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Smith v. Dolgencorp, LLC

United States District Court, N.D. Alabama, Eastern Division

March 2, 2017

WENDY SMITH and ALTON RICHEY, Plaintiffs,
v.
DOLGENCORP, LLC, d/b/a DOLLAR GENERAL and KIMIKO THOMAS, a/k/a KIM THOMAS, Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS United States District Judge

         I. Introduction

         This 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).

         The 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.

         II. Standards

         A. Ms. Smith's Failure To Oppose

         Ms. 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 dismiss:

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 omitted).

         B. Principles Governing Motions To Sever

         Dollar General's Motion is brought pursuant to Rule 21 of the Federal Rules of Civil Procedure. (Doc. 15 at 8). Rule 21 provides:

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).

         Severance under Rule 21 is directly related to permissive joinder of parties under Rule 20. As Rule 20 pertains ...


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