United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Dillard's, Inc.'s
Motion to Compel Arbitration and Dismiss Plaintiffs'
Claims with Prejudice or in the Alternative, Stay Proceedings
[Doc. 12]. The Court, having considered the motions, briefs,
and relevant law, and being otherwise fully informed, finds
that the motion is well-taken and will be granted.
has an intranet program whereby its employees are required to
electronically execute an agreement to arbitrate. Doc. 12-1
at ¶¶ 4-5. Specifically, an employee logs on to the
Dillard's intranet by entering his User ID or Associate
Identification Number ("AIN"), and his password.
Id. at 6. The employee is presented with
Dillard's Rules of Arbitration and Agreement to Arbitrate
Legal Claims (collectively, the "Arbitration
Agreement"). Id. at ¶ 7. To electronically
agree to and sign the Arbitration Agreement, an employee
scrolls through the Arbitration Agreement, and then clicks
"I agree," and enters his AIN and password.
Id. at ¶ 9. Dillard's maintains records of
its employees' electronically executed arbitration
agreements on its intranet. Id. at ¶ 12.
Jon Walker was employed as a maintenance engineer at
Dillard's Store 921, located in Albuquerque, New Mexico,
from approximately March 24, 1998 through December 3, 2015.
Doc. 12-1 at ¶ 15; Doc. 1-1 at ¶ 2. Although he
does not recall electronically signing an agreement to
arbitrate, Doc. 16 at ¶ 3, Dillard's has submitted
to the Court an Arbitration Agreement dated July 6, 2011,
containing Mr. Walker's electronic signature, AIN, and
password. Doc. 12-1, Ex. 1. Additionally, Dillard's has
submitted two prior versions of its Arbitration Agreement,
one dated August 22, 2001, which contains Mr. Walker's
handwritten signature, and one dated November 30, 2005, which
contains Mr. Walker's electronic signature. Doc. 18-2,
2011 Arbitration Agreement containing Mr. Walker's
electronic signature provides that "the Company and the
Associate agree that the procedures provided in these Rules
will be the sole method used to resolve any dispute over
Legal Claims arising between them." Doc. 12-1, Ex. 1 at
1. "Legal Claim" is defined as "a claim which
would be recognized by a court of competent jurisdiction as
stating a claim which would be remediable under existing law
in that jurisdiction." Id. at 9. The
Arbitration Agreement further states that Legal Claims
include "any common law claims" and "personal
injuries." Id. at 2. Under the heading,
"Enforcement," the Arbitration Agreement provides:
"Any dispute over a Legal Claim concerning this
Agreement - the way it was formed, its applicability,
meaning, enforceability, or any claim that all or part of
this Agreement is void or voidable - is subject to
arbitration under this Agreement." Id. at 8.
final page of the Arbitration Agreement, entitled
"Agreement to Arbitrate Legal Claims," there is a
heading in bold, capital letters and underlined, that reads:
IMPORTANT NOTICE: THIS AGREEMENT WAIVES YOUR
RIGHT TO A JURY TRIAL AND TO PURSUE LITIGATION IN COURT, READ
IT CAREFULLY BEFORE SIGNING.
Id. at 12. The first paragraph below this heading
states: "This Agreement contains the rules and
procedures that Dillard's, Inc. and associates must
follow to resolve any disputes between them over Legal
Claims." Id. The last line of the document
states "WE AGREE TO ARBITRATE OUR LEGAL CLAIMS AND TO
ABIDE BY THE RULES OF ARBITRATION:" Id.
Immediately following the last line are the electronic
"authorized signature" of Paul J. Schroeder, on
behalf of "the Company", and the electronic
signature of Mr. Walker, as the "Associate."
August 11, 2015, while at work, Mr. Walker was electrocuted
and, as a result, fell from a ladder. Doc. 1-1 at ¶ 33.
As a result of Mr. Walker's injuries, Mr. Walker and his
wife, Pamela Walker, commenced the instant action by filing
their Complaint for Damages on April 26, 2017 in the Second
Judicial District Court of the State of New Mexico, County of
Bernalillo. Doc. 1-1. Plaintiffs named as Defendants
Dillard's and Guy Brady and Brian Hudson, both managerial
employees of Dillard's. Id. at ¶ 5. The
Complaint alleges claims of negligence and negligence per se,
Delgado v. Phelps Dodge Chino, Inc., loss of
consortium, and conspiracy, seeks compensatory and punitive
damages, and seeks to hold Defendants jointly and severally
liable. Doc. 1-1. After being served with the Complaint on
May 24, 2017, on June 19, 2017, Dillard's removed the
action to this Court. Doc. 1. To date, neither Mr. Brady nor
Mr. Hudson have been served with the Complaint.
instant motion, Dillard's requests that the Court compel
Plaintiffs to arbitrate their claims against it. Plaintiff
opposes the motion.
Federal Arbitration Act ("FAA") applies to
arbitration provisions in "a contract evidencing a
transaction involving commerce." 9 U.S.C. § 2.
Under the FAA, such arbitration provisions "are 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. Section 2 of the FAA creates "a
substantive rule applicable in state as well as federal
courts." Southland Corp. v. Keating, 465 U.S.
1, 16 (1984). To implement this substantive rule, "a
party may apply to a federal court for a stay of the trial in
an action 'upon any issue referable to arbitration under
an agreement in writing for such arbitration." 9 U.S.C.
§ 3. Describing the FAA as "a liberal federal
policy favoring arbitration," the Supreme Court has
emphasized "the fundamental principle that arbitration
is a matter of contract," and, accordingly, that
"courts must place arbitration agreements on an equal
footing with other contracts . . . and enforce them according
to their terms." AT&T Mobility LLC v.
Conception, 131 S.Ct. 1740, 1745 (2011).
FAA, however, "was not enacted to force parties to
arbitrate in the absence of an agreement." Avedon
Eng'g, Inc. v. Seatex,126 F.3d 1279, 1286 (10th
Cir. 1997). Rather, Congress' concern "was to
enforce private agreements into which parties had
entered." Id. Accordingly, "[t]he
existence of an agreement to arbitrate is a threshold matter