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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEPHANIE DE ANGELIS, : 

 : 

 Plaintiff, : 

 : Case No. 2:17-CV-927 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

ICON ENTERTAINMENT GROUP : 

INC. d/b/a KAHOOTS : Magistrate Judge Deavers 

GENTLEMEN’S CLUB, et al., : 

 : 

 Defendants. : 

OPINION & ORDER 

 This matter is before the Court on Defendants’ Motion to Dismiss or Stay in Favor of 

Arbitration and for Attorneys’ Fees and Costs. (ECF No. 28). Plaintiff Stephanie De Angelis filed 

a Response (ECF No. 34) and Defendants filed a Reply (ECF No. 39). For the reasons stated 

below, Defendants’ Motion is GRANTED IN PART and DENIED IN PART. 

I. BACKGROUND 

 ICON Entertainment Group Inc. operates Kahoots Gentlemen’s Club (“Kahoots” or 

“Club”), an adult entertainment club in Columbus, Ohio. Stephanie De Angelis has brought suit 

against ICON, its individual owners, and 4522 Kenny Road, LLC, an Ohio Limited Liability 

Company sharing its principal place of business with Kahoots. (ECF No. 10 at 5). Ms. De 

Angelis alleges that she performed at Kahoots as a dancer from April 2016 to February 2017. 

(ECF No. 10 at ¶¶ 30, 32). Ms. De Angelis alleges that Kahoots did not pay its dancers any 

wages. (Id. at ¶ 1). She avers that, instead, Kahoots misclassified all of its dancers as 

independent contractors, rather than employees, and that the dancers are only compensated 

through tips from customers. (Id. at ¶¶ 31, 35). She further alleges that at the end of each night, 

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Kahoots took a cut from all tips made by the dancers, and the dancers were required to divide 

their tips with other employees. (Id. at ¶¶ 43–44). 

 Ms. De Angelis signed an agreement titled “Dancer Performance Lease” (the 

“Agreement”) with ICON Entertainment on June 2, 2016. (ECF No. 28-1). The Agreement 

purported to disclaim any employer-employee relationship between ICON or Kahoots and Ms. 

De Angelis and instead classify Ms. De Angelis as a performer leasing performance space from 

Kahoots. (Id.). The Agreement contains a provision titled “Mandatory Arbitration/Waiver of 

Class and Collective Actions/Attorney Fees and Costs” which reads in relevant part: 

EXCEPT FOR ANY ADMINISTRATIVE PROCEEDINGS THAT ARE NOT 

LEGALLY BARRED BY THIS PARAGRAPH, ANY CONTROVERSY, 

DISPUTE, OR CLAIM (IN THIS PARAGRAPH 21, COLLECTIVELY 

"CLAIM") ARISING OUT OF THIS LEASE OR OUT OF ENTERTAINER 

PERFORMING AND/OR WORKING AT THE CLUB AT ANY TIME, 

WHETHER CONTRACTUAL, IN TORT, OR BASED UPON COMMON LAW 

OR STATUTE, SHALL BE EXCLUSIVELY DECIDED BY BINDING 

ARBITRATION HELD PURSUANT TO THE FEDERAL ARBITRATION 

ACT (THE “FAA”). SUCH ARBITRATION SHALL OCCUR IN THE STATE 

OF NEW YORK, AND SHALL BE ADMINISTERED BY A NEUTRAL 

ARBITRATOR AGREED UPON BY THE PARTIES, WHO SHALL BE 

PERMITTED TO AWARD, SUBJECT ONLY TO THE RESTRICTIONS 

CONTAINED IN THIS PARAGRAPH 21, ANY RELIEF AVAILABLE IN A 

COURT. THE ARBITRATOR SHALL NOT CONSOLIDATE MORE THAN 

ONE PERSON'S CLAIM, AND MAY NOT PRESIDE OVER ANY FORM OF 

REPRESENTATIVE, CLASS, OR COLLECTIVE PROCEEDINGS. IN THE 

EVENT AN ACTION IS BROUGHT IN ARBITRATION ON BEHALF OF 

MULTIPLE INDIVIDUALS, THE ARBITRATOR SHALL HAVE ONLY THE 

AUTHORITY TO DIVIDE THE ACTION INTO INDIVIDUAL 

PROCEEDINGS; EACH THEN TO BE HEARD BY AN INDIVIDUAL 

ARBITRATOR. EITHER PARTY MAY REQUEST AN ARBITRATOR 

EXPERIENCED IN THE ADULT ENTERTAINMENT INDUSTRY. THE 

PARTIES WAIVE ANY RIGHT TO LITIGATE SUCH CLAIMS IN A COURT 

OF LAW, AND WAIVE THE RIGHT TO TRIAL BY JURY. THE 

PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THAT 

LEVEL OF DUE PROCESS REQUIRED FOR ARBITRATIONS. THE 

ARBITRATOR'S DECISION SHALL BE FINAL, SUBJECT ONLY TO 

REVIEW UNDER THE FAA. THE COSTS OF ARBITRATION SHALL BE 

BORNE EQUALLY BY THE ENTERTAINER AND THE CLUB UNLESS 

THE ARBITRATOR CONCLUDES THAT A DIFFERENT ALLOCATION IS 

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REQUIRED BY LAW. THE ARBITRATOR SHALL HAVE EXCLUSIVE 

AUTHORITY TO RESOLVE ANY DISPUTES OVER THE VALIDITY 

AND/OR ENFORCEABILITY OF ANY PART OF THIS LEASE, INCLUDING 

THESE ARBITRATION PROVISIONS. ANY AWARD BY THE 

ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT 

HAVING JURISDICTION. 

(Id. at 5–6, ¶ 21A) (emphasis in original). The Agreement further provides that if “ANY 

PARTY CHALLENGES, OR IS REQUIRED TO INITIATE PROCEEDINGS TO 

ENFORCE, THE ARBITRATION REQUIREMENTS OF THIS PARAGRAPH 21, THE 

PREVAILING PARTY TO SUCH CHALLENGES/ENFORCEMENT PROCEEDINGS 

SHALL BE ENTITLED TO AN AWARD OF ALL COSTS, INCLUDING REASONABLE 

ATTORNEY FEES, INCURRED IN LITIGATING SUCH ISSUES.” (Id. at 6, ¶ 21C) 

(emphasis in original). 

 Ms. De Angelis filed this lawsuit as a collective and class action against Defendants on 

October 23, 2017, and filed her First Amended Complaint on January 18, 2018. (ECF Nos. 1, 

10). She alleges violations of the Fair Labor Standards Act of 1983 (“FLSA”), 29 U.S.C. §§ 

201, et seq., the Ohio Minimum Fair Wage Standards Act (“OMFSWA”), O.R.C. §§ 4111.01, et 

seq., the Ohio Semi-Monthly Payment Act, O.R.C. § 4113.15, and common law unjust 

enrichment for failing to pay dancers minimum wage for all hours worked, including failure to 

pay overtime. (ECF No. 10). Defendants filed their Motion to Dismiss or Stay in Favor of 

Arbitration and for Attorneys’ Fees and Costs on June 6, 2018. (ECF No. 28). This Motion is 

fully briefed and ripe for review. 

II. LAW & ANALYSIS 

A. The Arbitration Agreement 

 Arbitration “is a matter of contract.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 

938, 943 (1995). Under the Federal Arbitration Act (“FAA”), arbitration contracts “shall be 

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

revocation of any contract.” 9 U.S.C. § 2 (2012). If a party who signed an arbitration contract 

fails or refuses to arbitrate, the aggrieved party may petition the court for an order directing the 

parties to proceed in arbitration in accordance with the terms of an arbitration agreement. 9 

U.S.C. § 4 (2012). The Court must then “determine whether the parties agreed to arbitrate the 

dispute at issue.” Ackison Surveying, LLC v. Focus Fiber Sols., LLC, No. 2:15-CV-02044, 2016 

WL 4208145, at *1 (S.D. Ohio Aug. 10, 2016) (citing Stout v. J.D. Byrider, 228 F.3d 709, 714 

(6th Cir. 2000)). Any doubts concerning the scope of arbitrable issues should be resolved in 

favor of arbitration. Id. at *1. See also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 

460 U.S. 1, 24–25 (1983). In evaluating motions to compel arbitration, “courts treat the facts as 

they would in ruling on a summary judgment motion, construing all facts and reasonable 

inferences that can be drawn therefrom in a light most favorable to the non-moving party.” 

Jones v. U-Haul Co. of Massachusetts & Ohio Inc., 16 F. Supp. 3d 922, 930 (S.D. Ohio 2014). 

The court has four tasks: 

[F]irst, it must determine whether the parties agreed to arbitrate; second, it must 

determine the scope of that agreement; third, if federal statutory claims are 

asserted, it must consider whether Congress intended those claims to be 

nonarbitrable; and fourth, if the court concludes that some, but not all, of the 

claims in the action are subject to arbitration, it must determine whether to stay 

the remainder of the proceedings pending arbitration. 

Stout v. J.D. Byrider, 228 F.3d 709, 714 (6th Cir. 2000). 

 In determining whether the parties agreed to arbitrate under the first prong of the Stout 

test, the Court must apply state law of contract formation. Prachun v. CBIZ Benefits & Ins. 

Servs., Inc., No. 2:14-CV-2251, 2015 WL 5162522, at *3 (S.D. Ohio Sept. 3, 2015). See also 

Ackison Surveying, LLC, 2016 WL 4208145, at *1 (Marbley, J.) (“Whether the parties’ contract 

evinces an agreement to arbitrate is governed by principles of state contract law.”). Thus, “stateCase: 2:17-cv-00927-ALM-EPD Doc #: 46 Filed: 03/04/19 Page: 4 of 15 PAGEID #: 526
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law contract defenses like fraud, forgery, duress, mistake, lack of consideration or mutual 

obligation, or unconscionability, may invalidate arbitration agreements.” Cooper v. MRM Inv. 

Co., 367 F.3d 493, 498 (6th Cir. 2004). The parties agree that Ohio law applies. 

 Where the contract includes a delegation provision, however, the analysis changes. A 

delegation provision is an “agreement[] to arbitrate threshold issues concerning the arbitration 

agreement.” Danley v. Encore Capital Grp., Inc., 680 F. App’x 394, 395-96 (6th Cir. 2017) 

(quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68 (2010)). Parties can 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, 561 U.S. at 68-69. 

In Rent-A-Center, the Supreme Court explained that such a delegation provision is “simply an 

additional, antecedent agreement that the party seeking arbitration asks the federal court to 

enforce, and the FAA operates on this additional arbitration agreement just as it does on any 

other.” Id. at 70. Thus, a delegation provision is severable from the remainder of the contract, 

and “a party’s challenge to another provision of the contract, or to the contract as a whole, does 

not prevent a court from enforcing a specific agreement to arbitrate”—here, the delegation 

provision. Id. In other words, when there is a delegation provision, the Court will only intervene 

if the party seeking to avoid arbitration challenges the delegation provision itself. Id. at 71-72. 

Kahoots argues that Ms. De Angelis’s claims are subject to arbitration and that any 

threshold questions about the validity of the arbitration agreement must themselves be submitted 

to an arbitrator under the Agreement’s delegation provision. The Agreement’s delegation 

provision reads as follows: “THE ARBITRATOR SHALL HAVE EXCLUSIVE 

AUTHORITY TO RESOLVE ANY DISPUTES OVER THE VALIDITY AND/OR 

ENFORCEABILITY OF ANY PART OF THIS LEASE, INCLUDING THESE 

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ARBITRATION PROVISIONS.” (ECF No. 28-1 at 4, ¶ 21A). Ms. De Angelis argues that the 

delegation clause is not clear and unmistakable. Additionally, Ms. De Angelis argues that the 

arbitration clause does not cover the dispute at issue. 

 The Plaintiff challenges the contract as follows: (1) the delegation clause is not clear and 

unmistakable; (2) the arbitration agreement prevents the Plaintiff from effectively vindicating her 

rights; (3) the arbitration agreement is void for lack of mutual assent; (4) the claims alleged here 

“are outside the scope of the arbitration agreement”; (5) non signatories to the agreement cannot 

enforce the arbitration clause; (6) the arbitration agreement fails for lack of consideration; (7) the 

arbitration agreement is an attempt at impermissible waiver of rights under the FLSA and the 

Ohio Constitution; (8) leases cannot support agreements to arbitrate under Ohio law; (9) “the 

provisions seeking costs are invalid and illegal”; and (10) the arbitration agreement is void as 

unconscionable. (ECF No. 34 at 2). 

 In addition to challenging the arbitration agreement, Ms. De Angelis has argued that this 

Court cannot dismiss Defendants because they are jointly and severally liable as co-conspirators 

in Doe 1, et al. v. VM3015 Inc., et al., Case No. 2:18-cv-443 (S.D. Ohio 2018) and that this 

Court should rule on conditional certification prior to ruling on Defendants’ instant motion. This 

Court rejects both arguments. As this Court previously ruled in De Angelis v. Nolan Enterprises, 

Inc., Case No. 2:17-cv-926 (S.D. Ohio 2017), Ms. De Angelis has offered no cases to support her 

argument that Kahoots’s alleged role in an entirely different case should inform the 

determination of the validity and applicability of the arbitration agreement. This is particularly 

true where, as here, the Defendants in the VM3015 litigation are not defendants here. As to 

conditional certification, this Court previously held that it would consider dispositive motions 

before addressing conditional class certification in the interests of efficiency and judicial 

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economy. See De Angelis v. Nolan Enterprises, Inc., Case No. 2:17-cv-926 (S.D. Ohio 2017) 

(ECF No. 55 at 4 n.1). 

B. Challenges to the Delegation Clause 

 Only two of Ms. De Angelis’s arguments are specific to the delegation clause: first, that 

Defendants have not specifically identified a delegation clause in the Agreement, and second, 

that the delegation clause is not clear and unmistakable. The Defendants have specifically 

identified a delegation clause. They have pointed to Paragraph 21(A) of the Agreement, which 

states in relevant part: “THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY 

TO RESOLVE ANY DISPUTES OVER THE VALIDITY AND/OR ENFORCEABILITY 

OF ANY PART OF THIS LEASE, INCLUDING THESE ARBITRATION 

PROVISIONS.” (ECF No. 28 at 8). 

 Second, Ms. De Angelis alleges that this delegation provision is not a clear and 

unmistakable delegation of questions of arbitrability. Plaintiff is incorrect. The delegation 

provision in the Agreement between Plaintiff and Kahoots is similar to the provision that the 

Supreme Court found clear and unmistakable in Rent-A-Center. There, the provision read, “[t]he 

Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to 

resolve any dispute relating to the interpretation, applicability, enforceability or formation of this 

Agreement including, but not limited to any claim that all or any part of this Agreement is void 

or voidable.” Rent-A-Center, 561 U.S. at 66. Other courts have also found provisions similar to 

the one at issue here to be sufficiently clear delegations. See, e.g., Danley v. Encore Capital 

Grp., Inc., 680 F. App’x 394 (6th Cir. 2017) (unpublished) (“[a]ll claims relating to your 

account, a prior related account, or our relationship are subject to arbitration, including Claims 

regarding the application, enforceability, or interpretation of this Agreement and this arbitration 

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provision,” and “Claims subject to this Arbitration Agreement include Claims regarding the 

applicability of this Arbitration Agreement or the validity of the entire Cardmember Agreement 

or any prior Cardmember Agreement.”); Doe v. Déjà vu Consulting Inc., Case No. 3:17-cv00040, 2017 U.S. Dist. LEXIS 142019, at *41–42 (M.D. Tenn. Sept. 1, 2017) (“the arbitrator 

shall have exclusive authority to resolve any disputes over the interpretation, validity and/or 

enforceability of any part of this contract, including the arbitration provisions in this 

paragraph.”). The delegation provision here is thus clear and unmistakable. 

C. Challenges Regarding the Scope and Enforceability of the Arbitration Agreement 

 Once there is a delegation clause, “a court possesses no power to decide the arbitrability 

issue. That is true even if the court thinks that the argument that the arbitration agreement 

applies to a particular dispute is wholly groundless.” Henry Schein, Inc. v. Archer & White 

Sales, Inc., 139 S. Ct. 524, 529 (2019). The delegation clause here states: “THE 

ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY 

DISPUTES OVER THE VALIDITY AND/OR ENFORCEABILITY OF ANY PART OF 

THIS LEASE, INCLUDING THESE ARBITRATION PROVISIONS.” (ECF No. 28 at 8). 

Thus, Ms. De Angelis must arbitrate any challenges to the validity or enforceability of the 

arbitration clause. Ms. De Angelis has challenged the application of the arbitration agreement to 

her state constitutional claims, argued that the arbitration agreement makes her unable effectively 

to vindicate her rights, raised several challenges to the arbitration agreement based on contract 

law, and challenged the applicability of the arbitration agreement to nonsignatories. These 

challenges pertain to the enforceability or validity of the arbitration agreement, and therefore, 

these challenges must be arbitrated. 

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 Plaintiff argues that her Ohio minimum wage claims are based on the Ohio Constitution 

and that the arbitration agreement does not cover state constitutional claims. (ECF No. 34 at 19). 

This challenge pertains to whether the arbitration agreement is enforceable as to the Ohio 

minimum wage claims. 

Plaintiff argues that despite the delegation clause, this Court must also consider 

Plaintiff’s effective vindication challenge to the arbitration agreement. The effective vindication 

doctrine voids “arbitration agreements that ‘operat[e] . . . as a prospective waiver of a party's 

right to pursue statutory remedies.’” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 235 

(2013) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 437 U.S. 614, 637 n.19 

(1985)). Effective vindication could be frustrated by “filing and administrative fees attached to 

arbitration that are so high as to make access to the forum impracticable.” Id. at 236. The “party 

[who] seeks to invalidate an arbitration agreement on the ground that arbitration would be 

prohibitively expensive . . . bears the burden of showing the likelihood of incurring such costs.” 

Green Tree Fin. Corporation-Alabama v. Randolph, 531 U.S. 79, 92 (2000). The effective 

vindication doctrine, if applicable, would operate to exempt from arbitration only federal 

statutory claims, not state law claims. Prasad v. General Elec. Co., No. 2:13-CV-272, 2014 WL 

934577, at *3 (S.D. Ohio Mar. 10, 2014). 

Several courts have considered effective vindication arguments even when arbitration 

agreements include delegation clauses. See, e.g., Doe, 2017 U.S. Dist. LEXIS 142019 at *46–47 

(analyzing effective vindication challenge where parties’ agreement included delegation clause); 

Mantooth v. Bavaria Inn Rest., Inc., Civil Action No. 17-cv-1150-WJM-MEH, 2018 U.S. Dist. 

LEXIS 82480 (D. Colo. May 16, 2018) (same); Congdon v. Uber Techs., 226 F. Supp. 3d 983 

(N.D. Cal. 2016) (same). Those courts were deciding the issue, however, before the Supreme 

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Court’s pronouncement in Henry Schein, Inc. v. Archer & White Sales, Inc. An effective 

vindication challenge is a challenge to the enforceability of the arbitration agreement. After 

Henry Schein, Inc. v. Archer & White Sales, Inc, these challenges are heard by the arbitrator 

where, as here, the parties’ agreement includes a delegation clause. Ms. De Angelis’s effective 

vindication challenge must, therefore, be raised before the arbitrator in the first instance. 

Ms. De Angelis’s additional contract challenges are for the arbitrator to decide. When 

there is a delegation clause, challenges to the overall contract or to the arbitration agreement do 

not pertain to the validity of the delegation clause and must be submitted to arbitration. Rent-ACenter, W., 561 U.S. at 71–72. Ms. De Angelis’s challenges based on mutual assent, lack of 

consideration, and unconscionability relate to the arbitration agreement, not to the delegation 

clause. Nowhere in Plaintiff’s briefing of those issues does she even mention the delegation 

clause. Ms. De Angelis also argues that the arbitration agreement is impermissible under the 

FLSA, the Ohio Constitution, and the Ohio statute prohibiting arbitration of “controversies 

involving the title to or the possession of real estate.” These challenges are all challenges to the 

enforceability of the arbitration clause and therefore fall within the delegation clause of the 

arbitration agreement. Thus, these challenges are for the arbitrator. 

 Plaintiff has also argued that nonsignatories to the Agreement cannot be bound by the 

arbitration clause. Whether such a challenge must be decided by the Court or an arbitrator is a 

closer question. Some courts have found that a delegation clause does not clearly and 

unmistakably show that Plaintiffs agreed to arbitrate arbitrability with nonparties. See, e.g., 

Republic of Iraq v. BNP Paribas USA, 472 F. App’x 11, 13 (2d Cir. 2012) (unpublished) (“But 

evidence of intent to have an arbitrator determine its jurisdiction with regard to disputes ‘referred 

by either Party,’ does not clearly and unmistakably demonstrate their intent to have the arbitrator 

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determine its jurisdiction with respect to any dispute raised by a non-party.”) (internal citations 

omitted); Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1127 (9th Cir. 2013) (“Given the 

absence of clear and unmistakable evidence that Plaintiffs agreed to arbitrate arbitrability with 

nonsignatories, the district court had the authority to decide whether the instant dispute is 

arbitrable.”). But see Brittania-U Nig., Ltd. v. Chevron USA, Inc., 866 F.3d 709, 714–15 (5th 

Cir. 2017) (holding that the district court did not err in allowing nonsignatories to enforce the 

arbitration clause because the clause clearly bound the signatory attempting to avoid arbitration); 

Contec Corp. v. Remote Solution, Co., 398 F.3d 205 (2d Cir. 2005) (finding that the arbitration 

and delegation clauses bound the signatory to arbitration with a nonsignatory); Apollo Computer 

v. Berg, 886 F.2d 469 (1st Cir. 1989) (affirming district court order allowing arbitration between 

signatory Plaintiff and a nonsignatory Defendant purportedly assigned rights to arbitration from 

the original signatory). 

 There is somewhat of a logical conundrum in finding that Ms. De Angelis must arbitrate 

the question of whether she agreed to arbitrate against nonsignatories. There is generally a 

presumption against delegation that may be overcome only with clear and unmistakable 

evidence; silence or ambiguity is not enough. First Options of Chicago, Inc., 514 U.S. at 944–

45. Even with a delegation clause, courts must determine whether a contract exists at all. See 

Turi v. Main St. Adoption Servs., LLP, 633 F.3d 496, 507 (6th Cir. 2011) (citing Apollo 

Computer, Inc. v. Berg, 886 F.2d 469, 473 (1st Cir. 1989) for the proposition that “a prima facie

agreement to arbitrate” must exist prior to applying a delegation clause). If the nonsignatories 

are not parties to the contract, then the Plaintiff has no agreement with them. See., e.g., Morsey 

Constructors, LLC v. Burns & Roe Enters., CASE NO. 5:08-CV-23-R, 2008 U.S. Dist. LEXIS 

61847, at *17–20 (W.D. Ky. Aug. 12, 2008) (examining whether a nonsignatory was bound by 

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arbitration clause by principles of estoppel even where delegation clause was present); Electrolux 

Home Prods. v. Mid-South Elecs., Inc., CIVIL ACTION NO. 6:07-CV-016-KKC, 2008 U.S. 

Dist. LEXIS 61416, at *18–19 (E.D. Ky. Aug. 11, 2008) (examining whether nonsignatory is 

bound by arbitration clause under state law); Doe v. Déjà vu Consulting Inc., 2017 U.S. Dist. 

LEXIS 142019 (M.D. Tenn. Sept. 1, 2017) (applying estoppel analysis to require signatory to 

arbitrate against nonsignatory). 

 But to adjudicate whether Ms. De Angelis is bound to arbitration with parties that she 

alleges are nonsignatories would be to engage in the type of analysis that the Supreme Court held 

impermissible in Henry Schein, Inc. v. Archer & White Sales, Inc. There, the Court opined that 

once the parties have a delegation clause, “a court possesses no power to decide the arbitrability 

issue,” Henry Schein, Inc., 139 S. Ct. at 529 (emphasis added), and that “[j]ust as a court may not 

decide a merits question that the parties have delegated to an arbitrator, a court may not decide 

an arbitrability question that the parties have delegated to an arbitrator.” Id. at 530. Whether a 

nonsignatory can enforce the arbitration agreement is a question of the enforceability of the 

arbitration clause, as to that defendant. But see Berkeley Cty. Sc. Dist. v. HUB Int’l Ltd., No. 

2:18-cv-00151-DCN, 2019 U.S. Dist. LEXIS 13692, at *24 n.7 (D. S.C. Jan. 29, 2019) (finding 

that Henry Schein, Inc. v. Archer & White Sales, Inc. does not prohibit the court from examining 

whether parties formed an agreement to arbitrate at all). The parties agreed to delegate such 

questions to an arbitrator. 

 Defendants have asked this Court to compel arbitration. The parties have provided for 

arbitration in New York, but this Court has jurisdiction to compel arbitration only within this 

district. Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1018 (6th Cir. 2003). 

Instead, the Court must either dismiss the case or stay the case pending arbitration. See Milan 

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Express Co. v. Applied Underwriters Captive Risk Assur. Co., 590 F. App’x 482, 486 (6th Cir. 

2014) (unpublished). The FAA authorizes a stay of proceedings, upon application by a party, 

when at least one claim is subject to arbitration. 9 U.S.C. § 3; Rent-A-Center, W., Inc. v. 

Jackson, 561 U.S. at 68. But dismissal is proper where “all claims are referred to arbitration.” 

Hensel v. Cargill, Inc., 1999 U.S. App. LEXIS 26600 (6th Cir. Oct. 19, 1999) (table) (citing 

Alford v. Dean Witter Reynolds Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)). This Court has 

stayed proceedings in a similar situation in which it found the claims subject to arbitration but 

was without jurisdiction to compel arbitration in the forum for which the parties contracted. 

Tower v. Amazon, Inc., Case No. 15-cv-2405, 2016 U.S. Dist. LEXIS 109924, at *15 (S.D. Ohio 

Aug. 18, 2016) (Marbley, J). This Court will follow that approach here. The case is hereby 

STAYED pending arbitration. The parties are to notify the Court when arbitration has been 

completed and may either file additional motions or notify the Court that the case may be 

dismissed. 

D. Fees and Costs for Enforcing Arbitration 

 Defendants have also moved for attorneys’ fees and costs for their efforts to compel 

arbitration. The Agreement between Plaintiff and Defendants provides that “IN THE EVENT 

THAT ANY PARTY CHALLENGES, OR IS REQUIRED TO INITIATE 

PROCEEDINGS TO ENFORCE, THE ARBITRATION REQUIREMENTS OF THIS 

PARAGRAPH 21, THE PREVAILING PARTY TO SUCH 

CHALLENGES/ENFORCEMENT PROCEEDINGS SHALL BE ENTITLED TO AN 

AWARD OF ALL COSTS, INCLUDING REASONABLE ATTORNEY FEES, 

INCURRED IN LITIGATING SUCH ISSUES.” (28-1 at 6, ¶ 21C) (emphasis in original). 

Defendants argue that this provision entitles them to fees associated with enforcing the 

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arbitration clause. Plaintiff argues that this provision cannot be enforced because the FLSA does 

not authorize such fees and attempts to make a second effective vindication argument. (ECF No. 

34 at 30–31). Defendants have responded that the fees provision here is considered separately 

from the Plaintiff’s FLSA claim. 

 Although under the “American rule,” each party pays its own way in litigation, such 

arrangement can be preempted by contract, even in the FLSA context. See Cook v. All State 

Home Mortg., 329 F. App’x 584, 588–89 (6th Cir. 2009) (unpublished). The arbitration 

agreement clearly provides for attorney’s fees and costs where, as here, one party must take 

action to enforce the arbitration agreement. Such provisions typically are enforceable. See, e.g., 

Cook v. All State Home Mortg., Inc., NO. 1:06 CV 1206, 2006 U.S. Dist. LEXIS 54621, at *9–10 

(N.D. Ohio Aug. 7, 2006); Cook, 329 F. App’x at 589; Johnson v. Western & Southern Life Co., 

No. 1:13-cv-01659-SEB-DKL, 2014 U.S. Dist. LEXIS 122469, at *14 (S.D. Ind. Sept. 3, 2014). 

 But to assess fees before the arbitration agreement is found valid would be to put the cart 

before the horse. The parties’ delegation clause requires that Ms. De Angelis’s challenges to the 

validity of the arbitration agreement be submitted to an arbitrator. It is possible that the 

arbitrator would find the arbitration agreement invalid. While the delegation clause would still 

have required the parties to resolve such challenges through arbitration, it would make little 

sense to grant attorney’s fees when the validity of the arbitration agreement has yet to be 

determined. Cf. Cook v. All State Home Mortg., Inc., 2006 U.S. Dist. LEXIS 69541, at *9 

(finding no jurisdiction over to assess previously ordered fees because issue of fees was 

“inherently bound up with the decision on the validity of the arbitration clause,” which was on 

appeal). Thus, the Defendants’ Motion is DENIED WITHOUT PREJUDICE pending the 

outcome of arbitration. 

Case: 2:17-cv-00927-ALM-EPD Doc #: 46 Filed: 03/04/19 Page: 14 of 15 PAGEID #: 536
15 

III. CONCLUSION 

For the foregoing reasons, Defendants’ Motion to Dismiss or Stay in Favor of Arbitration 

and for Attorneys’ Fees and Costs is GRANTED IN PART and DENIED IN PART. Finding 

the Plaintiff’s claims to be issues for an arbitrator to decide, this case is hereby STAYED

pending arbitration. Defendants’ Motion for fees is DENIED WITHOUT PREJUDICE

pending the outcome of arbitration. 

 IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 United States District Court Judge 

DATED: March 4, 2019

Case: 2:17-cv-00927-ALM-EPD Doc #: 46 Filed: 03/04/19 Page: 15 of 15 PAGEID #: 537