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Moultry v. Tony Serra Ford, Inc.

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

June 6, 2019

LEE MOULTRY, Plaintiff,
TONY SERRA FORD, INC., et al., Defendants.



         This 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.

         I. Procedural Background

         Plaintiff 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).

         Because 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).

         During 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.

         II. Findings of Fact and Conclusions of Law

         The 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 compel arbitration.

         A. Bench Trial Testimony

         Plaintiff 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.[1] 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 behalf.

         DeRamus 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 below the signature line, “I agree to the Terms of Use, 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.[2] They did not print the application after submitting it.

         By 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).

         Although 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).[3]

         Plaintiff 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.

         Bradford 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 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 entity.

         B. Findings of Fact

         After 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.

         1. On 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 employment application.

         2. 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 to create an online platform for applicants to fill out and electronically submit employment applications.

         3. 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.).

         4. On Sunday, February 14, 2016, Plaintiff used DeRamus's third generation iPad to visit the website while at her residence. The Citrix System account activity records for Serra Nissan's RightSignature account show that ...

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