Moultry v. Tony Serra Ford, Inc.

          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 ...