in individual cases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Id. at 56-57 (internal ellipses, quotation marks and citations omitted).

         Plaintiff argues that she was not involved in interstate commerce - she submits that she merely sold makeup in a small town. [Doc. 22');">22');">22');">22, 1');">1');">p. 1');">1] Moreover, she argues that there has been no showing that “Plaintiff, while performing her duties under the employment contract was working ‘in' commerce, was producing goods for commerce, or was engaging in activity that affected commerce, ” citing Bernhardt v. Polygraphic Company, 1');">19');">1');">198');">350 U.S. 1');">19');">1');">198, 200-201');">1 (1');">19');">1');">1956) (concluding that the Court lacked jurisdiction over the case because “[t]here is no showing that petitioner while performing his duties under the employment contract was working ‘in' commerce, was producing goods for commerce, or was engaging in activity that affected commerce, within the meaning of our decisions”). [Doc. 22');">22');">22');">22, 1');">1');">p. 1');">1]

         Supreme Court cases more recent than Bernhardt, however, have elucidated the type of “showing” that is sufficient to evidence a transaction involving commerce. First, in Allied-Bruce Terminix, 51');">13 U.S. at 281');">1-82, the Court held that a contract between a homeowner in Alabama and a local franchise of a national pest treatment company to inspect and treat for termites involved interstate commerce and thus was within the Court's jurisdiction pursuant to the FAA. The Court reasoned: “In addition to the multistate nature of Terminix [the national company] and Allied-Bruce [the franchise, which operated in multiple states], the termite-treating and house-repairing material used by Allied-Bruce in its (allegedly inadequate) efforts to carry out the terms of the Plan, came from outside Alabama.” Id. at 282. The Court distinguished Bernhardt because it turned on a lack of a ...


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