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, 

 Plaintiff, 

v. 

CROSS COUNTRY HEALTHCARE, INC. 

and TRAVEL STAFF, LLC, 

 Defendants. 

DEFENDANTS’ MOTION TO COMPEL INDIVIDUAL ARBITRATION 

AND DISMISS THE COMPLAINT OR, IN THE ALTERNATIVE, TO STAY THE CASE 

Defendants Cross Country Healthcare, Inc. (“CCH”) and Travel Staff, LLC (“TS”) 

(collectively, “Defendants”), by and through their undersigned counsel, and pursuant to Rules 12(b) 

and 12(b)(6) of the Federal Rules of Civil Procedure, hereby move to compel to arbitration Plaintiff 

Joshua Baxter’s (“Baxter”) and Plaintiff Sandra Summers’s (“Summers”) (collectively, 

“Plaintiffs”) claims and dismiss with prejudice the putative class and collective action First 

Amended Complaint (“Complaint” or “Compl.”; Dkt. No. 11).1

1

 Defendants previously filed a similar motion to compel with respect to Plaintiff Baxter. (Dkt. 

No. 15.) Thereafter, Defendants agreed to accept service of the First Amended Complaint, which 

added Plaintiff Sandra Summers but which had not been served upon Defendants prior to their 

initial motion to compel. (Dkt. No. 17.) Defendants’ submission of this motion postpones their 

deadline for filing a responsive pleading, which Defendants otherwise expressly reserve to file 

along with additional affirmative defenses. See Lamkin v. Morinda Props. Weight Parcel, LLC, 

440 F. App’x 604, 607-08 (10th Cir. 2011) (“[A] defendant in a pending lawsuit may file a petition 

or motion to compel arbitration in lieu of an answer to the complaint.” (quoting Jay A. Grenig, 

Alternative Dispute Resolution § 23:3 at 574 (3d ed. 2005)); Davis v. S. Energy Homes, Inc., 305 

F.3d 1268, 1270 (11th Cir. 2002); Zenith Quest Int’l, LLC v. Topali Ship Mgmt., Inc., No. 12-cv23233, 2012 WL 12867955, at *1 (S.D. Fla. Nov. 6, 2012). 

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PRELIMINARY STATEMENT

Plaintiffs are former employee of TS, a company that specializes in healthcare staffing and, 

specifically, the temporary placement of nurses at various hospitals around the country; it places 

what are referred to in the industry as “travel nurses.” Plaintiffs worked as travel nurses for TS; 

Baxter worked in Florida, and Summers worked in California. 

Plaintiffs agreed to submit any and all disputes arising out of or in any way related to their 

employments to binding arbitration, including but not limited to claims for breaches of contract, 

violations of state labor and employment laws, unpaid compensation, expenses or wages, and/or 

violations of any other federal, state or local statute, ordinance or regulation, contract, tort or 

common law (generally referred to separately as Baxter’s or Summers’s “Agreement”). (A copy 

of Baxter’s Arbitration Agreement, together with tracking data confirming that Baxter viewed and 

executed the Arbitration Agreement, is attached here as Exhibit A; a copy of Summers’s 

Arbitration Agreement, together with tracking data confirming that Summers viewed and executed 

the Arbitration Agreement, is attached here as Exhibit B.) 

 Additionally, Plaintiffs expressly agreed to waive their right to bring, maintain, 

participate in, or receive money from, any class, collective, or representative proceeding, whether 

in arbitration or otherwise. (Exhibits A and B.) 

Thus, all of the claims in the Complaint—common law violations sounding in breach of 

contract and fraud and statutory violations of state wage-and-hour laws and the Fair Labor 

Standards Act (“FLSA”)—are subject to the arbitration and the class and collective waiver 

provisions. Accordingly, the Court should strike the class and collective allegations, compel 

separate and individual arbitrations of each Plaintiff’s claims and dismiss the action, or, 

alternatively, stay the action pending the outcome of the arbitrations of each Plaintiff’s claims. 

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STATEMENT OF RELEVANT FACTS 

A. Defendants Cross Country Healthcare, Inc. and Travel Staff, LLC 

CCH is a healthcare staffing agency with operations throughout the United States. (Compl., 

¶ 14.) Healthcare facilities in need of temporary staffing contract with CCH to provide healthcare 

personnel and services, including but not limited to the provision of travel nurses. (Id.) Once 

contracted with a healthcare facility to provide a temporary travel nurse, CCH separately engages 

TS to manage and arrange the assignment of that travel nurse to the contracted healthcare facility. 

(Id. at ¶ 9.) 

B. Plaintiffs 

1. Plaintiff Baxter 

In March 2022, TS offered a temporary assignment to Baxter in Gainesville, Florida. (Id.

at ¶ 19.) On March 25, 2021, before he received that (and other) assignments from TS, Baxter 

executed an arbitration agreement. (See Exhibit A.). Baxter’s Agreement, in relevant part, states: 

In consideration of the mutual promises contained herein, Undersigned Employee 

(“Employee”) and Travel Staff, LLC (“Company”) (collectively, the “Parties”) 

agree that binding arbitration shall be the exclusive means of resolving all 

claims between them, whether or not arising out of or in any way related to 

Employee’s employment with Company or the termination thereof, and including, 

but not limited to, disputes involving Company clients and vendors. Final and 

binding arbitration before a single, neutral arbitrator shall be the exclusive remedy 

for any covered claim. A “covered claim” is any claim (except a claim that by law 

is nonarbitrable or that is specifically exempted in Section D below) now existing 

or arising in the future, including but not limited to a claim for: breach of contract; 

violation of any provision of the state labor and employment laws; unpaid expenses 

or wages; unpaid compensation or penalties for missed meal or rest breaks; 

wrongful termination; unfair competition; discrimination, harassment or unlawful 

retaliation; slander or libel’ intentional interference with contractual relations or 

prospective economic advantage; breach of the duty of loyalty; intentional or 

negligent infliction of emotional distress; conversion; and/or violation of any other 

federal, state or local statute, ordinance or regulation or constitutional, contract, tort 

or common law theory. This does not include claims that may not be arbitrated as 

a matter of law. As to any covered claim, each party waives the right to trial by jury 

or judge to the extent permitted by law. Each party also waives the right to bring, 

maintain, participate in, or receive money from, any class, collective, or 

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representative proceeding, whether in arbitration or otherwise. However, 

nothing prohibits the arbitrator from consolidating claims filed by individual 

employees in a single arbitration proceeding so long as the arbitrator does not 

certify (conditionally or otherwise) a collective, class, or permit a representative 

action that includes individuals who have not themselves already submitted their 

own individual claims. Company, while it may take all steps necessary to enforce 

this Agreement in legal proceedings, will not discipline or otherwise retaliate 

against Employee for engaging in concerted activity, as discussed in Section F 

below, even if that activity is in breach of this Agreement. 

(Id.) (emphasis added). 

By signing the Agreement, Baxter agreed that “binding arbitration shall be the exclusive 

means of resolving all claims” arising out of or in any way related to his employment, including 

but not limited to claims sounding in breach of contract; violation of any provision of the state 

labor and employment laws; unpaid expenses or wages; and violation of any federal, state or local 

statute, ordinance or regulation or constitutional, contract, tort or common law theory. (Id.) 

On July 29, 2022, Baxter filed a Complaint on behalf of himself and a putative 

class/collective in this Court. (Dkt. No. 1.) On August 12, 2022, Baxter filed an Amended 

Complaint adding Summers as an additional named plaintiff but otherwise retaining the same 

substantive allegations. (Dkt. No. 11.) With respect to Baxter, the Complaint only contains claims 

arising out of Baxter’s employment with TS—namely: wage statute violations under the FLSA 

and state laws; fraudulent misrepresentations as to the terms and conditions of his temporary 

assignments; and breach of contact. (See generally id.) 

2. Plaintiff Summers 

In March 2022, TS offered a temporary assignment to Summers in Walnut Creek, 

California. (Compl. at ¶ 26.) On March 6, 2022, before she received that (and other), Summers 

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executed an arbitration agreement. (See Exhibit B.). Summers’s Agreement, in relevant part, 

states: 

In consideration of the mutual promises contained herein, Undersigned Employee 

(“Employee”) and Travel Staff, LLC (“Company”) (collectively, the “Parties”) 

agree that binding arbitration shall be the exclusive means of resolving all 

claims between them, whether or not arising out of or in any way related to 

Employee’s employment with Company or the termination thereof, and including, 

but not limited to, disputes involving Company clients and vendors. Final and 

binding arbitration before a single, neutral arbitrator shall be the exclusive remedy 

for any covered claim. A “covered claim” is any claim (except a claim that by law 

is nonarbitrable or that is specifically exempted in Section D below) now existing 

or arising in the future, including but not limited to a claim for: breach of contract; 

violation of any provision of the state labor and employment laws; unpaid expenses 

or wages; unpaid compensation or penalties for missed meal or rest breaks; 

wrongful termination; unfair competition; discrimination, harassment or unlawful 

retaliation; slander or libel’ intentional interference with contractual relations or 

prospective economic advantage; breach of the duty of loyalty; intentional or 

negligent infliction of emotional distress; conversion; and/or violation of any other 

federal, state or local statute, ordinance or regulation or constitutional , contract, 

tort or common law theory. This does not include claims that may not be arbitrated 

as a matter of law. As to any covered claim, each party waives the right to trial by 

jury or judge to the extent permitted by law. Each party also waives the right to 

bring, maintain, participate in, or receive money from, any class, collective, or 

representative proceeding, whether in arbitration or otherwise. However, 

nothing prohibits the arbitrator from consolidating claims filed by individual 

employees in a single arbitration proceeding so long as the arbitrator does not 

certify (conditionally or otherwise) a collective, class, or permit a representative 

action that includes individuals who have not themselves already submitted their 

own individual claims. Company, while it may take all steps necessary to enforce 

this Agreement in legal proceedings, will not discipline or otherwise retaliate 

against Employee for engaging in concerted activity, as discussed in Section F 

below, even if that activity is in breach of this Agreement. 

(Id.) (emphasis added). 

By signing the Agreement, Summers agreed that “binding arbitration shall be the exclusive 

means of resolving all claims” arising out of or in any way related to her employment, including 

but not limited to claims sounding in breach of contract; violation of any provision of the state 

labor and employment laws; unpaid expenses or wages; and violation of any federal, state or local 

statute, ordinance or regulation or constitutional, contract, tort or common law theory. (Id.) 

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On August 12, 2022, Summers joined Baxter as a named plaintiff and filed an Amended 

Complaint. (Dkt. No. 11.) With respect to Summers, the Complaint only contains claims arising 

out of her employment with TS—namely: wage statute violations under the FLSA and state laws; 

fraudulent misrepresentations as to the terms and conditions of his temporary assignments; and 

breach of contact. (See generally id.) 

ARGUMENT 

I. This Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims Because the 

Parties Agreed to a Mandatory Arbitration Clause and a Class Action Waiver. 

“A motion to compel arbitration is treated as a motion to dismiss for lack of subject-matter 

jurisdiction.” See Babcock v. Neutron Holdings, Inc., 454 F. Supp. 3d 1222, 1228 (S.D. Fla. 2020) 

(citing McElmurray v. Consol. Gov’t of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 

2007).) Accordingly, the Court may consider matters “outside the four corners of the Complaint[,]” 

and may conclude as a matter of law that the parties entered into an arbitration agreement. See id. 

In addition, the Court applies the same standard to a motion to strike class allegations based 

on a class action waiver within an arbitration agreement. See, e.g., Cruz v. Cingular Wireless, 

LLC, 648 F.3d 1205, 1210 (11th Cir. 2011) (affirming order compelling individual arbitration and 

holding that parties’ class action waiver contained in arbitration provision was enforceable). 

A. Plaintiffs Baxter and Summers Agreed to Binding Arbitration 

Plaintiffs’ Agreements to arbitrate are governed by and enforceable under the FAA. The 

FAA, which applies to written arbitration provisions contained in any contract evidencing 

commerce, establishes a liberal national policy favoring arbitration. See Moses H. Cone Mem’l 

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); 9 U.S.C. § 2. The United States 

Supreme Court has repeatedly emphasized that the FAA embodies a “strong federal policy in favor 

of arbitration agreements” that requires courts to “rigorously enforce agreements to arbitrate.” See

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AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011) (holding that “overarching purpose” 

of FAA “is to ensure enforcement of arbitration agreements according to their terms so as to 

facilitate streamlined proceedings” between parties); Caley v. Gulfstream Aerospace Corp., 428 

F.3d 1359, 1367 (11th Cir. 2005). Indeed, the central purpose of the FAA “is to ensure that private 

agreements to arbitrate are enforced according to their terms.” Stolt-Nielsen S.A. v. AnimalFeeds 

Int’l Corp., 559 U.S. 662, 682 (2010) (quotations omitted). 

Indeed, “[t]he statute’s text ... ‘requires courts to enforce the bargain of the parties to 

arbitrate.”’ Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 532-33 (2012); KPMG LLP v. 

Cocchi, 565 U.S. 18, 22 (2011) (FAA “leaves no place for the exercise of discretion by a district 

court, but instead mandates that district courts shall direct the parties to proceed to arbitration on 

issues as to which an arbitration agreement has been signed”’). 

This public policy favoring arbitration and the FAA’s provisions extends to agreements to 

arbitrate employment-related claims (with exceptions not relevant here), both under federal and 

state laws. See Caley, 428 F.3d at 1367 (citing Circuit City v. Adams, 532 U.S. 105, 119 (2001)); 

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1313 (11th Cir. 2002)); Chase Manhattan Inv. Servs., 

Inc. v. Miranda, 658 So. 2d 181, 182 (Fla. 3d DCA 1995) (recognizing “the strong bias in favor 

of arbitration mandated both by the applicable federal law ... and by our own”). 

Pursuant to the FAA, courts conduct a three-step inquiry to determine whether the parties 

entered into an enforceable arbitration agreement: (1) whether a valid written agreement to 

arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was 

waived. See Polvent v. Global Fine Arts, Inc., No. 14-cv-21569, 2014 WL 4672442, at *2-3 (S.D. 

Fla. Sept. 18, 2014) (granting motion to compel arbitration). Here, there can be no dispute that 

these requirements have been met: (1) a valid arbitration agreement exists between Plaintiffs and 

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TS; (2) the Agreements plainly (and expressly) cover all claims raised in Plaintiffs’ Complaint, 

thereby creating an arbitrable issue; and (3) the right to arbitrate has not been waived. 

1. Valid arbitration agreements exist between Plaintiffs Baxter and 

Summers and TS.

The Agreements between Baxter, Summers and TS are valid and enforceable. An 

agreement to arbitrate, including one entered into between an employee and employer, is treated 

like any other contract, and in evaluating whether a binding contract arose between the parties, 

courts apply the contract law of the particular state that governs the formation of a contract. See

Burch v. P.J. Cheese, Inc., 861 F.3d 1338, 1346 (11th Cir. 2017); Caley, 428 F.3d at 1369. Federal 

policy requires courts to construe arbitration clauses as broadly as possible with all ambiguities 

resolved in favor of arbitration. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 

(1995). 

Under Florida law, the formation of an enforceable contract requires “an offer, an 

acceptance, consideration, and sufficient specification of terms so that the obligations involved 

can be ascertained.” See Jackson v. Home Team Pest Def., Inc., No. 6:13-cv-916, 2013 WL 

6051391, at *5 (M.D. Fla. Nov. 15, 2013) (citing W. Constr. Inc. v. Fla. Blacktop, Inc., 88 So. 3d 

301, 304 (Fla. 4th DCA 2012)). 

Here, Plaintiffs executed their respective Agreements, which contain all the terms and 

conditions of arbitration, and willingly agreed to be bound by those terms and conditions. 

(Exhibits A and B.) Enforceable arbitration agreements were formed because TS offered 

temporary assignments to Plaintiffs and, as a condition of those assignments, included a mutual 

agreement to submit all disputes between the parties to binding arbitration, which Plaintiffs 

accepted for the consideration of employment. See Bhim v. Rent-A-Center, Inc., 655 F. Supp. 2d 

1307, 1312-13 (S.D. Fla. 2009) (holding that under Florida law, employee’s arbitration agreement 

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with employer was supported by consideration, where agreement contained mutual promises to 

arbitrate, and employee received additional consideration in the form of continued employment); 

Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658, 661 (Fla. 4th DCA 2008) (holding 

that arbitration agreement was valid and enforceable because it was supported by mutual 

obligations to arbitrate); Kinko’s, Inc. v. Payne, 901 So. 2d 354, 355 (Fla. 2d DCA 2005) (“[T]he 

agreement of a party to submit to arbitration is sufficient consideration to support the other party’s 

agreement to do the same”). 

For the foregoing reasons, a valid and enforceable agreement to arbitrate exists. 

2. The Agreements clearly cover all claims raised in Plaintiff Baxter and 

Summers’s Complaint, thereby creating an arbitrable issue.

By 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. 

First, the Supreme Court has held that statute-based employment claims, such as those 

Plaintiffs have asserted here (e.g., under the FLSA), are properly the subject of arbitration. See

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991). 

Second, the Agreements, by their clear and unambiguous terms, expressly state that 

Plaintiffs’ claims are covered, and even if there are any doubts as to the scope of arbitrable issues, 

they “should be resolved in favor of arbitration.” See Moses H. Cone, 460 U.S. at 24-25. “[A]n 

order to arbitrate [a] particular grievance should not be denied unless it may be said with positive 

assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted 

dispute.” AT&T Techs. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986); see also Sanchez 

v. J.P. Morgan Chase Bank, N.A., No. 14-cv-20468, 2014 WL 4063046, at *4 (S.D. Fla. Aug. 15, 

2014) (compelling arbitration and stating that “[s]o long as a dispute ‘touch[es]’ on a matter 

covered by the arbitration clause, it must be arbitrated.”) 

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Here, the Agreements apply to any disputes or claims arising out of or relating to the 

employment relationships between Plaintiffs and TS, including any claims sounding in breach of 

contract, violations of any provision of the state labor and employment laws, unpaid expenses or 

wages, and violations of any federal, state or local statute, ordinance or regulation or constitutional, 

contract, tort or common law theory. (Exhibits A and B.) Each and every cause of action that 

Plaintiffs bring here relates solely to their employment relationships with TS. (See Compl. at ¶¶ 

59-138.) 

Although CCH is not identified as a “Party” to the Agreement, both TS and CCH may seek, 

and obtain, the relief sought here, because Plaintiffs allege in their Complaint that CCH and TS 

are acting as one entity. Throughout the Complaint there are numerous allegations of joint 

misconduct or a joint relationship between the two Defendants. (See Compl. at ¶¶ 58-64.) These 

allegations estop Plaintiffs from avoiding arbitration with CCH. See Leece v. GA BNRV Sales, 

LLC, No. 21-cv-308, 2021 WL 7542411, at *3 (M.D. Fla. July 20, 2021) (granting defendants 

motion to compel arbitration). 

Accordingly, Plaintiffs’ claims unquestionably fall within the scope of the arbitration 

provision of the Agreements. 

3. Defendants’ right to arbitrate has not been waived.

Defendants have not waived their right to arbitrate in any way. 

“A party may be deemed to have waived its right to arbitrate a dispute ‘when a party seeking 

arbitration substantially invokes the judicial process to the detriment or prejudice of the other 

party.’” See Stone v. E.F. Hutton & Co., Inc., 898 F.2d 1542, 1543 (11th Cir. 1990). 

Here, however, Defendants have responded to Plaintiffs’ Complaint by filing the instant 

Motion to Compel and Dismiss and thus have not waived their right to arbitrate. See Abdullah v. 

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Am. Express Co., No. 12-cv-1037, 2012 WL 6867675, at *5 (M.D. Fla. Dec. 19, 2012) (holding 

that by responding to plaintiff’s complaint with motion to dismiss and compel arbitration, 

defendant did not waive its right to arbitrate). Defendants have not filed an Answer and have not 

otherwise engaged in litigation in a manner that would rise to the level of waiver. 

B. Plaintiffs Agreed to Binding Arbitration on an Individual Basis, and this Court 

Should Strike the Class and Collective Action Allegations 

Upon compelling arbitration, the Court should strike Plaintiffs’ class and collective action 

allegations because Plaintiffs are bound by valid and enforceable arbitration agreements with 

respect to Plaintiffs’ claims, which contain a waiver of class and collective action claims. Both 

the United States Supreme Court and the Eleventh Circuit have upheld the application of such 

class action waivers in the arbitration context. See AT&T Mobility LLC v. Concepcion, 563 U.S. 

333 (2011); Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018); Pendergast v. Sprint Nextel Corp., 

691 F.3d 1224, 1236 (11th Cir. 2012) (“Under Concepcion, both the class action waiver and the 

arbitration clause must be enforced according to their terms”); Cruz, 648 F.3d at 1210 (affirming 

lower court order compelling individual arbitration and holding that parties’ class action waiver 

contained in arbitration provision was enforceable). 

Here, Plaintiffs’ class and collective allegations must be stricken because the parties agreed 

that any claims would be brought on an individual basis.2 See, e.g., In re Checking Account 

Overdraft Litig., No. 1:08-CV-22463-JLK, 2019 WL 6838631, at *8 (S.D. Fla. Sept. 26, 

2019), aff’d, 856 F. App’x 238 (11th Cir. 2021) (dismissing claims of unnamed class members 

without prejudice to them bringing claims in individual arbitration); Rimel v. Uber Techs., Inc., 

No. 615CV2191ORL41KRS, 2016 WL 6246812, at *8 (M.D. Fla. Aug. 4, 2016) (“Based on these 

2 To the extent the Arbitration Agreements permit consolidation of individual claims, the appropriateness of 

consolidation of otherwise individual claims can only be determined by the arbitrator. (See Exhibits A and B.) 

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authorities, Defendants’ request that the Court strike Rimel’s class action allegations is well 

taken.”), report and recommendation adopted, 246 F. Supp. 3d 1317 (M.D. Fla. 2017); see also 

Webb v. DoorDash, Inc., 451 F. Supp. 3d 1360, 1369 (N.D. Ga. 2020) (“Because it does not run 

afoul of general contract principles, the Court holds the class action waiver is enforceable.”). 

C. The Court Should Dismiss the Complaint with Prejudice 

“A case in which arbitration has been compelled may be dismissed in the proper 

circumstances, such as when all the issues raised in ... court must be submitted to arbitration.” 

Olsher Metals Corp. v. Olsher, No. 01-cv-3212, 2003 WL 25600635, at *9 (S.D. Fla. Mar. 26, 

2003), aff’d, 90 F. App’x 383 (11th Cir. 2004); see also Green Tree Fin. Corp. - Ala. v. Randolph, 

531 U.S. 79, 87 (2000); Emp’s Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 

1326 (11th Cir. 2001) (recognizing that the dismissal of an action in favor of arbitration was an 

appropriate procedural decision). 

Here, since all of Plaintiffs’ claims are subject to arbitration and the class and collective 

actions should be stricken, nothing will remain for this Court to resolve once arbitration is 

compelled. Dismissal with prejudice is thus appropriate. See Mackler v. Fitness Int’l, LLC, No. 

16-cv-80150, 2016 WL 7756623, at *5 (S.D. Fla. Apr. 22, 2016) (compelling arbitration and 

dismissing district court action with prejudice); Hodgson v. NCL (Bah.), Ltd., 151 F. Supp. 3d 

1315, 1316-17 (S.D. Fla. 2015) (compelling arbitration and dismissing complaint) (collecting 

cases); Pysarenko v. Carnival Corp., No. 14-cv-20010, 2014 WL 1745048, at *8 (S.D. Fla. Apr. 

30, 2014) (same), aff’d, 581 F. App’x 844 (11th Cir. 2014); 24 Go Wireless, Inc. v. AT & T Mobility 

II, LLC, No. 11-cv-20930, 2011 WL 2607099, at *3 (S.D. Fla. June 30, 2011) (same). 

The rationale for dismissal of an action with prejudice, rather than staying of the action, is 

that staying the action “serve[s] no purpose because any post-arbitration remedies sought by the 

parties would be limited, and would not involve a merits adjudication of the controversy.” Kozma 

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v. Hunter Scott Fin., L.L.C., No. 09-cv-80502, 2010 WL 724498, at *2 (S.D. Fla. Feb. 25, 2010). 

Dismissal with prejudice is therefore appropriate here. 

II. Alternatively, the Court Should Stay these Proceedings Pending the Conclusion of 

Arbitration. 

If this Court is inclined to compel arbitration but not dismiss Plaintiffs’ claims, all 

proceedings related to those claims in this Court should still be stayed. 9 U.S.C. § 3; Shearson/Am. 

Express, Inc. v. McMahon, 482 U.S. 220, 226-27 (1987) (once it is determined that the claims 

asserted in a pending action are subject to an arbitration agreement, the FAA mandates that the 

proceedings be stayed pending arbitration). 

Plaintiffs’ claims may be stayed because they were brought upon an issue “referable to 

arbitration.” See Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1314-15 n.14 (11th Cir. 2002). 

In sum, while dismissal with prejudice is the appropriate remedy, if this Court chooses not 

to grant such relief then this matter should be stayed pending arbitration. 

CONCLUSION 

 For the foregoing reasons, the Court should grant Defendants’ motion, compelling this case 

to arbitration, striking the class and collective action claims and dismissing this case with prejudice. 

Alternatively, the Court should compel this case to arbitration, dismiss the class and collective 

action claims and stay all further proceedings until the arbitration is complete. 

 

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Dated: September 16, 2022 /s/ Jurate Schwartz 

Jurate Schwartz, Esq. 

Fla. Bar No. 0712094 

PROSKAUER ROSE LLP 

2255 Glades Road 

Suite 421 Atrium 

Boca Raton, FL 33431 

Telephone: (561) 995-4760 

Facsimile: (561) 241-7145 

Email: jschwartz@proskauer.com 

Secondary: florida.labor@proskauer.com 

Steven J. Pearlman (Pro Hac Vice to be submitted) 

PROSKAUER ROSE LLP 

70 West Madison 

Suite 3800 

Chicago, IL 60602 

Telephone: (312) 962-3545 

Facsimile: (312) 962-3551 

Email: spearlman@proskauer.com

P. Kramer Rice (Pro Hac Vice to be submitted) 

PROSKAUER ROSE LLP 

Eleven Times Square 

New York, NY 10036 

Telephone: (212-969-3406 

Facsimile: (212) 969-2900 

Email: krice@proskauer.com

Attorneys for Defendants 

 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on September 16, 2022, I electronically filed the foregoing 

document with the Clerk of the Court by using the CM/ECF system. I also certify that the 

foregoing document is being served this day on the below counsel of record via transmission of 

Notices of Electronic Filing generated by CM/ECF. 

/s/ Jurate Schwartz 

Jurate Schwartz 

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