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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 9:22-CV-81137-Cannon

JOSHUA BAXTER and SANDRA SUMMERS, 

individually and on behalf of all others similarly 

situated,

Plaintiffs,

v.

CROSS COUNTRY HEALTHCARE, INC. and 

TRAVEL STAFF, LLC,

Defendants.

PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY

TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION

Under Local Rule 7(c)(1), Plaintiffs respectfully request leave of Court to file a surreply to 

respond to the new arguments, new facts, and eight new exhibits raised in Cross Country’s 20-

page Reply supporting its Motion to Compel Arbitration (Docs. 21, 29). In support of this Motion, 

Plaintiffs attach as Exhibit 1 their proposed Surreply, which they have limited to the new 

arguments and evidence that Cross Country raised on reply. In addition, Plaintiffs state as follows:

1. It is “well-established that ‘[a]rguments not properly presented in a party’s initial 

brief or raised for the first time in the reply brief are deemed waived.’” MY. P.I.I. LLC v. H&R 

Marine Eng’g, Inc., 544 F. Supp. 3d 1334, 1349–50 (S.D. Fla. 2021); see also Rankin v. Celebrity 

Cruises, Ltd., 489 F. App’x 362, 362 n.1 (11th Cir. 2012) (“the law of this circuit is clear that 

arguments which are first raised in a reply brief are deemed waived.”). To that end, Local Rule 

7.1(c)(1) prohibits raising new arguments in a reply memorandum. LR 7.1(c)(1) (“reply 

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memorandum shall be strictly limited to rebuttal of matters raised in the memorandum in 

opposition without reargument of matters covered in the movant’s initial memorandum of law.”).

2. “If a party does not follow these parameters and interjects new argument, the 

opposing parties may file a surreply, provided they first obtain ‘leave of Court.’” See LR 7.1(c)(1); 

Fed. Deposit Ins. Corp. v. Prop. Transfer Servs., Inc., No. 12-80533-CV, 2013 WL 11327802, at 

*1 (S.D. Fla. Aug. 9, 2013). “A district court’s decision to permit the filing of a surreply is purely 

discretionary . . . .” First Specialty Ins. Corp. v. 633 Partners, Ltd., 300 Fed.Appx. 777, 788 (11th 

Cir. 2008) (stating, however, that “Our sister circuits have held that a district court can abuse its 

discretion by failing to give the opposing party a chance to respond to materials presented for the 

first time in a reply brief and instead granting summary judgment on the basis of that evidence.”); 

Hammet v. Am. Bankers Ins. Co., 203 F.R.D. 690, 695 n.1 (S.D. Fla. 2001) (granting motion for 

leave to file a surreply “[b]ecause [the opposing party] presented new arguments and a new theory” 

in their reply).

3. Here, Cross Country improperly raised new arguments and new evidence in its 

Reply in support of compelling arbitration. Many of those new arguments and assertions flatly 

contradict those made in its initial moving papers. As just some examples: 

• In its initial motion, Cross Country stated that an arbitration agreement was a 

“precondition to receiving an assignment” with the company. Doc. 15, at 3. Cross 

Country retracts this assertion on reply, now claiming by declaration that “[a]n 

executed arbitration agreement is not required before a travel nurse can begin her 

assignment.” See Doc. 29-2, Fain Declaration, at 5, ¶¶ 23-24 (emphasis added).

• In its consolidated motion, Cross Country asserted that “[e]nforceable arbitration 

agreements were formed because TS offered temporary assignments to Plaintiffs 

and, as a condition of those assignments, included a mutual agreement to submit 

disputes between the parties to binding arbitration, which Plaintiffs accepted for the 

consideration of employment.” Doc. 21 at 8-9. In its Reply, Cross Country attempts

to back away from its earlier claim that the arbitration agreements were offered in 

connection with particular assignments, now claiming that one arbitration 

agreement applies to all of an employee’s non-California assignments. See Doc. 29, 

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at 6 (claiming that “once a travel nurse executes” an arbitration agreement, “if they 

obtain a subsequent assignment that would implicate the same type of agreement 

(e.g., a travel nurse staffed in California retains another assignment in California), 

TS does not require that they execute another arbitration agreement, as the 

agreement pertains to their employment with TS which is not terminated as a matter 

of course when an assignment ends.”).

• Finally, in its consolidated motion, Cross Country indicated that it was relying on 

the “express terms” of the two arbitration agreements it submitted. See Doc. 21 at 

9-10 (explaining that “[b]y their express terms, the Agreements plainly apply to all 

of the claims in Plaintiffs’ Complaint, each of which arises out of or relates to their 

employment as travel nurses with TS.”). Cross Country now backs away from this 

claim too, relying instead on its internal onboarding processes—which it discusses

for the first time on reply—arguing that the arbitration agreement it submitted for 

Plaintiff Baxter applied to claims arising out of his at-issue Florida assignment. 

Doc. 29 at 14 (claiming that Plaintiffs’ assertion that each assignment was 

associated with a separate agreement to arbitrate is “completely at odds with how 

CCH operates.”).

3. These shifting assertions go to the heart of the Parties’ dispute as to whether the 

Plaintiffs entered valid and enforceable agreements to arbitrate their claims. And as all the 

information that Cross Country now asserts was in its possession, there was no justifiable reason 

for Cross Country to withhold it until its Reply. Indeed, prior to filing their Opposition papers,

Plaintiffs asked Cross Country to provide them with all documents on which it relied in seeking to 

compel arbitration, but Cross country refused to provide them with any documents or information.1

Instead, Cross Country waited until its Reply to submit these documents, thus eliminating the 

opportunity for any rebuttal.

4. Cross Country’s Reply also attaches two new declarations and six other new 

exhibits. Many of these documents provide misleading and unverified information. As just a few 

examples:

1 Cross Country’s selective release of information and refusal to engage in discovery is the 

subject of Plaintiffs’ concurrently filed opposition to Cross Country’s motion to stay discovery, 

which Plaintiffs incorporate by reference.

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• Cross Country submits a purported California arbitration agreement for Plaintiff 

Baxter. But when Plaintiff Baxter recently visited his Cross Country portal, his 

incomplete tasks still included a California arbitration agreement, calling into 

question the proffered version (Doc. 29-5). See Exhibit 2, Screenshots of Plaintiff 

Baxter’s Cross Country Portal from September 1, 2022.

• Cross Country submits for the first time on reply a document it characterizes as an 

“Employment Terms and Conditions Booklet.” There are numerous issues with this 

document, including that it is not signed by either of the Plaintiffs, and Cross 

Country provides no evidentiary support it was accessible to Plaintiffs, which they 

both previously attested they did not receive. 

• Offering eight pages or 39 paragraphs of new information, the Declaration of 

Danielle Fain (Doc. 29-2) broadly discusses Cross Country’s “onboarding 

process,” “renewal process,” and “arbitration agreements” and references six other 

exhibits. See generally Doc. 29-2; id. (citing Exhibits A-F or Docs. 29-3 through 

29-8). In doing so, however, it conflicts with the record, omits key details, and, 

ultimately, is misleading.

5. If granted leave to file a surreply, Plaintiffs will contest these new exhibits and 

Cross Country’s new arguments, and thus avoid the prejudice of leaving new material uncontested.

6. Plaintiffs’ counsel certifies that they have conferred with Cross Country’s counsel 

in a good faith effort to resolve the issues raised in the motion and have been unable to do so. Cross 

Country does not consent to Plaintiffs filing a surreply.

WHEREFORE, Plaintiffs respectfully request leave of Court to file a surreply to Cross 

Country’s Reply (Doc. 29) or, alternatively, urge the Court to deny Cross Country’s motion 

outright or grant Plaintiffs’ request under Section 4 of the FAA for arbitration-related discovery 

and a jury trial on the validity of the proffered arbitration “agreements.”

Dated: November 2, 2022 Respectfully submitted:

SHAVITZ LAW GROUP, P.A.

/s/ Gregg I. Shavitz

Gregg I. Shavitz

951 Yamato Road, Suite 285

Boca Raton, FL 33431

Telephone: (561) 447-8888

Case 9:22-cv-81137-AMC Document 31 Entered on FLSD Docket 11/02/2022 Page 4 of 5
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Fax: (561) 447-8831

gshavitz@shavitzlaw.com

STUEVE SIEGEL HANSON LLP

J. Austin Moore*

Alexander T. Ricke*

K. Ross Merrill*

* Admitted pro hac vice

460 Nichols Road, Suite 200

Kansas City, Missouri 64112

Telephone: (816) 714-7100

Facsimile: (816) 714-7101

moore@stuevesiegel.com

ricke@stuevesiegel.com

merrill@stuevesiegel.com

Attorneys for Plaintiffs and the Putative Class and 

Collective

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