1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ashley Gillespie, et al., No. CV-21-00940-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 Cracker Barrel Old Country Store Incorporated, 13 Defendant. 14 15 Pending before the Court is Plaintiffs’ Motion for Clarification or Partial Motion for 16 Reconsideration (Doc. 48). Defendant Cracker Barrel Old Country Store, Inc. (“Cracker 17 Barrel”) filed a Response (Doc. 52), and Plaintiffs filed a Reply1 (Doc. 54). The Motion is 18 unconventional. It presents several questions to the Court and requests the Court send 19 notice to all Cracker Barrel servers explaining the Court’s prior Order. For the following 20 reasons, the Motion is granted in part and denied in part. 21 I. Background & the Court’s Prior Order (Doc. 47) 22 Plaintiffs are current and former Cracker Barrel employees who filed a collective 23 action alleging that Cracker Barrel violated the Fair Labor Standards Act. (Doc. 1 at ¶ 1). 24 After initiating this action, Plaintiffs filed a Motion for Conditional Certification. (Doc. 8). 25 If that Motion had been granted, it would have resulted in the publication of a court- 26 approved written notice to any other Cracker Barrel employees who might wish to join this 27 action. See Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 (9th Cir. 2018). Cracker
28 1 Pages three through five of the Reply contain a mock dialogue. Further pleadings of this style will be summarily stricken as they are not based in law or fact. 1 Barrel subsequently filed a Motion to Compel Arbitration, seeking to enforce an arbitration 2 agreement (the “Agreement”) against the named Plaintiffs. (Doc. 21). 3 The Court’s prior Order denied Plaintiffs’ Motion for Conditional Certification 4 without prejudice, and it granted Cracker Barrel’s Motion to Compel Arbitration. (Doc. 5 47 at 10). The Court dismissed all of the named Plaintiffs so that they may pursue their 6 claims in arbitration. (Id.) However, because some opt-in Plaintiffs were capable of 7 voiding the Agreement due to their status as minors, the Court gave Plaintiffs leave to file 8 a first amended complaint. (Id.) The Court also denied Plaintiffs’ Motion for Conditional 9 Certification without prejudice to refile if and when a class were proposed that did not fall 10 subject to the Agreement. (Id.) 11 II. Plaintiffs’ Motion (Doc. 48) 12 Plaintiffs’ Motion presents several questions that toe the line between requesting 13 clarification, reconsideration, advice from the Court, and entirely new rulings on matters 14 not properly before the Court. Plaintiffs also request the Court “order that notices be 15 provided to all Cracker Barrel servers (current and those employed within the last three 16 years) that explain the Court’s interpretation and clarification of the . . . Agreement.” 17 (Doc. 48 at 8). 18 The Court will proceed by addressing Plaintiffs’ questions, most of which are easily 19 answered by a careful and earnest reading of the Court’s prior Order. To the extent 20 Plaintiffs seek reconsideration, courts ordinarily deny such request “absent a showing of 21 manifest error or a showing of new facts or legal authority that could not have been brought 22 to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). To the extent they 23 seek advice on how they should proceed, the Court is unable to provide counsel. United 24 Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (“As is well known the 25 federal courts established pursuant to Article III of the Constitution do not render advisory 26 opinions.”). 27 a. Confidentiality 28 Plaintiffs first ask whether the Agreement’s confidentiality requirement is 1 enforceable. (Doc. 48 at 4). It is. (See Doc. 47 at 6–7). 2 b. Conciliation & Selective Enforceability 3 Plaintiffs ask whether the Agreement’s conciliation requirement is enforceable and 4 whether any party may selectively enforce portions of the Agreement. (Id.) The 5 conciliation requirement is enforceable. (See Doc. 47 at 8). In its prior Order, the Court 6 noted that Cracker Barrel has represented that it will not seek to enforce that requirement. 7 (Id. (citing Doc. 39 at 9 n.2)). The Court included Cracker Barrel’s statement solely to 8 show that to the extent the parties agree to waive the conciliation requirement, it may be 9 possible to do so. Nothing in the Court’s prior Order stands for the proposition that a party 10 may unilaterally choose to selectively enforce the Agreement. 11 c. Reporting to a Government Agency 12 Plaintiffs ask whether they may recover monetary compensation through a 13 complaint to a government agency. (Doc. 48 at 6). This question relates to Plaintiffs’ prior 14 argument that the Agreement was void because it violated an Arizona statute. (Doc. 29 at 15 14). Specifically, they argued the Agreement curtailed an employee’s right to file a claim 16 with Arizona’s Department of Labor under A.R.S. § 23-356, a right which Plaintiffs argued 17 could not be waived under A.R.S. § 23-364. (Id.) The Court found that the Agreement’s 18 plain language provided an exception for “disputes which by statute are not arbitrable” and 19 so Plaintiffs’ rights under § 23-356 were preserved. (Doc. 47 at 7 (quoting Doc. 21-3 at 2)). 20 Plaintiffs do not elaborate on what they mean by whether they may receive monetary 21 compensation via a complaint to a government agency. The question is so vague as to 22 render any answer from the Court an advisory opinion. Aetna Life Ins. Co. of Hartford, 23 Conn. v. Haworth, 300 U.S. 227, 241 (1937) (noting that advisory opinions state “what the 24 law would be upon a hypothetical state of facts”). Therefore, the Court declines to answer 25 Plaintiffs’ request for “clarification” on this issue. 26 d. Determining Plaintiffs’ Attorney’s Fees 27 Plaintiffs next ask how an arbitrator should determine a prevailing plaintiffs’ 28 attorney fees. (Doc. 48 at 6). The Court noted in its prior Order that, under the Agreement, 1 an “Arbitrator may award relief to either party to which Cracker Barrel or [the employee] 2 may be entitled by law.” (Doc. 47 at 5 (quoting Doc. 21-3 at 4)). Plaintiffs assume an 3 arbitrator will follow the lodestar method, but they would like “direction from the Court . 4 . . confirming the standard.” (Doc. 48 at 6–9). Here, again, the Court declines to respond 5 to Plaintiffs’ question by advising the parties of the correct legal standard. 6 e. Defendant’s Attorneys’ Fees & Costs 7 Plaintiffs next state that the Agreement indicates that a party who sought to compel 8 arbitration under the Agreement’s terms shall be awarded attorney fees and costs if 9 successful. (Doc. 48 at 7). Plaintiffs concede that Cracker Barrel was successful in its 10 Motion to Compel. (Id.) They then ask whether they are obliged to pay Cracker Barrel’s 11 attorney fees and costs. (Id.) The Court declines to advise Plaintiffs on contractual duties 12 they may or may not have. 13 f. Dismissal Requirement 14 Plaintiffs request to file a list of opt-in Plaintiffs to the Court who are subject to the 15 Agreement so that the Court may dismiss them and proceed with an appeal to the Ninth 16 Circuit. (Doc. 48 at 7). The Court will grant this request in part. The parties shall jointly 17 submit a list of opt-in Plaintiffs who are subject to the Agreement by no later than March 18 14, 2022. 19 g.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ashley Gillespie, et al., No. CV-21-00940-PHX-DJH
10 Plaintiffs, ORDER
11 v.
12 Cracker Barrel Old Country Store Incorporated, 13 Defendant. 14 15 Pending before the Court is Plaintiffs’ Motion for Clarification or Partial Motion for 16 Reconsideration (Doc. 48). Defendant Cracker Barrel Old Country Store, Inc. (“Cracker 17 Barrel”) filed a Response (Doc. 52), and Plaintiffs filed a Reply1 (Doc. 54). The Motion is 18 unconventional. It presents several questions to the Court and requests the Court send 19 notice to all Cracker Barrel servers explaining the Court’s prior Order. For the following 20 reasons, the Motion is granted in part and denied in part. 21 I. Background & the Court’s Prior Order (Doc. 47) 22 Plaintiffs are current and former Cracker Barrel employees who filed a collective 23 action alleging that Cracker Barrel violated the Fair Labor Standards Act. (Doc. 1 at ¶ 1). 24 After initiating this action, Plaintiffs filed a Motion for Conditional Certification. (Doc. 8). 25 If that Motion had been granted, it would have resulted in the publication of a court- 26 approved written notice to any other Cracker Barrel employees who might wish to join this 27 action. See Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 (9th Cir. 2018). Cracker
28 1 Pages three through five of the Reply contain a mock dialogue. Further pleadings of this style will be summarily stricken as they are not based in law or fact. 1 Barrel subsequently filed a Motion to Compel Arbitration, seeking to enforce an arbitration 2 agreement (the “Agreement”) against the named Plaintiffs. (Doc. 21). 3 The Court’s prior Order denied Plaintiffs’ Motion for Conditional Certification 4 without prejudice, and it granted Cracker Barrel’s Motion to Compel Arbitration. (Doc. 5 47 at 10). The Court dismissed all of the named Plaintiffs so that they may pursue their 6 claims in arbitration. (Id.) However, because some opt-in Plaintiffs were capable of 7 voiding the Agreement due to their status as minors, the Court gave Plaintiffs leave to file 8 a first amended complaint. (Id.) The Court also denied Plaintiffs’ Motion for Conditional 9 Certification without prejudice to refile if and when a class were proposed that did not fall 10 subject to the Agreement. (Id.) 11 II. Plaintiffs’ Motion (Doc. 48) 12 Plaintiffs’ Motion presents several questions that toe the line between requesting 13 clarification, reconsideration, advice from the Court, and entirely new rulings on matters 14 not properly before the Court. Plaintiffs also request the Court “order that notices be 15 provided to all Cracker Barrel servers (current and those employed within the last three 16 years) that explain the Court’s interpretation and clarification of the . . . Agreement.” 17 (Doc. 48 at 8). 18 The Court will proceed by addressing Plaintiffs’ questions, most of which are easily 19 answered by a careful and earnest reading of the Court’s prior Order. To the extent 20 Plaintiffs seek reconsideration, courts ordinarily deny such request “absent a showing of 21 manifest error or a showing of new facts or legal authority that could not have been brought 22 to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). To the extent they 23 seek advice on how they should proceed, the Court is unable to provide counsel. United 24 Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (“As is well known the 25 federal courts established pursuant to Article III of the Constitution do not render advisory 26 opinions.”). 27 a. Confidentiality 28 Plaintiffs first ask whether the Agreement’s confidentiality requirement is 1 enforceable. (Doc. 48 at 4). It is. (See Doc. 47 at 6–7). 2 b. Conciliation & Selective Enforceability 3 Plaintiffs ask whether the Agreement’s conciliation requirement is enforceable and 4 whether any party may selectively enforce portions of the Agreement. (Id.) The 5 conciliation requirement is enforceable. (See Doc. 47 at 8). In its prior Order, the Court 6 noted that Cracker Barrel has represented that it will not seek to enforce that requirement. 7 (Id. (citing Doc. 39 at 9 n.2)). The Court included Cracker Barrel’s statement solely to 8 show that to the extent the parties agree to waive the conciliation requirement, it may be 9 possible to do so. Nothing in the Court’s prior Order stands for the proposition that a party 10 may unilaterally choose to selectively enforce the Agreement. 11 c. Reporting to a Government Agency 12 Plaintiffs ask whether they may recover monetary compensation through a 13 complaint to a government agency. (Doc. 48 at 6). This question relates to Plaintiffs’ prior 14 argument that the Agreement was void because it violated an Arizona statute. (Doc. 29 at 15 14). Specifically, they argued the Agreement curtailed an employee’s right to file a claim 16 with Arizona’s Department of Labor under A.R.S. § 23-356, a right which Plaintiffs argued 17 could not be waived under A.R.S. § 23-364. (Id.) The Court found that the Agreement’s 18 plain language provided an exception for “disputes which by statute are not arbitrable” and 19 so Plaintiffs’ rights under § 23-356 were preserved. (Doc. 47 at 7 (quoting Doc. 21-3 at 2)). 20 Plaintiffs do not elaborate on what they mean by whether they may receive monetary 21 compensation via a complaint to a government agency. The question is so vague as to 22 render any answer from the Court an advisory opinion. Aetna Life Ins. Co. of Hartford, 23 Conn. v. Haworth, 300 U.S. 227, 241 (1937) (noting that advisory opinions state “what the 24 law would be upon a hypothetical state of facts”). Therefore, the Court declines to answer 25 Plaintiffs’ request for “clarification” on this issue. 26 d. Determining Plaintiffs’ Attorney’s Fees 27 Plaintiffs next ask how an arbitrator should determine a prevailing plaintiffs’ 28 attorney fees. (Doc. 48 at 6). The Court noted in its prior Order that, under the Agreement, 1 an “Arbitrator may award relief to either party to which Cracker Barrel or [the employee] 2 may be entitled by law.” (Doc. 47 at 5 (quoting Doc. 21-3 at 4)). Plaintiffs assume an 3 arbitrator will follow the lodestar method, but they would like “direction from the Court . 4 . . confirming the standard.” (Doc. 48 at 6–9). Here, again, the Court declines to respond 5 to Plaintiffs’ question by advising the parties of the correct legal standard. 6 e. Defendant’s Attorneys’ Fees & Costs 7 Plaintiffs next state that the Agreement indicates that a party who sought to compel 8 arbitration under the Agreement’s terms shall be awarded attorney fees and costs if 9 successful. (Doc. 48 at 7). Plaintiffs concede that Cracker Barrel was successful in its 10 Motion to Compel. (Id.) They then ask whether they are obliged to pay Cracker Barrel’s 11 attorney fees and costs. (Id.) The Court declines to advise Plaintiffs on contractual duties 12 they may or may not have. 13 f. Dismissal Requirement 14 Plaintiffs request to file a list of opt-in Plaintiffs to the Court who are subject to the 15 Agreement so that the Court may dismiss them and proceed with an appeal to the Ninth 16 Circuit. (Doc. 48 at 7). The Court will grant this request in part. The parties shall jointly 17 submit a list of opt-in Plaintiffs who are subject to the Agreement by no later than March 18 14, 2022. 19 g. Request for Notice 20 Having addressed Plaintiffs’ questions, the Court turns to Plaintiffs’ request for an 21 order that notice be provided to all Cracker Barrel employees to explain the Court’s ruling 22 and interpretation of the Agreement. (Doc. 48 at 8). Plaintiffs have cited no authority by 23 which the Court may issue such notice, but they also argue no law prevents it. (Doc. 54 24 at 2). Essentially, their argument is that without such notice, potential Plaintiffs would be 25 hesitant to seek relief under the Agreement. Cracker Barrel argues this request must be 26 denied because it seeks the same relief as the Motion for Conditional Certification that was 27 already denied. (Doc. 52). 28 The Court denied Plaintiffs’ previous request to send out notice without prejudice. (Doc. 47 at 3). Plaintiffs will have the opportunity to file another motion for conditional 2|| certification if and when they propose a class that is not subject to the Agreement. 3|| Therefore, Plaintiffs’ request, to the extent it requests notice be sent to minors, is 4|| premature. As to those employees who are subject to the Agreement, to issue such notice 5 || now would functionally serve as a reconsideration of the Court’s prior Order denying the 6 || Motion for Conditional Certification. Because there is no legal basis for sending notice now, and because Plaintiffs have not made a showing of manifest error, new facts, or legal 8 || authority, the Court declines to issue the requested notice. See LRCiv 7.2(g)(1). 9 Accordingly, 10 IT IS HEREBY ORDERED that Plaintiffs’ Motion for Clarification or Partial 11 || Motion for Reconsideration (Doc. 48) is granted in part and denied in part as set forth in this Order. 13 IT IS FURTHER ORDERED that the parties shall file a list of opt-in Plaintiffs || who are subject to the Agreement by no later than March 14, 2022. 15 Dated this 21st day of January, 2022. 16 17 □ Ye □ 18 norable' Dian¢g4. Hurmetewa 19 United States District Judge 20 21 22 23 24 25 26 27 28
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