United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court following a bench trial conducted on
April 16, 2019 to determine whether the parties executed an
enforceable arbitration agreement. After careful review of
all record evidence and testimony, and for the reasons
explained below, the court concludes that Defendant Serra
Nissan/Oldsmobile, Inc. (“Serra
Nissan/Oldsmobile”) and Defendant Tony Serra Ford, Inc.
(“Tony Serra Ford”) are entitled to compel
arbitration as parties to the arbitration agreement.
Lee Moultry initiated this suit on March 13, 2018 to remedy
Tony Serra Ford's and Serra Nissan/Oldsmobile's
(collectively, “Defendants”) allegedly
discriminatory employment practices under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
and 42 U.S.C. § 1981. (Doc. # 1). Instead of filing an
answer, Defendants filed a Motion to Dismiss, Without
Prejudice, or Stay and Compel Arbitration. (Doc. # 5).
Specifically, Defendants argued that an arbitration agreement
was contained within Defendants' online employment
application and that Plaintiff necessarily signed and
consented to the agreement when he submitted his application.
(See generally Doc. # 26). Plaintiff countered that
neither he nor his fiancée saw any arbitration
agreement embedded in the employment application, so
Plaintiff could not have assented to such an agreement. (Doc.
# 14 at 1-4). Furthermore, Plaintiff claimed that the
employment application that Defendants produced did not
reflect his signature. (Id. at 7).
a genuine issue of material fact existed as to whether
Plaintiff assented to an arbitration agreement, the court
denied Defendants' Motion (Doc. # 5) and proceeded to a
bench trial pursuant to 9 U.S.C. § 4 (“If the
making of the arbitration agreement or the failure, neglect,
or refusal to perform the same be in issue, the court shall
proceed summarily to the trial thereof.”). See
Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325,
1333 (11th Cir. 2016); see also Chambers v. Groome
Transp. of Ala., 41 F.Supp.3d 1327, 1354 (M.D. Ala.
2014) (setting a bench trial for an arbitration issue under 9
U.S.C. § 4).
the bench trial, Defendants bore the burden to “prove
the existence of an agreement to arbitrate by a preponderance
of the evidence.” Tyus v. Virginia College,
2015 WL 4645513, at *1 (M.D. Ala. Aug. 4, 2015). The court
heard testimony from three witnesses: Plaintiff; Roger
Bradford, the Parts and Services Director for Serra
Automotive; and Christianna DeRamus, Plaintiff's
fiancée. The court also accepted into evidence and
considered the deposition testimony of Jesse Rubenstein, a
representative of Citrix System, Inc., which provides
Defendants with the RightSignature product that allows
applicants to complete and submit job applications online.
The court then ordered additional briefing to address whether
Defendants were entitled to enforce the arbitration agreement
contained in the employment application given that Plaintiff
applied to work at a particular dealership that did not
ultimately hire him. (Doc. # 46). Upon consideration of all
record evidence and testimony, the court issues the following
findings of fact and conclusions of law.
Findings of Fact and Conclusions of Law
court begins by comparing Plaintiff's and Defendants'
portrayal of the facts surrounding the submission of
Plaintiff's employment application containing the
arbitration agreement. The court then summarizes its findings
of fact in light of the evidence received during the bench
trial. Finally, the court examines the language of the
arbitration agreement and concludes that both named
Defendants, Serra Nissan/Oldsmobile and Tony Serra Ford, are
signatories to the arbitration agreement and are entitled to
Bench Trial Testimony
testified during the bench trial that he filled out and
submitted only one employment application on the evening of
Sunday, February 14, 2016 while at DeRamus's residence.
He stated that he used DeRamus's third generation iPad to
review and complete the entire employment application.
However, he denied seeing an arbitration agreement embedded
in the employment application. According to Plaintiff, the
application consisted of only two pages that requested
general, personal information from the applicant including
name, address, contact information, requested salary,
educational background, prior work history, and references.
He filled in his personal information, chose Serra Nissan VW
as his preferred employer, then asked DeRamus to review the
application to ensure he completed every field. He claims
that at the bottom of the second page, there was a signature
line with a large “X” indicating a place to sign
the electronic document. Plaintiff attempted to sign his name
with DeRamus's Apple pencil, but he was unable to
successfully sign. He asked for DeRamus's help and
authorized her to sign and submit the application on his
confirmed Plaintiff's testimony that she helped him
review and submit only one employment application on the
evening of Sunday, February 14, 2016. She also claimed that
she saw no arbitration agreement embedded in the employment
application. Both Plaintiff and DeRamus recalled reading
Consumer Disclosure, and all pages above.” But, they
denied seeing the following language appear when they engaged
the signature box: “Signature will be applied to page
4. Review before submitting.” DeRamus testified that
after Plaintiff authorized her to sign and submit the
application on his behalf, she used her left hand to sign
“Lee A. Moultry” in a freehand, cursive
script. They did not print the application after
contrast, Defendants produced two employment applications
bearing Plaintiff's name that were downloaded from the
Citrix System servers. Citrix System is a separate entity
that independently receives and maintains the electronic
employment applications submitted through the RightSignature
product on Serra Nissan's website. Jesse Rubenstein
testified in his deposition that once an employment
application is submitted, it is stored in an encrypted
fashion on Citrix System's servers. (Jesse Rubenstein
Deposition, pp. 8-9). Other than downloading the completed
document from Citrix System's servers, the application
cannot be changed or altered by anyone- including anyone
working for Defendants. (Id. at pp. 9, 41, 47, 57).
Citrix System's records show that the two employment
applications with Plaintiff's name were submitted from
the same modem, neither was submitted on Sunday evening.
Indeed, Citrix System has no record of Plaintiff submitting a
job application on Sunday. The Citrix data shows the first
employment application was submitted on Monday, February 15,
2016 at 6:33 a.m. PT. (Doc. # 47-1). While this application
does not reflect a visible signature, Plaintiff testified
that the personal information matched the information he
claims he submitted on Sunday evening. Defendants claim that
the second employment application was submitted later that
Monday at 5:27 p.m. PT. (Doc. # 47-1). This second
application shows a visible cursive signature reading
“Lee a. Moultry, ” but the personal information
on the first two pages differs from the first application
submitted earlier that morning. Notably, the second
application contains the following material discrepancies:
(1) a requested salary of $17.50 instead of $18; (2) an
availability date of 2/16/16 instead of 2/15/16; (3) a
contractor, Ronald Worsham, as a personal reference, though
Plaintiff and DeRamus testified that they did not know anyone
by that name; and (4) Christianna DeRamus was categorized as
Plaintiff's financial advisor instead of his friend.
(Doc. # 47-4).
further testified that he has no recollection of submitting
two different applications, and he disputes the authenticity
of the two produced applications. In particular, Plaintiff
maintains that the signature on the second application is not
his signature because (1) he witnessed DeRamus sign his name
“Lee A. Moultry, ” and further, (2) he never
signs his name with a lowercase middle initial.
testified that he oversees eleven dealerships in his capacity
as the Parts and Services Director for Serra Automotive. He
recounted meeting Plaintiff at the Serra Nissan store on
Saturday, February 13, 2016, while Plaintiff was waiting for
an oil change. Bradford testified that Plaintiff expressed
interest in applying for a job as an auto technician, so
Bradford advised him to apply online at serranissan.com.
After he received Plaintiff's application from Human
Resources at Serra Automotive, he offered Plaintiff a job at
Tony Serra Ford in Talladega. At the time, no positions were
available at Plaintiff's desired location, Serra Nissan
VW. Bradford also clarified that there is no separate
Oldsmobile dealership, and to the best of his knowledge, the
Nissan store and the Volkswagen store are one corporate
Findings of Fact
hearing the testimony at the bench trial, assessing the
witnesses' credibility, and observing a live
demonstration of how an employment application is submitted
on Defendants' website, the court credits Defendants'
framing of the facts and concludes that (1) the employment
application contained an arbitration agreement on the last
two pages of the employment application, which Plaintiff
would have seen had he scrolled to the bottom of the document
(or, at a minimum, was responsible for reviewing before
signing and submitting the application); and (2) either
Plaintiff or DeRamus (with Plaintiff's authorization)
submitted two employment applications in Plaintiff's name
and (at least) signed the second application. The court makes
the following additional findings of fact.
Saturday, February 13, 2016, Plaintiff and DeRamus visited
the Serra Nissan dealership located at 1500 Center Point
Parkway, Birmingham, Alabama, 35215. While waiting for an oil
change, Plaintiff spoke with Bradford about applying for an
auto technician job. Although they did not discuss
Plaintiff's background or qualifications, Bradford
directed him to go to the Serra Nissan website and submit an
Serra Nissan contracts with Citrix System for the use of its
RightSignature product, which allows for documents to be
completed, signed, and submitted electronically. (Jesse
Rubenstein Deposition, pp. 5-6). Defendants used this product
on serranissan.com to create an online platform for
applicants to fill out and electronically submit employment
Citrix System keeps records of all account activity that
occurs through the RightSignature program on Serra
Nissan's website. (Jesse Rubenstein Deposition, pp.
10-13). The system records when a document is created,
viewed, signed, or completed. (Id.).
Sunday, February 14, 2016, Plaintiff used DeRamus's third
generation iPad to visit the serranissan.com website while at
her residence. The Citrix System account activity records for
Serra Nissan's RightSignature account show that ...