United States District Court, S.D. Mississippi, Northern Division
BRAMLETTE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Asbury Automotive
Mississippi L.L.C., Asbury MS Gray-Daniels L.L.C., and Asbury
Management Services, LLC (collectively,
“Asbury”)'s Motion to Dismiss or,
Alternatively, to Stay the Litigation to Determine the
Arbitration Issues [ECF No. 6], Plaintiff Janell Byars
(“Byars”)'s Response [ECF No. 12], and
Asbury's Rebuttal [ECF No. 14]. Having read the motion,
memoranda in support, relevant statutory and case law, and
being otherwise fully informed in the premises, the Court
finds that the Defendants' Motion to Dismiss should be
DENIED and the matter be stayed until the issue of
arbitration is resolved.
about September 15, 2015, Byars began working for Asbury at
the Gray Daniels Nissan North dealership in Canton, MS which
is owned and operated by Asbury. [ECF No. 1] at p. 4. On or
about February 2017, Byars transferred to the Gray Daniels
Ford-Lincoln dealership in Brandon, Rankin County, MS which
is also owned and operated by Asbury. Byars alleges that,
beginning in April 2017, Jason Massey (“Massey”),
her co-worker at Gray Daniels Ford-Lincoln, began sexually
harassing her at work and subjected Byars to an
“offensive and sexually hostile working
environment.” Id. at 5. Byars alleges that she
reported Massey's behavior to her supervisors and Human
Resources Representatives. Byars filed an original EEOC
Charge on October 26, 2018 and an Amended Charge on November
1, 2018. The EEOC dismissed the Charge for not being timely
filed. [ECF 6-1].
filed suit in this Court alleging the following claims: (1)
violation of Title VII - Sexual Harassment/Hostile Work
Environment, (2) violation of Title VII - Retaliation, (3)
Sexual Assault/Batter (employer liability), (4) Negligence -
hiring, training, supervision, and retention, and (5)
Intentional and Negligent Infliction of Emotional Distress.
assert that - should the Court choose to not consider their
Rule 12 motion to dismiss - this matter must be handled in
arbitration, pursuant to an Arbitration Agreement that Byars
electronically signed on September 15, 2015. [ECF No. 7] at
p. 2. The Arbitration Agreement bears Janell Byars'
digital signature, dated September 15, 2015. However, Byars
states that she never received or read the Arbitration
Agreement and that she has never signed an Arbitration
Agreement. Therefore, there is dispute among the parties as
to whether they entered into an agreement to arbitrate this
the Court “resolve[s] the factual issues bearing on
whether [the parties] formed a valid agreement to arbitrate,
the Court cannot address the merits of the Defendants'
arguments in their 12(b)(6) motion.” Sinners and
Saints, L.L.C v. Noire Blank Films, L.L.C., 937
F.Supp.2d 835, 848-49 (E.D. La. 2013). If there is a valid
arbitration agreement, the “parties must proceed to
arbitration on those claims without a judicial determination
on the merits thereof.” Century Satellite, Inc. v.
Echostar Satellite, L.L.C., 395 F.Supp.2d 487, 490 (S.D.
Tex. 2005). Therefore, the Court will not address the merits
of Asbury's 12(b)(6) Motion to Dismiss until the issue of
arbitration is resolved.
a commercial transaction involving interstate commerce
includes an agreement to arbitrate disputes, federal law
controls the enforcement of the arbitration agreement.”
MS Credit Center, Inc. v. Horton, 926 S.2d 167, 173
(Miss. 2006). The Federal Arbitration Act (“FAA”)
is the controlling law on the subject. Id.
Congress's purpose in enacting the FAA was to establish a
“federal policy favoring arbitration, ” and to
require the Court to “rigorously enforce agreements to
arbitrate.” Id. (citing East Ford v.
Taylor, 826 So.2d 709, 713 (Miss. 2002)); see
also, Shearson/Am. Exp. Inc. v. McMahon, 482
U.S. 220, 226 (1987).
doubts concerning the scope of arbitrable issues must be
resolved in favor of arbitration. See Ms. Credit
Center, 926 So.2d at 175. Because of the strong federal
policy favoring arbitration, the party opposing arbitration
has the burden of establishing any alleged defenses to the
enforcement of the arbitration provision. See id.;
see also, American Heritage Life Ins. Co. v.
Lang, 321 F.3d 533, 539 (5th Cir. 2003).
is a genuine issue as to whether the FAA mandates arbitration
between Byars and Asbury. See 9 U.S.C. § 2;
see also MS Credit Center, 926 So.2d at
175(“Section 2 ‘mandate[s]' the enforcement
of arbitration agreements, save upon such grounds as exist at
law or in equity for the revocation of any contract)(internal
citations omitted). There is a two-step inquiry when
determining whether to compel arbitration of a dispute: (1)
whether the parties agreed to arbitrate the dispute; and (2)
whether legal constraints external to the agreement preclude
arbitration of the claims. See Garner v. BankPlus,
484 B.R. 134, 140 (S.D.Miss. 2012)(citing Webb v.
Investacorp, Inc., 89 F.3d 252, 257-258 (5th Cir.
is a dispute as to whether the parties agreed to arbitrate.
Byars states in her sworn Affidavit that she did not
receive/read (electronically or otherwise) or sign (digitally
or otherwise) the disputed arbitration agreement. [ECF No.
12-1](Byars Aff.) at ¶ 8. However, Asbury states that
Byars did “acknowledge that she read the Agreement and
that she signed it with an electronic signature using a
password that she created and that was unique to her.”
[ECF No. 14] at p. 9.
the making of an arbitration agreement is in issue, an
evidentiary hearing or trial must be heard on the matter.
See Chester v. DirecTV, L.L.C., 607 Fed.Appx. 362,
363-64 (5th Cir. 2015). 9 U.S.C. §4 states:
“If the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same be in issue,
the court shall proceed summarily to the trial thereof. If no
jury trial be demanded by the party alleged to be in default,
or if the matter in dispute is within admiralty jurisdiction,
the court shall hear and determine such issue. Where such an
issue is raised, the party alleged to be in default may,
except in cases of admiralty, on or before the return day of
the notice of application, demand a jury trial of such issue,
and upon such demand the court shall make an order referring
the issue or issues to a jury in the manner provided by the
Federal Rules of Civil Procedure, or may specially call a
jury for that purpose. If the jury find that no agreement in
writing for arbitration was made or that there is no default
in proceeding thereunder, the proceeding shall be dismissed.
If the jury find that an agreement for arbitration was made
in writing and that there is a default in proceeding
thereunder, the court shall make an order summarily directing
the parties to proceed with the arbitration in accordance
with the terms thereof.” Byars requests the opportunity
to conduct discovery on the issue of arbitration, provide
additional briefing, and proceed with an evidentiary hearing
to resolve the disputed matter. [ECF No. 13] at p. 19. Byars
has not requested a trial, and the Court may satisfy its duty
under §4 by holding an evidentiary hearing. Credit