SUPERIOR COURT

of the

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

Resident Judge 38 The Green

 Dover, DE 19901

 Telephone (302)735-2111

April 13, 2023

Ms. Kerriann Shelley Ms. Marla S. Benedek, Esquire

134 Brenford Station Road Cozen O’Connor

Smyrna, DE 19977 1201 North Market Street, Suite 1001

Wilmington, DE 19801

Mr. Jason A. Carbrera, Esquire

Cozen O’Connor

One Liberty Place, 

1650 Market Street, Suite 2800

Philadelphia, PA 19103

RE: Kerriann Shelley v. Barrett Business Services, Inc.

K22C-12-013 JJC

Dear Ms. Shelley and Counsel:

This letter provides the Court’s decision and reasoning regarding Defendant 

Barrett Business Services, Inc.’s motion to dismiss Plaintiff Kerriann Shelley’s 

complaint. In Ms. Shelley’s complaint, she alleges that a fellow employee at Barrett 

harassed and intimidated her, and that Barrett took no action to address the matter. 

Barrett counters that the Court must dismiss her suit pursuant to Superior Court Civil 

Rule 12(b)(1) because she and Barrett agreed to arbitrate any such matters. For the 
2

reasons that follow, Ms. Shelley agreed to submit her claims to arbitration. That, in 

turn, divests the Court of subject matter jurisdiction over her claims. 

Background and Facts of Record

For this Rule 12(b)(1) motion, the record includes Ms. Shelley’s complaint, a 

record custodian’s affidavit that authenticates Ms. Shelley’s personnel documents, 

the arbitration agreement between the parties, and Ms. Shelley’s employment 

agreement.

1

 Together, they provide the following relevant facts. 

In July 2018, Ms. Shelley began her job at Barrett.2 On her first day, she 

signed a mandatory arbitration agreement.3 That stand-alone agreement covered 

any and all claims arising out of her employment,4and required both her and Barrett 

to arbitrate any such claims through Judicial Arbitration and Mediation Services, 

Inc. (“JAMS”).5 Later, in December 2018, Ms. Shelley signed an employment 

agreement with Barrett with an effective date of January 7, 2019.

6

 The employment 

agreement also contained a separate mandatory arbitration provision that 

encompassed all employment-related claims.

7 Unlike the stand-alone agreement, 

however, it did not require the parties to use a JAMS arbitrator. Rather, it sets forth

a separate process to select one.

8

 

1

See Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) 

(recognizing that for purposes of a Rule 12(b)(1) motion, the Court may consider matters outside 

of the complaint). 

2 Def.’s Mot. to Dismiss, Ex. 1A [hereinafter “Arbitration Agreement”].

3 Def.’s Mot. to Dismiss, Ex. 1, ¶ 4 [hereinafter “Sheehan Aff.”].

4 Arbitration Agreement ¶ 1.

5

See Arbitration Agreement ¶ 2 (providing that “a neutral arbitrator from JAMS will administer 

any such arbitration(s) pursuant to its Employment Arbitration Rules and Procedures”).

6 Sheehan Aff. ¶ 6.

7 Def.’s Mot. to Dismiss, Ex. 1B, ¶ 13 [hereinafter “Employment Agreement”].

8

Id.
3

Ms. Shelley’s complaint does not explain how she alleges Barrett 

discriminated against her. In her response to Barrett’s motion, however, she alleges 

that a co-worker harassed and bullied her, and that Barrett failed to take action to

address his conduct.9 

In November 2021, Ms. Shelley left Barrett.

10

 She then filed a complaint

with the United States Equal Employment Opportunity Commission (“EEOC”).

11

 

The EEOC dismissed her claim on September 22, 2022, and when it did, it included 

a right to sue notice in the letter.12 Ms. Shelley then filed her Superior Court 

complaint. 

The Parties’ Arguments

Barrett asks the Court to dismiss the action because Ms. Shelley agreed to 

submit any claims related to her employment to binding arbitration. In fact, Barrett 

relies upon two separate arbitration provisions, one contained in a stand-alone 

document and one contained in a broader employment agreement. Barrett contends 

that either provision independently requires the parties to resolve any legal dispute

that relates to her employment through arbitration. Barrett further contends that 

those provisions divest the Court of subject matter jurisdiction over Ms. Shelley’s 

claims. 

Ms. Shelley counters that the arbitration agreements are “null and void” for 

four reasons.13 First, she alleges that although she signed the stand-alone arbitration 

agreement when Barrett hired her, it is invalid because her manager did not 

9

See Pl.’s. Resp. to Def.’s Mot. to Dismiss at 1 (describing alleged instances of harassment, 

bullying, and discrimination by a co-worker and contending that her supervisor was aware of his 

conduct).

10 Tr. Oral Arg. at 10.

11 Compl., Ex. at 1.

12 Id. at 2.

13 Compl. at 1; Pl.’s Resp. to Def.’s Mot. to Dismiss at 1.
4

countersign it for more than one year after she signed it.

14 Second, she contends

that the agreements are invalid because Barrett failed to provide her copies of the 

documents after she executed them.

15

 Third, Ms. Shelley argues that the arbitration 

provision contained in the employment agreement is void because it recites the 

wrong employee’s name in one location, even though she acknowledges signing the 

agreement and then working for Barrett for many months thereafter.

16

 Fourth, she 

contends that both provisions are void because the two arbitration provisions provide 

different methods to select an arbitrator.

17

 

Standard of Review

Delaware Superior Court Civil Rule 12(b)(1) requires the Court to dismiss an 

action if it lacks subject matter jurisdiction over that matter. Subject matter 

jurisdiction is, in essence, a question of the power of a court to hear and decide the 

case before it.18 Unlike the standards governing a motion to dismiss under Rule 

12(b)(6), the Court’s review of a Rule 12(b)(1) motion is more demanding on the 

non-movant. If a defendant challenges the Court’s jurisdiction by introducing 

materials extrinsic to the pleadings, the plaintiff must respond by supporting the 

Court’s jurisdiction with competent proof.19 In other words, the Court considers

extrinsic sources from outside the pleadings that bear on the Court’s power to hear 

the case.

20

14 Pl.’s Resp. to Def.’s Mot. to Dismiss at 1.

15 See Tr. Oral Arg. at 9 (contending that the first agreement is unenforceable because she did not 

receive a copy of the agreement to confirm its accuracy).

16 Pl.’s Resp. to Def.’s Mot. to Dismiss at 1.

17 Tr. Oral Arg. at 9.

18 Abbott v. Vavala, 2022 WL 453609, at *5 (Del. Ch. Feb. 15, 2022), aff’d, 284 A.3d 77, 2022 

WL 3642947 (Del. Aug. 22, 2022) (TABLE).

19 Id.

20 Id. 
5

Discussion 

A written agreement to submit claims to arbitration is enforceable and binding 

upon the parties to the agreement.21 The Court of Chancery has exclusive 

jurisdiction, by statute, to compel parties to arbitrate a matter pursuant to such an 

agreement.22 Nevertheless, a significant amount of Superior Court decisional

authority has examined the arbitrability of issues in a single context – namely, when 

determining whether an agreement to arbitrate divests the Superior Court of 

jurisdiction to consider a claim.23 For that limited purpose, the Court undertakes 

two focused inquiries: (1) whether a valid agreement exists, and (2) whether the 

scope of the agreement covers the plaintiff’s claim.24 If the answers to both 

questions is yes, the Court has no subject matter jurisdiction over the claim.

Here, the stand-alone arbitration agreement conclusively resolves both issues. 

Namely, Ms. Shelley signed the document that requires her to submit any 

employment-related claims to arbitration. The agreement defines “arbitrable 

claims” as any matters “arising out of, related to or connected with the Employee’s 

employment with [Barrett], including, but by no means limited to, claims of 

discrimination, harassment, unpaid wages, [and] breach of contract.”25

Discrimination claims are causes of action that permissively fall within the scope of 

mandatory arbitration agreements between employers and employees.

26

 Although 

21 10 Del. C. § 5701.

22 Id. 

23 See Geraci v. Uber Tech., Inc., 2021 WL 5028368, at *2 (Del. Super. Oct. 29, 2021) (explaining 

that the Superior Court has limited jurisdiction to determine if a valid, enforceable arbitration 

agreement exists for purposes of determining whether it has subject matter jurisdiction over a 

claim); see also Jones v. 810 Broom St. Operations, Inc., 2014 WL 1347746, at *1 (Del. Super. 

Apr. 7, 2014) (recognizing similarly that the Superior Court’s jurisdiction is limited to determining 

whether a valid agreement exists for purposes of exercising the Court’s subject matter jurisdiction).

24 Jones, 2014 WL 1347746, at *1.

25 Arbitration Agreement ¶ 1.

26 Hurtt v. Del Frisco’s Rest. Grp., 2019 WL 2516763, at *6 (Del. Super. Jun. 18, 2019). Ms. 

Shelley has not alleged sexual harassment. Nevertheless, the Court recognizes that, if she had, 
6

Ms. Shelley’s complaint does not fully explain how she believes Barrett 

discriminated against her, the Court infers that she alleges some nature of 

discrimination. Because the discrimination and harassment that she alleges flows

from her employment relationship, the Court has no jurisdiction over the matter if 

the agreement was valid. 

As to validity, Ms. Shelley incorrectly contends that the arbitration agreement 

and the employment agreement are void. First, her argument that the stand-alone 

agreement is “null and void” because Barrett’s Area Manager did not counter-sign 

the document until many months after she signed it is contrary to contact law. A 

written contract binds a party after he or she signs it, even under circumstances where 

the other party did not, as long as both parties enjoy the benefits of the bargain.27 In 

other words, an agreement signed by one party binds that party if the course of 

conduct between the two demonstrates mutual assent.28 Here, Ms. Shelley signed 

the arbitration agreement, performed work at Barrett for almost four years, and 

received pay and other benefits for that work. Accordingly, a Barrett

representative’s failure to sign the arbitration agreement contemporaneously with 

Ms. Shelley does not render it void. 

the Court would need to consider whether the recently enacted Ending Forced Arbitration of 

Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90 136 Stat. 26 (2021) 

(codified as amended at 9 U.S.C. § 402) would make the arbitration agreement unenforceable. In 

this case, even if Ms. Shelley had alleged sexual harassment, the Act would not apply because it

is not retroactive. See Woodruff v. Dollar Gen. Corp., 2022 WL 17752359, at *3 (D. Del. Dec. 

19, 2022) (explaining that the Act does not apply retroactively to remove claims of sexual 

harassment and assault from mandatory arbitration). Ms. Shelley’s employment with Barrett 

ended in November 2021. Tr. Oral Arg. at 10. The Act’s effective date followed on March 3, 

2022. 

27 Elia v. Hertrich Fam. of Auto. Dealerships, Inc., 103 A.3d 514, 2014 WL 5410723, at *1 n.3 

(Del. Oct. 23, 2014) (TABLE) (citing 2 Samuel Williston & Richard A. Lord Williston on 

Contracts § 6:44 (4th ed. 2003)).

28 Hertrich, 2014 WL 5410723, at *1 n.3 (citing 7 Phillip L. Bruner & Patrick J. O’Connor 

Construction Law § 21:46 (2014)). 
7

The remainder of Ms. Shelley’s contentions are also incorrect. Namely, there 

is no basis in contract law to support the contention that the agreements became 

unenforceable because she did not retain copies of them.29 Nor is there a basis to 

deem both agreements unenforceable because the employment agreement listed the 

wrong name in one location. Here, she does not contend that she was unaware of 

either provision. Moreover, she worked for Barrett for years and received pay for 

her work. 

Finally, although the two agreements provide different methods to select an

arbitrator, the two documents define arbitrable disputes in the same way. Namely, 

they include discrimination and harassment claims within the definition of arbitrable 

matters. Ultimately, if the parties cannot agree regarding who should arbitrate the 

matter, the differences in the two documents may leave an open question. That 

question, if it arises, would fall to the Court of Chancery.30 For purposes of this 

Court’s review, however, the stand-alone arbitration agreement was valid, and its 

scope encompassed Ms. Shelley’s claims.

Conclusion 

For the reasons explained above, (1) the parties entered a valid arbitration 

agreement, and (2) Ms. Shelley’s claims fall within the scope of that agreement.

Accordingly, the Court lacks subject matter jurisdiction to consider her claims. As 

a result, Barrett’s Motion is GRANTED, with prejudice as to this Court’s 

29 James & Jackson, LLC v. Willie Gary, LLC, 906 A.2d 76, 78–79 (Del. 2006) (citing Howsam v. 

Dean Witter Reynolds, Inc., 537 U.S. 79 (2002)). 

30 See AffiniPay, LLC, v. West, 2021 WL 4262225, at *5 (Del. Ch. Sept. 17, 2021) (recognizing 

that the Court of Chancery has jurisdiction to evaluate and reconcile two competing arbitration 

clauses); see also Willie Gary, 906 A.2d at 79–80 (providing the proper framework for a court 

with jurisdiction to determine the arbitrability of a cause of action).
8

jurisdiction, but without prejudice on the merits, so as to preserve Ms. Shelley’s 

right to submit her claims to arbitration.

31

IT IS SO ORDERED.

Very truly yours, 

/s/ Jeffrey J Clark 

 Resident Judge

JJC:klc

Via File & ServeXpress 

U.S. Mail to Plaintiff Kerriann Shelley

 

31 The Court recognizes the requirements of 10 Del. C. §1902. Here, neither party has sought to 

submit the matter to arbitration. In fact, Barrett represented that it would not oppose arbitrating 

the matter. Accordingly, there is presently nothing to compel, leaving Section 1902’s process for 

removal to the Court of Chancery untriggered. Under these circumstances, the Court dismisses

Ms. Shelley’s suit with prejudice as to any claims in this Court, with the intent to not prejudice the 

parties’ ability to arbitrate the matter.