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Noye v. Johnson & Johnson

United States District Court, M.D. Pennsylvania

November 6, 2017

T JASON NOYE, individually and on behalf of all others similarly situated, Plaintiffs


          Kane Judge

         Before the Court is Defendant Kelly Services Inc.'s (“Kelly”) renewed motion to compel arbitration and to stay the above-captioned case pending completion of the arbitration. (Doc. No. 72.) Also before the Court is Defendant Johnson & Johnson Services, Inc.'s (“J&J”) renewed motion to compel arbitration and dismiss or, in the alternative, stay all proceedings. (Doc. No. 74.) For the reasons that follow, the Court will grant Defendant Kelly's renewed motion (Doc. No. 72), and will grant in part and deny in part Defendant J&J's renewed motion (Doc. No. 74).

         I. BACKGROUND

         In February 2015, Plaintiff T Jason Noye interviewed at a job fair for a position with J&J through the staffing company, Kelly.[1] (Doc. No. 76-1 at 2.) On February 11, 2015, a recruiter from Kelly offered Plaintiff a position with J&J as an operations supervisor. (Doc. No. 76-1 at 2; see Doc. No. 76-4 at 16.) Plaintiff responded to the Kelly recruiter by stating that he “would like to accept the position.” (Doc. No. 76-2 at 2.) On February 12, 2015, the Kelly recruiter asked Plaintiff to complete Kelly's online application. (Doc. No. 76-3 at 2.)

         The online application required Plaintiff to complete the then-viewed page before proceeding to the next page of the application. (Doc. No. 72-4 at 12-13; Tr. at 88: 2-16; 93: 20-22.) One such page of the application was an “arbitration screen” that included a link to a document titled “Dispute Resolution and Mutual Agreement to Binding Arbitration” (“Arbitration Agreement”).[2] (Doc. Nos. 72-4 at 14; Tr. at 99: 3-6; 100: 3-11; 72-5 at 2; Tr. at 37: 12-21.) Paragraph 1 of the Arbitration Agreement provides, in relevant part, as follows:

1. Agreement to Arbitration. Kelly Services, Inc. (“Kelly Services”) and I agree to use binding arbitration, instead of going to court, for any “Covered Claims” that arise between me and Kelly Services, its related and affiliated companies, and/or any current or former employee of Kelly Services or any related or affiliated company.

(Doc. No. 72-2 at 2.) “Covered Claims” under the Arbitration Agreement include “all common-law and statutory claims related to [Plaintiff's] employment . . . .” (Id.) The Arbitration Agreement states in bold that arbitration is the “only forum for resolving Covered Claims” and that Defendant Kelly and Plaintiff waive the right to a jury- and bench trial. (Id.) The online application did not allow Plaintiff to bypass the “arbitration screen, ” though the terms of the Arbitration Agreement were only viewable if the applicant clicked on a link at the top of the screen.[3] (Doc. No. 72-5 at 2; Tr. at 38: 1-24.)

         At another stage in the application, Plaintiff informed Kelly that he had been convicted of a crime. (Doc. Nos. 72-4 at 11; Tr. at 87: 15-24; 76-12 at 2.) Kelly later requested information about Plaintiff's conviction (Doc. No. 76-7 at 2), and Plaintiff alleges that he provided the additional documentation “promptly” thereafter (Doc. No. 1 ¶¶ 28-29). On February 13, 2015, after completing the online application, Plaintiff printed his name and signed a separate document that was titled: “Employment Agreement for Contract Labor Employees on Assignment at Johnson & Johnson” (“Employment Agreement”). (Doc. No. 76-10 at 5; see Doc. No. 76-11 at 8.) Kelly employees administered this Employment Agreement “in connection with candidates for hire at Kelly who would be placed at J&J locations.” (Doc. No. 76-4 at 15; Tr. at 97: 20-24.)

         On February 20, 2015, a Kelly employee signed the Employment Agreement (Doc. Nos. 76 at 12; 77-5 at 20; Tr. at 99: 2-20), and a Kelly “on-boarding coordinator” also sent Plaintiff an e-mail stating that Plaintiff had “been hired” and welcoming him to “the Kelly Team!” (Doc. No. 76-8 at 2-3). However, on March 13, 2015, the Kelly recruiter informed Plaintiff via e-mail that “J&J cannot hire” Plaintiff and noted that he would keep Plaintiff “in mind for other opportunities.” (Doc. No. 76-13 at 2.) According to the complaint, J&J decided not to hire Plaintiff because of a background report Kelly had purchased from Yale Associates, Inc. (“Yale”). (Doc. No. 1 ¶¶ 4, 30, 32-33.) Plaintiff claims that the Yale report misreported four summary offenses as misdemeanors and caused him to lose the Johnson & Johnson position. (Id. ¶ 34.)

         On December 11, 2015, Plaintiff initiated the above-captioned action against Defendants J&J and Kelly. Plaintiff alleges that Defendants violated the Fair Credit Reporting Act's (“FCRA”) disclosure requirements, 15 U.S.C. § 1681b(b)(2) (Doc. No. 1 ¶¶ 5-6, 20, 23, 27, 61), and the requirement to provide applicants with a copy of the report and a description of consumer rights under the FCRA, 15 U.S.C. § 1681b(b)(3) (id. ¶¶ 7-8, 11, 69). Plaintiff brings suit on behalf of himself and putative class members. Plaintiff seeks statutory damages, punitive damages, as well as attorneys' fees and costs. (Id. ¶¶ 47, 50-57.)

         On February 22, 2016, in lieu of filing an answer to the complaint (Doc. Nos. 24, 27), Defendant Kelly filed a motion to compel arbitration and stay the case. (Doc. No. 39.) The Court denied without prejudice Kelly's motion to compel arbitration and ordered the parties to conduct limited arbitration-related discovery. (Doc. No. 62.) Similarly, on February 22, 2016, Defendant J&J filed a separate motion to compel arbitration (Doc. No. 40), which the Court denied without prejudice on September 7, 2016 (Doc. No. 63)

         On January 30, 2017, Defendant Kelly filed a renewed motion to compel arbitration and to stay the action pending arbitration. (Doc. No. 72.) Defendant J&J filed a separate motion to compel arbitration and dismiss or, in the alternative, stay all proceedings on January 30, 2017. (Doc. No. 74.) The parties have briefed Kelly and J&J's renewed motions to compel arbitration, and the pending motions are ripe for disposition.


         The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, provides the “body of federal substantive law establishing and governing the duty to honor agreements to arbitrate disputes” and expresses a “strong federal policy in favor of resolving disputes through arbitration.” Century Indem. Co. v. Certain Underwriters at Lloyd's, London, 584 F.3d 513, 522 (3d Cir. 2009). Even in light of the FAA, arbitration is “strictly a matter of contract.” Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999). “If a party has not agreed to arbitrate, the courts have no authority to mandate that he do so.” Id. “Thus, in deciding whether a party may be compelled to arbitrate under the FAA, we first consider ‘(1) whether there is a valid agreement to arbitrate between the parties and, if so, (2) whether the merits-based dispute in question falls within the scope of that valid agreement.'” Flintkote Co. v. Aviva PLC, 769 F.3d 215, 220 (3d Cir. 2014) (quoting Century Indem., 584 F.3d at 527).

         As to the first question, the United States Court of Appeals for the Third Circuit has recently clarified “the standard for district courts to apply when determining whether, in a specific case, an agreement to arbitrate was actually reached.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 771 (3d Cir. 2013). In effect, to determine whether there is a valid agreement to arbitrate, a district court “must initially decide whether the determination is made under Fed.R.Civ.P. 12(b)(6) or 56.” Sanford v. Bracewell & Guiliani, LLP, No. 14-1763, 2015 WL 4035614, at *2 (3d Cir. July 2, 2015). Having already permitted limited discovery on the question of arbitrability, the Court applies the summary judgment standard to Defendant Kelly's renewed motion to compel arbitration.

         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         At the summary judgment stage, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007). In deciding a motion for summary judgment, the Court need not accept allegations that are merely conclusory in nature, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Moreover, the Court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the Court must simply “determine whether there is a genuine issue for trial.” Id.

         The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant a motion for summary judgment when the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).


         A. Defendant Kelly's Renewed Motion to Compel Arbitration

         Defendant Kelly argues that Plaintiff must be compelled to arbitrate his claims against Kelly because Plaintiff entered into the Arbitration Agreement and that Plaintiff's claims fall within the scope of the Arbitration Agreement. (Doc. No. 73 at 14.) The Court first addresses whether a valid agreement to arbitrate exists between Plaintiff and Defendant Kelly.[4]

         1. The Arbitration Agreement

         Defendant Kelly argues that Plaintiff electronically signed the Arbitration Agreement on February 12, 2015. (Doc. No. 73 at 7, 9, 14-15.) Plaintiff does not unequivocally dispute the existence of the Arbitration Agreement, but stresses that Plaintiff cannot recall the agreement. (Doc. No. 76 at 9-10.)

         “An unequivocal denial that the agreement had been made, accompanied by supporting affidavits, however, in most cases should be sufficient to require a jury determination on whether there had in fact been a ‘meeting of the minds.'” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 55 (3d Cir. 1980). However, the Third Circuit has recognized a distinction between: (1) a claim that a plaintiff was never provided with a copy of the arbitration agreement; and (2) a claim asserting the inability to “recall seeing or reviewing” the contract. See Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 162 (3d Cir. 2009) (citing Tinder v. Pinkerton Sec., 305 F.3d 728, 736 (7th Cir. 2002)). It is presumed “that one who signs a contract knows its nature and understands its contents.” Payne Broder & Fossee, P.C. v. Shefman, No. 312659, 2014 WL 3612699, at *4 (Mich. Ct. App. July 22, 2014) (applying Michigan law); Allstate Life Ins. Co. v. Ramich, No. 03-6842, 2004 WL 2611947, at *2 (E.D. Pa. Oct. 21, 2004) (applying Pennsylvania law) (“The law presumes persons who sign papers do so with a full knowledge of their contents; ‘otherwise most contracts would not be worth the paper they are written on.'”) (quoting In re Birkbeck's Estate, 64 A. 536 (Pa. 1906)).

         Here, the Arbitration Agreement was electronically signed by “T Noye, ” on February 12, 2015, and Nina Ramsey, Defendant Kelly's Chief Human Resources Officer, on February 12, 2015. (Doc. No. 39-4 at 8.) In his deposition, Plaintiff testified that he did not remember the Arbitration Agreement. (Doc. No. 72-4 at 14; Tr. at 99: 10-23.) However, when pressed by Defendant Kelly's counsel, Plaintiff conceded that “it is a safe assumption” that he electronically signed the box confirming acknowledgment of being provided a copy of the Arbitration Agreement (id. at 15; Tr. at 100: 12-23; id. at 16; Tr. at 101: 4-15), and responded - as to whether Plaintiff actually clicked on the link offering a copy of the Arbitration Agreement - that “[a] document like this yes, I would have clicked on it.” (Id. at 15; Tr. at 100: 5-11.)

         The record is undisputed that Plaintiff's electronic signature on the “acknowledgment statement check box” was required to proceed past the “arbitration screen” and submit the application forms to Kelly. (See Doc. Nos. 72-5 at 6; Tr. at 51: 16-24; 76-4 at 12-13; Tr. at 37: 4-24, 38: 1-9.) Defendant Kelly also provided the Court with a copy of “Kelly eRegistration Login Session Data” that purports to record Plaintiff's submission of his application, including the submission of the Arbitration Agreement. (Doc. Nos. 72-3 at 3; 72-5 at 6; Tr. at 51: 6-11; 72-6 at 2; 73 at 9.) The Arbitration Agreement was also available at the conclusion of the application in a “list of forms” to save and print. (Doc. No. 72-5 at 5; Tr. at 45: 4-14.)

         Therefore, the Court finds that there is no genuine dispute that Plaintiff electronically received and signed the Arbitration Agreement on February 12, 2015.

         2. The Employment Agreement

         Plaintiff argues that the Arbitration Agreement was superseded by the Employment Agreement. (Doc. No. 76 at 16.) Plaintiff characterizes the Employment Agreement as providing that “Plaintiff does not agree to ‘binding arbitration'” and considers the Employment Agreement irreconcilable with the Arbitration Agreement. (Id. at 17.) Kelly contends that the Employment Agreement's language “provides guidance on a potential method for non-binding dispute ...

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