United States District Court

for the

Southern District of Florida

Carlos H. Espinoza and all others 

similarly situated, Plaintiffs,

v.

South Beach Associates LLC and 

Stefano Fritella, Defendants.

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Civil Action No. 20-22873-Civ-Scola

Order Granting Motion to Compel Arbitration

Plaintiff Carlos H. Espinoza, through this Fair Labor Standards Act case, 

seeks damages from Defendants South Beach Associates, LLC, and Stefano 

Fritella for their failure to pay him overtime wages during his employment at 

Social, a restaurant in Miami Beach, Florida. (Compl., ECF No. 1, 12–16.) In 

response to the lawsuit, the Defendants filed a motion to compel arbitration, 

seeking to compel arbitration and stay the case based on Espinoza’s alleged 

execution of an employee-dispute-resolution agreement with South Beach. 

(Defs.’ 1st Mot. to Compel, ECF No. 6.) In opposing the motion, Espinoza denied 

ever signing an arbitration agreement or otherwise agreeing to arbitrate any 

claims against the Defendants. (Pl.’s Resp. to 1st Mot., ECF No. ECF No. 11.) In 

light of the parties’ disagreement on this point, the Court determined Espinoza 

had raised a genuine issue of material fact concerning the formation of the 

purported arbitration agreement and denied the Defendants’ motion to compel, 

without prejudice. (Order, ECF No. 19.) In doing so, and after denying the 

parties’ cross motions for summary judgment, the Court then held a one-day

bench trial on the sole issue of contract formation. After that bench trial, the 

Court entered a verdict and order in favor of the Defendants, finding Espinoza 

did sign the arbitration agreement and its associated acknowledgment form, 

thus establishing the formation of a contract to arbitrate. (Verdict and Order, 

ECF No. 65.) Consequently, the Defendants have now renewed their motion to 

compel arbitration. (Defs.’ Renewed Mot., ECF No. 68.) Espinoza, however,

continues to resist arbitration. In response to the motion to compel, he 

challenges, among other things, the provision of the arbitration agreement that 

delegates the determination of enforceability of the arbitration agreement to the 

arbitrator. (Pl.’s Resp. to Renewed Mot., ECF No. 70.) The Defendants have 

timely replied, countering that Espinoza’s objections to this delegation provision 

miss the mark. (Defs.’ Reply, ECF No. 77.) After careful review, the Court finds 

Espinoza’s challenge to the delegation provision unavailing and, therefore, 

grants the Defendants’ motion to compel arbitration. (ECF No. 68.)

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Within the arbitration agreement at issue here is a delegation clause 

under which the parties delegated to the arbitrator “exclusive authority to 

resolve any jurisdictional and arbitration, scope, applicability, validity, 

enforceability, or procedural requirements” of the arbitration agreement. (Arb. 

Agmt. ¶6, Ex. 1 to Renewed Mot., ECF No. 68, 14.) In challenging this 

provision, Espinoza argues the clause (1) does not clearly and unequivocally 

show an agreement between the parties to “refer all ‘gateway’ matters to the 

arbitrator concerning federal law based claims”; and (2) is unconscionable. 

(Pl.’s Resp. at 4 (emphasis in original).) The Court does not find either argument 

convincing. 

As to Espinoza’s first argument, the Court agrees with the standard he 

enunciates: indeed, “[c]ourts should not assume that the parties agreed to 

arbitrate arbitrability unless there is clear and unmistakable evidence that they 

did so.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)

(cleaned up). Where the Court parts ways with Espinoza, though, is regarding

his supposition that the parties’ agreement to arbitrate arbitrability is not clear 

and unmistakable because of a choice-of-law provision, set forth in the 

paragraph directly preceding the delegation clause: “The law applied by an 

arbitrator will be the laws of the state of Florida, without regard for the conflicts 

of laws principles thereof.” (Arb. Agmt. ¶5.) According to Espinoza, because of 

this clause, the agreement to arbitrate extends only to state-law claims and, 

therefore, necessarily precludes consideration of Espinoza’s federal wage 

claims. (Pl.’s Resp. at 6.) Espinoza then reasons that, since the agreement 

precludes arbitration of his federal claims, the delegation provision can’t 

possibly delegate authority to the arbitrator to “decide enforceability issues as 

to [f]ederal-law based claims.” (Id.) Espinoza’s analysis is flawed.

To begin with, the Court disagrees with Espinoza’s premise that the 

governing-law provision precludes arbitration of his federal-wage claims. Simply 

identifying a particular state’s law as the law to be applied by the arbitrator, 

does not result in rights arising under federal law being summarily disregarded.

Atkinson v. Gen. Elec. Credit Corp., 866 F.2d 396, 398–99 (11th Cir. 1989)

(“[P]roviding that a contract is to be governed by state law does not signify the

inapplicability of federal law, for a fundamental principle in our system of 

complex national polity mandates that the Constitution, laws, and treaties of 

the United States are as much a part of the law of every State as its own local 

laws and Constitution.”) (cleaned up). Espinoza has not supplied any law 

supporting his theory that a boilerplate choice-of-law provision can somehow 

bar an arbitrator from considering federal claims. This is especially so when the 

agreement elsewhere pointedly identifies federal-wage claims under the FLSA as 

being included in the “types of claims that are covered.” (Arb. Agmt. at 1; ECF 

No. 68, 9.) Simply put, the parties’ choice-of-law provision here, identifying 

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Florida law as the law to be applied by the arbitrator, does not bar the 

application of federal law.

As to Espinoza’s second argument, even if the governing-law provision did 

somehow strip federal claims from the parties’ agreement to arbitrate, Espinoza 

provides no support for why this would render the delegation clause itself 

unconscionable. Instead, Espinoza’s unconscionability arguments are all 

directed towards the arbitration agreement as a whole. That is, Espinoza argues 

that the delegation clause is unconscionable because the governing-law 

provision deprives him of seeking remedies for his FLSA claims. (E.g., Pl.’s Reply 

at 6 n. 7.) But this is not an attack on the conscionability of the delegation 

clause; but, rather, the arbitration agreement in general. Thus, although 

Espinoza says he “specifically challenges the delegation provision,” what he is 

really contesting is the scope of the arbitration agreement and the arbitrator’s

jurisdiction over Espinoza’s FLSA claims. And these issues, in turn, are “clearly 

and unmistakably” reserved for the arbitrator’s determination: “The Arbitrator 

shall have exclusive authority to resolve any jurisdictional and arbitration,

scope, applicability, validity, enforceability, or procedural requirements of the 

[arbitration agreement]” (Arb. Agmt. ¶ 6, ECF No. 68, 14). See Parnell v. 

CashCall, Inc., 804 F.3d 1142, 1148 (11th Cir. 2015) (finding that a definition of 

“Dispute” that included “any issue concerning the validity, enforceability, or 

scope of this loan or the Arbitration agreement” “unambiguously commits to the 

arbitrator the power to determine the enforceability of the agreement to 

arbitrate”).) Accordingly, Espinoza’s challenges must be determined by the 

arbitrator and not the Court. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 72 

(2010) (holding that, unless a delegation provision is “challenged . . .

specifically,” courts “must treat it as valid . . . and must enforce it . . . , leaving 

any challenge to the validity of the [a]greement as a whole for the arbitrator”). 

Because the Court finds that the delegation provision in the parties’ 

arbitration agreement “clearly and unmistakably” commits the issue of 

arbitrability to the arbitrator, the Court declines to consider Espinoza’s other 

challenges to the jurisdiction, scope, and enforceability of the agreement. The 

Court notes that, along with their motion to compel arbitration, the Defendants

have also requested that the Court stay these proceedings pending arbitration. 

Under section 3 of the Federal Arbitration Act, “the court . . . shall on 

application of one of the parties stay the trial.” 9 U.S.C. § 3 (emphasis added). 

The Court thus finds a stay here mandatory. Further, even if the Court had 

discretion in choosing between dismissal or a stay, it would opt for a stay in 

this case. In the event the arbitrator in this case were to determine that the 

arbitration agreement here is invalid or inapplicable to any of the parties’ 

disputes, this case would not be over and therefore dismissal would be 

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premature. Accordingly, the Court grants the Defendants’ motion to compel 

(ECF No. 68).1

As such, the Court orders the parties to submit their dispute to 

arbitration. This case is stayed pending arbitration and the Court orders the 

Plaintiff to advise the Court once the arbitration is terminated or the claims at 

issue are otherwise resolved. In the meantime, the Clerk is directed to 

administratively close this case.

Done and ordered at Miami, Florida, on April 27, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

1 In the final sentence of their motion, the Defendants “further request that the Court award 

them the attorney’s fees they have incurred in having to file th[e] renewed motion.” (Defs.’ 

Renewed Mot. at 7.) The Court denies the request: it is procedurally improper as well as lacking 

any cited substantive support.

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