IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN J. CUIE : CIVIL ACTION

 :

vs. :

 : NO. 05-CV-4771

NORDSTROM, INC. :

MEMORANDUM AND ORDER

JOYNER, J. November 1, 2005

This case is before the Court for disposition of Defendant’s

Motion to Stay Judicial Proceedings Pending Arbitration and

Plaintiff’s Cross-Motion to Strike Defendant’s Motion to Stay. 

For the reasons set forth in the paragraphs which follow, the

defendant’s motion to stay is granted and the plaintiff’s motion

is denied. 

History of the Case

This case arose out of Plaintiff, John Cuie’s termination

from his employment with defendant Nordstrom on August 9, 2004. 

On September 6, 2005, Mr. Cuie filed a complaint in this Court

alleging that, in terminating him, Defendant Nordstrom

intentionally and unlawfully discriminated against him because of

his race and in retaliation for opposing discriminatory tactics

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e, et. seq., and 42 U.S.C. §1981. Inasmuch as the

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 1 of 19
2

plaintiff had signed an arbitration agreement when he commenced

employment at Nordstrom’s Perimeter Mall store in Atlanta, GA, 

Defendant now moves to stay the judicial proceedings in this

matter pending arbitration. 

Standards Governing Motions to Stay Pending Arbitration

Motions to compel arbitration are reviewed under the wellsettled summary judgment standard set forth in Fed.R.Civ.P.

56(c). Zimmer v. CooperNeff Advisors, Inc., Civ.A.No. 04-3816,

2004 U.S. Dist. LEXIS 25465 at *15 (E.D.Pa. Dec. 20, 2004),

citing Bellevue Drug Co. v. Advance PCS, 333 F.Supp.2d 318, 322

(E.D.Pa. 2004). See Also, Berkery v. Cross Country Bank, 256

F.Supp.2d 359, 364, n.3 (E.D.Pa. 2003). Thus, the moving party

must prove through “pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any...that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a

matter of law.” Id., quoting Fed.R.Civ.P. 56(c). Additionally,

this Court “must consider all of the non-moving party’s evidence

and construe all reasonable inferences in the light most

favorable to the non-moving party.” Id. 

Discussion

 Generally speaking, arbitration is a matter of contract and

a party cannot be required to submit to arbitration any dispute

which he has not agreed to so submit. AT & T Technologies, Inc.

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1

 Specifically, the relevant sections of the Arbitration Act provide as

follows in pertinent part:

§2. Validity, irrevocability and enforcement of agreements to arbitrate

A written provision in any maritime transaction or a contract evidencing

a transaction involving commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction, or the refusal

to perform the whole or any part thereof, or an agreement in writing to

submit to arbitration an existing controversy arising out of such a

contract, transaction, or refusal, shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract.

§3. Stay of proceedings where issue therein referable to arbitration

3

v. Communications Workers of America, 475 U.S. 643, 648-649, 106

S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986). The Federal

Arbitration Act, 9 U.S.C. §1, et. seq. codifies Congress’ desire

to uphold private arbitration agreements that produce prompt and

fair dispute resolution without involving the courts. In

furtherance of this interest, a court must scrupulously honor the

bargains implicit in such agreements and interfere only when an

award is seriously problematic. Brentwood Medical Associates v.

United Mine Workers of America, 396 F.3d 237, 239 (3d Cir 2005). 

The Act also provides that a court must stay its proceedings if

it is satisfied that an issue before it is arbitrable under the

agreement and it authorizes a federal district court to issue an

order compelling arbitration if there has been a failure, neglect

or refusal to comply with the arbitration agreement. 

Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226,

107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987), citing 9 U.S.C. §§3

and 4.1 

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If any suit or proceeding be brought in any of the courts of the United

States upon any issue referable to arbitration under an agreement in

writing for such arbitration, the court in which such suit is pending,

upon being satisfied that the issue involved in such suit or proceeding

is referable to arbitration under such an agreement, 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, providing the applicant for the stay is not in default in

proceeding with such arbitration. 

§4. Failure to arbitrate under agreement; petition to United States

Court having jurisdiction for order to compel arbitration; notice and

service thereof; hearing and determination

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

to arbitrate under a written agreement for arbitration may petition any

United States district court which, save for such agreement, would have

jurisdiction under Title 28, in a civil action or in admiralty of the

subject matter of a suit arising out of the controversy between the

parties, for an order directing that such arbitration proceed in the

manner provided for in such agreement...The court shall hear the

parties, and upon being satisfied that the making of the agreement for

arbitration or the failure to comply therewith is not in issue, the

court shall make an order directing the parties to proceed to

arbitration in accordance with the terms of the agreement... 

4

The U.S. Supreme Court has made clear that the FAA applies

to all arbitration agreements involving interstate commerce,

including employment contracts. See, Circuit City Stores, Inc.

v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). 

Statutory claims also may be the subject of an arbitration

agreement, enforceable by the FAA. Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26

(1991). Although all statutory claims may not be appropriate for

arbitration, having made the bargain to arbitrate, the party

should be held to it unless Congress itself has evinced an

intention to preclude a waiver of judicial remedies for the

statutory rights at issue; it is therefore the burden of the

party seeking to avoid arbitration to show Congressional

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5

intention to preclude arbitration. Id. In determining whether

statutory claims may be arbitrated, the court must first ask

whether the parties agreed to submit their claims to arbitration

and then ask whether Congress has evinced an intention to

preclude a waiver of judicial remedies for the statutory rights

at issue. Green Tree Financial Corp. v. Randolph, 531 U.S. 79,

90, 121 S.Ct. 513, 521, 148 L.Ed.2d 373 (2000); Shearson/American

Express, Inc. v. McMahon, 482 U.S. at 227, 107 S.Ct. at 2337.

Furthermore, before a federal district court entertaining a

motion to compel arbitration may order a reluctant party to

arbitrate, the FAA further requires the court “to engage in a

limited review to ensure that the dispute is arbitrable–-i.e.,

that a valid agreement to arbitrate exists and that the specific

dispute falls within the substantive scope of that agreement.” 

Berkery v. Cross Country Bank, 256 F.Supp.2d at 364, quoting

PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir. 1990). 

See Also, Lomax v. Woodmen of the World Life Insurance Society,

228 F.Supp.2d 1360, 1362 (N.D.Ga. 2002) (“In order to determine

whether arbitration should be compelled, the Court must assess

whether: (1) there is a valid written agreement to arbitrate; (2)

the issue sought to be arbitrated is arbitrable under the

agreement; and (3) the party asserting the claims has failed or

refused to arbitrate the claims.”) 

 In determining whether a valid arbitration agreement exists

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6

under the FAA, “the federal policy encouraging recourse to

arbitration requires federal courts to look first to the relevant

state law of contracts.” Spinetti v. Service Corporation

International, 324 F.3d 212, 214 (3d Cir. 2004), citing First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct.

1920, 1924, 131 L.Ed.2d 985 (1995). Bullick v. Sterling, Inc.,

Civ. A. No. 03-6395, U.S. Dist. LEXIS 21128 at *8 (E.D.Pa. Oct.

21, 2004), citing Spinetti, supra. Applying the relevant state

contract law, a court may also hold that an agreement to

arbitrate is “unenforceable based on a generally applicable

contractual defense, such as unconscionability.” Parilla v. IAP

Worldwide Services, VI, Inc., 368 F.3d 269, 276 (3d Cir. 2004). 

See Also, Doctors Associates, Inc. v. Casarotto, 517 U.S. 681,

687, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902, 909

(1996)(“[G]enerally applicable contract defenses, such as fraud,

duress, or unconscionability, may be applied to invalidate

arbitration agreements without contravening §2. [citations

omitted]... Courts may not, however, invalidate arbitration

agreements under state laws applicable only to arbitration

provisions.”) 

 In this case, there is no dispute that the plaintiff

“knowingly” agreed to arbitrate “any covered claim between

[himself] and Nordstrom, including but not limited to harassment

and discrimination...” (Arbitration Agreement, ¶1). Plaintiff

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2 Rather, Mr. Cuie first argues that, after pursuing the first two

steps in Nordstrom’s dispute resolution process, he was unable to obtain a

request for arbitration form from the defendant’s Human Resources Department

and was thus unable to initiate the arbitration process. Second, plaintiff

contends, Defendant prevented him “from affording arbitration fees and other

fees” by, inter alia, failing to pay him in full for work performed after his

wrongful discharge and by appealing his claim for unemployment compensation

benefits.

3 Page 8 of the Nordstrom Dispute Resolution Program Booklet reads in

pertinent part: 

“If you transfer to another Nordstrom location or your employment is

terminated, the Dispute Resolution Program still applies to you for any

dispute that arose in connection with your employment in Georgia.” 

7

likewise does not contend that Congress evinced an intention in

either Title VII or §1981 to preclude arbitration.2 Accordingly,

we turn now to an examination of the relevant state law of

contracts. 

In so doing, we note at the outset that the Arbitration

Agreement which the plaintiff signed provided at paragraph 5

thereof, that “[t]his Agreement, as well as all terms and

conditions of my employment, shall be governed by and shall be

interpreted in accordance with the Federal Arbitration Act (FAA)

and the laws of the state of Georgia.” Although he later was

transferred to the Nordstrom store in King of Prussia, PA, he

apparently did not sign a new agreement. As it appears from a

reading of Plaintiff’s complaint that his claims arise out of his

employment at both the Atlanta, Georgia and King of Prussia,

Pennsylvania stores, we now examine both Georgia and Pennsylvania

law to determine whether or not the arbitration agreement at

issue is enforceable.3 

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The basic requirements for a binding contract are

essentially the same under the laws of both Pennsylvania and

Georgia: (1) a firm or definite offer, (2) an acceptance by which

the second party agrees to be bound by the terms of the offer and

(3) a bargained-for consideration. See, Citizens Trust Bank v.

White, 274 Ga.App. 508, 510, 618 S.E.2d 9 (2005); Tuman v.

Genesis Associates, 935 F.Supp. 1375, 1389 (E.D.Pa. 1996);

Jenkins v. County of Schuylkill, 441 Pa.Super. 642, 658 A.2d 380,

383 (1995). Here, it clearly appears from the pleadings and

materials of record that Nordstrom’s Dispute Resolution Policy

and Arbitration Agreement were made a part of Defendant’s offer

of employment to Plaintiff and that Plaintiff acknowledged both

by signing his employment application and the Arbitration

Agreement itself. For his part, Plaintiff accepted that offer

by signing the agreement and commencing employment with the

defendant company. Indeed, the terms for acceptance and a

recitation of the consideration is provided in paragraph 10 of

the Arbitration Agreement: 

“I understand that I would not be or remain employed by

Nordstrom absent signing this Agreement. My signature below

acknowledges I understand and agree that in consideration

for my employment with Nordstrom, Inc., I agree to the

Nordstrom Dispute Resolution Program.” (Emphasis in

original)

As Nordstrom employed Plaintiff and Plaintiff worked for

Nordstrom for nearly four years, we find that adequate

consideration existed to support the instant contract/agreement

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 8 of 19
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to arbitrate. 

We next ascertain whether the scope of plaintiff’s claims

against Nordstrom fall within the scope of the Arbitration

Agreement. In so doing, we again review the language of the

Agreement itself which further provides, in relevant part:

My signature below acknowledges that I have read and

understand the Nordstrom Dispute Resolution booklet

(“Program booklet”), and that I agree to arbitrate any

dispute, claim, or controversy that is covered in the

Program booklet (“covered claim”) against Nordstrom, Inc.,

its officers, directors, shareholders, current and former

employees, or others in their personal or official capacity,

arising out of my employment or the termination of my

employment. Nordstrom also agrees to arbitrate any matter

covered by this Arbitration Agreement (“Agreement”). I

UNDERSTAND THAT BY SIGNING THIS AGREEMENT, I KNOWINGLY AGREE

AND CONSENT TO ARBITRATE ANY COVERED CLAIM BETWEEN MYSELF

AND NORDSTROM, INCLUDING BUT NOT LIMITED TO HARASSMENT AND

DISCRIMINATION, AS MORE CLEARLY DEFINED IN THE PROGRAM

BOOKLET. I EXPLICITLY WAIVE MY RIGHT TO A JURY TRIAL OR

BENCH TRIAL ON ANY CLAIMS INVOLVING EMPLOYMENT DISPUTES

BETWEEN MYSELF AND NORDSTROM. I also understand that some

claims may not be submitted to arbitration, as listed in the

Program booklet. 

Under the heading “What Claims are Covered,” the Dispute

Resolution Program Booklet provides:

Instead of courtroom litigation, You must use the Nordstrom

Dispute Resolution Program to resolve work-related problems

you have now or in the future against Nordstrom, its

officers, directors, shareholders, employees or others in

their personal or official capacity. The Dispute Resolution

Program covers these legally protected rights:

• Claims for unlawful harassment, including but not

limited to sexual harassment.

• Claims for unlawful discrimination, including, but not

limited to, claims based on race, sex, marital status,

sexual orientation, religion, national origin, claims

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 9 of 19
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based on age under the Age Discrimination in Employment

Act, or claims based on disability under the Americans

with Disabilities Act.

• Any claim for wages or other compensation.

• Claims for breach of any contract, covenant or warrant

(express or implied).

• Tort claims, including, but not limited to, negligent

hiring, supervision or retention, assault, battery,

tortious interference with contract, tortious

interference with prospective business relations,

defamation, slander, libel, invasion of privacy, false

light, or negligent or fraudulent misrepresentation;

however, any claims covered under the exclusivity

provisions of worker’s compensation laws shall be

brought through the Labor and Industrial Relations

Commission.

• Claims for wrongful termination, including but not

limited to retaliatory discharge claims.

• Claims for violation of any federal, state or other

governmental law, statute, regulation or ordinance.

In like fashion, under the heading “What Claims are Not Covered,”

the Booklet states:

The Dispute Resolution Program Does not Cover:

• Any criminal complaint or proceeding.

• Restitution by an employee for a criminal act for which

he or she has been found guilty, or has pled guilty or

no contest.

• Claims for benefits or other relief under any employee

benefit or workers compensation plan sponsored by the

company.

• Any claim by the company for equitable relief for

employee violation of contract, covenant against

competition or the use or disclosure of trade secrets

or other confidential information.

• Claims for unemployment insurance benefits. 

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 Given that Plaintiff’s complaint alleges that Nordstrom

unlawfully terminated his employment as a sales person in the

cosmetics department on the basis of his race (African American)

in violation of Title VII and Section 1981, we find that the

claims at issue here clearly fall within the scope of the

Arbitration Agreement. As mandatory arbitration of the specific

claims brought by plaintiff under Title VII and Section 1981 does

not offend federal policy under the FAA nor do those sections 

prohibit employers from requiring mandatory arbitration of

employment disputes as a condition of employment, we turn now to

the issue of whether or not a generally applicable contractual

defense would render the agreement to arbitrate unenforceable

here. See, e.g., Caley v. Gulfstream Aerospace Corp., 333

F.Supp.2d 1367, 1378, 1379 (N.D. Ga. 2004), citing inter alia,

Circuit City Stores, Inc. v. Adams, 532 U.S. at 123 and Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1310 (11th Cir. 2002). 

Of course, the burden of proving a generally applicable

contract defense lies with the party challenging the contract

provision. Lloyd v. Hovensa, LLC., 369 F.3d 263, 274 (3d Cir.

2004). Unconscionability is a defensive contractual remedy which

serves to relieve a party from an unfair contract or from an

unfair portion of a contract. Harris v. Green Tree Financial

Corp., 183 F.3d 173, 181 (3d Cir. 1999). “Under Pennsylvania

law, the test for unconscionability is whether one of the parties

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12

lacked meaningful choice about whether to accept the provision or

contract in question and the challenged provision or contract

unreasonably favors the other party to the contract.” Bullick v.

Sterling, Inc., supra., quoting Zumpano v. Omnipoint

Communications, Civ. A. No. 00-595, 2001 U.S. Dist. LEXIS 376 at

*5 (E.D.Pa. Jan. 18, 2001). 

As does Pennsylvania, Georgia courts generally consider a

variety of factors in deciding claims of unconscionability, which

have been divided into procedural and substantive elements. 

Jenkins v. First American Cash Advance of Georgia, 400 F.3d 868,

875 (11th Cir. 2005). Procedural unconscionability addresses the

process of making the contract, while substantive

unconscionability looks to the contractual terms themselves. 

Id., quoting NEC Technologies, Inc. v. Nelson, 267 Ga. 390, 478

S.E.2d 769, 771-771 (1996); Harris v. Green Tree Financial Corp.,

183 F.3d at 181 (“[Procedural] unconscionability involves, for

example, ‘material, risk-shifting’ contractual terms which ‘are

not typically expected by the party who is being asked to assent

to them’ and ‘often appear in the boilerplate of a printed

form.’(citation omitted) Substantive unconscionability refers to

contractual terms that are unreasonably or grossly favorable to

one side and to which the disfavored party does not assent. 

Thus, unconscionability requires a two-fold determination: that

the contractual terms are unreasonably favorable to the drafter

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 12 of 19
13

and that there is no meaningful choice on the part of the other

party regarding acceptance of the provisions.”) Stated otherwise,

both procedural and substantive unconscionability must be present

for a court to determine that an arbitration clause is

unconscionable. Zimmer v. CooperNeff Advisors, Inc., 2004 U.S.

Dist. LEXIS 25465 at *19.

 In this case, the plaintiff argues that he should not be

required to resolve his dispute through arbitration because the

Nordstrom Arbitration Agreement and Dispute Resolution Program

require him to incur what he submits are unfair costs and fees. 

Arbitration costs are directly related to a litigant’s

ability to pursue a claim and, as the U.S. Supreme Court has

recognized, “the existence of large arbitration costs could

preclude a litigant from effectively vindicating her statutory

rights in the arbitral forum.” Blair v. Scott Specialty Gases,

283 F.3d 595, 605 (3d Cir. 2002), quoting Green Tree Financial

Corp. v. Randolph, 531 U.S. at 90, 121 S.Ct. at 513. The mere

existence of a fee-splitting provision in an agreement is not,

however, sufficient in and of itself to satisfy a claimant’s

burden of proving likelihood of incurring prohibitive costs. 

Blair, 283 F.3d at 610. 

While the courts have yet to specifically define what

quantum of proof is required to sustain a claimant’s burden of

proving such prohibitively expensive arbitration costs as would

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14

render an arbitration agreement unenforceable, Green Tree

dictates that such an analysis be undertaken on a case-by-case

basis. See, e.g., Spinetti, 324 F.3d at 216-217. (“We are

satisfied that the district court’s analysis properly followed

the case-by- case teachings of Green Tree on how to decide if a

cost-splitting provision in an arbitration agreement denies

potential litigants the opportunity to vindicate their statutory

rights.”) Although Green Tree does not provide us with a

standard for how detailed the showing of prohibitive expenses

must be to support the conclusion that the provision, at minimum,

is unenforceable, several courts have taken a stab at outlining

the proper formula. Spinetti, 324 F.3d at 217, citing, inter

alia, Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 663

(6th Cir. 2003)(holding that potential litigants must be given

the opportunity to demonstrate that potential costs are great

enough to deter them and similarly situated individuals from

seeking to vindicate their federal statutory rights,) and

Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549,

556 (4th Cir. 2001)(stating that the appropriate inquiry is one

that focuses on the claimant’s ability to pay the arbitration

fees and costs and whether these are substantial enough to deter

the bringing of claims.) 

In this case, the Arbitration Agreement states the following

with regard to fees and expenses:

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The arbitration shall be arbitrated by one arbitrator in

accordance with the National Rules for the Resolution of

Employment Disputes of the American Arbitration Association

(“AAA”). I understand that I will be required to pay the

first $140 of the costs of commencing an arbitration with

the AAA and that the remainder of these costs will be paid

by Nordstrom, subject to a subsequent award by the

arbitrator. The decision or award of the arbitrator shall

be final and binding upon the parties. The arbitrator shall

have the power to award any types of legal or equitable

relief that would be available in a court of competent

jurisdiction, including, but not limited to, the costs of

arbitration, attorney fees and punitive damages for causes

of action when such damages are available under the law. 

Any arbitral award may be entered as a judgment or order in

any court of competent jurisdiction. I agree that any

relief or recovery to which I am entitled from any claims

arising out of my employment, termination of employment, or

any claim of unlawful discrimination shall be limited to

that awarded by the arbitrator.

According to page 5 of the Dispute Resolution Program booklet,

To use the arbitration process, a filing fee and

arbitrator’s fee must be paid. The filing fee is an

administrative expense charged by the AAA for coordinating

the process. The arbitrator’s fee is the payment for his or

her services.

The AAA filing fee will be at least $500. Your share of

this cost is $140 and must be paid when you submit your

request for arbitration. Nordstrom will then pay the

remainder of the AAA filing fee. Nordstrom will also pay

all of the arbitrator’s fee and any other AAA administrative

expenses.

If the arbitrator finds completely in your favor, Nordstrom

will reimburse your portion. If Nordstrom initiates the

arbitration, you pay no filing or arbitrator’s fees.

In addition to the above fees and expenses, you must also

pay:

• Your attorney fees, if you choose to have legal

representation.

• Any costs for witnesses you call (other than Nordstrom

management witnesses).

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 15 of 19
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• Any costs to produce evidence you request, including,

but not limited to, deposition costs or discovery

requests.

• Your costs for a stenographic recording and/or

transcript...

In certain cases, attorney fees may be assessed against you

or Nordstrom. Here are some guidelines to keep in mind:

1. The arbitrator may award to you or Nordstrom

reasonable attorney fees as may be authorized by applicable

law. For example, the arbitrator may assess attorney fees

against you or Nordstrom if either party makes a claim that

is frivolous, or is factually or legally groundless, or if

there is a written agreement that provides for a payment of

attorney fees.

2. If you use a method other than arbitration to resolve

a covered claim, the arbitrator may require you to pay

reasonable attorney fees or other expenses Nordstrom incurs

in resolving the situation and obtaining dismissal of your

actions. Likewise, Nordstrom can be assessed reasonable

attorney fees if the company fails to use arbitration for

resolving a covered claim.

In support of his argument, Defendant proffers only (1)

copies of correspondence between himself and his various

Nordstrom managers and/or Human Resources personnel reflecting

that he had difficulties getting along with his counter manager

at the Atlanta store and that Nordstrom terminated his employment

on the basis of his having been accused of sexual harassment by

another employee at the King of Prussia store, (2) copies of his

pay statements reflecting that Nordstrom was late paying his

wages on at least one occasion and (3) a letter from the Georgia

Department of Labor indicating that Nordstrom had withdrawn its

appeal from a decision by the unemployment compensation claims

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 16 of 19
17

examiner awarding Plaintiff unemployment benefits. Thus, in this

case also “[n]otably missing is any showing of financial

wherewithal, such as income statements or statements of net worth

of the plaintiff or any affidavit or evidence showing how the

potential for fee-shifting of attorney’s fees is tantamount to

the ‘existence of large arbitration costs which could preclude a

litigant such as Plaintiff from effectively vindicating his

federal statutory rights in the arbitral forum.’” Bellevue

Drug, 333 F.Supp.2d at 331, quoting Green Tree, 531 U.S. at 90. 

Under the Arbitration Agreement’s provisions recited above,

it is clear that the only expense which the plaintiff will

absolutely incur is his share of the initial arbitration filing

fee. He may also, if he chooses to hire an attorney, request a

stenographic or deposition transcript and/or call witnesses other

than Nordstrom management employees, incur costs attendant

thereto. However, given that Plaintiff’s share of the

arbitration initiation costs are capped at $140, some $90 less

than what he spent in initiating this civil action here and that

he would likewise expend monies for attorney’s and witness fees

and deposition and other transcriptions if the case were allowed

to proceed in the district court, we cannot find arbitration

under the agreement to arbitrate at issue here to be so

prohibitively expensive as to render it unenforceable. See, 28

U.S.C. §1914(a)(requiring the party initiating a civil action in

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 17 of 19
4 Indeed as noted in footnote 1 above, the remedies of a stay of

proceedings and an order compelling arbitration are provided for under

Sections 3 and 4 of the FAA, 9 U.S.C. §§3 and 4. 

18

district court to pay a filing fee of $250). In all other

respects, the costs and expenses which plaintiff may incur are

wholly speculative and, as we have previously opined,

“Plaintiff’s speculation about prohibitive costs...is not enough

to invalidate an otherwise enforceable arbitration provision.” 

Goodman v. ESPE America, Inc., Civ. A. No. 00-CV-862, 2001 WL

64749 (E.D.Pa. Jan. 19, 2001). 

For all of these reasons, we shall deny the plaintiff’s

motion to strike, and shall grant the defendant’s motion to

compel arbitration and stay these judicial proceedings pending

arbitration of the plaintiff’s claims in this matter.4

An order follows.

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19

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN J. CUIE : CIVIL ACTION

 :

vs. :

 : NO. 05-CV-4771

NORDSTROM, INC. :

ORDER

AND NOW, this 1st day of November, 2005 upon

consideration of Defendant’s Motion to Stay Judicial Proceedings

Pending Arbitration and Plaintiff’s Motion to Strike Defendant’s

Motion to Stay, it is hereby ORDERED that the Defendant’s Motion

is GRANTED, the Plaintiff’s Motion is DENIED and the parties are

DIRECTED to immediately submit this matter to arbitration in

accordance with the terms of the Nordstrom Arbitration Agreement

and Dispute Resolution Program.

IT IS FURTHER ORDERED that all judicial proceedings in this

matter are STAYED pending the arbitration proceedings and the

Clerk of Court is directed to place this matter into Civil

Suspense pending the outcome of arbitration. 

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J. 

Case 2:05-cv-04771-JCJ Document 6 Filed 11/03/05 Page 19 of 19