United States District Court, M.D. Tennessee, Nashville Division
CASS B. SCRIPPS, Plaintiff,
AGENCY FOR THE PERFORMING ARTS, INC., Defendant.
Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
BROWN, United States Magistrate Judge
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.
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). 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).
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).
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,
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.
the applicable law governing the contract, the employment
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
Id. at 9. The employment agreement also contains an
arbitration provision that states:
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 ...