United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge
Fair Labor Standards Act (“FLSA”) lawsuit was
initiated by Plaintiffs Wendy Smith (“Ms. Smith”)
and Alton Richey (“Mr. Richey”) on June 9, 2016.
(Doc. 1). Pending before the court is Defendant Dolgencorp,
LLC's (“Dollar General”) Motion To Sever
Plaintiff Wendy Smith's Claims and Compel Arbitration
(Doc. 15) (the “Motion”) filed on February 10,
2017. The Motion seeks “an order severing [Ms.]
Smith's claims, compelling arbitration of [Ms.]
Smith's claims, and staying the judicial proceeding in
favor of arbitration.” (Doc. 15 at 2).
Motion indicates within the case caption that it is opposed.
However, the 14-day deadline for Ms. Smith to file her
opposition under Appendix III of the court's Uniform
Initial Order (Doc. 2) ran on February 24, 2017, and nothing
was ever filed. (Id. at 23). For the reasons
explained below, the Motion is GRANTED and Ms. Smith's
claims are SEVERED from this lawsuit and subject to
arbitration as further explained below.
Ms. Smith's Failure To Oppose
Smith's failure to file any opposition to the Motion does
not automatically mean that the Motion is due to be granted.
As explained by Judge Steele in Branch Banking
and Trust Co. v. Howard, No. 12-0175-WS-N, 2013 WL
172903, at *1 (S.D. Ala. Jan. 16, 2013), in the comparable
situation of a non-movant's failure to oppose a motion to
As noted, Churchill and Howard elected not to be heard in
response to BB & T's Amended Motion to Dismiss.
Notwithstanding that omission, BB & T (as Rule 12(b)(6)
movant) bears the initial burden of demonstrating that it is
entitled to dismissal of the counterclaims. Churchill's
and Howard's lack of response to the Rule 12(b)(6) Motion
does not trigger the kneejerk granting of such Motion on an
abandonment theory. See Gailes v. Marengo County
Sheriff's Dep't, 2013 WL 81227, *5 (S.D. Ala.
Jan. 4, 2013) (“the Court will not treat a claim as
abandoned merely because the plaintiff has not defended it in
opposition to a motion to dismiss”). Rather, it remains
BB & T's burden as movant to establish its
entitlement to relief under Rule 12(b)(6). In light of these
circumstances, the Court scrutinizes BB & T's Motion
to Dismiss in accordance with the following legal standard:
“the Court will review the merits of the [movant]'s
position and, if it is clearly incorrect or inadequate to
satisfy the [movant]'s initial burden, will deny the
motion despite the [nonmovant]'s failure to respond. If,
however, the [movant]'s presentation is adequate to
satisfy its initial burden, the Court will not deny the
motion based on arguments the [nonmovant] could have made but
by silence elected not to raise.” Id.
Branch Banking, 2013 WL 172903, at *1 (footnotes
Principles Governing Motions To Sever
General's Motion is brought pursuant to Rule 21 of the
Federal Rules of Civil Procedure. (Doc. 15 at 8). Rule 21
Misjoinder of parties is not a ground for dismissing an
action. On motion or on its own, the court may at any time,
on just terms, add or drop a party. The court may also
sever any claim against a party.
Fed. R. Civ. P. 21 (emphasis added).
under Rule 21 is directly related to permissive joinder of
parties under Rule 20. As Rule 20 pertains ...