United States District Court, D. South Carolina, Florence Division
CANDACE SITTNER, on behalf of herself and all others similarly situated, Plaintiff,
COUNTRY CLUB, INC. d/b/a THE MASTERS CLUB; and MIKE KAP, individually, Defendants.
Bryan Harwell United States District Judge
matter is before the Court after Defendant Country Club, Inc.
filed its motion to dismiss complaint and compel arbitration,
or in the alternative, stay litigation. [ECF #6 and
#7].Both parties have had the opportunity to
extensively brief the issues raised in the motions, and this
Court has thoroughly considered all pleadings filed in this
Background and Procedural History
Candace Sittner ("Ms. Sittner") brought this action
on or about December 23, 2015, individually and as a
collective action for unpaid minimum wages and unpaid
overtime wages, for liquidated damages, and for other relief
under the Fair Labor Standards Acts of 1938, as amended, 29
U.S.C. § 201, et seq. (the "FLSA"). [ECF #1].
Ms. Sittner also brings this action pursuant to the South
Carolina Payment of Wages Act, South Carolina Code Ann.
§ 41-10-10, et seq. (The "SCPWA"). As alleged
by Ms. Sittner, Defendant Country Club, Inc. d/b/a as The
Masters Club ("The Masters Club") is a corporate
entity organized under the laws of the state of South
Carolina and doing business in Horry County. [ECF #1, p. 2].
Defendant Kap is a citizen and resident of Horry County,
South Carolina, and an owner of The Masters Club. [ECF #1, p.
2]. In March 2014, The Masters Club hired Plaintiff to be a
"shooter girl, " requiring her to purchase alcohol
from The Masters Club and sell that alcohol to its customers.
[ECF #1, p. 4]. Plaintiff maintains she was classified as an
independent contractor, but in reality she alleges she was an
employee of The Masters Club under the applicable legal
standards. [ECF #1, p. 4]. She further maintains that in
March 2015, she was paid less than the statutory minimum wage
owed to her pursuant to the FLSA. She subsequently brought
claims for failure to pay minimum wage, failure to pay
overtime wages, violations of the SCPWA, unlawful kickbacks,
and retaliation. [ECF #1]. In conjunction with her complaint,
Plaintiff filed consents of two other employees to the claims
in the lawsuit. [ECF #1-2; ECF #1-3]. Plaintiff's
complaint alleges she is bringing her claims on behalf of
herself and others "similarly situated". [ECF #1,
January 15, 2015, The Masters Club filed a motion to compel
arbitration and a motion to dismiss the complaint. [ECF #6;
ECF #7]. The Masters Club argues that Ms. Sittner signed an
arbitration agreement wherein she agreed to bring the claims
at issue in this lawsuit before an arbitrator. [ECF #6, p. 2;
ECF #7, p. 2]. Specifically, the agreement provides that,
"[n]either THE CLUB nor you can file a civil lawsuit in
court against the other party relating to any covered claims.
If a party files a lawsuit in court to resolve claims subject
to arbitration, both parties agree that the court shall
dismiss the lawsuit and require the claim to be resolved
through arbitration." [ECF #6-1, p. 3; ECF #7-1, p. 3].
The arbitration agreement also provides that any
"covered claim" that you may have against the THE
CLUB, its owners, directors, officer, managers, employee or
agents" must be submitted "exclusively to and
determined exclusively by binding arbitration under the
Federal Arbitration Act, 9 U.S.C. § 1 et seq." [ECF
files its motion pursuant to 9 U.S.C. § 4 of the Federal
Arbitration Act ("FAA"). The parties appear to be
in agreement that the currently-pending claim is subject to
arbitration, given that Plaintiff acknowledges signing the
agreement. [ECF #17, p. 2]. Whether the parties have agreed
to arbitrate their disputes is a jurisdictional question.
See Bhd of Ry. & S.S. Clerks v. Norfolk S. Ry. Co.,
143 F.2d 1015, 1017 (4th Cir. 1944). For the purposes of
deciding a motion to compel arbitration, the court may
properly consider documents outside the pleadings. Joyner
v. GE Healthcare, No. 08-2563, 2009 WL 3063040 at *2
(D.S.C. Sept. 18, 2009).
Plaintiff has not denied the existence or validity of a valid
arbitration agreement. Likewise, Plaintiff argues that one of
the two individuals who filed consents in this case, Emily
Samuels, is also subject to an arbitration agreement. In
response to Defendant's motion, Plaintiff's sole
contention is that the motion to compel arbitration is
premature because she intends to move for class certification
in this case in the future; therefore, this Court should
defer any ruling on arbitration prior to the determination as
to class certification. The issue thus raised before this
Court is whether the Court is required to defer ruling on an
arbitration agreement that two individuals executed until it
has certified a class and provided notice to all putative
class members of this lawsuit. [ECF #18, p. 2]. Defendant
argues that the arbitration agreement is valid and
enforceable at least as to the only named member of this
lawsuit, and therefore Plaintiff must arbitrate her claims.
Plaintiff acknowledges she has not yet moved for conditional
certification in this case. [ECF #17, p. 1]. Accordingly, at
this time there is no motion for class certification before
this Court. The issue of whether the three individuals who
have currently been identified in this lawsuit should have
their claims tried as separate actions has not been briefed
by the parties in this case.
maintains these claims must be submitted to arbitration
pursuant to a signed agreement. Defendant's argument is
straightforward: Plaintiff signed an arbitration agreement
approximately fifteen months prior to filing this civil
action requiring her to submit all covered claims, including
the claims before this Court. [ECF #6, pp. 1-2; ECF #7, pp.
1-2]. Plaintiff acknowledges that approximately six months
after working for Defendant, she signed the arbitration
agreement in question. [ECF #17, p. 2]. Likewise, Plaintiff
does not dispute the validity of her signature, or otherwise
argue that the arbitration agreement is unenforceable.
Instead, Plaintiff points out that one of the individuals who
has filed a consent pursuant to 29 U.S.C. § 216(b) in
this case, Ms. Brittany Sloan, did not sign an arbitration
agreement. This assertion is apparently based on the fact
that Defendant has not claimed Ms. Sloan signed an
arbitration agreement. [ECF #1-2, 1-3; ECF #17, p. 2]. The
only other individual who has filed a consent a this time,
Ms. Emily Samuels, apparently signed an arbitration agreement
in October 2014, according to Plaintiff. [ECF #17, p. 2].
argues that a motion to compel arbitration is premature at
this stage of litigation because this case involves a
potential class or collective action involving at least one
individual who may not have signed an arbitration agreement.
Plaintiff asserts this Court must certify the class and
distribute notices to putative class members prior to ruling
on any motion to compel arbitration or ruling on the
enforceability of the arbitration agreement affecting some or
all of the putative class. [ECF #17, p. 2]. Defendant
contends that this is not the law in this jurisdiction. [ECF
Fourth Circuit, a litigant may compel arbitration upon a
showing that pursuant to the FAA, there is (1) a dispute
between the parties; (2) a written agreement that includes an
arbitration provision covering the dispute; (3) the
relationship of the transaction to interstate or foreign
commerce; and (4) the failure, neglect or refusal of the
defendant to arbitrate the dispute. Adkins v. Labor
Ready, Inc., 303 F.3d 496, 500-501 (4th Cir. 2002)
(citing Whiteside v. Teltech Corp., 940 F.2d 99, 102
(4th Cir. 1991)). In its motion, Defendant has alleged that
all four elements have been met in this case. Indeed,
Plaintiff acknowledges signing the arbitration agreement, and
she does not otherwise dispute the existence of a valid
agreement on any other grounds. A review of the arbitration
agreement reveals that it appears to cover the claims in
question because the "covered claims" include FLSA
actions and common law actions regulating employment
termination, misappropriation, and the law of contract. [ECF
#7-1]. The FAA requires that the commerce involved in the
contract be interstate or foreign. Soil Remediation Co.
v. Nu- Way Environmental, Inc., 323 S.C. 454
(1996) (citing Timms v. Greene, 310 S.C. 469, 427
S.E.2d 642 (1993), overruled on other grounds).
"Commerce" is further defined in the FAA as
"commerce among the several States or with foreign
nations...." 9 U.S.C. § 1; see also Mathews v.
Fluor Corp., 312 S.C. 404, 407 (1994) ("Commerce,
as defined in the Act [FAA], evidences transactions involving
interstate or foreign commerce."). Plaintiff alleges
within her complaint that Defendant was engaged in interstate
commerce or in the production of goods for commerce pursuant
to the FLSA. [ECF #1, p. 5]. Finally, the fact that Defendant
has filed this motion evidences a willingness to arbitrate
these claims. Plaintiff has not contested any of these
elements concerning the existence of a valid arbitration
agreement, nor does she contest the enforceability of the
agreement. Accordingly, this Court finds that a valid and
enforceable arbitration agreement exists between Plaintiff
and The Masters Club.
cites to a series of cases she believes reveal that courts in
other jurisdictions have agreed to provide notice to all
putative class members and let putative class members opt-in
to a case prior to ruling on the enforceability of an
arbitration agreement. [ECF #17, p. 1]. However, a close
review of these cases does not support Plaintiff's
argument as it relates to the facts in this case. In
D'Antuono v. C&G of Groton, Inc., No.
3:11-cv-33, 2011 WL 5878045 (D. Conn. Nov. 23, 2011), the
contested issue was whether Plaintiff met the standard of
showing that there were "other employees similarly
situated" under 29 U.S.C. § 216(b) to provide
notice to these potential opt-in plaintiffs. The district
court in that case had already made a prior finding that an
arbitration agreement was enforceable as to two of the three
plaintiffs who had signed the arbitration agreement and had
closed the case as to those two plaintiffs, as they were
required to arbitrate their claims. D'Antuono,
2011 WL 5878045 at *2.
D'Antuono Court considered what effect the prior
finding of an enforceable arbitration agreement as to some
plaintiffs had on future opt-in plaintiffs and determined
that some courts were willing to authorize notice before
considering whether certain opt-in plaintiffs would also be
subject to an arbitration agreement. Id. Still, in
D'Antuono the court had already determined that
the plaintiff was subject to a valid arbitration agreement,
prior to providing notice to the potential class members.
Therefore, some plaintiffs were pursuing claims in
arbitration, while at least one plaintiff was pursuing claims
in federal court. Here, Plaintiff is likely not a proper
representative for a potential class action ...