United States District Court, W.D. Missouri, Western Division
STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss or, in the
Alternative, Stay This Case and Compel Arbitration. (Doc.
#14). For the reasons stated below, Defendants' motion is
GRANTED in and DENIED in part.
August 2018, Defendants Pamela Brueckmann and James Ferrell
recruited Plaintiff Jacqueline Morgan to join Defendant
Ferrellgas, Inc. (“Ferrellgas”) as a member of
its executive team. Ferrellgas is a nationwide propane gas
supplier. At all times relevant to this case, Ferrell was
president, interim CEO, and chairman of Ferrellgas' board
of directors, and Brueckmann was a member of Ferrellgas'
board of directors. After executing an Employment Agreement
on September 27, 2018, Morgan began work as the Chief
Marketing and Sales Officer at Ferrellgas. She remained in
that role until her termination in January 2019. Morgan
submitted her claim of gender-based discrimination to the
Missouri Commission on Human Rights (“MCHR”) and
received a right-to-sue letter on September 16, 2019.
September 26, 2019, Morgan filed a petition in the Circuit
Court of Clay County, Missouri, against Ferrellgas, Ferrell,
and Brueckmann (collectively, “Defendants”).
Defendants were served on October 14, 2019, and subsequently
removed the case to federal court pursuant to diversity
jurisdiction on November 13, 2019. Defendants filed a motion
to dismiss the case or, in the alternative, stay the case and
compel arbitration. Morgan's first amended complaint
raises six causes of action: (1) Count I: Gender
Discrimination under the Missouri Human Rights Act
(“MHRA”); (2) Count II: Retaliation (MHRA); (3)
Count III: Fraudulent Misrepresentation; (4) Count IV:
Fraudulent Misrepresentation by Omission; (5) Count V:
Negligent Misrepresentation; and (6) Count VII: Negligence
Misrepresentation by Omission.
alleges Ferrellgas, its agents, and its employees-including
Ferrell and Brueckmann-misrepresented to her the
company's ongoing, internal power struggle during the
recruitment process. Morgan claims those misrepresentations
and omissions misled her and induced her to join Ferrellgas
in the midst of a hostile takeover by members of its own
executive team. Defendants argue that Morgan's claims
arise from her employment with Ferrellgas and are subject to
a binding arbitration provision contained in an Employment
Agreement signed by Morgan. The operative provision of that
Employment Agreement reads as follows:
Any dispute (whether the dispute sounds in contract, tort, or
otherwise) arising out of or relating to this Agreement or
its breach, or the employment relationship of the parties,
except injunctive relief to preserve the status quo, shall be
fully and finally settled by binding arbitration conducted
expeditiously in accordance with this paragraph, the United
States Arbitration Act (to the exclusion of any provisions of
state law inconsistent with the Act or which would produce a
different result), and the Center for Public Resources Rules
for Non-Administrative Business Disputes (1989) by three
independent and impartial arbitrators.
(Doc. #15-3, p. 2). Below this arbitration language is a
written statement acknowledging that the Employment Agreement
“contains a binding arbitration provision which may be
enforced by the parties.” (Doc. #15-3, p. 2). Both
Morgan and a Ferrellgas representative signed the
arbitration-provision acknowledgement on September 27, 2018.
Morgan does not dispute that she signed the Employment
Agreement but contests its validity. Morgan additionally
argues that Brueckmann and Ferrell are not signatories to the
Employment Agreement and that her individual claims against
them are not subject to arbitration.
2 of the Federal Arbitration Act (“FAA”)
“provides that ‘[a] written provision in any . .
. contract . . . to settle by arbitration a controversy
thereafter arising out of such contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract.'” Owen v. Bristol Care, Inc.,
702 F.3d 1050, 1052 (8th Cir. 2013) (quoting 9 U.S.C. §
2). “The Supreme Court has stated repeatedly that this
provision establishes a ‘liberal federal policy
favoring arbitration agreements.'” Id.
(quoting CompuCredit Corp. v. Greenwood, 565 U.S.
95, 98 (2012)). Under Section 3 of the FAA, “a party
may apply to a federal court for a stay of the trial of an
action ‘upon any issue referable to arbitration under
an agreement in writing for such arbitration.'”
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68
(2010) (quoting 9 U.S.C. § 3). “Under § 4, a
party ‘aggrieved' by the failure of another party
‘to arbitrate under a written agreement for
arbitration' may petition a federal court ‘for an
order directing that such arbitration proceed in the manner
provided for in such agreement.'” Id.
(quoting 9 U.S.C. § 4). “The FAA establishes that
as a matter of federal law, any doubts concerning the scope
of arbitrable issues should be resolved in favor of
arbitration.” Lyster v. Ryan's Family Steak
Houses, Inc., 239 F.3d 943, 945 (8th Cir. 2001)
(citations and internal quotation marks omitted).
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 federal district
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)). “Generally, there is a
presumption of arbitrability in the sense that an order to
arbitrate the particular grievance should not be denied
unless it may be said with positive assurance that the
arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.” Lyster, 239
F.3d at 945 (internal quotation marks and citations omitted).
Existence of a Valid Arbitration Agreement Against Defendant
parties dispute the existence of a valid arbitration
agreement. Defendants argue the arbitration provision at
issue is a valid bilateral contract supported by
consideration. Defendants contend that the parties exchanged
mutual promises to arbitrate any disputes arising out of the
Employment Agreement or the employment relationship between
the parties, and that neither party retained the right to
unilaterally modify the agreement. Morgan argues language
included in the arbitration provision stating that any
resulting arbitration will be conducted in accordance with
the Center for Public Resources (“CPR”) Rules for
Non-Administrative Business Disputes gives Ferrellgas the
right to unilaterally modify the arbitration agreement,