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Wilbur v. Securitas Security Services USA, Inc.

United States District Court, W.D. Missouri, Western Division

May 3, 2019

GEORGE WILBUR, Plaintiff,
v.
SECURITAS SECURITY SERVICES USA, INC., Defendant.

          ORDER

          STEPHEN R. BOUGH JUDGE

         Before the Court is Defendant's Motion to Dismiss or, in the Alternative, to Stay and Compel Arbitration filed by Defendant Securitas Security Services USA, Inc. (Doc. #4). Defendant Securitas's motion is granted in part and denied in part. Defendant Securitas's request to compel arbitration is DENIED. To the extent Plaintiff George Wilber[1] intended to include Dan Arnold as an individual Defendant, Defendant Securitas's motion to dismiss Dan Arnold is GRANTED.

         I. Background

         On November 26, 2018, Plaintiff filed a Complaint[2] in the Circuit Court of Jackson County, Missouri, including one count for violation of the Age Discrimination in Employment Act, 29 U.S.C., § 621, et seq. The Complaint's caption lists only Plaintiff's former employer, Securitas, as a Defendant. The body of the Complaint, however, states, “Separate Defendant, Dan Arnold, . . . is an individual employed by Securitas[.]” (Doc. #1-1, ¶ 3). Defendant Securitas removed the case to this Court on March 7, 2019. According to the record before the Court, no summons was issued for Dan Arnold who has not been served in this case.

         Plaintiff's Complaint alleges he was terminated from his job as a branch manager by his supervisor, Dan Arnold, because of his age. At the inception of Plaintiff's employment with Defendant Securitas, Plaintiff signed a “Dispute Resolution Agreement Acknowledgment” stating:

I have received a copy of the Securitas Security Services USA, Inc. (the “Company”) Dispute Resolution Agreement (the “Agreement”) and I have read and I understand all of the terms contained in the Agreement. I understand that employment or continued employment at the Company constitutes acceptance of this Agreement and its terms. I further acknowledge that the Company and I are mutually bound by this Agreement and its terms.

(Doc. #5-2, p. 1). The Dispute Resolution Agreement provides, “Under the terms set forth below, both you and the Company mutually agree and thus are required to resolve claims either may have against the other by Arbitration instead of in a court of law.” (Doc. #5-1, p. 1).

         Plaintiff signed and printed his name on the Acknowledgment on August 21, 2013. Next to Plaintiff's signature are two lines for the “Employer Representative Signature” and “Employer Representative Printed Name[.]” Both are blank.

         Plaintiff does not contest that he signed the Acknowledgement, although Plaintiff contests whether he actually received and read the Dispute Resolution Agreement. The Court finds this dispute to be immaterial to the outcome. Rather, the Court finds the lack of Defendant's signature to be determinative because the agreement to arbitrate was never completed due to lack of mutual assent.

         II. Legal Standard

         “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, 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[.]” 9 U.S.C. § 3. “The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements ‘on equal footing with all other contracts.'” Kindred Nursing Centers Ltd. P'ship v. Clark, 137 S.Ct. 1421, 1424 (2017) (quoting DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463, 465 (2015)). Therefore, “arbitration agreements [may] be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract.'” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting 9 U.S.C. § 2).

         “When presented with a motion to compel arbitration, we ask only (1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement.” McFadden v. Van Chevrolet-Cadillac, LLC, No. 18-00395-CV-W-BP, 2018 WL 3715756, at *1 (W.D. Mo. Aug. 3, 2018) (citation omitted). As a Court sitting in Missouri, this Court must analyze an arbitration agreement based on Missouri state-law principles. Robinson v. EOR-ARK, LLC, 841 F.3d 781, 784 (8th Cir. 2016). “The elements required to form a valid contract in Missouri are offer, acceptance, and bargained for consideration.” Baier v. Darden Restaurants, 420 S.W.3d 733, 737 (Mo. App. W.D. 2014) (citation and internal quotation marks omitted). “The party seeking to compel arbitration bears the burden of proving the existence of a valid and enforceable arbitration agreement.” Jackson v. Higher Educ. Loan Auth. of Missouri, 497 S.W.3d 283, 287 (Mo. App. E.D. 2016) (citing Jimenez v. Cintas Corp., 475 S.W.3d 679, 683 (Mo. App. E.D. 2015)).

         III. Discussion

         Defendant Securitas argues the parties entered into a bilateral contract based on their mutual promises to arbitrate disputes between them. (Doc. #10, p. 6). “It is axiomatic that a proposal to enter into a bilateral agreement must be accepted by both parties for a contract to be formed.” Baier, 420 S.W.3d at 738 (citation omitted). “Whether there is mutual assent sufficient to form a contract depends on the intentions of the parties.” Id. (citation omitted). While a signature is one way to establish acceptance, it is not the only way. Id. “[I]n the absence of a signature, the party claiming that a contract was formed must present other evidence to establish its assent to abide by the terms of the ...


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