United States District Court, D. New Mexico
Attorney for Plaintiff: Michael E. Mozes
Attorney for Defendants: Jennifer G. Anderson
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants' Motion to
Compel Arbitration and Stay Judicial Proceedings [Doc. 5].
The Court, having considered the motion, briefs, and relevant
law, and being otherwise fully informed, finds that the
Motion is well-taken and will be granted.
March 12, 2016, Plaintiff signed an offer letter accepting a
position with Defendant Comcast. Doc. 5-1 at 8-10. The letter
explained that “Comcast has a dispute resolution
program for its employees, known as Comcast Solutions, which
provides a three-step process (facilitation, mediation, and
binding arbitration) for resolving a variety of workplace
legal issues should there be any that arise between
[Plaintiff] and the Company during or after [Plaintiff's]
employment.” Id. at 9. The letter further
explained that “[b]y accepting this offer of employment
with the Company and signing below, [Plaintiff] acknowledges
that [she] understand[s] the terms of the Comcast Solutions
program and also acknowledge[s] that both [she] and the
Company agree to participate in and be bound by the terms of
the Comcast Solutions program.” Id.
October 22, 2018, Plaintiff filed a complaint against
Defendants alleging violations of the Family and Medical
Leave Act, Americans with Disabilities Amendments Act, Age
Discrimination in Employment Act, New Mexico Human Rights
Act, Breach of Implied Contract of Employment, Civil
Conspiracy, and Breach of the Implied Covenant of Good Faith
and Fair Dealing. Doc. 1. On February 7, 2019, Defendants
filed the subject motion requesting that the Court compel
Plaintiff to arbitrate her claims, award Defendants
attorneys' fees and expenses incurred in bringing the
motion, and stay the case pending resolution of the motion.
in her Response, states that “[she] has no argument
that pursuant to the arbitration procedures set forth by
[Defendants], the specific agreement to arbitrate in this
matter would be subject to the Federal Arbitration Act”
and that “[she] does not even oppose [Defendants']
argument that [her] claims would be otherwise arbitrable in
different factual circumstances.” Doc. 10 at 4-5.
Plaintiff argues instead that “[Defendants] waived
adherence to and reliance upon mandatory arbitration through
its prior conduct in this matter.” Id. at 1.
The only issues in contention, therefore, are whether
Defendants waived their right to arbitration, whether
awarding Defendants attorneys' fees and expenses is
warranted, and whether a stay is appropriate.
Defendants did not Waive their Right to Arbitration.
Federal Arbitration Act provides that 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. “[A]ny
doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration, whether the problem at hand
is the construction of the contract language itself or an
allegation of waiver, delay, or a like defense to
arbitrability.” BOSC, Inc. v. Bd. of Cty.
Comm'rs of Cty. of Bernalillo, 853 F.3d
1165, 1170 (10th Cir. 2017) (quoting Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
Tenth Circuit has explained that there is “no set rule
as to what constitutes a waiver or abandonment of the
arbitration agreement; the question depends upon the facts of
each case.” Id. (quoting Reid Burton
Constr., Inc. v. Carpenters Dist. Council of S. Colo.,
614 F.2d 698, 702 (10th Cir. 1980)). Several factors,
however, are useful in analyzing waiver:
(1) whether the party's actions are inconsistent with the
right to arbitrate; (2) whether “the litigation
machinery has been substantially invoked” and the
parties “were well into preparation of a lawsuit”
before the party notified the opposing party of an intent to
arbitrate; (3) whether a party either requested arbitration
enforcement close to the trial date or delayed for a long
period before seeking a stay; (4) whether a defendant seeking
arbitration filed a counterclaim without asking for a stay of
the proceedings; (5) “whether important intervening
steps [e.g., taking advantage of judicial discovery
procedures not available in arbitration] had taken
place”; and (6) whether the delay “affected,
misled, or prejudiced” the opposing party.
Id. (quoting Peterson v. Shearson/Amex,
Inc., 849 F.2d 464, 467-68 (10th Cir. 1988)) (brackets
in original). These factors are not to be applied
mechanically but rather “reflect principles that should
guide courts in determining whether it is appropriate to deem
that a party has waived its right to demand
arbitration.” Id. (quoting Hill v. Ricoh
Am. Corp., 603 F.3d 766, 773 (10th Cir. 2010)). “A
party asserting a waiver of arbitration has a heavy burden of
proof.” Peterson, ...