United States District Court, D. New Mexico
BRENT LeBLANC, Individually and on behalf of all others similarly situated, et al., Plaintiffs,
HALLIBURTON COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant's Motion to
Compel Arbitration and Dismiss the Claims of 14 Opt-In
Plaintiffs, and Defendant's Motion to Compel Arbitration
and Dismiss the Claims of 16 Plaintiffs, both filed on July
31, 2019. (Docs. 103 and 104). Plaintiffs filed responses to
the Motions to Compel Arbitration on August 21, 2019, and
Defendant filed replies on September 9, 2019. (Docs. 105,
106, 107, and 108). Having considered the Motions to Compel
Arbitration, the accompanying briefs, and the relevant law,
the Court denies both Motions to Compel Arbitration.
10, 2017, Plaintiff Brent LeBlanc filed a Class and
Collective Action Complaint in which he alleged Defendant
failed to pay him and similarly situated workers overtime in
violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 201, et seq., and the New Mexico Minimum Wage
Act (NMMWA), NMSA 1978, § 50-4-19, et seq.
(Doc. 1). Defendant filed an Answer to the Complaint on
August 28, 2017. (Doc. 10). On October 20, 2017, the
Honorable Gregory J. Fouratt, the assigned Magistrate Judge,
held a Rule 16 Scheduling Conference and set pretrial
deadlines and a deadline for Plaintiff LeBlanc to file a
motion for conditional certification of a collective action
under the FLSA. (Doc. 21). On January 2, 2018, Plaintiff
Keith Briggs filed a notice of consent to join this action.
(Doc. 26). Also on January 2, 2018, Plaintiffs filed an
opposed Motion to Certify a Collective Action. (Doc. 27).
Defendant filed a response to the Motion to Certify on
February 2, 2018, and Plaintiffs filed a reply on February
13, 2018. (Docs. 34 and 35).
August 21, 2018, the Court entered a Memorandum Opinion and
Order granting the Motion to Certify a Collective Action and
conditionally certifying a class of: “Directional
drillers employed by, or working on behalf of, Halliburton
Company as independent contractors any time between three
years prior to the date of this Memorandum and Order of
Conditional Certification, and the present.” (Doc. 51)
at 5. Pursuant to the Court's Memorandum Opinion and
Order, between October 26, 2018, and January 3, 2019,
thirty-six additional individuals filed consents to join this
action, bringing the total number of Plaintiffs to
thirty-eight. (Docs. 60-64, 67, 69, 73, 77, 81, and 82).
March 11, 2019, Defendant sent Plaintiffs a meet-and-confer
letter regarding Defendant's intention to compel
arbitration for certain Plaintiffs. (Doc. 103) at 9; see
also (Doc. 87) at 2 (March 15, 2019, Joint Status Report
and Revised Joint Discovery Plan stating: “Defendant
may file a motion to arbitrate claims of certain opt-in
plaintiffs, but Defendant is currently waiting for a decision
from Plaintiff regarding whether Plaintiff agrees to
arbitrate those opt-ins' claims.”). On May 15,
2019, Plaintiffs filed a First Amended Class and Collective
Action Complaint, adding five of the opt-in Plaintiffs as
named Plaintiffs, and adding state law claims under Title 34
of the North Dakota Century Code (North Dakota Wage Laws) and
the Pennsylvania Minimum Wage Act (PMWA). (Doc. 94).
Defendant filed an Answer to the First Amended Complaint on
June 14, 2019, in which it asserted arbitration as an
affirmative defense. (Doc. 99) at 20.
on July 10, 2019, the assigned Magistrate Judge entered an
Order staying discovery and setting a deadline for Defendant
to file a motion to compel arbitration. (Doc. 102). On July
31, 2019, Defendant filed its two Motions to Compel
Arbitration. (Docs. 103 and 104). In the first Motion to
Compel Arbitration, Defendant contends fourteen Plaintiffs
signed contracts with Defendant agreeing to arbitrate their
claims and waiving their right to participate in a collective
action. (Doc. 103) at 8-9. In the second Motion to Compel
Arbitration, Defendant contends sixteen Plaintiffs signed
binding employment agreements with a third-party service
provider (Upstream Directional Consultants) agreeing to
arbitrate their claims with Defendant and waiving their right
to participate in a collective action. (Doc. 104) at 9-10.
the Federal Arbitration Act (FAA), written agreements to
submit to arbitration 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. While courts routinely recognize that arbitration
agreements are to be enforced, the rule is not without
exception. The Tenth Circuit has recognized that waiver by
conduct in litigation is grounds to deny enforcement of an
arbitration agreement. See Reid Burton Constr., Inc. v.
Carpenters Dist. Council of S. Colo., 535 F.2d 598, 604
(10th Cir. 1976) (“It is entirely appropriate in some
instances for a district court to retain …
jurisdiction of an arbitrable dispute where, because of
conduct before the court, it may be deemed that a party is
prevented on the basis of some equitable principle from
asserting a right to arbitration.”).
Motions to Compel Arbitration, Defendant asserts thirty of
the thirty-eight Plaintiffs signed agreements to arbitrate
their claims with Defendant and waived their right to
participate in a collective action. (Doc. 103) at 10; (Doc.
104) at 11-12. Based on where Plaintiffs signed the
agreements, Defendant states Texas law governs 28 agreements,
Pennsylvania law governs Plaintiff Tong Xiong's
agreement, and Minnesota law governs Plaintiff Robert
Walsh's agreement. (Doc. 103) at 12-13; (Doc. 104) at
14-15. Defendant argues any question of arbitrability,
including waiver of the right to enforce the arbitration
agreements, is a question for the arbitrator, not the Court.
(Doc. 103) at 11-15; (Doc. 104) at 13-16. However, if the
Court determines that it should decide arbitrability,
Defendant contends the arbitration agreements are valid and
encompass Plaintiffs' claims, and Defendant has not
waived its right to arbitration. (Doc. 103) at 15-20; (Doc.
104) at 16-24. Defendant asks the Court to dismiss
Plaintiffs' claims with prejudice because they agreed to
arbitrate their claims and waived their right to participate
in a collective or class action. (Doc. 103) at 21-22; (Doc.
104) at 24-25.
response to both Motions to Compel Arbitration, Plaintiffs
argue Defendant waived its right to arbitrate by undertaking
actions inconsistent with that right. (Doc. 105) at 8-10;
(Doc. 106) at 2-4. Plaintiffs further contend fourteen of the
agreements are unenforceable because Defendant solicited the
agreements after this lawsuit was underway. (Doc. 105) at
4-7. Plaintiff Brooks Hondl also argues his arbitration
agreement is invalid because Defendant has only provided the
signature page without the remainder of the agreement.
Id. at 11.
replies, Defendant maintains that it promptly sought to
enforce arbitration as soon as it received all of the
agreements. (Doc. 107) at 4-6; (Doc. 108) at 2-4. Defendant
also argues the agreements are enforceable because they were
executed as part of Defendant's ordinary course of
business before Plaintiffs were notified of the collective
action and filed their consents to join the action. (Doc.
107) at 2-3. Additionally, Defendant contends it has
sufficiently established the existence of Plaintiff
Hondl's arbitration agreement. Id. at 6.
Question of Arbitrability for Court to Decide, Federal Law
threshold matter, Defendant argues the issues of whether the
arbitration agreements are enforceable and whether Defendant
waived its right to enforce them are for the arbitrator to
decide, not the Court. (Doc. 103) at 13-15; (Doc. 104) at
15-16. Defendant bases this assertion on clauses in the
agreements designating the arbitrator as the decision-maker
regarding arbitrability, and on the agreements'
incorporation of the rules of the American Arbitration
Association which provide that arbitrability is a question
for the arbitrator. Id. Additionally, Defendant
states arbitrability is a ...