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Scripps v. Agency for Performing Arts, Inc.

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

May 8, 2018

CASS B. SCRIPPS, Plaintiff,
v.
AGENCY FOR THE PERFORMING ARTS, INC., Defendant.

          Hon. Aleta A. Trauger, United States District Judge

          REPORT AND RECOMMENDATION

          JOE B. BROWN, United States Magistrate Judge

         Pending before the Court are Plaintiff Cass B. Scripps's emergency motion for hearing on motion for temporary injunction (Docket Entry No. 7) and Defendant Agency for the Performing Arts, Inc.'s motion to stay pending arbitration (Docket Entry No. 8). For the reasons stated below, the Magistrate Judge RECOMMENDS that Plaintiff's motion (Docket Entry No. 7) be DENIED, Defendant's motion (Docket Entry No. 8) be GRANTED, and that this action be ADMINISTRATIVELY CLOSED pending the completion of arbitration.

         I. PROCEDURAL BACKGROUND

         Plaintiff, Cass B. Scripps, a Tennessee citizen, originally filed this action on April 11, 2018 in the Chancery Court for Davidson County, Tennessee, against Defendant, Agency for the Performing Arts, Inc. (“APA”), a Delaware corporation, seeking declaratory judgment that Defendant constructively discharged Plaintiff; that Defendant has no right to enjoin Plaintiff from working; and that Defendant has no right to enjoin or threaten to enjoin any prospective future employer from employing Plaintiff. (Docket Entry No. 1-1, at 3-11).[1] On April 12, 2018, Plaintiff, essentially requesting identical relief, filed a motion for temporary injunction seeking to enjoin Defendant from communicating to any third persons that Plaintiff was still employed by Defendant, that Plaintiff was restricted from working, or that a prospective future employer was restricted from hiring Plaintiff. Id. at 12-14. On April 12, 2018, pursuant to the arbitration provisions in the parties' employment agreement, Plaintiff submitted a demand for arbitration with JAMS. (Docket Entry No. 8-1, Julia Johnson Declaration at, ¶ 5, attachment thereto, Exhibit 2, at 31-34). On April 13, 2018, the state court ordered a non-evidentiary hearing on Plaintiff's motion for temporary injunction to be held on April 23, 2018. (Docket Entry No. 4-1).

         On April 19, 2018, Defendant removed the state court action to this Court under 28 U.S.C. § 1332, the federal diversity statute. (Docket Entry No. 1). On April 20, 2018, Plaintiff filed his emergency motion for hearing on motion for temporary injunction (Docket Entry No. 7), and Defendant filed its motion to stay pending arbitration (Docket Entry No. 8). On April 23, 2018, the District Judge referred these motions to the Magistrate Judge for decision (Docket Entry No. 14), and the Magistrate Judge conducted a hearing later that day (Docket Entry No. 15). At the conclusion of the hearing, the Magistrate Judge gave the parties until April 26, 2018 to file any replies to the pending motions. In a letter dated April 25, 2018, JAMS notified the parties of the commencement of arbitration. (Docket Entry No. 25-2, at 1). On May 2, 2018, the Magistrate Judge granted Defendant's motion for leave (Docket Entry No. 26) to file a supplemental response on May 4, 2018. (Docket Entry No. 28).[2]

         II. FACTUAL BACKGROUND

         Plaintiff, a resident of Nashville, Tennessee, is a talent agent who represents a number of artists. (Docket Entry No. 1-1, at 3, ¶ 1). Defendant is a talent agency with its principal place of business in California and maintains an office in Nashville, Tennessee. Id., at ¶ 2. Plaintiff became employed by Defendant in August 2012 and has entered into a number of employment contracts that have extended his employment, the most recent of which was July 7, 2016. Id. at 4, ¶¶ 5-6. According to the July 2016 employment agreement, the parties agreed that Defendant would employ Plaintiff “for a ‘Term' of three (3) years commencing August 1, 2016 through and including July 31, 2019 . . . .” (Docket Entry No. 8-1, at 3). The covenants in the employment agreement provide, in part, as follows:

         7. Covenants.

a. During the Term, Employee shall not without Employer's prior written consent engage directly or indirectly in any other trade, business or employment and shall not have any material financial or ownership interest, direct or indirect, in any person, firm or corporation or other entity which engages in any business which is the same as or substantially similar to Employer's business.
. . . .
f. In consideration of Employee being employed by Employer, during the Term and for a period of twelve consecutive months thereafter, Employee shall not, directly or indirectly either on Employee's behalf or on behalf of any other person, firm or corporation:
i. solicit any client of Employer for representation with Employee or with any other person, firm or corporation engaged in the talent agency business and/or with any business competitive with Employer or otherwise attempt to interfere with the relationship between Employer's clients and Employer; and
ii. solicit other employees of Employer to take employment with Employee or employment with any other person, firm or corporation engaged in the talent agency business and/or with any business competitive with Employer or otherwise attempt to interfere with the relationship between Employer's employees and Employer.

Id. at 6-7. However, the non-solicitation provision was amended to specifically exempt the clients for whom Plaintiff was the Responsible Agent (“RA”). Id. at 7.

         As to the applicable law governing the contract, the employment agreement provides:

10. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, except that, if Employee resides or is primarily based outside California, the law of that state shall apply instead. Any and all proceedings regarding the Agreement shall take place in Los Angeles, California, unless otherwise agreed to by Employer.

Id. at 9. The employment agreement also contains an arbitration provision that states:

13. Arbitration.
The sole and exclusive method by which Employee and Employer shall resolve any and all disputes arising out of or related to Employee's employment with Employer or the termination of that employment shall be by arbitration in accordance with the Mutual Agreement to ...

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