United States District Court, E.D. Pennsylvania
JULIEANN COLON, on behalf of herself and all others similarly situated, Plaintiff,
CONCHETTA, INC. d/b/a CLUB RISQUE; RT, 413, INC. d/b/a CLUB RISQUE; TACONY 2008 INC. d/b/a CLUB RISQUE; CONNIE INNEZZELLI; DEAN M. PAGANO; RONALD CRUDELE; THEODORE PAGANO JR; and DOE DEFENDANTS 1-10, Defendants.
F. KELLY, Sr. J.
before the Court is the Motion to Compel Arbitration and
Dismiss the Proceedings, and Stay Discovery filed by
Defendants Conchetta Inc. d/b/a Club Risque, RT 413, Inc.
d/b/a Club Risque, Tacony 2008 Inc. d/b/a Club Risque, Connie
Innezzelli (“Innezzelli”), Dean M. Pagano, Ronald
Crudele (“Crudele”), Theodore Pagano Jr., and Doe
Defendants 1-10 (collectively “Defendants”),
Plaintiff Julieann Colon's (“Colon”) Response
in Opposition, Defendants' Reply Brief, and Colon's
Notice of Supplemental Authority. For the reasons noted
below, we grant Defendants' Motion.
March 2, 2017, Colon filed the present class action before
this Court alleging federal and Pennsylvania state wage
violations. Specifically, Colon claims she was an exotic
dancer at various entities doing business as “Club
Risque.” (Compl. ¶ 12.) The essence of her
Complaint is that she and others are entitled to damages
because Defendants improperly classify exotic dancers as
“independent contractors.” (Id.
¶¶ 12, 33.) Thus, Colon claims that the Defendants
have, inter alia, violated federal and Pennsylvania
state law relating to the failure to pay the applicable
minimum wage; failure to pay overtime compensation in excess
of forty hours; improper collection of a portion of tips the
dancers receive from the public; and improper subsidization
of the businesses by requiring a portion of tips to be
forfeited to management and employees who do not regularly
receive tips. (Id. ¶ 3.)
April 11, 2017, Defendants filed a Motion to Compel
Arbitration and Dismiss the Proceedings, and to Stay
Discovery Pending Determination of the Motion, which relies
upon an arbitration provision contained in a “Performer
License and Temporary Space Lease Agreement” (the
“Agreement”). (Defs' Brief; Ex. A § 16.)
Colon filed a Response in Opposition, Defendants filed a
Reply Brief, and Colon filed a Notice of Supplemental
order to determine whether a valid arbitration agreement
exists, we must initially decide whether that determination
is made under Federal Rule of Civil Procedure 12(b)(6) or 56,
and thus, what materials may be considered. See Sanford
v. Bracewell & Guiliani, LLP, 618 F. App'x 114, 117
(3d Cir. 2015). “Motions to compel arbitration are
reviewed under Rule 12(b)(6) ‘[w]here the affirmative
defense of arbitrability of claims is apparent on the face of
a complaint (or . . . documents relied upon in the
complaint).'” Id. (quoting Guidotti v.
Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764,
773-74 (3d Cir. 2013)). “If the motion to compel
arbitration is not based on a complaint ‘with the
requisite clarity' to establish arbitrability or
‘the opposing party has come forth with reliable
evidence that is more than a naked assertion that it did not
intend to be bound by the arbitration agreement, even though
on the face of the pleadings it appears that it did, '
resort to discovery and Rule 56 is proper.”
Id. (ellipsis omitted) (quoting Guidotti,
716 F.3d at 774).
does not mention the Agreement in her Complaint, although it
is clearly integral to her claims. See Hewitt v. Rose
Grp., No. 15-5992, 2016 WL 2893350, at *2 n.1 (E.D. Pa.
Mar. 21, 2016) (“It would frustrate the purposes of the
Federal Arbitration Act if plaintiffs could avoid having
their claims quickly compelled to arbitration simply by
failing to mention the existence of clearly applicable
arbitration agreements in their complaints.”).
Defendants attached the Agreement to their Brief, and Colon
does not contest its authenticity. Indeed, Colon admits to
signing the Agreement on February 18, 2015. (Pl.'s Resp.
in Opp'n at 11.) Because there is no question that the
Agreement is integral to Colon's claims and no dispute of
its authenticity, we will consider it.
that arbitrability is facially established, the Rule 12(b)(6)
standard applies. See Guidotti, 716 F.3d at 776
(stating under the Rule 12(b)(6) standard, “[w]e
consider only the complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly
authentic documents if the complainant's claims are based
upon these documents”) (citation omitted); see also
In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) (stating that even if a
“[c]omplaint does not explicitly refer to or cite [a
document] . . . the critical [issue] is whether the claims in
the complaint are ‘based' on an extrinsic document
and not merely whether the extrinsic document was explicitly
cited”); Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
(“[A] court may consider an undisputedly authentic
document that a defendant attaches as an exhibit to a motion
to dismiss if the plaintiff's claims are based on the
document. Otherwise, a plaintiff with a legally deficient
claim could survive a motion to dismiss simply by failing to
attach a dispositive document on which it relied.”).
Thus, pursuant to Federal Rule of Civil Procedure 12(b)(6),
we accept as true the facts plead in the Complaint construing
them in the light most favorable to Colon. See
note that no discovery is needed because any further
development of the factual record is unnecessary to decide
the instant Motion. Therefore, we deny Colon's request
Federal Arbitration Act (“FAA”), 9 U.S.C. §
1 et seq., “creates a body of federal
substantive law establishing and governing the duty to honor
agreements to arbitrate disputes.” Century Indem.
Co. v. Certain Underwriters at Lloyd's, London, 584
F.3d 513, 522 (3d Cir. 2009). The FAA provides that
“‘[a] written provision' in a maritime or
commercial contract showing an agreement to settle disputes
by arbitration ‘shall be valid, irrevocable, and
enforceable, save upon grounds as exist in law or in equity
for the revocation of any contract.'” Id.
(quoting 9 U.S.C. § 2). “Because arbitration is a
matter of contract, before compelling arbitration pursuant to
the Federal Arbitration Act, a court must determine that (1)
a valid agreement to arbitrate exists, and (2) the particular
dispute falls within the scope of that agreement.”
Kirleis v. Dickie, McCamey & Chilcote, P.C., 560
F.3d 156, 160 (3d Cir. 2009).
The Agreement to Arbitrate Arbitrability
outset, Defendants assert that any challenge Colon makes
regarding the Agreement or the arbitration clause must be
submitted to the arbitrator. (See Defs' Brief at
10.) In other words, Defendants claim that, pursuant to the
express language in the Agreement, any argument concerning
the validity, enforceability, or scope of the ...