United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
Patricia A. Sullivan United States Magistrate Judge
Plaintiff
Emanuel Joia, pro se, [1] initiated this case against his
former employer, Defendant Jozon Enterprises, Inc., by filing
a Petition to Compel Arbitration pursuant to § 4 of the
Federal Arbitration Act (“FAA”), 9 U.S.C. §
4. ECF No. 17.[2] In his Petition, Plaintiff asks the Court
to “issue an order, pursuant to Section 4 of the
Federal Arbitration Act, compelling the arbitration of all
claims in the Complaint[, ]” as required by an
arbitration agreement signed by the parties and dated April
11, 2017 (“Arbitration Agreement”).[3] ECF No. 17 at 19,
23-28. Defendant objected to the Petition, arguing that
Plaintiff is not a party aggrieved by a refusal to arbitrate,
as the FAA mandates, because Plaintiff has failed to initiate
arbitration pursuant to the terms of the Arbitration
Agreement, which is a prerequisite to Defendant's duty to
arbitrate. ECF No. 30 at 2. According to Defendant, it has
not refused to arbitrate and stands ready, willing and able
to do so, if an arbitration is initiated by Plaintiff under
the Arbitration Agreement.
In
light of the apparent confluence of the parties'
positions, a Rule 16 conference was promptly held. During the
conference, the parties confirmed that the Arbitration
Agreement is a true copy of the controlling agreement between
them, that Plaintiff has not initiated arbitration pursuant
to the rules of the American Arbitration Association
(“AAA”) as required by the Arbitration Agreement
and that Defendant acknowledges and intends to abide by its
contractual duty to arbitrate. At the conference, based on
its continuing duty to inquire as to its subject matter
jurisdiction, even absent a motion, McCulloch v.
Velez, 364 F.3d 1, 5 (1st Cir. 2004), Behroozi v.
Behroozi, C.A. No. 15-536S, 2016 WL 8461181, at *1
(D.R.I. Nov. 22, 2016), adopted, 2017 WL 933059
(D.R.I. Mar. 8, 2017), the Court advised the parties that it
was concerned about jurisdiction and would engage in a
sua sponte analysis of whether this case should be
dismissed for lack of jurisdiction.[4] See ECF No. 44 at 2
(noting open question regarding Court's jurisdiction).
Based on the analysis that follows, I now recommend that the
case be dismissed because the Court has neither statutory nor
constitutional subject matter jurisdiction.
I.
Background[5]
According
to the materials attached to the Petition, Plaintiff worked
for Defendant as a delivery driver with Domino's Pizza
for approximately five months until September 2017. ECF No.
17 at 13-14, 38, 47. In April 2017, presumably at the
initiation of Plaintiff's employment with Domino's
Pizza, the parties executed the Arbitration Agreement.
Id. at 11, 23-28.
The
Arbitration Agreement provides that “all claims,
disputes, and controversies” that either Plaintiff or
Defendant may have against the other, including any that
“arise out of the employment context[, ]” must be
resolved by binding arbitration. Id. at 23. More
specifically, it provides that any disputes related to
Plaintiff's “job application, hiring, terms and
conditions of employment, job assignments, payment of wages,
benefits, forms of compensation, or termination[, ]”
including claims of employment discrimination arising under
state or federal law, must be “submitted to and
determined exclusively by binding arbitration under the
[FAA].” Id. at 23-24 (§ I-II). The
Agreement requires that any such arbitration must be
conducted pursuant to the AAA rules. Id. at 25
(§ III). And, if it is the employee who is aggrieved,
he/she must initiate arbitration using the procedure set by
the AAA rules. Id. at 25-26 (§ III). While the
Agreement requires that the party requesting arbitration must
pay the AAA filing fee, the AAA rules referenced in the
Agreement provide for an “Administrative Fees Hardship
Waiver, ” which contemplates a deferment, reduction or
waiver of the filing fee for an individual who cannot afford
the fee.[6] ECF No. 40-1 at 28, 52-53. Otherwise, the
Arbitration Agreement provides that the arbitrator's fees
and the other expenses imposed by AAA are borne by Defendant.
ECF No. 17 at 26 (§ III F). The Arbitration Agreement
includes the stipulation that the duty to arbitrate survives
the termination of the employment relationship. Id.
at 23.
When
Plaintiff terminated his employment with Domino's Pizza
in September 2017, he explained the reasons for his
resignation in a letter dated September 9, 2017:
I do not fit the company persona and am finding it difficult
to conform to the environment as well as the requirements of
the job. I am late frequently because I am always caught up
in traffic. I have had issues with co-workers, on more than
one occasion, and I can't seem to fit the team persona.
It would be best that I remove myself from this environment
before it becomes more problematic.
Id. at 47. After he resigned, Plaintiff's
application for unemployment benefits was denied by a referee
who found that Plaintiff left work voluntarily without good
cause in that there was no evidence of workplace harassment
and no evidence that Plaintiff was inappropriately denied
access to his paystub. Id. at 38-44. The record does
not disclose whether Plaintiff appealed this decision.
As
revealed by the attachments to the Petition, in July 2017,
Plaintiff filed a complaint with the Rhode Island Commission
for Human Rights alleging that he was “harassed
verbally by the entire staff, ” including that other
employees sabotaged his work; that he was discriminated
against by the refusal to give him paystubs and other actions
such as putting “some Viagra like substance in my
food”; and that he believed he was “being
surveilled” outside of work. Id. at 45-46.
Also in July 2017, he made a complaint to the Rhode Island
Department of Labor and Training that he did not get a
paystub and that “my employer is following me and
surveilling me outside of work.” Id. at 48.
Beginning in September 2017, he filed complaints in the Rhode
Island District and Superior Courts.[7] These allege that Defendant
did not comply with the wage-notice-posting requirements in
29 C.F.R. § 516.4 and R.I. Gen. Laws § 28-12-11,
that Plaintiff was harassed in that “coworkers and
managers collaborated in fracas to influence the plaintiff to
quit in turn diminishing the plaintiffs' wages, ”
and that Defendant sabotaged Plaintiff's “efforts
to earn unemployment benefits.” ECF No. 17 at 29-30.
According
to Plaintiff's Petition, and confirmed by Defendant at
the Rule 16 conference, as well as by the electronically
accessible public docket of the Superior Court,
Plaintiff's Superior Court claims were dismissed based on
the Arbitration Agreement. As Plaintiff's Petition
represents, the Superior Court considered but rejected
Plaintiff's argument that his resignation letter voided
the Arbitration Agreement.[8] No. appeal was taken from this
decision.
After
the Superior Court's decision became final, instead of
initiating arbitration with AAA, on July 2, 2018, Plaintiff
filed the pending Petition to Compel Arbitration in this
Court. In it, he petitions this Court to compel Defendant to
arbitrate the following claims: that Defendant violated 29
C.F.R. § 516.4 and R.I. Gen. Laws § 28-12-11 (wage
posting requirements); that Defendant engaged in
“collective sabotage for unjust enrichment[, ]”
assault, intentional infliction of emotional distress,
negligence and malice; and that Defendant “falsified
evidence that would lead to the denial of the plaintiff's
unemployment insurance, ultimately resulting in the denial of
benefits.” ECF No. 17 at 1-2. In a supplement to the
Petition, Plaintiff mentions “FLSA” and
references state law claims based on “Rhode
Island's Fair Labor Standard Act” and “RI
General Assembly Statement of Earnings requirements.”
Id. at 15. These references are based on the
allegation that Defendant failed to supply Plaintiff with a
paystub.
The
prayer for relief in the Petition's supplement asks the
Court to compel arbitration of all of these claims pursuant
to FAA. Id. at 19. Plaintiff asks the Court to
select and appoint the arbitrator, citing 9 U.S.C. § 5
as the foundation for the request.[9] In addition, the Petition
asks the Court to summon the witnesses to the arbitration,
citing 9 U.S.C. § 7.[10]
According
to the Petition, Plaintiff resides in Rhode Island and
Defendant's principal place of business is in Rhode
Island. ECF No. 17 at 1, 13-14. Plaintiff asserts federal
question jurisdiction based on the FAA. Id. at 1
(citing 9 U.S.C. § 4). The Petition does not request a
jury trial. Id.
In
Defendant's objection to the Petition, it agrees that the
parties have a valid agreement to arbitrate. It objects to
the Petition only in that it alleges that it has never
refused to arbitrate Plaintiff's claims under the
Arbitration Agreement. ECF No. 30. At the Rule 16 conference
held on January 23, 2019, Defendant further confirmed that
the Arbitration Agreement is a binding contract between the
parties and represented that it would submit to arbitration
if Plaintiff initiates it under the terms of the Arbitration
Agreement.
In
response, Plaintiff conceded that he had not initiated AAA
arbitration. He stated that he feared he would be unable to
afford the filing fee[11] and that the AAA “will assume a
conflict of interest, as the respondent [sic] has no trust in
the client of the counsel.” ECF No. 41 at 1. Those
fears are why he filed the Petition in this Court, believing
that the filing complies with his contractual duty to
arbitrate and protects him by involving the Court (which
granted him in forma pauperis status for this case)
in the arbitration process. Ultimately, Plaintiff represented
that he understands arbitration is mandatory pursuant to the
Arbitration Agreement; he does not seek to relitigate the
state court decision that the Arbitration Agreement is
...