Brian C. Patten, Plaintiff v. AVDG, LLC, Defendant

2022 DNH 054

• Court: District Court, D. New Hampshire
• Decided: April 12, 2022
• Docket: 21-cv-0849-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brian C. Patten, Plaintiff

v. Case No. 21-cv-0849-SM Opinion No. 2022 DNH 054 AVDG, LLC, Defendant

O R D E R

Plaintiff Brian Patten filed suit against his former

employer, AVDG, LLC, asserting federal and state claims.

Defendant has moved to compel arbitration of those claims, and

to stay this litigation. Patten objects.

STANDARD OF REVIEW

Our Court of Appeals has not yet identified the proper

standard of review when considering a motion to compel

arbitration. See Baker v. Montrone, 2020 DNH 006, 2020 WL

128531, at *1 (D.N.H. Jan. 10, 2020); see also Landry v. Time

Warner Cable, Inc., No. 16-CV-507-SM, 2017 WL 3431959, at *1

(D.N.H. Aug. 9, 2017). Nevertheless, when the parties rely on

affidavits and exhibits, judges in this district tend to resolve

the motion applying the summary judgment standard. See, e.g.,

Rosen v. Genesis Healthcare, LLC, No. 20-CV-1059-PB, 2021 WL

411540, at *2 (D.N.H. Feb. 5, 2021); see also Daschbach v. Advanced Mktg. & Processing, Inc., No. 20-CV-0706-JL, 2021 WL

1163010, at *2 (D.N.H. Mar. 26, 2021) (“The First Circuit Court

of Appeals has not announced the standard of review for a motion

to compel arbitration, but district courts within this circuit

apply the summary judgment standard.”) (citations omitted).

Applying that standard, the court reviews the record in the

light most favorable to Patten, and draws all reasonable

inferences in his favor. See Block Island Fishing, Inc. v.

Rogers, 844 F.3d 358, 360 (1st Cir. 2016) (citation omitted).

AVDG is entitled to compel arbitration only if the record

reveals “no genuine dispute as to any material fact” and

judgment follows as a matter of law. See Fed. R. Civ. P. 56(a).

In this context, a factual dispute “is ‘genuine’ if the evidence

of record permits a rational factfinder to resolve it in favor

of either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).

BACKGROUND

When, as here, a motion to compel arbitration is made “in

connection with a motion to dismiss or stay,” the court “draw[s]

the relevant facts from the operative complaint and the

documents submitted . . . in support of the motion to compel

2 arbitration.” Hogan v. SPAR Group, Inc., 914 F.3d 34, 36 (1st

Cir. 2019) (quoting Cullinane v. Uber Technologies, Inc., 893

F.3d 53, 56 (1st Cir. 2018)). The material facts, construed in

the light most favorable to Patten, are as follows.

Patten was hired by AVDG as a Purchasing Specialist on

January 24, 2020. The company emailed an offer letter to him

that morning that set forth the terms of his employment. 1 The

offer letter stated:

[Y]our employment is contingent upon acknowledgement and agreement of the Arbitration Program Agreement included with this offer, as well as acknowledgement and agreement with other onboarding documentation that you will receive following acceptance of this offer.

Your electronic signature will indicate your acceptance of this offer and signature to the Arbitration Program Agreement.

Def.’s Mot. to Compel, Exh. 2.

The Arbitration Program Agreement, drafted on behalf of

Guitar Center, Inc. “and its subsidiary employees,” reads:

To provide for more expedient resolution of disputes, we have instituted a mandatory arbitration procedure for all associates that are not otherwise covered by an agreement relating to the terms of employment (we call it the “Arbitration Program”). Under the Arbitration

1 The offer letter was sent on behalf of Guitar Center, Inc., of which AVGD, LLC, is a subsidiary.

3 Program, covered disputes between you and the company must be submitted for resolution by mandatory arbitration after appropriate attempts have been made to resolve the dispute informally.

Def.’s Mot. to Compel, Exh. 3. The agreement covers a variety

of disputes, including: those arising out of employment or

termination of employment; disputes alleging violations of wage

and hour laws or pay practices; disputes alleging violations of

federal law; and disputes concerning the application of the

arbitration agreement’s terms. Finally, the Agreement states:

“[t]his agreement and agreeing to submit to the Arbitration

Program is a condition of new or continued employment. If you

accept or continue employment with the company, both you and the

company will be bound by its terms.” Id.

After receiving defendant’s email, Patten promptly logged

onto the company’s Human Resources Information System. He

accepted defendant’s offer by submitting his electronic

signature at 9:48 a.m., on January 24, 2020. Id., Exh. 1, p. 6.

Patten says he has “no recollection” of reviewing or signing the

Arbitration Program Agreement. See Pl.’s Opp. to Mot. to

Compel, Exh. A, ¶2.

Following the advent of the COVID-19 pandemic in early

2020, Patten and other AVDG employees attended a conference in

late March, 2020, at which AVDG human resources personnel

4 explained employee eligibility for leave under the federal

Families First Coronavirus Relief Act (FFCRA). Soon after, on

April 2, 2020, Patten notified AVDG that he would need to take

FFCRA leave because, as a result of the pandemic, his daughter’s

daycare was closing. He informed AVDG that he would begin his

FFCRA leave on April 6. 2

The following day, April 3, AVDG issued Patten a written

disciplinary warning, purportedly for poor performance. Patten

then took FFCRA leave on April 6, as planned. However, AVDG did

not compensate Patten while he was on leave. And, approximately

13 days after Patten began his FFCRA leave, AVDG furloughed his

employment. When Patten’s FFCRA leave expired, AVDG did not

return him to his position, or to any equivalent position.

Patten subsequently brought this suit, asserting violations

of FFCRA and a common law wrongful termination claim.

DISCUSSION

Defendant says that the court should compel arbitration

because a valid agreement to arbitrate exists. Patten objects,

arguing that AVDG has not met its burden of establishing that a

2 AVDG did not deny Patten’s request for leave, or otherwise inform him that his request for leave was deficient in any way.

5 valid agreement to arbitrate exists between the parties. He

further argues that AVDG is not entitled to invoke the

agreement, since it is not specifically identified as a party to

the Arbitration Agreement.

The Federal Arbitration Act “establishes ‘a liberal federal

policy favoring arbitration agreements.’” Epic Sys. Corp. v.

Lewis, 138 S. Ct. 1612, 1621 (2018) (quoting Moses H. Cone

Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983)) (additional citations omitted). Accordingly, the Act

“requires courts to enforce covered arbitration agreements

according to their terms.” Lamps Plus, Inc. v. Varela, 139 S.

Ct. 1407, 1412 (2019) (citations omitted). “[T]he existence of

an enforceable agreement to arbitrate is the first needed step

to trigger the FAA's protective reach.” Rivera-Colón v. AT&T

Mobility Puerto Rico, Inc., 913 F.3d 200, 207 (1st Cir. 2019)

(internal citation omitted). As the party seeking to compel

arbitration, AVDG “bears the burden of ... demonstrating that a

valid agreement to arbitrate exists.” Id. (quotation omitted).

Under the FAA, “principles of state contract law control

the [court’s] determination of whether a valid agreement to

arbitrate exists.” Campbell v. General Dynamics Govt. Sys.

Corp., 407 F.3d 546, 552 (1st Cir. 2005). Because arbitration

“is a matter of contract,” “a party cannot be required to submit

6 to arbitration any dispute which [it] has not agreed so to

submit.” Hogan v. SPAR Grp., Inc., 914 F.3d 34, 38 (1st Cir.

2019) (quoting McCarthy v. Azure, 22 F.3d 351, 354 (1st Cir.

1994)) (further quotations omitted).

Defendant contends that Patten plainly agreed to arbitrate

this dispute when he accepted AVDG’s job offer on June 24, 2020,

by submitting his electronic signature. Defendant’s electronic

database requires a unique password, “known only to the

individual and no one other than the individual has access to

the employee or applicant’s password,” and therefore no one else

is likely to have submitted Patten’s electronic signature.

Def.’s Mem. in Supp. of Mot. to Compel at 4. AVGD also relies

on the following language in the Arbitration Agreement, which

states, in all capitalized letters:

By electronically signing this agreement, you are agreeing to this agreement, and affirming that you have knowingly and freely entered into this Agreement, have had sufficient time to read and understand its terms and have been provided sufficient opportunity to seek legal counsel regarding the meaning and effect of this agreement prior to accepting its terms.

See Def.’s Mot. to Compel, Exh. 3. Finally, AVDG contends that

the Arbitration Agreement provided Patten with adequate

consideration for signing, including continued employment, the

parties’ mutual agreement to arbitration of disputes, and the

7 defendant’s agreement to cover all case management and

administrative fees, as well as the arbitrator’s fees and

expenses.

Unsurprisingly, Patten disagrees. Patten does not dispute

that his claims fall within the scope of the arbitration

agreement, or that adequate consideration exists. Instead, he

argues that defendant has not sufficiently established the

existence of a valid agreement to arbitrate. Patten points out

that, as the party seeking to compel arbitration, AVDG bears the

burden of demonstrating the existence of a valid, enforceable

agreement to arbitrate. He says that AVDG fails to meet its

burden because it has not proffered “any signatures from any

alleged signatories” to the Arbitration Agreement. Def.’s Mem.

in Opp. to Mot. to Compel at 4. Patten says that an “unsigned

agreement . . . cannot suffice to meet the defendant’s burden of

proof.” Id.

The offer letter (which Patten does not deny signing) makes

explicit that Patten’s employment with AVDG was contingent upon

acknowledgement of, and agreement to, the Arbitration Program

Agreement attached to the letter. The offer letter also

provides that Patten’s electronic signature would serve to

confirm Patten’s acceptance of both the offer and the

Arbitration Agreement. And, as previously mentioned, that

8 Agreement states: “This agreement and agreeing to submit to the

Arbitration Program is a condition of new or continued

employment. If you accept or continue employment with the

company, both you and the company will be bound by its terms.”

Id., Exh. 3. In other words, Patten submitted to the

Arbitration Agreement and its terms as a condition of accepting

and continuing employment by defendant.

Patten unarguably accepted the offer of employment. AVDG

has submitted evidence demonstrating that, after receiving

defendant’s offer, Patten accessed the company’s Human Resources

Information System, and submitted his electronic signature, at

9:48 a.m., thereby accepting the offer and its terms of

employment (including his agreement to submit to the Arbitration

Program). See Def.’s Mot. to Compel, Exh. 1, p. 6. While

Patten makes several valid points about the paucity of

defendant’s evidentiary submission, he does not dispute that he

accepted AVDG’s offer of employment in January, 2020, or that he

began working for the company shortly thereafter, thereby

accepting the terms of the offer letter and Arbitration

Agreement by performance.

That Patten does not currently recollect reviewing the

Arbitration Program Agreement does not undermine the properly

supported facts that AVDG has presented. See, e.g., GT Solar

9 Inc. v. Goi, No. 08-CV-249-JL, 2009 WL 3417587, at *9 (D.N.H.

Oct. 16, 2009) (“It is well established that a claimed lack of

memory is insufficient to rebut uncontroverted evidence to the

contrary.”) (citing Ayer v. U.S., 902 F.2d 1038, 1045 (1st Cir.

1990)). See also Haag v. U.S., 485 F.3d 1, 3 (1st Cir. 2007) (a

purported lack of memory about a fact is not affirmative

evidence that the event did not occur and, therefore, it is

insufficient to render that fact “genuinely disputed”).

Patten also argues that AVDG is not entitled to invoke the

arbitration clause because it is not specifically identified as

a party to the Agreement Program Agreement. He points out that

the only named party to the Agreement is Guitar Center, Inc.,

which was not Patten’s employer, and is not a named party in

this action.

The record evidence does not support Patten’s view. The

Arbitration Agreement does not mention AVDG by name (although

AVDG’s logo does appear in the footer of the agreement).

However, the first sentence of the Arbitration Agreement

includes Guitar Center, Inc.’s “subsidiary employers” as parties

to the agreement. Def.’s Mot. to Compel, Exh. 3, p. 1

(“Although we (meaning Guitar Center, Inc. and its subsidiary

employers) hope that disputes with associates will not occur, we

believe that when disputes arise, it is in our mutual best

10 interests to handle them promptly and with a minimum of

disturbance to the lives of the impacted associates or our

operations.”) (emphasis added). The Agreement also defines “the

company” as “including its subsidiaries.” Id. (“all disputes

between you and the company (including its subsidiaries, owners,

officers, directors, employees, agents or successors) will be

resolved exclusively by final and binding arbitration, and not

by court or other action.”).

Although for reasons that might be apparent, I think the

dissent had the better view, still, since Bosse v. N.Y. Life

Ins. Co., 992 F.3d 20 (1st Cir. 2021) (Barron, J., dissenting),

in this circuit, avoiding arbitration is highly unlikely in the

face of even ambiguous contractual clauses, and far more remote

and unconnected circumstances than are presented here. Parties

can expect that arguable obligations will routinely be referred

to arbitrators to decide arbitrability, including, initially,

whether the parties entered into a valid contractual agreement

to arbitrate a particular dispute.

CONCLUSION

For the foregoing reasons, as well as those in defendant’s

briefing, AVDG has sufficiently shown the existence of a valid

agreement to arbitrate, and that it is entitled to invoke the

agreement. Defendant’s motion to compel arbitration, and stay

11 these proceedings under the Federal Arbitration Act, 9 U.S.C.

§ 1 (document no. 8) is necessarily GRANTED.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 12, 2022

cc: All counsel of record