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Moore v. Performance of Brentwood, L.P.

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

December 10, 2019

DONNA MOORE, Plaintiff,




         Pending before the Court is Defendant's Motion to Dismiss and Compel Arbitration. (Doc. No. 9). Plaintiff filed a response (Doc. No. 15) and Defendant filed a reply (Doc. No. 16). For the reasons stated below, the motion to compel arbitration is GRANTED and the case is STAYED, pending further order of the Court, and the parties are ordered to participate in arbitration.

         I. BACKGROUND

         Defendant Performance of Brentwood operates two automobile dealerships in Brentwood, Tennessee. (Compl., Doc. No. 1 ¶ 3). Plaintiff was employed by Defendant from approximately October 2013 to February 2019 as an Officer Manager and Assistant Controller performing bookkeeping work and ordering office supplies. (Id. ¶¶ 4, 5; Bruns Decl., Doc. No. 9-1 at ¶ 4; Moore Decl., Doc. No. 15-1 at ¶ 5). She was initially paid an hourly rate but began receiving a salary of $55, 200 per year in 2015. (Compl., Doc. No. 1 ¶ 6; Moore Decl., Doc. No. 15-1 ¶ 6). Plaintiff states that she was required to clock in and out each day and that she routinely worked 50-70 hours per week and was not paid any overtime or other compensation for these hours. (Id.)

         Plaintiff signed an arbitration agreement (“2013 Arbitration Agreement”) when she began working for Defendant in October 2013. (See Bruns Decl., Doc. No. 9.1 at ¶¶ 5-6; 2013 Arbitration Agreement, Doc. No. 9-1 at 5). On August 27, 2015, Plaintiff signed an Employment Agreement, which also had an arbitration provision (the “Arbitration Agreement”) which provided:

Arbitration. Employee and Company agree that any controversy or claim arising out of or relating, directly or indirectly, to the Employee's employment, including any matter which is the subject of the Agreement; the terms and conditions (including benefits, if any) of Employee's employment by Company; or the termination of Employee's employment by Company shall be submitted to and settled by final and binding arbitration in accordance with Company's Employment Dispute Arbitration Procedure. Arbitration of any such dispute must be initiated within 180 days after the dispute first arises. Judgment on any award rendered by an arbitrator may be entered in any court having jurisdiction thereof. This paragraph shall not be construed to require arbitration between the parties prior to filing suit to obtain an injunction to restrain a violation or attempted violation of the restrictions set forth in paragraphs 6 [Hiring and Recruitment of Company Employees] and 7 [Company's Confidential Information] of this Agreement. …
Attorneys' Fees. In this event of arbitration or litigation arising out of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including attorneys' fees, from the other party, in addition to all other relief to which it may be entitled. This paragraph replaces and supersedes all provision in the Company's Employment Dispute Arbitration Procedure concerning costs, expenses and attorneys' fees with regard to any dispute between the Company and Employee.

         (Arbitration Agreement, Doc. No. 9-1 at 14, ¶¶ 8, 11). The Arbitration Agreement signed in 2015 differs from the 2013 Arbitration Agreement in that it adds the provision that the prevailing party may recover attorneys' fees and costs and that the arbitration provision does not apply to certain claims for injunction relief against Plaintiff. Plaintiff argues, and Defendant does not dispute, that the Arbitration Agreement signed in 2015 superseded the 2013 Arbitration Agreement. (See Pl. Br., Doc. No. 15 at 2; Def. Reply, Doc. No. 16).

         The Company's Employment Dispute Arbitration Procedure referenced in the arbitration clause includes the following provision:

This Procedure may be amended from time to time by the Company, as may be necessary or appropriate to give effect to the intent of this Procedure, in light of circumstances which arise after the date hereof; provided however, that any such amendment shall apply only to arbitrations initiated after the date of amendment. Employees shall be informed of amendments by the Company as soon as practicable after adoption.

         (Doc. No. 9-1 at 10).

         Plaintiff is 58 years-old. (Moore Decl., Doc. No. 15-1 ¶ 2). She has a GED and her primary work experience is as a bookkeeper. (Id.). Plaintiff claims that she was handed the Employment Agreement while at work and told to sign it. (Id. ¶ 7). She signed the papers and handed them back to office personnel at the dealership. (Id.). Plaintiff said that when she signed the documents, she understood that the “arbitration procedure was some type of procedure for addressing disagreements that might occur while [she] was at work, ” but had “no idea” she was giving up her right to file a lawsuit in court. (Id. ¶¶ 9, 10). In addition, Plaintiff states that she cannot afford to pay the costs of an arbitration or pay any attorneys' fees if her claim is unsuccessful. (Id. at ¶¶ 13, 14).

         On July 19, 2019, Plaintiff filed this action pursuant to Section 216(b) of the Fair Labor Standards Act (“FLSA”) alleging that Defendant violated the FLSA when it failed to pay Plaintiff overtime wages for hours worked over 40 in a workweek. (Compl., Doc. No. 1). On September 11, 2019, Defendant moved to compel arbitration and to dismiss the case. (Doc. No. 9).

         II. ...

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