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Kelly v. Berry Contracting, LP

United States District Court, E.D. Louisiana

November 13, 2019


         SECTION: “H” (1)



         Before the Court are Defendant Berry Contracting, LP's Motion to Dismiss or Stay Pending Arbitration (Doc. 8); Defendant Benjamin Jacob's Motion to Compel Arbitration (Doc. 9); Plaintiffs' Motion to Strike Reply (Doc. 29); and Plaintiffs' Motion for Discovery (Doc. 30). For the following reasons, Plaintiffs' Motion to Strike Reply is GRANTED IN PART; Plaintiffs' Motion for Discovery is DENIED; and Defendants' Motions to Compel Arbitration are GRANTED.


         Plaintiffs Anthony Kelly and Wilfred Henry, Jr. bring claims for racial discrimination and retaliation against their employer Defendant Berry Contracting, LP d/b/a Bay Ltd. (“Bay”) and intentional infliction of emotional distress and assault against their supervisor Defendant Benjamin Jacob. Defendants have separately moved to compel arbitration and stay or dismiss this action in reliance on arbitration agreements that Plaintiffs each signed when they were hired by Bay. Plaintiffs oppose and file motions to strike Bay's reply memorandum and to engage in discovery regarding the arbitration agreements. This Court will consider each motion in turn.


         A. Motion to Strike

         At the outset, the Court must address Plaintiffs' Motion to Strike Bay's Reply Brief. Plaintiffs argue that Bay's reply to its Motion to Compel Arbitration contains new evidence and arguments that are inappropriate in a reply. Plaintiffs have not, however, identified any arguments made by Defendant in its reply that are not responsive to the arguments raised by Plaintiffs in their opposition. That said, Defendant's reply includes several new pieces of evidence submitted in an attempt to remedy deficiencies in its original motion that were identified by Plaintiffs in their opposition. “[A] movant should not be permitted to cure by way of reply what is in fact a defective motion.”[1] Accordingly, this Court will not consider this evidence in resolution of Bay's Motion to Compel Arbitration. The exhibits attached to Bay's reply are stricken from the record.

         B. Bay's Motion to Compel Arbitration and Plaintiffs' Motion for Discovery

         Defendants contend that when they were hired, Plaintiffs signed arbitration agreements agreeing to arbitrate the claims at issue here (the “Arbitration Agreements” or “Agreements”). Despite this, Plaintiffs have refused to arbitrate and instead brought claims in this Court. Defendants ask this Court to compel arbitration and stay or dismiss this action.

         The Federal Arbitration Act (“FAA”) provides:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.[2]

         When deciding whether to compel arbitration pursuant to an arbitration agreement, courts in the Fifth Circuit apply a two-part test.[3] First, a court must determine that the parties agreed to arbitrate the relevant dispute.[4] To meet this element, a valid agreement to arbitrate must exist, and the dispute in question must fall within the scope of the arbitration agreement.[5] This first element stems from the FAA's directive that district courts must order parties to arbitration “upon being satisfied that the making of the agreement for arbitration . . . is not in issue.”[6] “While there is a strong federal policy favoring arbitration, the policy does not apply to the initial determination whether there is a valid agreement to arbitrate.”[7] Instead, courts apply state contract law to determine the validity of the arbitration agreement at this stage of the inquiry.[8] The parties seem to agree that Louisiana law applies.

         Second, once satisfied that an agreement to arbitrate is valid, and that the dispute in question falls within the scope of that arbitration agreement, a court must then decide whether any federal statute or policy renders the relevant claim nonarbitrable.[9] If no federal statute or policy renders the claim nonarbitrable, the court must compel arbitration.[10]

         1. Seamen Exclusion

         First, Plaintiffs argue that regardless of whether the Agreements are valid, they are exempt from arbitration under the FAA because they are seamen. Section 1 of the FAA exempts from arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”[11] The criteria used to determine whether a party is a seaman under the FAA is the same as that used under the Jones Act.[12]

         To classify as a seaman under the Jones Act, an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission, and he must have a connection to a vessel in navigation that is substantial in terms of both its duration and its nature.[13] Ultimately, the court must determine whether “the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on a vessel at a given time.”[14] The allegations of the Complaint establish that Plaintiffs worked as welders at the Washington Parish Energy Center and were staying at a local hotel at the time of the incidents at issue. They allege that after reporting the incidents they were transferred to another project offshore on a drilling platform.

         The Fifth Circuit has “made clear in the past that the party resisting arbitration shoulders the burden of proving that the dispute is not arbitrable.”[15] Plaintiffs have not carried this burden. Plaintiffs have not provided this Court with sufficient information-regarding their work duties offshore, whether their work offshore was on a vessel, or whether that vessel was in navigation-to enable this Court to determine Plaintiffs' seaman status.

         In their Motion for Discovery, Plaintiffs ask for additional time to conduct discovery regarding their seaman status. However, much of the information necessary to determine seaman status, such as work duties, is wholly within the personal knowledge of Plaintiffs. Plaintiffs do not need discovery to provide the Court with this base level of information. Nevertheless, they have failed to do so. This failure, coupled with the unconvincing information they did provide, leads this Court to believe that Plaintiffs' request for discovery on seaman status is little more than a stalling tactic. For those reasons, the request is denied, and the Court finds that Plaintiffs are not exempt from arbitration under the seaman exemption.

         2. Authentication

         Plaintiffs next set forth a series of arguments regarding the validity of the Arbitration Agreements. First, they argue that Defendants have not carried their burden to prove an agreement to arbitrate because the Arbitration Agreements attached to their motions are not properly authenticated. Defendants attach the Agreements to the declaration of Travis Chaney, Bay's Health, Safety, Environmental and Human Resources Manager. Chaney states, under penalty of perjury, that “attached hereto as Exhs. 1-3 are Arbitration Agreements signed by Messrs. Kelly and Henry as well as Benjamin Jacob.” The Agreements are signed by Plaintiffs and Stacy Wright on behalf of Bay. Plaintiffs complain that because Chaney did not sign the Agreements, he therefore does not have the personal knowledge necessary to authenticate them.

         “To authenticate documents used to support a motion, a party must attach the documents as exhibits to an affidavit made by a person through whom exhibits could be admitted into evidence at trial.”[16] Rule 901(a) of the Federal Rules of Evidence provides that “the requirement of authentication or identification as a condition precedent is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Fifth Circuit “does not require conclusive proof of authenticity before allowing the admission of disputed evidence.”[17] This Court finds that the declaration of Bay's human resources manager is sufficient to establish the authenticity of Bay's agreements with its employees. This is especially true in light of the fact that Plaintiffs do not actually allege that the agreements attached to Defendants' Motion are not authentic or that they did not sign them.

         3. Validity of Agreements

         Plaintiffs next argue that the Arbitration Agreements are invalid because they are adhesionary. “[A] contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.”[18] However, “not every contract in standard form may be regarded as a contract of adhesion.”[19] In Duhon v. Activelaf, LLC, and Aguillard v. Auction Management Corp., the Louisiana Supreme Court set forth factors to consider to determine the enforceability of the arbitration clause in a standard form contract: “(1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties.”[20] The court “effectively established a framework for examining the validity of an arbitration clause within a standard form contract by generally describing the characteristics of an unenforceable adhesionary agreement.”[21] It further noted that the “real issue in a contract of adhesion analysis is not the standard form of the contract, but rather whether a party truly consented to all the printed terms. Thus, the issue is one of consent.”[22]“The party seeking to invalidate the contract as adhesionary bears the burden of demonstrating that the non-drafting party did not consent to the terms or his consent was vitiated by error.”[23]

         In Duhon, the Louisiana Supreme Court considered an arbitration clause in an agreement that patrons to Sky Zone, an indoor trampoline park, were required to sign prior to entering the facility.[24] The court concluded that the agreement was adhesionary and unenforceable because (1) the arbitration provision was “not relegated to a separate paragraph or set apart in some explicit way” but was instead “camouflaged” within a larger ...

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