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Law Offices of 

BONNETT, FAIRBOURN, 

FRIEDMAN & BALINT, P.C.

2325 E. Camelback Road, Suite 300 

Phoenix, Arizona 85016 

(602) 274-1100 

Ty D. Frankel (AZ Bar No. 027179) 

tfrankel@bffb.com

Law Offices of 

BONNETT, FAIRBOURN, 

FRIEDMAN & BALINT, P.C.

600 W. Broadway, Suite 900 

San Diego, California 92101 

(619) 756-7748 

Patricia N. Syverson (AZ Bar No. 020191) 

psyverson@bffb.com

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Joseph P. Stone, on behalf of himself and 

all those similarly situated, 

 Plaintiff, 

v. 

Certified Folder Display Service, Inc., a 

California corporation, 

 Defendant. 

 Case No. CV-17-04205-PHX-JJT 

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT 

CERTIFIED FOLDER DISPLAY 

SERVICE, INC.'S PETITION TO 

COMPEL ARBITRATION AND 

CONCURRENT REQUEST TO 

DISMISS OR STAY LITIGATION 

Case 2:17-cv-04205-JJT Document 31 Filed 06/19/18 Page 1 of 8
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Plaintiff Joseph P. Stone (“Plaintiff”) submits this Opposition to Defendant Certified 

Folder Display Service, Inc.’s (“Certified Folder”) Petition to Compel Arbitration and 

Concurrent Request to Dismiss or Stay Litigation (Doc. 22)(the “Petition”). This 

Opposition is supported by the following Memorandum of Points and Authorities. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION. 

For months, Plaintiff has repeatedly contacted Certified Folder’s counsel regarding 

stipulating to arbitration to avoid unnecessary briefing on this issue. In fact, Plaintiff’s 

effort began at the scheduling conference before this Court on February 27, 2018. At that 

conference, Plaintiff stated that if Certified Folder decided to seek to arbitrate this matter, 

Plaintiff asked to confer regarding that request in hopes of avoiding expending unnecessary 

resources on a request Plaintiff was likely to agree to. Transcript of Proceedings, 

Scheduling Conference, Exhibit 1 at p. 14. Plaintiff then followed up by emailing counsel 

for Certified Folder on March 6, 2018, asking for a courtesy copy of any draft petition for 

arbitration so that he could consider stipulating to the petition. March 6, 2018 Email from 

at Exhibit 2. Certified Folder never responded to this email, and instead filed the Petition 

to compel arbitration on May 8, 2018 without any interaction with Plaintiff on the topic 

whatsoever. Doc. 22. This was particularly concerning because conferring with Plaintiff 

could have alleviated needlessly expending this Court’s and the parties’ resources. 

After reviewing Certified Folder’s Petition, Plaintiff renewed his efforts to engage 

with Certified Folder about whether the parties could just stipulate that the case be moved 

to arbitration. On May 30, 2018, Plaintiff sent counsel for Certified Folder a stipulation that 

would move the case to arbitration obviating the need for this briefing. See May 30, 2018 

Email attaching a draft stipulation and proposed order, Exhibit 3. Plaintiff continued 

sending Certified Folder follow-up correspondence on June 1, 2018 and June 4, 2018 for an 

answer on this issue. June 4, 2018 Email at Exhibit 4. Plaintiff articulated that he would 

stipulate to arbitration and if required to file a response to the Petition in spite of that 

agreement, Plaintiff would seek attorneys’ fees associated with having to do so. Id. Finally, 

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on June 4, 2018, counsel for Certified Folder responded that she was awaiting feedback 

from her client. June 4, 2018 Email at Exhibit 5. Having not received that final 

confirmation from the Company, the parties then submitted a stipulation extending the 

deadline for Plaintiff to submit this Opposition on June 4, 2018, given that counsel for 

Certified Folder indicated the Company was expected to agree to arbitrate this matter on a 

class and collective action basis but was still awaiting final client approval to that end. Doc. 

29 at p. 2. Since that time, Plaintiff’s counsel has sent repeated requests to Certified Folder 

asking if the simple stipulation to arbitrate this matter was approved by the Company, which 

have gone ignored. June 13, 2018 Email at Exhibit 6. It was not until 3:56 pm the afternoon 

before Plaintiff’s Opposition was due that Certified Folder’s counsel finally informed 

Plaintiff’s counsel that the Company was not willing to stipulate to arbitration on a 

class/collective basis. June 18, 2018 Email at Exhibit 7. 

In light of that procedural history, the parties are in agreement that arbitration is 

appropriate here. The only remaining issue is whether Plaintiff’s claims can be arbitrated 

on a collective or classwide basis. That would be appropriate given that the arbitration 

agreement makes no express prohibition against arbitrating collectively that would warrant 

a conclusion that arbitration would be only on an individual basis. Regardless, even if the 

issue of the scope of the arbitration remains an outstanding question, Certified Folder should 

have responded in a timely manner so that the parties could have reached an agreement, as 

the law requires, that the issue of whether the arbitration would be on a class or collective 

basis would be decided by the Arbitrator. 

II. ARBITRATION IS PROPER ON A CLASSWIDE AND COLLECTIVE 

BASIS. 

In the absence of a class action waiver, it is consistently held that broad language 

subjecting “any dispute or claim” to arbitration encompasses FLSA collective actions or 

other class action claims, meaning that the actions should be arbitrated on a collective or 

class basis. That is precisely the case here. It is undisputed that Plaintiff’s arbitration 

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agreement does not expressly waive class actions. The arbitration agreement reads in 

relevant part: 

[E]mployee and Certified agree to submit to final and binding arbitration any 

dispute arising from or related to employee’s employment with Certified. . . 

. Employee and Certified agree that such arbitration shall be the exclusive 

forum for resolving all disputes arising out of or involving the employee’s 

employment with Certified[.] 

Doc. 22-5 at p. 3-4. This type of broad language subjecting “any dispute or claim” to 

arbitration encompasses FLSA collective and class action claims. See, e.g., Passow v. Smith 

& Wollensky Restaurant Group, Inc., AAA 11 160 00357 08 (Sept. 1, 2010), aff’d, Smith 

& Wollensky Restaurant Group, Inc. v. Passow, 2011 WL 148302, at *1 (D. Mass. Jan. 18, 

2011)(finding that parties’ arbitration agreement allowed for class-wide procedures); Sutter 

v. Oxford Health Plans, Inc., AAA 18 193 20593 02 (July 6, 2010), aff’d, Sutter v. Oxford 

Health Plans, Inc., 2011 WL 734933 (D. N.J. Feb. 22, 2010)(same). The Supreme Court 

even upheld an arbitrator’s ruling that an arbitration agreement allowed for class-wide 

arbitration, where the arbitrator relied on the party’s contractual language rather than 

“impos[ing] its own conception of sound policy.” Oxford Health Plans LLC v. Sutter, 569 

U.S. 564, 571 (2013)(holding that text itself suggested class actions could be maintained). 

The language in Plaintiff’s arbitration agreement states that “all disputes” arising 

from employment must be arbitrated. Under that plain meaning, the express language of 

the arbitration agreement that “all disputes” would be arbitrated would include class and 

collective actions and there is no express statement to the contrary. See Yahoo!, Inc. v. 

Iversen, 836 F.Supp.2d 1007, 1013 (N.D. Cal. 2011)(finding that nothing prevents an 

“arbitrator or the subsequent reviewing court from finding that the parties consented to 

submit class claims to arbitration even in the absence of any explicit discussion of class 

arbitration within the four corners of the agreement itself”). It is unsurprising that Certified 

Folder initially indicated that it would likely agree to class and collective arbitration, given 

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the likelihood that it would be required to do so anyway. Exhibit 7. What is surprising is 

the Company’s last-minute decision not to so stipulate and continue to pursue its Petition. 

III. THE ARBITRATOR DECIDES WHETHER TO PROCEED ON A CLASS 

OR COLLECTIVE BASIS. 

 Even if there is a question regarding whether the arbitration agreement precludes an 

action on a class or collective action basis, that decision must be decided by an arbitrator, 

not this Court. As discussed, supra, the arbitration agreement provides that “any dispute” 

arising from Plaintiff’s employment must be decided by an arbitrator. That would include 

disputes regarding interpretation of whether Plaintiff can bring a claim arising from his 

employment on a class or collective action basis. See Green Tree Fin. Corp. v. Bazzle, 539 

U.S. 444, 453 (2003)(holding that the question of whether a collective arbitration was 

appropriate should be reserved for the arbitrator). The Ninth Circuit also provides that “the 

question of whether an arbitration agreement forbids or allows class arbitration is for the 

arbitrator to decide.” Johnson v. Gruma Corp., 123 Fed.Appx. 786, 788 (9th Cir. 2005). 

Indeed, ever since the Stolt-Nielson decision cited extensively by Certified Folder, courts 

have held that the availability of class or collective arbitration is for the arbitrator to decide. 

See, e.g., Certain Underwriters v. Cravens Dargan & Co., 197 Fed. Appx. 645, 647 (9th 

Cir. 2006)(holding that procedural issues are left to the arbitrator); Zhu v. Hakkasan NYC 

LLC, 291 F.Supp.3d 378, 393-95(S.D. N.Y. 2017)(holding that question of whether case 

must proceed individually at arbitration is to be resolved by the arbitrator in the first 

instance); In re A2P SMS Antitrust Litigation, 2014 WL 2445756, at *12 (S.D. N.Y. May 

29, 2014)(holding that the availability of class arbitration is an issue to be resolved by the 

arbitrator in the first instance because “the issue raised is not one of enforcement of an 

arbitration agreement or the power of the arbitrator to hear the dispute, but rather the form 

of the proceedings to a dispute that is. . . subject to the arbitrator’s authority.”). 

 Plaintiff is confounded why, with this great weight of authority, Certified Folder has 

decided to pursue this Petition rather than stipulate to send the case to arbitration. Collective 

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and classwide arbitration is appropriate, and even if the Company contests that point, 

ultimately that decision is for the arbitrator to decide. 

IV. CERTIFIED FOLDER SHOULD BE SANCTIONED FOR UNREASONABLY 

EXPANDING THESE PROCEEDINGS. 

 This Court should sanction Certified Folder for requiring Plaintiff to file this 

Opposition. As explained above, Plaintiff has consistently and repeatedly indicated that he 

would be willing to arbitrate this dispute. Yet, Certified Folder refused to respond with a 

final answer regarding the draft stipulation Plaintiff circulated to that effect until late the 

day before Plaintiff’s Opposition was due to be filed. Furthermore, this issue has been 

unnecessarily dragged out for months by the Company. This Court asked Certified Folder 

to file its request for arbitration which would allow briefing to conclude within a month of 

the scheduling conference in February 2018. Exhibit 1 at p. 141

. Yet, Certified Folder 

waited for months to file its Petition and now refuses to cooperate with Plaintiff to alleviate 

the need for the parties and Court to expend resources on the issue of arbitration when in 

the only remaining issue – i.e., scope of arbitration – is a procedural issue properly decided 

by the arbitrator. 

When a party needlessly and unreasonably expands proceedings like this, sanctions 

are warranted. 28 U.S.C. § 1927; A.R.S § 12-349. Attorneys’ fees should be awarded when 

an attorney knowingly or recklessly allows a frivolous argument to multiply the 

proceedings. Id. Here, Certified Folder has needlessly expanded this litigation by failing 

to respond to Plaintiff’s request that a stipulation be entered into regarding arbitration. As 

demonstrated in the email exhibits and stipulations filed to date, Plaintiff has repeatedly 

engaged with Certified Folder’s counsel to avoid having to file this brief, all to no avail. 

Plaintiff should be awarded attorneys’ fees for having to file an Opposition that could have 

 

1

 The delay by Certified Folder is all the more concerning when taking into account that 

such delay could even warrant waiver of the Company’s request for arbitration at all. See, 

e.g., Joca-Roca Real Estate, LLC v. Brennan, 772 F.3d 945, 949 (1st Cir. 2014)(noting that 

“[s]ome degree of prejudice ordinarily may be inferred from a protracted delay in the 

assertion of arbitral rights. . . [.]”). 

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been avoided if Certified Folder had simply stipulated to arbitrate this matter (with the issue 

of scope being decided by the arbitrator), the request ultimately at the heart of the 

Company’s own Petition. 

V. CONCLUSION. 

Based on the foregoing analysis, Plaintiff respectfully requests that the case be 

submitted for arbitration on a class or collective wide basis, or in the alternative, submitted 

to arbitration with the arbitrator to decide the procedural scope of this matter. Plaintiff also 

requests that Certified Folder be sanctioned for requiring Plaintiff to expend the resources 

responding to a Petition to compel arbitration when Plaintiff had provided a stipulation that 

should have avoided this briefing altogether. 

DATED: June 19, 2018. 

BONNETT, FAIRBOURN, FRIEDMAN 

& BALINT, P.C. 

 /s/ Ty D. Frankel 

Ty D. Frankel 

2325 E. Camelback Road, Suite 300 

Phoenix, Arizona 85016 

Telephone: 602-274-1100 

Facsimile: 602-798-5860 

BONNETT, FAIRBOURN, FRIEDMAN 

& BALINT, P.C. 

Patricia N. Syverson 

600 W. Broadway, Suite 900 

San Diego, California 92101 

 Attorneys for Plaintiff 

 

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CERTIFICATE OF SERVICE 

 I, Karen Vanderbilt, hereby certify that a true copy of the foregoing document filed 

through the ECF system will be electronically sent to the registered participants as identified on the 

Notice of Electronic Filing, and paper copies will be sent to those indicated as non-registered 

participants on June 19, 2018. 

/s/ Karen Vanderbilt 

Case 2:17-cv-04205-JJT Document 31 Filed 06/19/18 Page 8 of 8