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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

JANET PAYNE, ) 

 ) 

Plaintiff, ) 

) 

v. ) Civil No. 2:15-cv-317 

) 

MENARD, INC., d/b/a ) 

MENARD’S (as filed), ) 

 ) 

Defendant. ) 

DEFENDANT’S MOTION TO DISMISS FOR IMPROPER VENUE 

Defendant Menard, Inc. (improperly named in the caption as “MENARD, INC., 

d/b/a MENARD’S” and hereinafter referred to as “Menard”), by counsel, pursuant to 

Rule 12(b)(3) of the Federal Rules of Civil Procedure, respectfully moves this Court for 

an Order dismissing the Complaint filed by plaintiff Janet Payne (“Payne”). In support of 

this Motion, Menard states: 

1. According to her Complaint, Payne alleges violations of the Americans with 

Disabilities Act of 1990, 43 U.S.C. § 12101, et seq., as amended, the Age 

Discrimination in Employment Act (ADEA) 29 U.S.C § 621, et seq., and a 

state law claim under the Indiana Worker’s Compensation Act. (DE #1) 

2. Payne first began working for Menard on April 27, 2006 as a part-time cashier 

at the Menard retail store d/b/a Menards® located at 351 Silhavy Road 

Valparaiso, Indiana 46383-4462. 

3. On April 27, 2006, Payne and Menard executed a one-page document entitled 

“EMPLOYEE AGREEMENT” (“Agreement”). The Agreement sets forth the 

terms and conditions of employment between Payne and Menard. Relevant to 

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this Motion, the Agreement contains a mandatory arbitration clause, which 

requires Payne to submit her claims to binding arbitration; and states as 

follows: 

6. Remedy. I agree that all problems, claims, and disputes experienced 

within my work area shall first be resolved as outlined in the Team Member 

Relations section of the Grow With Menards Team Member Information 

Booklet which I have received. If I am unable to resolve the dispute by these 

means, I agree to submit to final and binding arbitration. Problems, claims, or 

disputes subject to binding arbitration include, but are not limited to: statutory 

claims under 42 U.S.C. § 1981, Age Discrimination in Employment Act, Fair 

Labor Standards Act, Title VII of the Civil Rights Act of 1964, Title I of the 

Civil Rights Act of 1991, Americans with Disabilities Act, Family Medical 

Leave Act, and non-statutory claims such as contractual claims, quasicontractual claims, tort claims, and any and all causes of action arising under 

state laws or common law. 

These claims shall be resolved by binding arbitration with the American 

Arbitration Association (“AAA”) located at 225 North Michigan Avenue, 

Suite 252, Chicago, Illinois 60601-7601 under its current version of the 

National Rules for the Resolution of Employment Disputes. I understand 

that the AAA National Rules for the Resolution of Employment Disputes 

shall govern the fees in this matter, and that the costs of filing a demand 

for arbitration will not exceed the costs of filing a civil complaint in 

federal court. A copy of the National Rules for the Resolution of 

Employment Disputes and fee schedule of the American Arbitration 

Association may be obtained by contacting it at the address listed above. 

I agree that all arbitrators selected shall be attorneys. This provision shall 

supersede any contrary rule or provision of the forum state. 

Nothing in this Agreement infringes on my ability to file a claim or 

charge of discrimination with the U.S. Equal Employment 

Opportunity Commission or comparable state or local agencies. 

These agencies have the authority to carry out their statutory duties 

by investigating the charge, issuing a determination, filing a lawsuit in 

Federal or state court in their own name, or taking any other action 

authorized under these statutes. I understand that I have the right to 

participate in such action. 

Menard, Inc. is engaged in commerce using U.S. Mail and telephone 

service. Therefore, the Agreement is subject to the Federal Arbitration 

Act, U.S.C. Sections 1 – 14 as amended from time to time. (¶ 6 

Agreement) 

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4. Under the Agreement, Payne and Menard agreed to submit all claims and 

disputes that they are unable to resolve to binding arbitration with the 

American Arbitration Association. 

5. Payne breached the Agreement by refusing to arbitrate her claims and filing 

this Complaint in the United States District Court for the Northern District of 

Indiana. 

6. Menard requests that this Court dismiss Payne’s Complaint under Rule 

12(b)(3) for improper venue. 

7. Menard’s Brief in Support of this Motion and supporting affidavit have been 

filed contemporaneously herewith. 

WHEREFORE, defendant, Menard, by counsel, pursuant to Rule 12(b)(3) of the 

Federal Rules of Civil Procedure respectfully requests that plaintiff’s Complaint be 

dismissed for improper venue and in accord with the parties’ written agreement to 

arbitrate. 

DATED: October 9, 2015 Respectfully Submitted, 

 MENARD, INC. 

___s/ Michael J. O'Brien______ 

Michael J. O'Brien #25035-45 

5101 Menard Drive 

Eau Claire, WI 54703 

715-876-2971 

715-876-5963 

mobrien@menard-inc.com

Attorney for defendant Menard, Inc. 

 

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CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2015, a copy of the foregoing 

“DEFENDANT’S MOTION TO DISMISS FOR IMPROPER VENUE” was filed 

electronically. Notice of this filing will be sent to the following parties by operation of 

the Court’s electronic filing system. Parties may access this filing through the Court’s 

system. 

Marissa McDermott 

McDermott Law Office 

9013 Indianapolis Blvd. 

Highland, IN 46322 

marissa@mcdermottlegal.net 

 

 

 

 _s/ Michael J. O'Brien______ 

 Michael J. O’Brien 

 

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