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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MATTHEW J. RYAN, Plaintiff, v. BUCKLEYSANDLER LLP 1250 24th Street, N.W., Suite 700 Washington, DC 20037 KIRK JENSEN 1250 24th Street, N.W., Suite 700 Washington, DC 20037 ELIZABETH MCGINN 1250 24th Street, N.W., Suite 700 Washington, DC 20037 Defendants. DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS AND COMPEL ARBITRATION Defendants BuckleySandler LLP, Kirk Jensen, and Elizabeth McGinn move this Court under the Federal Arbitration Act, 9 U.S.C. 1 et seq., to dismiss this case and compel arbitration on the ground that Plaintiff Matthew J. Ryans (Plaintiff) claims are subject to mandatory, binding arbitration. Factual Background Plaintiff, a 47 year old white male, began his association with the predecessor to BuckleySandler in March 2008 on a temporary basis as a contract attorney through a legal staffing agency, assisting with document reviews. (Compl. 10.) That temporary association terminated in or around April 2009 with the conclusion of the project for which Plaintiff was hired. (Id.) In December 2009, BuckleySandler hired Plaintiff as an employee on a temporary Case No.: 1:13-cv-01816

Hon. Beryl A. Howell

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basis to perform document review work. (Id. 11.) BuckleySandler reclassified Plaintiff from a temporary staff attorney to a full-time, at-will employee in September 2010. (Id. 13.) When BuckleySandler hired Plaintiff in December 2009, the parties agreed that, should any disputes related to Plaintiffs employment (or termination of his employment) arise, those disputes would be resolved by binding arbitration. This agreement was memorialized in a written Employee Agreement to Arbitrate (Arbitration Agreement), which Plaintiff executed as a condition of my employment or continued employment. (Declaration of Terri Carnahan (Carnahan Decl.), Ex. 1.) The contours of the parties Arbitration Agreement were explained both on the face of the agreement and in a separate document provided to Plaintiff entitled Notice to Employees About Our Mutual Arbitration Policy. (Carnahan Decl., Ex. 2.)

BuckleySandler also provided Plaintiff with a copy of the Mutual Arbitration Policy, and Plaintiff expressly acknowledged his receipt, review, and acceptance of the Mutual Arbitration Policy in the Arbitration Agreement, the first sentence of which reads, I acknowledge that I have received and reviewed a copy of BuckleySandler LLPs Mutual Arbitration Policy (MAP), which is incorporated by reference into this Agreement. (Carnahan Decl., Ex. 1.) Plaintiff agreed that binding arbitration would be his sole remedy for all employmentrelated claims that might arise against BuckleySandler or any of its employees, officers, directors or agents. (Carnahan Decl., Ex. 1, at 1.) The Mutual Arbitration Policy expressly states that the potential claims within the scope of the Arbitration Agreement include, but are not limited to, claims raised under the Age Discrimination in Employment Act and the D.C. Human Rights Act. (Carnahan Decl., Ex. 2, at 1.) In exchange for Plaintiffs agreement to arbitrate his claims, BuckleySandler agreed to employ Plaintiff and further agreed to submit itself to binding arbitration for any claims it might

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have against him. (Carnahan Decl., Ex. 1, at 1.) BuckleySandler also agreed that if Plaintiff submitted a request for binding arbitration of a claim, BuckleySandler would pay the entire cost of such arbitration, except for an amount equal to the civil action filing fee in Plaintiffs local court. (Id.) BuckleySandler terminated Plaintiffs employment on January 31, 2013 when it eliminated its staff attorney program. (Compl. 111.) In March 2013, Plaintiff executed a severance agreement waiving all claims against BuckleySandler in exchange for a severance payment. (Id. 121.) In July 2013, Plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging age discrimination. (Compl. 7.) After (Compl.,

investigating the charge, the EEOC found no probable cause and dismissed it. Attachment.)

In direct violation of his agreement to arbitrate and his severance agreement, Plaintiff has filed the present action alleging causes of action under (1) the Age Discrimination In Employment Act (ADEA) (Compl. 125-30) and (2) the D.C. Human Rights Act (DCHRA). (Compl. 131-34.) At the appropriate time and in the appropriate forum, Defendants will vigorously contest Plaintiffs gratuitous and untrue allegations and show them to be false.1 But this is not the proper forum to resolve Plaintiffs dispute, because Plaintiff is obligated to arbitrate his claims against Defendants. Accordingly, Defendants move to dismiss the Complaint and to compel arbitration, and seek attorneys fees and costs for bringing this motion.

Even a cursory reading of the complaint demonstrates that Plaintiff has failed to comply with the notice pleading requirements of the Federal Rules and evidences his intent to smear Defendants in a public filing containing scurrilous, impertinent, and immaterial allegations. Although such allegations are ripe for a motion to strike under Rule 12(f), Defendants prefer to deal with these matters in the mutually agreed upon arbitration forum.
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ARGUMENT I. The Parties Have A Valid Agreement To Arbitrate The Claims At Issue In This Litigation, And That Agreement Is Enforceable Pursuant To The Federal Arbitration Act. Plaintiff should be compelled to submit his claims to binding arbitration because (1) federal law favors the enforcement of arbitration agreements, (2) Plaintiff agreed to resolve his disputes with BuckleySandler through binding arbitration, and (3) that agreement encompasses the present dispute. A. Federal Law Favors The Enforcement Of Arbitration Agreements.

Federal law and the settled policy of federal courts strongly favor arbitration where an agreement to arbitrate matters exists. Under the Federal Arbitration Act (FAA), a district court is required to compel arbitration when it finds that (1) the arbitration agreement is valid and enforceable and (2) the claims raised in the complaint fall within the scope of the arbitration agreement. Pearce v. E.F. Hutton Grp., Inc., 828 F.2d 826, 829 (D.C. Cir. 1987) (reversing and remanding to district court with instructions to stay proceedings and compel arbitration); 9 U.S.C. 3 (upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, [the court] shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement). The federal policy favoring arbitration counsels that doubts about the intended scope of an agreement to arbitrate be resolved in favor of the arbitral process. Pearce, 828 F.2d at 829. The party resisting arbitration bears the burden of proving the claims at issue are unsuitable for arbitration. Green Tree Fin. Corp-Ala v. Randolph, 531 U.S. 79, 91 (2000). Agreements to arbitrate employment disputes are routinely found enforceable by courts and are even favored. See Pearce, 828 F.2d at 829 (noting that arbitration of labor disputes is favored because
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arbitrators and the arbitration process have particular expertise and procedures designed to handle labor claims); Hobley v. Kentucky Fried Chicken, Inc., 168 Fed. Appx. 443, 2005 WL 3783027, *1 (D.C. Cir. Sept. 9, 2005) (upholding enforcement of arbitration agreement executed as part of employment application). Further, it is well settled that ADEA and DCHRA claims fall within the scope of mandatory arbitration agreements such as the one signed by Plaintiff. See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991) (finding no evidence that Congress intended to preclude arbitration claims under the ADEA); Booker v. Robert Half Int'l, Inc., 315 F. Supp. 2d 94, 100 (D.D.C. 2004), aff'd, 413 F.3d 77 (D.C. Cir. 2005) (finding employee was required to arbitrate DCHRA claims even where arbitration agreement did not specifically mention statutory claims and rejecting any presumption against the arbitrability of statutory claims); Fox v. Computer World Servs. Corp., 920 F. Supp. 2d 90, 93, 104-05 (D.D.C. 2013) (finding employees DCHRA and DC common law claims were required to be submitted to arbitration per arbitration agreement). B. Plaintiff Executed A Binding Arbitration Agreement.

The Arbitration Agreement is valid and enforceable. Whether an arbitration agreement is enforceable is a question of state contract law. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31 (2009). Under District of Columbia law,2 a signature on a contract indicates mutuality of assent and a party is bound by the contract unless he or she can show special circumstances relieving him or her of such an obligation. Sapiro v. VeriSign, 310 F. Supp. 2d 208, 212 (D.D.C. 2004) (enforcing arbitration agreement executed by employee); Emeronye v. CACI Intl, 141 F. Supp. 2d 82, 86 (D.D.C. 2001) (same). Further, an agreement to arbitrate claims in an employment context is supported by adequate consideration where it is either
2

District of Columbia law governs the interpretation of the Arbitration Agreement because it was entered into in the District, BuckleySandler is based in the District, and the subject matter of the contract (Plaintiffs employment) took place within the District. Ideal Elec. Sec. Co., Inc. v. Intl Fidelity Ins., 129 F.3d 143, 158 (D.C. Cir. 1997).
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required as a condition of employment, or given as part of a mutual agreement to arbitrate claims. Sapiro, 310 F. Supp. 2d at 212. Here, Plaintiff executed the Arbitration Agreement on December 30, 2009 as an express condition of employment. (Carnahan Decl., Ex. 1, at 1.) Plaintiffs execution of the Arbitration Agreement binds him to the terms of the parties agreement to arbitrate disputes. Emeronye, 141 F. Supp. 2d at 86. The agreement contains adequate consideration because it is supported both by an offer of employment and a mutual promise to arbitrate disputes. Id. For all of these reasons, the Arbitration Agreement is valid under District of Columbia law. C. Plaintiff Must Submit His Claims To Binding Arbitration.

Both of Plaintiffs claims fall squarely within the scope of the Arbitration Agreement. Plaintiff agreed to submit to binding arbitration any and all claims and disputes that are related in any way to my employment or termination. (Carnahan Decl., Ex. 1, at 1.) Moreover, the Mutual Arbitration Policy explicitly states that claims under the Age Discrimination In Employment Act and the D.C. Human Rights Act are within the scope of the Arbitration Agreement. (Carnahan Decl., Ex. 2, at 1). Because it is incorporated by reference into the Arbitration Agreement, the Mutual Arbitration Policy is a part of the Arbitration Agreement. Sheriff v. Medel Elec. Co., 412 A.2d 38, 41 (D.C. 1980) ([w]hen a contract incorporates another writing, the two must be read together as the contract between the parties). The crux of Plaintiffs complaint is that Defendants discriminated against him based on his age by failing to promote him and terminating his employment. (Compl. 129, 133.) He brings these claims under the ADEA and the DCHRA. (Id.) Plaintiffs claims are solely against BuckleySandler and its partners, relate entirely to his employment, and are specifically listed in the Mutual Arbitration Policy as within the scope of the parties agreement to arbitrate. There is simply no dispute that all of Plaintiffs claims against all of the Defendants fall within the
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Arbitration Agreement and must be submitted to binding arbitration. (Carnahan Decl., Ex. 1, at 1) (stating that any and all claims and disputes that are related in any way to my employment or termination against BuckleySandler and each of its and/or their employees, officers, directors or agents must be submitted to binding arbitration). II. Plaintiffs Complaint Should Be Dismissed With Prejudice. Plaintiffs claims should be dismissed with prejudice. When all issues raised in the complaint must be submitted to arbitration . . . dismissal of th[e] action is within the discretion of the Court and is appropriate. Emeronye, 141 F. Supp. 2d at 88. Courts in this District routinely grant such relief. See, e.g., Shorts v. Parsons Transp. Grp., Inc., 679 F. Supp. 2d 63, 67 (D.D.C. 2010) (dismissing complaint where all claims were subject to arbitration); Aliron Intern., Inc. v. Cherokee Nation Indus., Inc., No. 05-151 (GK), 2006 WL 1793295, *3 (June 28, 2006) (all of Plaintiff's claims must be submitted to arbitration . . . [s]ince there is no further action to be taken by this Court, it is appropriate to dismiss this case in its entirety). In the alternative, if the Court declines to dismiss the case in favor of arbitration, Defendants request that the Court stay all proceedings pending the completion of any arbitration, in accordance with Section 3 of the FAA. See 9 U.S.C. 3; Pearce, 828 F.2d at 829; 9 U.S.C. 3. III. Defendants Should Be Awarded Fees and Costs. After the complaint was filed, Defendants contacted Plaintiff by telephone and left a recorded message reminding him of the Arbitration Agreement and requesting that he withdraw the lawsuit and proceed instead to initiate arbitration as provided in the agreement. Defendants followed up with an email attaching a signed copy of the Arbitration Agreement. Defendants advised Plaintiff in both the telephone message and the email that if he did not withdraw the complaint, Defendants would move to compel arbitration and see all costs related to the motion.

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In light of Plaintiffs deliberate refusal to withdraw his lawsuit in the face of the Arbitration Agreement, Defendants should be awarded their attorneys fees and costs incurred in bringing this motion. CONCLUSION Plaintiff is obligated to resolve his claims against Defendants through binding arbitration. Defendants respectfully request that this Court enter an order (1) compelling the parties to proceed to arbitration as set forth in Arbitration Agreement, (2) dismissing this case or, in the alternative, staying all proceedings, and (3) awarding Defendants fees and costs. Dated: November 29, 2013 Respectfully submitted, BUCKLEYSANDLER LLP, KIRK JENSEN AND ELIZABETH MCGINN

By: /s/Christopher A. Weals Christopher A. Weals (Bar No. 414754) Andrew G. Sakallaris (Bar. No. 983166) MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: 202.739.3000 Facsimile: 202.739.3001 cweals@morganlewis.com asakallaris@morganlewis.com Attorneys for Defendants

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CERTIFICATE OF SERVICE I, Christopher A. Weals, hereby certify that on November 29, 2013, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the CM/ECF system, which will send electronic notification of such filing to all counsel of record registered to receive it. /s/ Christopher A. Weals

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