United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
R.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
This
case is before the court on Defendants' Motion to Modify
Order for Reimbursement of Expenses and Fees pursuant to
Federal Rule of Civil Procedure 37(c)(2). (Doc. # 54). The
Motion is fully briefed (Docs. # 56-57) and is ripe for
review. After careful consideration, and for the reasons
explained below, the court concludes that Defendants'
Motion (Doc. # 54) is due to be denied.
I.
Background
Plaintiff
Lee Moultry initiated this suit on March 13, 2018 challenging
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).
Following
initial briefing of the arbitration motion, the court ordered
the parties to conduct discovery limited to the issues raised
in the motion. (Docs. # 17, 20). Defendants deposed Plaintiff
and his fiancée, Christianna DeRamus, on July 19,
2018. (Docs. # 26-1; 26-7). Both Plaintiff and DeRamus
consistently denied seeing an arbitration agreement embedded
in the employment application. (Id.). Because of
these denials, on August 1, 2018, Defendants issued and
served a subpoena on Citrix Systems, Inc., the company that
provided the RightSignature product to Serra Nissan. (Doc. #
54-1). Defendants used this product on their website,
serranissan.com, to create an online platform for applicants
to fill out and electronically submit employment
applications. (Docs. # 47-1; 52 at 7). In response to the
subpoena, Citrix Systems provided Defendants with (1) an
affidavit executed by a custodian of its records on September
24, 2018; (2) Defendants' RightSignature account activity
records, which show when “Lee Moultry” and
“Lee A. Moultry” viewed, signed, and completed
two employment applications; and (3) “true and
correct” copies of the two employment applications
associated with the signer “Lee Moultry” or
“Lee A. Moultry.” (Docs. # 47-1; 47-2; 47-3;
47-4; 47-5; 47-7). The affidavit further confirmed that the
copies were identical to what Plaintiff would have seen at
the time he signed and submitted the employment applications.
(Doc. # 47-1 at 2).
In
light of these documents, Defense counsel emailed
Plaintiff's counsel on September 25, 2018 and requested
that Plaintiff withdraw his objection to the arbitration
motion. (Doc. # 54-2). In Defense counsel's view, the
documents established “that the terms and conditions
were on the screen when the employment application was
completed and submitted and that no changes or alterations
were made thereto after Mr. Moultry's submission.”
(Id.). Counsel's email also warned that if
Plaintiff declined to withdraw the objection and Defendants
were forced to take the out-of-state deposition of a Citrix
Systems representative, Defendants would seek all costs
associated with that deposition once the case was sent to
arbitration. (Id.).
In this
same email to Plaintiff's counsel, Defense counsel
submitted the following twelve Requests for Admission
pursuant to Rule 36 of the Federal Rules of Civil Procedure:
1. Please admit that on February 14 and 15, 2016, you, or
somebody on your behalf, visited www.serranissan.com for the
purpose of completing and submitting an employment
application.
2. Please admit that on February 14 and 15, 2016, you
submitted a completed employment application for employment
with the Defendants.
3. Please admit that you scrolled down and viewed the entire
employment application.
4. Please admit that you or somebody you authorized
electronically signed your name to the employment
application.
5. Please admit that the attached employment application,
attached hereto as Exhibit A, is a true and correct copy of
what you completed and submitted to the Defendants.
6. Please admit that the attached employment application,
attached hereto as Exhibit B, is a true and correct copy of
what you completed and submitted to the Defendants.
7. Please admit that the attached Exhibit A is a true and
correct copy of what you viewed on the screen, at the time
you completed and submitted the ...