UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-61420-CIV-DIMITROULEAS/SNOW

JOSEPH BAMBERG, ANGELA WILLIS, 

and MARLA MURK, Individually

and on behalf of all others similarly

situated,

 

Plaintiffs, 

v.

THE RESULTS COMPANIES, LLC,

 

Defendant.

___________________________________________/ 

REPORT AND RECOMMENDATION

THIS CAUSE is before the Court on Defendant’s Motion for Partial Summary

Judgment and Motion to Dismiss and Alternative Motion to Compel Arbitration. 

(ECF No. 34) The Honorable William P. Dimitrouleas, United States District Judge,

referred Defendant’s Motion for Dismissal without prejudice of the claims brought

by seventy-three (73) of the remaining Plaintiffs in this case, or alternatively to

Compel Arbitration to the undersigned United States Magistrate Judge for

appropriate disposition or Report and Recommendation. (ECF No. 35) On October

6, 2020, Plaintiffs filed their Response to Defendant’s Motion, advising the Court

that it has no opposition to the Defendant’s Motion to Compel Arbitration, therefore

the Court finds as to this portion of the Motion there is no need for additional

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briefing.1

I. BACKGROUND

On July 14, 2020, Plaintiff Bamberg (Plaintiff or Bamberg) commenced this

putative class action against Defendant The Results Company (Defendant or

Results) alleging violations of federal and state law. (ECF No. 1) Specifically, there

were previously eighty-one (81) persons identified as plaintiffs in this case. Each of

them seeks compensation, liquidated damages and other relief pursuant to Sections

206, 207, and 216(b) of the Fair Labor Standards Act, and comparable relief under

the Virginia Wage Payment Act, VA Code Ann. § 40.1-29. On August 24, 2020,

Defendant moved to compel arbitration of sixty-nine (69) of the previous eighty-one

(81) plaintiffs in this case pursuant to the Federal Arbitration Act, 9 U.S.C. §4. On

September 8, 2020, Plaintiffs filed their First Amended Complaint and now identify

eighty-five (85) Plaintiffs. On September 22, 2020, Defendants again moved to

compel arbitration of seventy-three (73) of the now eighty-five (85) plaintiffs in this

case because they all agreed to abide by and signed arbitration agreements.

In February of 2018, Defendant implemented an arbitration program to

resolve disputes regarding wages and overtime pay. (ECF No. 23 at 3) Then current

employees were required to enter into a Mandatory Arbitration Agreement as a

condition of continued employment and individuals hired thereafter were required

1 The parties should complete briefing on the remaining issues that are still

before the Court.

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to enter into the Agreement as a condition of becoming employed. Id. at 3-4; See

Mandatory Arbitration Agreement, ECF Nos. 23-2, 23-3. The Mandatory

Arbitration Agreement requires arbitration of certain “Designated Claims,” which

includes “all claims or controversies for which a federal or state court or other

dispute-resolving body otherwise would be authorized to grant relief, under the Fair

Labor Standards Act [ ] or any comparable state or local law related to the payment

of wages or compensable work, minimum wages, or overtime pay.” Id. The 

Mandatory Arbitration Agreement specifies that the FAA “govern[s] the

interpretation, enforcement, and proceedings pursuant to the arbitration 

clause of [the] Agreement.” Id. Further, the Agreement specifically prohibits

arbitration of claims “as, or on behalf of, a class or group of individuals” unless

otherwise agreed in writing. Id. An arbitration agreement governed by the FAA,

like the one here, is presumed to be valid and enforceable. It is undisputed that

seventy-three (73) of the plaintiffs each agreed to the terms of the Mandatory

Arbitration Agreement.2 As a result, “Plaintiffs do not oppose arbitration, in this

forum, for those individuals who have specifically been identified as subject to an

arbitration agreement with a delegation provision . . .” (ECF No. 37 at 2)

2 Plaintiffs incorrectly state that sixty-nine (69) of the Plaintiffs are identified

by Defendant but the undersigned finds that this is simply a scrivener’s error taken

from the prior Response it filed at ECF No. 27 at 2.

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II. LEGAL STANDARD

The Federal Arbitration Act (FAA) places arbitration agreements on equal

footing with all other contracts and reflects a “liberal federal policy favoring

arbitration.” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012) (internal

quotations and citations omitted). Section 2 of the FAA provides that written

arbitration agreements in a contract “shall be valid, irrevocable, and enforceable,

save upon such grounds as exist at law or in equity for the revocation of any

contract.” Federal Arbitration Act, 9 U.S.C. § 2. “Consistent with the FAA’s text,

courts must rigorously enforce arbitration agreements according to their terms.” 

Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1329–30 (11th Cir.

2014) (internal quotations and citations omitted). Section 4 of the FAA allows “a

party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate

under a written agreement for arbitration” to request the court to order arbitration

“in the manner provided for in such agreement.” 9 U.S.C. § 4. Section 3 mandates

that when a court concludes an issue is “referable to arbitration under an

agreement in writing for such arbitration” the court “shall on application of one of

the parties stay the trial of the action until such arbitration has been had in

accordance with the terms of the agreement.” 9 U.S.C. § 3. 

Indeed, these policies are so strong, that, “as a matter of federal law, any

doubts concerning the scope of arbitrable issues should be resolved in favor of

arbitration, whether the problem at hand is the construction of the contract

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language itself or an allegation of waiver, delay, or a like defense to arbitrability.” 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); see

also Heritage Skin Care, Inc. v. Dyno-Heritage Brands, Inc., No. 03-20282-CIV,

2003 U.S. Dist. LEXIS 11090, 11091 (S.D. Fla. Feb. 25, 2003) (noting if any

ambiguity exists as to the scope of the arbitration clause, the Court must resolve

those issues in favor of arbitration).

The Eleventh Circuit has made clear that courts reviewing an arbitration

agreement under the FAA must compel arbitration upon a showing that (1) a

written enforceable arbitration agreement exists between the parties; and (2) the

claims before the court fall within the scope of that agreement. See Anderson v.

Am. Gen. Ins., 688 F. App’x 667, 669 (11th Cir. 2017); see also Federal Arbitration

Act, 9 U.S.C. §2.

An arbitration agreement governed by the FAA, like the Arbitration

Agreement here, is presumed to be valid and enforceable. See Palidino v. Avnet

Computer Technologies, Inc., 134 F.3d 1054, 1057 (11th Cir. 1998) (“The FAA

creates a presumption in favor of arbitrability”). The Court considers a motion to

compel arbitration under a summary judgment-like standard and may decide the

motion as a matter of law where there is no genuine dispute of fact. Bazemore v.

Jefferson Capital Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) (district court

may conclude as a matter of law that parties did or did not enter into an arbitration

agreement if there is no genuine dispute as to any material fact concerning the

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formation of such an agreement).

III. DISCUSSION

As a threshold matter, however, this Court must determine the proper

decision maker to resolve the issue of arbitrability. The United States Supreme

Court acknowledged the right of parties to include delegation clauses in arbitration

agreements, whereby they “agree to arbitrate ‘gateway ‘ questions of ‘arbitrability,’

such as whether the parties have agreed to arbitrate or whether their agreement

covers a particular controversy.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63,

68-69 (2010). Any challenge to the validity or enforceability of the entire agreement

is subject to arbitration and must be left for the arbitrator to resolve. Id. at 70-71. 

When parties agree to arbitrate all disputes between them, questions

concerning the validity of the contract are to be resolved by the arbitrator in the

first instance, not by a federal or state court. Preston v. Ferrer, 552 U.S. 346, 349

(2008). The law is clear that parties may bar courts from deciding whether a

dispute is arbitrable by “clearly and unmistakably” contracting for an arbitrator to

determine arbitrability. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139

S.Ct. 524, 527-528 (2019). Thus, “when . . . parties explicitly incorporate rules that

empower an arbitrator to decide issues of arbitrability, the incorporation serves as

clear and unmistakable evidence of the parties’ intent to delegate such issues to an

arbitrator.” Terminix Int’l Co. v. Palmer Ranch Ltd., 432 F.3d 1327, 1332 (11th Cir.

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2005).

In this case, the delegation of these threshold determinations to the

arbitrator is unequivocal. “Plaintiffs recognize that the agreements contain

delegation provisions that require the arbitrator, and not this Court, to determine

the threshold arbitration issues.” (ECF No. 37 at 2)

The undersigned finds that it is undisputed that the seventy-three persons

identified by the parties entered into the Mandatory Arbitration Agreement which

contained an arbitration clause expressly covering the claims contained within this

action. Therefore, the undersigned finds that the request to arbitrate these claims

are proper, and claims regarding “validity and enforceability” must be presented to

the arbitrator. (ECF No. 37 at 2) Because there is no dispute as to the clear and

unmistakable delegation of the threshold issues to the arbitrator, this Court should

compel arbitration.

Therefore, applying the required summary judgment-like standard required

in assessing a motion to compel arbitration, see Bazemore, 827 F.3d at 1333, there

is no genuine dispute of fact. The undisputed evidence in the record demonstrates

that the parties entered into an arbitration agreement in the Mandatory

Arbitration Agreement and that Plaintiffs agreed to arbitrate any disputes against

Defendant pursuant to the arbitration provision. Both the FAA—which creates a

strong presumption in favor of enforcing arbitration agreements—and federal and

state court precedent mandate the arbitration of these Plaintiffs’ claims. 

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Plaintiffs request that the District Judge stay this action instead of

dismissing it. Defendant argues that the case should be dismissed without

prejudice as to these Plaintiffs. When a case is subject to binding arbitration, it is

within the district court’s discretion whether to stay or dismiss a case. Envision

HealthCare Corp. v. United HealthCare Ins. Co., 311 F. Supp. 3d 1322, 1325 (S.D.

Fla. 2018) (finding dismissal without prejudice appropriate where case was pending

less than two months and the alleged violations occurred within the last five years,

such that the statute of limitations would not be implicated); Wolfe v. Carnival

Corp., 423 F. Supp. 3d 1347, 1349 (S.D. Fla. 2019) (stating that when all the issues

in the case are subject to arbitration, the district court has discretion to dismiss a

case, rather than stay it). This decision is more properly left to the District Court

Judge.

CONCLUSION

Having carefully considered the Motion, the Response, the court file and the

applicable case law, and finding no Reply necessary, it is hereby 

RECOMMENDED that Defendant’s Motion to Compel Arbitration be

GRANTED. Plaintiff requests that the case be stayed as to the seventy-three

Plaintiffs at issue rather than be dismissed without prejudice. The undersigned

leaves this decision to the District Court Judge since it is in his discretion to do

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either. As previously stated, Defendant’s Motion for Partial Summary Judgment

and unrelated arguments regarding the Motion to Dismiss will be addressed by

the District Court Judge pending a determination on the Motion to Compel

Arbitration. 

The parties will have fourteen (14) days from the date of being served with a

copy of this Report and Recommendation within which to file written objections, if

any, with the Honorable William P. Dimitrouleas, United States District Judge. 

Failure to file objections timely shall bar the parties from a de novo determination

by the District Judge of an issue covered in the Report and shall bar the parties

from attacking on appeal unobjected-to factual and legal conclusions contained in

this Report, except upon grounds of plain error if necessary in the interest of justice. 

See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v.

Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).

 DONE AND SUBMITTED at Fort Lauderdale, Florida, this 8th day of October.

Copies furnished to:

All Counsel of Record

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