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Cronk v. TRG Customer Solutions, Inc.

United States District Court, M.D. Tennessee, Columbia Division

November 17, 2017

CARRIE CRONK and JEFFERSON BARBOSA, Individually and on behalf of other similarly situated current and former employees, Plaintiff,
v.
TRG CUSTOMER SOLUTIONS, INC. d/b/a IBEX GLOBAL SOLUTIONS, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge.

         Plaintiffs Carrie Cronk and Jefferson Barbosa bring this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., individually and on behalf of other similarly situated current and former employees of the defendant, TRG Customer Solutions, Inc., doing business as IBEX Global Solutions (“IBEX”). In addition to bringing a collective action under the FLSA, they assert supplemental state-law claims for breach of contract on behalf of a Rule 23 class. (Complaint, Doc. No. 1.) Under both theories, they seek to recover unpaid wages and overtime pay owed to them and similarly situated employees who have worked at IBEX's call centers in the United States.

         Now before the court are the following motions: (1) IBEX's Motion to Compel Arbitration and to Dismiss the Action (Doc. No. 49); (2) the Intervenor Plaintiffs' Motion to Dismiss or, in the Alternative, to Stay Plaintiffs' Rule 23 Class and Section 216(b) Collective Claims (Doc. No. 44); and (3) Plaintiffs' and Intervenor Plaintiffs' Motion to Consolidate Actions Pursuant to Fed.R.Civ.P. 42 (Doc. No. 85). The first and third motions have been fully briefed, but the plaintiffs never responded to the intervenor plaintiffs' Motion to Dismiss. The court nonetheless finds that the intervenor plaintiffs' Motion to Dismiss (Doc. No. 44) has been superseded by the joint Motion to Consolidate.

         For the reasons set forth herein, the court will grant the defendant's motion to compel the named plaintiffs, Carrie Cronk and Jefferson Barbosa, to pursue individual arbitration of their claims but will deny the motion to dismiss the case in its entirety. The court will grant the plaintiffs thirty days within which to file a motion to amend the Complaint to add one or more new named plaintiffs, if indeed there are IBEX employees who seek to pursue claims against IBEX in this forum and did not sign valid and enforceable arbitration agreements. Because it remains to be seen whether either this action or the related action, Myers v. TRG Customer Solutions, Inc., No. 1:17-cv-0052, will be able to proceed in this court, the court will not rule at this time on the Motion to Consolidate.

         I. Procedural and Factual Background

         IBEX is a Delaware corporation that operates eighteen call centers in five countries, including several in the United States. (Compl. ¶¶ 10, 12.)

         Plaintiff Cronk resides in Spring Hill, Tennessee. Plaintiff Barbosa resides in Columbia, Tennessee. (Compl. ¶ 13.) Both Cronk and Barbosa were formerly employed by IBEX as non-exempt “Call Center Workers” at its Spring Hill, Tennessee call center. (Id.) The Complaint does not indicate when either plaintiff began working for IBEX or when their employment terminated. The Complaint also does not include factual allegations regarding the circumstances under which the plaintiffs' employment ended.

         The defendant alleges that, “[a]t the outset of Plaintiffs' relationships with IBEX, Plaintiffs each separately signed” a document titled “Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate Acknowledgment and Acceptance.” (Doc. No. 50, at 2.) The form signed by Cronk is dated October 22, 2015. By signing, she “acknowledge[d] that [she had] received and read the Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate and will abide by it as a condition of [her] employment.” (Doc. No. 50-1, at 7.) The form electronically signed by Barbosa, dated February 9, 2016, likewise confirms his receipt of the Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate and agreement to abide by it as a condition of his employment. (Doc. No. 50-2, at 7.) The Direct Dialogue Program and Mutual Agreement to Mediate/Arbitrate (“DDP”), to which the Acknowledgment and Acceptance forms are attached, contains the following language:

The Company and Employee mutually consent to the resolution, by final and binding arbitration, of any and all claims or controversies (“claim”) that the Company may have against Employee or that Employee may have against the Company . . ., whether or not arising out of the employment relationship (or its termination), including but not limited to, any claims arising out of or related to this Agreement to Arbitrate (this “Agreement”) or the breach thereof.
. . . .
The claims covered by this Agreement include . . . any claims of the Employee as a member or representative of a class, or in any other manner as a member or representative of a group. Parties to the Agreement waive any right they may otherwise have to pursue, file, participate in, or be represented in any claim brought in any court on a class basis or as a collective action or representative action. This waiver applies to any claim that is covered by the Agreement to the full extent such waiver is permitted by law. All claims subject to the Agreement must be mediated and arbitrated as individual claims. The Agreement specifically prohibits the mediation or arbitration of any claim on a class basis or as a collective action or representative action, and the arbitrator shall have no authority or jurisdiction to enter an award or otherwise provide relief on a class, collective or representative basis.

(DDP at 4, Doc. Nos. 50-1, 50-2 (emphasis in original).) The DDP identifies the claims that are subject to arbitration as “any disputes arising out of your employment or termination of employment, ” including but not limited to claims covered by the FLSA. (Id. at 2.) The DDP also specifies that it will survive the termination of the employee's employment. (Id. at 3.)

         Cronk and Barbosa filed their Collective Action Complaint initiating this lawsuit on June 27, 2017, along with their Consents to Join. (Doc. Nos. 1, 1-1, 1-2.) Since that time, more than sixty other individuals have filed Consents to Join the lawsuit as party plaintiffs. (See, e.g., Doc. No. 84 (“I hereby consent to join this or any subsequent action against the Defendant as an Opt-in Plaintiff to assert claims for violations of the FLSA 29 U.S.C. § 201, et seq., and unpaid overtime and minimum wages as specified in the Collective Action Complaint.”).)

         On July 12, 2017, the plaintiffs in two related cases (“intervenor plaintiffs”) -Andrews et al. v. TRG Customer Solutions, Inc., No. 1:14-cv-0135 (M.D. Tenn.) (“Andrews”), and Myers v. TRG Customer Solutions, Inc., No. 1:17-cv-0052 (M.D. Tenn.) (“Myers”) (collectively, the “Related Cases”)-filed a Motion to Intervene (Doc. No. 9) under Rule 24 of the Federal Rules of Civil Procedure, arguing that the claims asserted in this lawsuit are identical to those asserted in the Related Cases and that the disposition of this case would potentially impair and impede the intervenor plaintiffs' ability to protect their interests in the Related Cases. The court granted that motion as unopposed. (Doc. No. 68.)

         The intervenor plaintiffs filed their Motion to Dismiss or, in the Alternative, to Stay Plaintiffs' Rule 23 Class and Section 216(b) Collective Claims (Doc. No. 44) on August 18, 2017. In this motion, the intervenor plaintiffs request that the court enter an order that (1) bars the plaintiffs in this case from seeking certification of their Rule 23 class claims until after the resolution of such claims in Andrews; and (2) bars the plaintiffs in this case from seeking to certify their case as a collective action or to seek court-authorized notice to potential members of the collective action until after the resolution of both Andrews and Myers. In support of their motion, the intervenor plaintiffs argue that the Tennessee breach of contract and unjust enrichment claims and FLSA overtime claims are identical to the claims asserted in the earlier-filed Andrews and Myers cases and that these steps are necessary to prevent the potential for duplication of effort, waste of judicial resources, and inconsistent rulings. They also argue that allowing this case to proceed parallel to Andrews and Myers creates a strong likelihood of confusing potential opt-in plaintiffs and that staying it will not prejudice the rights of Cronk and Barbosa to seek relief after resolution of Andrews and Myers. They argue that the filing of this duplicative class and collective action “represents precisely the type of situation where the Sixth Circuit's first-to-file rule should be applied in favor of the earlier-filed actions.” (Doc. No. 44, at 2.) Finally, they point out that approximately ten percent of the opt-in plaintiffs in this case had already joined Andrews, demonstrating not just the potential for confusion but actual confusion on the part of IBEX employees. Cronk and Barbosa never responded to this motion.

         However, more recently, the plaintiffs and intervenor plaintiffs filed a joint Motion to Consolidate Actions Pursuant to Fed.R.Civ.P. 42. (Doc. No. 85.) In this motion, the plaintiffs and intervenor plaintiffs contend that the most efficient method of litigating the claims in this case and in Myers is to consolidate the two cases in order to permit this action “to proceed in a single collective action case.” (Doc. No. 85, at 2.) The plaintiffs and intervenor plaintiffs expressly recognize, however, that, if the court grants the defendant's pending Motion to Compel Arbitration, “it may limit or foreclose the ability of Plaintiffs and/or Intervenor Plaintiffs to litigate collectively.” (Doc. No. 85, at 2.) IBEX opposes this motion. (Doc. No. 87.)

         Meanwhile, IBEX filed its Motion to Compel Arbitration or to Dismiss and supporting Memorandum. (Doc. Nos. 49, 50.) The plaintiffs have filed a Response opposing the motion. (Doc. No. 69.)[1] The defendant filed a Reply. (Doc. No. 73.)

         During the pendency of the Motion to Compel, the intervenor plaintiffs also filed a Motion to Stay Ruling on Defendant's Motion to Compel Arbitration (Doc. No. 74), requesting that the court delay ruling on the motion in this case until after ruling on the virtually identical motion filed by the defendant in Myers. The court granted that motion (Doc. No. 76) and, in fact, has now issued a ruling in Myers granting the defendant's motion to compel plaintiff Myers to pursue her claims in an individual arbitration. See Myers v. TRG Customer Solutions, Inc., No. 1:17-CV-00052, 2017 WL 5478398, at *8 (M.D. Tenn. Nov. 15, 2017).

         II. Motion to Compel Arbitration

         A. ...


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