Memo in Support of Motion to Dismiss

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

MATTHEW J. RYAN,

Plaintiff,

v.

BUCKLEYSANDLER LLP1250 24th Street, N.W., Suite 700Washington, DC 20037

KIRK JENSEN1250 24th Street, N.W., Suite 700Washington, DC 20037

ELIZABETH MCGINN1250 24th Street, N.W., Suite 700Washington, DC 20037

Defendants.

Case No.: 1:13-cv-01816

Hon. Beryl A. Howell

DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF THEIR MOTION TO DISMISS AND COMPEL ARBITRATION

Defendants BuckleySandler LLP, Kirk Jensen, and Elizabeth McGinn move this Court

under the Federal Arbitration Act, 9 U.S.C. 1 et seq., to dismiss this case and compel

arbitration on the ground that Plaintiff Matthew J. Ryans (Plaintiff) claims are subject to

mandatory, binding arbitration.

Factual Background

Plaintiff, a 47 year old white male, began his association with the predecessor to

BuckleySandler in March 2008 on a temporary basis as a contract attorney through a legal

staffing agency, assisting with document reviews. (Compl. 10.) That temporary association

terminated in or around April 2009 with the conclusion of the project for which Plaintiff was

hired. (Id.) In December 2009, BuckleySandler hired Plaintiff as an employee on a temporary

Case 1:13-cv-01816-BAH Document 3-1 Filed 11/29/13 Page 1 of 9

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basis to perform document review work. (Id. 11.) BuckleySandler reclassified Plaintiff from a

temporary staff attorney to a full-time, at-will employee in September 2010. (Id. 13.)

When BuckleySandler hired Plaintiff in December 2009, the parties agreed that, should

any disputes related to Plaintiffs employment (or termination of his employment) arise, those

disputes would be resolved by binding arbitration. This agreement was memorialized in a

written Employee Agreement to Arbitrate (Arbitration Agreement), which Plaintiff executed

as a condition of my employment or continued employment. (Declaration of Terri Carnahan

(Carnahan Decl.), Ex. 1.) The contours of the parties Arbitration Agreement were explained

both on the face of the agreement and in a separate document provided to Plaintiff entitled

Notice to Employees About Our Mutual Arbitration Policy. (Carnahan Decl., Ex. 2.)

BuckleySandler also provided Plaintiff with a copy of the Mutual Arbitration Policy, and

Plaintiff expressly acknowledged his receipt, review, and acceptance of the Mutual Arbitration

Policy in the Arbitration Agreement, the first sentence of which reads, I acknowledge that I

have received and reviewed a copy of BuckleySandler LLPs Mutual Arbitration Policy

(MAP), which is incorporated by reference into this Agreement. (Carnahan Decl., Ex. 1.)

Plaintiff agreed that binding arbitration would be his sole remedy for all employment-

related claims that might arise against BuckleySandler or any of its employees, officers,

directors or agents. (Carnahan Decl., Ex. 1, at 1.) The Mutual Arbitration Policy expressly

states that the potential claims within the scope of the Arbitration Agreement include, but are not

limited to, claims raised under the Age Discrimination in Employment Act and the D.C.

Human Rights Act. (Carnahan Decl., Ex. 2, at 1.)

In exchange for Plaintiffs agreement to arbitrate his claims, BuckleySandler agreed to

employ Plaintiff and further agreed to submit itself to binding arbitration for any claims it might


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have against him. (Carnahan Decl., Ex. 1, at 1.) BuckleySandler also agreed that if Plaintiff

submitted a request for binding arbitration of a claim, BuckleySandler would pay the entire cost

of such arbitration, except for an amount equal to the civil action filing fee in Plaintiffs local

court. (Id.)

BuckleySandler terminated Plaintiffs employment on January 31, 2013 when it

eliminated its staff attorney program. (Compl. 111.) In March 2013, Plaintiff executed a

severance agreement waiving all claims against BuckleySandler in exchange for a severance

payment. (Id. 121.) In July 2013, Plaintiff filed a charge with the U.S. Equal Employment

Opportunity Commission (EEOC) alleging age discrimination. (Compl. 7.) After

investigating the charge, the EEOC found no probable cause and dismissed it. (Compl.,

Attachment.)

In direct violation of his agreement to arbitrate and his severance agreement, Plaintiff has

filed the present action alleging causes of action under (1) the Age Discrimination In

Employment Act (ADEA) (Compl. 125-30) and (2) the D.C. Human Rights Act

(DCHRA). (Compl. 131-34.) At the appropriate time and in the appropriate forum,

Defendants will vigorously contest Plaintiffs gratuitous and untrue allegations and show them to

be false.1 But this is not the proper forum to resolve Plaintiffs dispute, because Plaintiff is

obligated to arbitrate his claims against Defendants. Accordingly, Defendants move to dismiss

the Complaint and to compel arbitration, and seek attorneys fees and costs for bringing this

motion.

1 Even a cursory reading of the complaint demonstrates that Plaintiff has failed to comply with the notice pleadingrequirements of the Federal Rules and evidences his intent to smear Defendants in a public filing containingscurrilous, impertinent, and immaterial allegations. Although such allegations are ripe for a motion to strike underRule 12(f), Defendants prefer to deal with these matters in the mutually agreed upon arbitration forum.


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ARGUMENT

I. The Parties Have A Valid Agreement To Arbitrate The Claims At Issue In ThisLitigation, And That Agreement Is Enforceable Pursuant To The FederalArbitration Act.

Plaintiff should be compelled to submit his claims to binding arbitration because (1)

federal law favors the enforcement of arbitration agreements, (2) Plaintiff agreed to resolve his

disputes with BuckleySandler through binding arbitration, and (3) that agreement encompasses

the present dispute.

A. Federal Law Favors The Enforcement Of Arbitration Agreements.

Federal law and the settled policy of federal courts strongly favor arbitration where an

agreement to arbitrate matters exists. Under the Federal Arbitration Act (FAA), a district court

is required to compel arbitration when it finds that (1) the arbitration agreement is valid and

enforceable and (2) the claims raised in the complaint fall within the scope of the arbitration

agreement. Pearce v. E.F. Hutton Grp., Inc., 828 F.2d 826, 829 (D.C. Cir. 1987) (reversing and

remanding to district court with instructions to stay proceedings and compel arbitration); 9

U.S.C. 3 (upon being satisfied that the issue involved in such suit or proceeding is referable to

arbitration under such an agreement, [the court] shall on application of one of the parties stay the

trial of the action until such arbitration has been had in accordance with the terms of the

agreement).

The federal policy favoring arbitration counsels that doubts about the intended scope of

an agreement to arbitrate be resolved in favor of the arbitral process. Pearce, 828 F.2d at 829.

The party resisting arbitration bears the burden of proving the claims at issue are unsuitable for

arbitration. Green Tree Fin. Corp-Ala v. Randolph, 531 U.S. 79, 91 (2000). Agreements to

arbitrate employment disputes are routinely found enforceable by courts and are even favored.

See Pearce, 828 F.2d at 829 (noting that arbitration of labor disputes is favored because


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arbitrators and the arbitration process have particular expertise and procedures designed to

handle labor claims); Hobley v. Kentucky Fried Chicken, Inc., 168 Fed. Appx. 443, 2005 WL

3783027, *1 (D.C. Cir. Sept. 9, 2005) (upholding enforcement of arbitration agreement executed

as part of employment application). Further, it is well settled that ADEA and DCHRA claims

fall within the scope of mandatory arbitration agreements such as the one signed by Plaintiff.

See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991) (finding no evidence

that Congress intended to preclude arbitration claims under the ADEA); Booker v. Robert Half

Int'l, Inc., 315 F. Supp. 2d 94, 100 (D.D.C. 2004), aff'd, 413 F.3d 77 (D.C. Cir. 2005) (finding

employee was required to arbitrate DCHRA claims even where arbitration agreement did not

specifically mention statutory claims and rejecting any presumption against the arbitrability of

statutory claims); Fox v. Computer World Servs. Corp., 920 F. Supp. 2d 90, 93, 104-05 (D.D.C.

2013) (finding employees DCHRA and DC common law claims were required to be submitted

to arbitration per arbitration agreement).

B. Plaintiff Executed A Binding Arbitration Agreement.

The Arbitration Agreement is valid and enforceable. Whether an arbitration agreement

is enforceable is a question of state contract law. Arthur Andersen LLP v. Carlisle, 556 U.S.

624, 630-31 (2009). Under District of Columbia law,2 a signature on a contract indicates

mutuality of assent and a party is bound by the contract unless he or she can show special

circumstances relieving him or her of such an obligation. Sapiro v. VeriSign, 310 F. Supp. 2d

208, 212 (D.D.C. 2004) (enforcing arbitration agreement executed by employee); Emeronye v.

CACI Intl, 141 F. Supp. 2d 82, 86 (D.D.C. 2001) (same). Further, an agreement to arbitrate

claims in an employment context is supported by adequate consideration where it is either

2 District of Columbia law governs the interpretation of the Arbitration Agreement because it was entered into in theDistrict, BuckleySandler is based in the District, and the subject matter of the contract (Plaintiffs employment) tookplace within the District. Ideal Elec. Sec. Co., Inc. v. Intl Fidelity Ins., 129 F.3d 143, 158 (D.C. Cir. 1997).


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required as a condition of employment, or given as part of a mutual agreement to arbitrate

claims. Sapiro, 310 F. Supp. 2d at 212.

Here, Plaintiff executed the Arbitration Agreement on December 30, 2009 as an express

condition of employment. (Carnahan Decl., Ex. 1, at 1.) Plaintiffs execution of the Arbitration

Agreement binds him to the terms of the parties agreement to arbitrate disputes. Emeronye, 141

F. Supp. 2d at 86. The agreement contains adequate consideration because it is supported both

by an offer of employment and a mutual promise to arbitrate disputes. Id. For all of these

reasons, the Arbitration Agreement is valid under District of Columbia law.

C. Plaintiff Must Submit His Claims To Binding Arbitration.

Both of Plaintiffs claims fall squarely within the scope of the Arbitration Agreement.

Plaintiff agreed to submit to binding arbitration any and all claims and disputes that are related

in any way to my employment or termination. (Carnahan Decl., Ex. 1, at 1.) Moreover, the

Mutual Arbitration Policy explicitly states that claims under the Age Discrimination In

Employment Act and the D.C. Human Rights Act are within the scope of the Arbitration

Agreement. (Carnahan Decl., Ex. 2, at 1). Because it is incorporated by reference into the

Arbitration Agreement, the Mutual Arbitration Policy is a part of the Arbitration Agreement.

Sheriff v. Medel Elec. Co., 412 A.2d 38, 41 (D.C. 1980) ([w]hen a contract incorporates another

writing, the two must be read together as the contract between the parties).

The crux of Plaintiffs complaint is that Defendants discriminated against him based on

his age by failing to promote him and terminating his employment. (Compl. 129, 133.) He

brings these claims under the ADEA and the DCHRA. (Id.) Plaintiffs claims are solely against

BuckleySandler and its partners, relate entirely to his employment, and are specifically listed in

the Mutual Arbitration Policy as within the scope of the parties agreement to arbitrate. There is

simply no dispute that all of Plaintiffs claims against all of the Defendants fall within the


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Arbitration Agreement and must be submitted to binding arbitration. (Carnahan Decl., Ex. 1, at

1) (stating that any and all claims and disputes that are related in any way to my employment or

termination against BuckleySandler and each of its and/or their employees, officers, directors

or agents must be submitted to binding arbitration).

II. Plaintiffs Complaint Should Be Dismissed With Prejudice.

Plaintiffs claims should be dismissed with prejudice. When all issues raised in the

complaint must be submitted to arbitration . . . dismissal of th[e] action is within the discretion of

the Court and is appropriate. Emeronye, 141 F. Supp. 2d at 88. Courts in this District routinely

grant such relief. See, e.g., Shorts v. Parsons Transp. Grp., Inc., 679 F. Supp. 2d 63, 67 (D.D.C.

2010) (dismissing complaint where all claims were subject to arbitration); Aliron Intern., Inc. v.

Cherokee Nation Indus., Inc., No. 05-151 (GK), 2006 WL 1793295, *3 (June 28, 2006) (all of

Plaintiff's claims must be submitted to arbitration . . . [s]ince there is no further action to be taken

by this Court, it is appropriate to dismiss this case in its entirety). In the alternative, if the Court

declines to dismiss the case in favor of arbitration, Defendants request that the Court stay all

proceedings pending the completion of any arbitration, in accordance with Section 3 of the FAA.

See 9 U.S.C. 3; Pearce, 828 F.2d at 829; 9 U.S.C. 3.

III. Defendants Should Be Awarded Fees and Costs.

After the complaint was filed, Defendants contacted Plaintiff by telephone and left a

recorded message reminding him of the Arbitration Agreement and requesting that he withdraw

the lawsuit and proceed instead to initiate arbitration as provided in the agreement. Defendants

followed up with an email attaching a signed copy of the Arbitration Agreement. Defendants

advised Plaintiff in both the telephone message and the email that if he did not withdraw the

complaint, Defendants would move to compel arbitration and see all costs related to the motion.


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In light of Plaintiffs deliberate refusal to withdraw his lawsuit in the face of the

Arbitration Agreement, Defendants should be awarded their attorneys fees and costs incurred in

bringing this motion.

CONCLUSION

Plaintiff is obligated to resolve his claims against Defendants through binding arbitration.

Defendants respectfully request that this Court enter an order (1) compelling the parties to

proceed to arbitration as set forth in Arbitration Agreement, (2) dismissing this case or, in the

alternative, staying all proceedings, and (3) awarding Defendants fees and costs.

Dated: November 29, 2013Respectfully submitted,

BUCKLEYSANDLER LLP, KIRK JENSENAND ELIZABETH MCGINN

By: /s/Christopher A. WealsChristopher A. Weals (Bar No. 414754)Andrew G. Sakallaris (Bar. No. 983166)MORGAN, LEWIS & BOCKIUS, LLP1111 Pennsylvania Avenue, NWWashington, DC 20004Telephone: 202.739.3000Facsimile: [email protected]@morganlewis.com

Attorneys for Defendants


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CERTIFICATE OF SERVICE

I, Christopher A. Weals, hereby certify that on November 29, 2013, a true and correct

copy of the foregoing was electronically filed with the Clerk of Court using the CM/ECF system,

which will send electronic notification of such filing to all counsel of record registered to receive

it.

/s/ Christopher A. Weals


Memo in Support of Motion to Dismiss

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