United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS AND COMPEL ARBITRATION
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Defendant The Cheesecake Factory's Motion to
Dismiss and Compel Arbitration. (Docket Entry
(“D.E.”) #16). Pursuant to Administrative Order
2013-05, the instant motion was referred to the United States
Magistrate Judge for Report and Recommendation. (D.E. #5).
For the reasons set forth herein, it is RECOMMENDED that
Defendant's Motion to Dismiss and Compel Arbitration be
March 6, 2018, Plaintiff filed a pro se Complaint
alleging violations of Title VII of the Civil Rights Act of
1962, 42 U.S.C. §§ 2000e, et seq.
(“Title VII”). (See D.E. #1).
Specifically, he alleges that he was employed by The
Cheesecake Factory, where he endured the use of racial slurs
by his coworkers. (Id. ¶ 10). Plaintiff alleges
that he filed “several complaints with management,
” after which he believed that he was “treated
differently, ” which he alleges included being
“punished for the smallest of things, ” being
disallowed the “opportunity to seek promotions, ”
and being “lied to about openings.”
(Id.). Plaintiff alleges that his employment was
eventually terminated “due to an accusation that
wasn't as severe as actions caused by others, still
employed.” (Id.) Plaintiff alleges that he
filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) on November 31, 2017 and that
he received his right to sue letter from the EEOC on December
6, 2017. (Id. ¶¶ 12, 14 & Exh. 1).
Plaintiff seeks back pay and compensatory damages for
“mental anguish [and] emotional distress.”
(Id. at 6).
31, 2019, Defendant filed its Motion to Dismiss and Compel
Arbitration. Therein, Defendant asserts that Plaintiff
entered into a Mutual Agreement to Arbitrate Claims
(“Arbitration Agreement”) upon being hired.
(Def.'s Mot. to Dismiss and Compel Arbitration, Exh. A).
Defendant avers that the Arbitration Agreement requires the
parties to “arbitrate before a neutral arbiter any and
all disputes or claims . . . that arise out of or related to
[his] . . . employment or separation from employment with the
Company . . . .” (Id. at 1) The Arbitration
Agreement further sets forth that covered claims include
“wrongful termination of employment, ”
“retaliation, ” “infliction of emotional
distress, ” and violations of Title VII. (Id.
at 2). Accordingly, Defendant argues that arbitration should
be compelled and that Plaintiff's claims should be
dismissed pursuant to Section 4 of the Federal Arbitration
Act (“FAA”), 9 U.S.C. §§ 1, et
seq. and Federal Rules of Civil Procedure 12(b)(1),
12(b)(3), 12(b)(6), and 56.
Rule 12.1(b) provides that “[a] party opposing a motion
to dismiss must file a response within 28 days after the
motion is served.” Local Rule 56.1 similarly provides
that “[a] party opposing a motion for summary judgment
must file a response within 28 days after the motion is
served or a responsive pleading is due, whichever is
later.” Plaintiff failed to comply with these rules.
Thus, on September 12, 2019, the Court issued an Order to
Show Cause directing Plaintiff to file a response within
fourteen (14) days of its entry. (See D.E. #17). The
Order to Show Cause further stated as follows: “Should
Plaintiff fail to respond, this Court will recommend to the
District Court that the Motion [to Dismiss and to Compel
Arbitration] be granted.” (Id.) To date,
Plaintiff has failed to file any response to Defendant's
Motion to Dismiss and Compel Arbitration.
Plaintiff was explicitly admonished that failure to comply
with the Court's Order to Show Cause would result in a
recommendation to the District Court that the instant motion
be granted. Plaintiff nonetheless failed to respond. Thus, it
is RECOMMENDED that Plaintiff has violated an order of this
Court, and Defendant's Motion to Dismiss and Compel
Arbitration should be GRANTED based upon this reason alone.
Plaintiff's claim was filed pursuant to Title VII, sets
forth allegations of wrongful termination, and seeks damages
based upon emotional distress. The Arbitration Agreement
clearly sets forth that such claims must be arbitrated.
(See Def.'s Motion to Dismiss and Compel
Arbitration, Exh. A at 1-2). Under such an agreement and
pursuant to 9 U.S.C. §4, “[t]he court shall hear
the parties, and upon being satisfied that the making of the
agreement for arbitration or the failure to comply therewith
is not in issue, the court shall make an order directing the
parties to proceed in arbitration in accordance with the
terms of the agreement.” Here, Plaintiff forfeited his
opportunity to be heard such that no issues have been raised
as to the making of the agreement or the failure to comply
therewith. Thus, this court is required to enter an order
directing the parties to proceed in arbitration in accordance
with the terms of the agreement. Accordingly, based upon the
provisions of 9 U.S.C. § 4, it is further RECOMMENDED
that Defendant's Motion to Dismiss and to Compel
Arbitration be GRANTED.
reasons set forth herein, it is RECOMMENDED that
Defendant's Motion to Dismiss and to Compel Arbitration
OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE
REPORT. 28 U.S.C. § 636(b)(1)(C). FAILURE TO FILE THEM
WITHIN FOURTEEN (14) DAYS MAY ...