United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PHILIP
P. SIMON, JUDGE
Defendants
JP Morgan Chase Bank, N.A. and JP Morgan Securities, LLC
(“JP Morgan”), filed a motion to dismiss, or in
the alternative to stay, and to compel arbitration in this
case. Pursuant to N.D. Local Rule 7-1(d)(2)(A),
Plaintiff's response was due by December 12, 2018. Kadish
failed to timely file a response, and then filed a motion for
extension of time on December 28, 2018, conceding that
counsel had been inattentive to the case. [DE 16.] Kadish
then filed a response to JP Morgan's motion to dismiss on
January 3, 2019. [DE 18.]
A few
days later, on January 8, 2019, Magistrate Judge John E.
Martin entered an order noting Kadish's history of
unresponsiveness in this case, denying Kadish's motion
for extension of time to respond, and striking the late
response to the motion to dismiss “with leave to
re-file a properly supported motion demonstrating that
Plaintiff's failure to respond to the motion to dismiss,
and to Defendants' related inquiries, was due to
excusable neglect in good faith.” [DE 19 at 3.]
On
February 25, 2019, JP Morgan filed a notice that their motion
to dismiss, or in the alternative to stay, and to compel
arbitration, remains unopposed. [DE 20.] This case was
reassigned to me on April 25, 2019. To date, Kadish still has
not filed a motion in accordance with Judge Martin's
instructions to extend the time to respond to the motion to
dismiss. Therefore, the motion to dismiss, or in the
alternative to stay, and to compel arbitration, is unopposed.
JP
Morgan sets out in their original motion that Kadish alleges
the following claims under Title VII of the Civil Rights Act
of 1964 that arise from her employment: (1) discrimination
based on sex; (2) sexual harassment; and (3) retaliation. [DE
2.] As a condition of her employment, Kadish agreed to the
Binding Arbitration Agreement in her offer letter which
provides as follows:
I understand my employment is subject to my and JP Morgan
Chase's agreement to submit employment-related disputes
that cannot be resolved internally to binding arbitration, as
set forth in the Binding Arbitration Agreement detailed
below. By signing below I acknowledge and agree that I have
read and understand the Binding Arbitration Agreement, have
accepted its terms and understand that it is a condition of
my employment with JP Morgan Chase.
[DE 11-1 at 7.] Kadish then electronically signed her offer
letter. [Id.]
The
Binding Arbitration Agreement that Plaintiff received and
electronically signed states:
JP Morgan Chase believes that if a dispute related to an
employee's or former employee's employment arises, it
is in the best interest of both the individual and JP Morgan
Chase to resolve the dispute without litigation. Most such
disputes are resolved internally through the Firm's Open
Communication Policy. When such disputes are not resolved
internally, JP Morgan Chase provides for their resolution by
binding arbitration as described in this Binding Arbitration
Agreement (“Agreement”). “JP Morgan
Chase” and the “Firm” as used in this
agreement mean J.P. Morgan Chase & Co. and all of its
direct and indirect subsidiaries.
[DE 11-1 at 9.] Additionally, the arbitration agreement
provides that “covered claims” under the
agreement include all legally protected employment-related
claims, including claims of employment discrimination or
harassment and those under Title VII. Id.
Moreover,
the arbitration agreement specifies that the Federal
Arbitration Act (“FAA”) is the governing law.
Id. If there is a dispute regarding the
applicability of the arbitration agreement, that also is
supposed to be resolved in arbitration. Id. at 11.
The
Supreme Court has held that the FAA applies to employment
agreements. Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 119 (2001). The plain language of the FAA regards
arbitration agreements as “valid, irrevocable, and
enforceable, ” and the Supreme Court requires that
courts “rigorously enforce agreements to
arbitrate.” 9 U.S.C. § 2; Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).
“[T]he FAA ‘is a congressional declaration of a
liberal policy favoring arbitration agreements' and
‘that question of arbitrability must be addressed with
a healthy regard for the federal policy favoring
arbitration.'” Continental Cas. Co. v. Am.
Nat'l Ins. Co., 417 F.3d 727, 730-31 (7th Cir. 2005)
(citing Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)). “[A]s a matter of
federal law, any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration.”
Moses H. Cone Mem'l Hosp., 460 U.S. at 24-25.
“[T]he
party resisting arbitration bears the burden of proving that
the claims at issue are unsuitable for arbitration.”
Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79,
91 (2000). Courts must order arbitration of claims
“unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.” AT&T Techs.,
Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650
(1986). “In the absence of any express provision
excluding a particular grievance from arbitration . . . only
the most forceful evidence of a purpose to exclude the claim
from arbitration can prevail.” Id. (quotation
omitted). In this case, because Kadish does not even have a
valid response that is properly filed, she has not come close
to satisfying this heavy burden.
Moreover,
the U.S. Supreme Court has upheld the validity of delegation
clauses such as the one contained in this arbitration
agreement, meaning that any controversy between the parties
as to the application and interpretation of the arbitration
is itself a covered dispute that is within the exclusive
authority ...