Pierre v. Rochdale Village

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPH B. PIERRE,

Plaintiff,

MEMORANDUM & ORDER

18-CV-6383 (MKB) (ST)

v.

ROCHDALE VILLAGE INC.,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Joseph B. Pierre, proceeding pro se, commenced the above-captioned action on

November 5, 2018, against Defendant Rochdale Village Inc. pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (Compl., Docket Entry No. 1.)

Plaintiff alleges that Defendant, his former employer, discriminated against him based on his

religion and national origin and retaliated against him for filing a complaint against a supervisor

who made disparaging remarks to Plaintiff based on his national origin. (Id. at 5.) Defendant

moves to dismiss the Complaint or stay the action and compel arbitration pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure and the Federal Arbitration Act, 9 U.S.C. § 1 et

seq. (“FAA”), and Plaintiff opposes the motion.1

For the reasons set forth below, the Court grants the motion and stays the action. The

Court denies Defendant’s request for attorneys’ fees and costs associated with its motion.

1 (Def.’s Mot. to Dismiss & Compel Arb. (“Def.’s Mot.”), Docket Entry No. 35; Def.’s

Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), Docket Entry No. 38; Def.’s Reply Mem. in

Supp. of Def.’s Mot. (“Def.’s Reply”), Docket Entry No. 49; Pl.’s Mem. in Opp’n to Def.’s Mot.

(“Pl.’s Opp’n”), Docket Entry No. 46; Pl.’s Sur-Reply in Opp’n to Def.’s Mot., Docket Entry

No. 52.).

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes

of this Memorandum and Order. In light of Plaintiff’s pro se status, the Court also considers and

assumes the truth of the factual allegations in Plaintiff’s opposition. See Walker v. Schult, 717

F.3d 119, 122 n.1 (2d Cir. 2013) (finding that district courts may consider factual allegations

made by a pro se party in his papers opposing a motion to dismiss).2

a. Factual background

i. Plaintiff’s employment and termination

Defendant manages Rochdale Village, a 120-acre housing cooperative in Jamaica,

Queens. (Decl. of Jay Williams in Supp. of Def.’s Mot. (“Williams Decl.”) ¶¶ 4–5, Docket Entry

No. 37.) On November 21, 2011, Defendant hired Plaintiff to serve as a public safety officer at

Rochdale Village. (Id. ¶ 13.) Beginning “around 2016,” Plaintiff was told to salute his superior

officer, Chief Pearson, but refused to do because of his religion (Voodoo). (Compl. 4–5, 14.)

Pearson forced Plaintiff to write and submit a report about why he could not salute her. (Id. at

14.) Plaintiff requested a copy of the report but was refused one. (Id.)

2 The Court also considers the documents attached to the Complaint. See Nicosia v.

Amazon.com, Inc., 834 F.3d 220, 230–31 (2d Cir. 2016) (holding that courts may consider on a

motion to dismiss “any written instrument attached to [the complaint] as an exhibit or any

statements or documents incorporated in it by reference” and other documents “integral” to the

complaint (first quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002); and

then quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010))); L-7 Designs,

Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (“A complaint is [also] deemed to

include any written instrument attached to it as an exhibit, materials incorporated in it by

reference, and documents that, although not incorporated by reference, are ‘integral’ to the

complaint.” (alteration in original) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004))). In

addition, because the attachments to the Complaint, Plaintiff’s opposition, and the attachments to

Plaintiff’s opposition are not consecutively paginated, the Court refers to the page numbers

assigned by the electronic court filing system.

Sometime later, another of Plaintiff’s supervisors allegedly fabricated a report against

Plaintiff and threatened him, stating “you be careful.” (Id.) In addition, someone poured an

offensive-smelling liquid in Plaintiff’s work locker, ruining his uniform and other belongings.

(Id.)

In May of 2018, another of Plaintiff’s supervisors, Sergeant Ernest Gaither, told Plaintiff,

“I fired [seventy-five] people already, you Haitians think you are sharp, I am sharper.” (Id. at 5,

14.) Plaintiff filed a petition to demote or terminate Sergeant Gaither due to his behavior. (Id. at

5, 14.)

On June 4, 2018, Plaintiff was terminated for allegedly violating a lunch policy.3 (Id. at

5.) Plaintiff alleges that his termination was in retaliation because he “stood [up] for [him]self”

by refusing to salute Chief Pearson and writing a petition against Sergeant Gaither. (Id. at 14.)

ii. Arbitration agreement

During the relevant time period, Plaintiff was a union employee represented by the

Special and Superior Officers Benevolent Association (the “Union”) and covered by a series of

collective bargaining agreements (collectively, the “CBA”) between the Union and Defendant.

(Williams Decl. ¶ 9.) Articles 16 and 17 of the CBA describe the grievance and arbitration

procedures for represented employees. (See CBA 26–28, annexed to Pl.’s Opp’n, Docket Entry

No. 46-2.) Article 16 defines a grievance as “any dispute arising during the term of [the CBA]

between an employee or [the Union] and [Defendant]” and lays out a three-step internal dispute

resolution process. (Id. at 26–27.) Article 17 provides that the Union may appeal to arbitration

3 Defendant contends that Plaintiff was terminated on May 17, 2018. (Def.’s Mem. 4

(citing Decl. of Jay Williams in Supp. of Def.’s Mot. (“Williams Decl.”) ¶ 13, Docket Entry No.

37).)

any grievances not resolved during the three-step process and that such disputes “shall be

referred . . . by the Union in accordance with the Voluntary Labor Arbitration Rules of the

American Arbitration Association [“AAA”] then prevailing in the City of New York.” (Id. at

28.) Employment discrimination claims, “including claims made pursuant to Title VII,” are

“subject to the grievance and arbitration procedure as the sole and exclusive remedy for

violations.” (Id. at 27.)

iii. Plaintiff’s grievance and administrative filings

Prior to commencing this action, Plaintiff submitted a grievance to the Union on June 12,

2018, alleging wrongful termination based on the events described above. (Grievance 4,

annexed to Pl.’s Opp’n, Docket Entry No. 46-2; Pl.’s Opp’n 4.) In addition, Plaintiff filed a

charge with the Equal Employment Opportunity Commission (“EEOC”) on July 3, 2018.

(Compl. 12.) On July 27, 2018, Plaintiff, the Union, and Defendant participated in a Step 3

Grievance Hearing pursuant to the CBA’s mandatory grievance procedures, after which

Defendant issued a decision sustaining Plaintiff’s termination. (Reply Decl. of Jay Williams in

Supp. of Def.’s Mot. (“Williams Reply Decl.”) ¶ 5, Docket Entry No. 47; see Pl.’s Opp’n 4.)

On August 16, 2018, Plaintiff emailed Defendant’s Assistant General Manager Jay

Williams regarding his recent termination and the Union’s failure to take action and requested a

meeting to discuss his termination. (Rochdale Emails 11, annexed to Pl.’s Opp’n, Docket Entry

No. 46-2.) Williams replied that he was out of the country but copied Defendant’s Human

Resources Director Dolores Benner on the email “to help expedite the review of [Plaintiff’s]

termination.” (Id.) On August 22, 2018, Plaintiff and the Union’s president, Ronald Fedrizzi,

attended a second hearing with Defendant. (Pl.’s Opp’n 4.) Plaintiff maintains that, prior to the

hearing, he communicated to Fedrizzi a desire to arbitrate his claims, to which Fedrizzi

responded, “[w]e cannot win arbitration,” and that after the hearing, Fedrizzi told Plaintiff he

would get his job back. (Id.)

Several weeks later, on September 14, 2018, Plaintiff emailed Fedrizzi informing him

that he was dissatisfied with Fedrizzi’s representation at the grievance hearings. (Union Emails

9, annexed to Pl.’s Opp’n, Docket Entry No. 46-2; Pl.’s Opp’n 5.) Fedrizzi responded, “[w]hen

we left the meeting you were positive on how you were represented and now because you filed

an EEOC claim and they don’t want to bring you back you are claiming that my representation

of your [sic] was somehow flawed or lack[ing].” (Union Emails 8; Pl.’s Opp’n 5.) Plaintiff

responded, in pertinent part, “If [I] don[’]t get my job back[,] we are going to arbitration. You

simply refused to go to arbitration.” (Union Emails 8.)

On October 5, 2018, Plaintiff filed a charge with the National Labor Relations Board

(“NLRB”) alleging that the Union had “failed and refused” to process his grievance. (Charge

Against Labor Organization 1, annexed to Pl.’s Opp’n, Docket Entry No. 46-2.) The NLRB

investigated the charge and dismissed it on January 17, 2019. (Letter from NLRB dated Jan. 17,

2019, at 2, annexed to Pl.’s Opp’n, Docket Entry No. 46-2.) Plaintiff appealed the dismissal and

NLRB denied his appeal on February 25, 2019. (Letter from NLRB dated Feb. 25, 2019, at 13,

annexed to Pl.’s Opp’n, Docket Entry No. 46-2.) The appeal denial letter states that the Union

“thoroughly considered the evidence presented by [Defendant] and made a good faith

determination it would not succeed at arbitration,” and that the Union “communicated to

[Plaintiff] the reasons that it would not pursue [his] grievance to arbitration.” (Id.) Both the

Union and Defendant received copies of the dismissal and the appeal denial. (Pl.’s Opp’n 5.)

Defendant maintains it is “unaware of any [Union] demand to submit [Plaintiff’s]

grievances . . . to binding arbitration.” (Williams Decl. ¶¶ 9, 13; Williams Reply Decl. ¶ 5.)

Plaintiff seeks compensatory damages in the amount of $1,000,000 for psychological

suffering and compensation for the years he would have worked for Defendant but for his

termination on June 4, 2018. (Compl. 6.)

b. Procedural background

Plaintiff filed the Complaint in this action on November 5, 2018. (Compl.) Defendant

filed its answer to the Complaint on February 15, 2019. (Answer, Docket Entry No. 10.)

Plaintiff then requested that the case be designated for the Court-Annexed Mediation Advocacy

Program. (Letter dated Mar. 6, 2019, Docket Entry No. 14.) Pursuant to Plaintiff’s request,

Magistrate Judge Steven Tiscione referred the case for mediation. (Order dated Mar. 20, 2019.)

On June 25, 2019, the parties jointly requested and received extensions of time to complete

mediation and paper discovery for the mediation so that they could focus on settling. (Letter

Mot. for Extension, Docket Entry No. 19; Order dated June 25, 2019.) On August 14, 2019, the

parties reported at a status conference that mediation had been unsuccessful. (Minute Entry

dated Aug. 15, 2019, Docket Entry No. 22.)

By letter dated October 28, 2019, Defendant moved for a pre-motion conference

regarding its anticipated motion to dismiss and compel arbitration, for the first time raising the

issue of arbitration. (Letter Mot. for Pre-Mot. Conference, Docket Entry No. 23.) The Court

granted Defendant leave to file its motion.4 (Minute Entry dated Nov. 19, 2019.) Defendant

filed its motion on January 10, 2020, (Def.’s Mot.), at which time discovery had been limited to

preparing for mediation and the settlement conference.

4 On December 5, 2019, the parties attended a settlement conference but were unable to

reach a disposition. (Minute Entry dated Dec. 9, 2019.)

II. Discussion

a. Standard of review

The FAA requires courts to compel arbitration of claims that the parties have agreed to

arbitrate. See AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339 (2011). The Supreme

Court has interpreted the FAA as reflecting “‘a liberal federal policy favoring arbitration

agreements,’ and plac[ing] arbitration agreements on ‘the same footing as other contracts.’”

Meyer v. Uber Techs., Inc., 868 F.3d 66, 73 (2d Cir. 2017) (citations omitted) (first quoting

AT&T Mobility LLC, 563 U.S. at 346; and then quoting Schnabel v. Trilegiant Corp., 697 F.3d

110, 118 (2d Cir. 2012)). “It thereby follows that parties are not required to arbitrate unless they

have agreed to do so.” Id. (citing Schnabel, 697 F.3d at 118).

“In deciding whether claims are subject to arbitration, a court must consider (1) whether

the parties have entered into a valid agreement to arbitrate, and, if so, (2) whether the dispute at

issue comes within the scope of the arbitration agreement.” In re Am. Express Fin. Advisors Sec.

Litig., 672 F.3d 113, 128 (2d Cir. 2011). “Before addressing the second inquiry, [the court] must

also determine who — the court or the arbitrator — properly decides the issue.” Id. (citing

Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011)). “The question

whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of

arbitrability,’ is ‘an issue for judicial determination [u]nless the parties clearly and unmistakably

provide otherwise.’” Schneider v. Kingdom of Thailand, 688 F.3d 68, 71 (2d Cir. 2012)

(alteration in original) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)).

Although “[p]arties may delegate threshold arbitrability questions to the arbitrator, . . . [t]o be

sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration

agreement exists.” Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ---, ---, 139 S. Ct.

524, 530 (Jan. 8, 2019) (citing 9 U.S.C. § 2); Doctor’s Assocs., Inc. v. Alemayehu, 934 F.3d 245,

251 (2d Cir. 2019).

In deciding a motion to compel arbitration, courts apply a “standard similar to that

applicable for a motion for summary judgment.”5 Meyer, 868 F.3d at 74 (quoting Nicosia v.

Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)); Bensadoun v. Jobe-Riat, 316 F.3d 171,

175 (2d Cir. 2003). As such, courts must “consider all relevant, admissible evidence submitted

by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions

on file, together with . . . affidavits.” Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir.

2002) (quoting Fed. R. Civ. P. 56(c)). In addition, courts must “draw[] all reasonable inferences

in favor of the non-moving party.” Meyer, 868 F.3d at 74 (quoting Nicosia, 834 F.3d at 229).

The party “seeking to avoid arbitration generally bears the burden of showing the agreement to

be inapplicable or invalid.” Harrington v. Atl. Sounding Co., 602 F.3d 113, 124 (2d Cir. 2010)

(citing Green Tree Fin. Corp.–Ala. v. Randolph, 531 U.S. 79, 91–92 (2000)). In addition, “[a]

district court must stay proceedings once it is ‘satisfied that the parties have agreed in writing to

arbitrate an issue or issues underlying the district court proceeding.’” Nicosia, 834 F.3d at 229

(quoting WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997)); see also Katz v.

Cellco P’ship, 794 F.3d 341, 345 (2d Cir. 2015) (“[A] stay of proceedings [is] necessary after all

claims have been referred to arbitration and a stay requested.”).

5 Because Defendant has manifested an intention to arbitrate the dispute, the Court

construes Defendant’s motion as a motion to compel arbitration. See Bensadoun v. Jobe-Riat,

316 F.3d 171, 175 (2d Cir. 2003) (“In the context of motions to compel arbitration brought under

[9 U.S.C. § 4], the court applies a standard similar to that applicable for a motion for summary

judgment.”); cf. Nicosia, 834 F.3d at 230 (“When the moving party does not manifest an

intention to arbitrate the dispute, Bensadoun does not require the district court to convert the

motion to dismiss to one to compel.”).

b. A valid agreement delegating questions of arbitrability exists

The parties do not dispute the existence or validity of their agreement to arbitrate. (Def.’s

Mem. 4; Pl.’s Mem. 2.) Nor do they dispute Defendant’s contention that the agreement clearly

and unmistakably delegates questions of arbitrability to the arbitrator.6 (Def.’s Mem. 6. See

generally Pl.’s Mem.) Rather, the sole issue before the Court is whether Defendant waived its

right to compel arbitration. (Pl.’s Mem. 2.) The Court first considers whether waiver is a

question of arbitrability presumptively for the Court to decide and, if so, whether that question

has also been delegated to the arbitrator.

i. Waiver

Plaintiff argues that Defendant waived its right to compel arbitration by participating in

this litigation to Plaintiff’s prejudice and by delaying, stalling, and ignoring Plaintiff’s alleged

requests to arbitrate prior to the filing of this suit. (Pl.’s Opp’n 1–2, 5.)

Defendant contends that Plaintiff cannot establish prejudice, which is required for waiver,

and that it did not have notice of Plaintiff’s desire to arbitrate. (Def.’s Mem. 6; Def.’s Reply 3.)

1. Deciding the issue of waiver

“[O]rdinarily a defense of waiver brought in opposition to a motion to compel

arbitration . . . is a matter to be decided by the arbitrator.” Meyer, 159 F.3d at 80 (alteration in

original) (quoting S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 66, 80 (2d Cir.

1998)); see also Howsam, 537 U.S. at 85 (“[T]he presumption is that the arbitrator should decide

‘allegations of waiver, delay, or a like defense to arbitrability.’” (quoting Moses H. Cone Mem.

6 See Morales v. Rochdale Vill. Inc., No. 15-CV-502, 2017 WL 9250352, at *3–4

(E.D.N.Y. Aug. 16, 2017) (reviewing the same CBA at issue when delegation was in dispute and

compelling arbitration upon determining that “the parties, by incorporating the AAA rules into

the CBA, granted the arbitrator the power to determine arbitrability”).

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983))). However, “[w]hen the party

seeking arbitration has participated in litigation regarding the dispute, the district court can

properly decide the question of waiver.” Meyer, 159 F.3d at 80–81 (citing Bell v. Cendant

Corp., 293 F.3d 563, 569 (2d Cir. 2002)); Pacelli v. Augustus Intel., Inc., 459 F. Supp. 3d 597,

612–14 (S.D.N.Y. 2020) (“[C]ourts may properly adjudicate waiver-based objections to

arbitration when the type of waiver alleged is that the party seeking arbitration has participated in

litigation on the dispute.”); Syngenta Crop Prot., LLC v. Ins. Co. of N. Am., Inc., No. 18-CV-715,

2018 WL 1587601, at *3 (S.D.N.Y. Mar. 29, 2018) (“[T]he Second Circuit has recently

reaffirmed that ‘[w]hen the party seeking arbitration has participated in litigation regarding the

dispute, the district court can properly decide the question of waiver.’” (quoting Meyer, 868 F.3d

at 80–81)); see also Schreiber v. Friedman, 15-CV-6861, 2017 WL 5564114, at *9 (E.D.N.Y.

Mar. 31, 2017) (same); Apple & Eve, LLC v. Yantai N. Andre Juice Co., 610 F. Supp. 2d 226,

231 (E.D.N.Y. 2009) (same).

“The Second Circuit [has] not . . . squarely addressed the question of whether litigation-

conduct waiver is an issue to be decided by an arbitrator when the parties have agreed to have the

arbitrator decide questions of arbitrability.” LG Elecs., Inc. v. Wi-LAN USA, Inc., No. 13-CV-

2237, 2014 WL 3610796, at *3 n.3 (S.D.N.Y. July 21, 2014) (declining to address the question

of who should decide waiver when the issue “ha[d] not been adequately raised” and proceeding

to decide waiver), aff’d, 623 F. App’x 568 (2d Cir. 2015); Pacelli, 459 F. Supp. 3d at 614 (citing

LG Elecs., Inc., 2014 WL 3610796, at *3 n.3) (noting same). However, one court in this Circuit

recently concluded that this question is nondelegable. Pacelli, 459 F. Supp. 3d at 614 (“[P]arties

cannot delegate to arbitrators the question of whether, under the judge-made principle of

litigation-conduct waiver, a party is barred from asserting its right to arbitration.”); see also id. at

614–15 (noting that “[t]he doctrine is based on prejudice from litigation and the interest of the

courts in preventing their processes from being used improperly” and that courts are in the best

position to evaluate this prejudice and vindicate this interest); cf. Republic of Ecuador, 638 F.3d

at 394 (referring waiver issue to arbitral panel when parties clearly and unmistakably intended

panel to decide questions about the validity of the agreement and waiver was based on conduct

that “undermin[ed] the agreement” rather than on conduct, like litigation conduct, that waives the

right to “tak[e] advantage of an admittedly binding arbitration clause”). But see CMS Inv.

Holdings, LLC v. Castle, No. 14-CV-9381, 2016 WL 4557115, at *6 (S.D.N.Y. Aug. 31, 2016)

(finding litigation-conduct waiver distinguishable from waiver claimed in Republic of Ecuador

but “discern[ing] no relevant difference” and referring question of waiver to arbitrator).

The Court concludes that it may decide the issue of litigation-conduct waiver in this case.

However, whether Defendant waived its right to arbitrate based on delay during the grievance

procedure or lacked notice of Plaintiff’s desire to arbitrate are procedural questions that are

presumptively for the arbitrator to decide.7 See Howsam, 537 U.S. at 85 (“[I]ssues of procedural

arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other

7 The Court notes that, under article 17.1 of the CBA, the decision to appeal an unsettled

grievance to arbitration appears to rest with the Union in its discretion. (CBA 28 (“If a grievance

has arisen during the term of this Agreement and has been timely presented pursuant to Article

XVI of this Agreement, and has not been settled, then the Union may appeal the grievance to

arbitration . . . .” (emphasis added)).) Further, according to the NLRB, the Union appears to

have “made a good faith determination it would not succeed at arbitration . . . [and]

communicated to [Plaintiff] the reasons that it would not succeed at arbitration.” (Letter from

NLRB dated Feb. 25, 2019, annexed to Pl.’s Opp’n, Docket Entry No. 46-2.) Although Plaintiff

maintains he reached out to Defendant to pursue arbitration, the email communications he has

presented to the Court do not mention arbitration, (see Rochdale Emails, annexed to Pl.’s Opp’n,

Docket Entry No. 46-2; Reply Decl. of Jay Williams in Supp. of Def.’s Mot. (“Williams Reply

Decl.”) ¶ 5, Docket Entry No. 47), and it appears, at least from the record before the Court, that

the Union did not inform Defendant of Plaintiff’s desire to arbitrate after deciding not to pursue

arbitration on Plaintiff’s behalf, (see Williams Decl. ¶¶ 9, 13; Williams Reply Decl. ¶ 5).

conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to

decide.” (emphasis omitted) (quoting Revised Unif. Arb. Act of 2000 § 6(c) cmt. 2, 7 U.L.A.

13)); Republic of Ecuador, 638 F.3d at 394 (“[W]e have noted that ‘defenses to arbitrability such

as waiver, estoppel, or delay’ are ‘questions properly decided by arbitrators.’” (quoting

Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n, Local 38, 351 F.3d 43, 46 (2d Cir.

2003) (per curiam))); Syngenta Crop Prot., LLC, 2018 WL 1587601, at *3 (distinguishing

litigation-conduct waiver from waiver by delay and concluding that “[b]ecause [the plaintiff’s

waiver argument] is a ‘waiver, delay, or like defense to arbitrability,’ involving out-of-court

conduct, that gateway procedural dispute is presumptively one for the arbitrator” (citation

omitted) (quoting Howsam, 537 U.S. at 84–85)).

2. Waiver by litigation conduct

Federal policy strongly favors arbitration, and waiver of the right to arbitrate “is not to be

lightly inferred.” Nicosia v. Amazon.com, Inc., 815 F. App’x 612, 614 (2d Cir. 2020) (quoting

Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104–05 (2d Cir. 2002) (per

curiam)). Indeed, “the rule preferring arbitration, when agreed upon, ha[s] led to its corollary

that any doubts concerning whether there has been a waiver are resolved in favor of arbitration.”

Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc., 252 F.3d 218, 228 (2d Cir.

2001) (alteration in original) (quoting Leadertex, Inc. v. Morganton Dyeing & Finishing Corp.,

67 F.3d 20, 25 (2d Cir. 1995)). Nevertheless, a party waives its right to arbitration “when it

engages in protracted litigation that prejudices the opposing party.” Tech. in P’ship, Inc. v.

Rudin, 538 F. App’x 38, 39 (2d Cir. 2013) (quoting Crysen/Montenay Energy Co. v. Shell Oil

Co. (In re Crysen/Montenay Energy Co.), 226 F.3d 160, 162 (2d Cir. 2000)).

“To determine whether a party has waived its right to arbitration, [courts] consider

‘(1) the time elapsed from when litigation was commenced until the request for arbitration;

(2) the amount of litigation to date, including motion practice and discovery; and (3) proof of

prejudice.’” LifeTree Trading Pte., Ltd. v. Washakie Renewable Energy, LLC, 764 F. App’x

105, 107 (2d Cir. 2019) (quoting La. Stadium & Expo. Dist. v. Merrill Lynch, Pierce, Fenner &

Smith Inc., 626 F.3d 156, 159 (2d Cir. 2010)). “There is no rigid formula or bright-line rule for

identifying when a party has waived its right to arbitration; rather, the above factors must be

applied to the specific context of each particular case.” La. Stadium & Expo. Dist., 626 F.3d at

159. However, “[t]he key to a waiver analysis is prejudice. Waiver of the right to compel

arbitration due to participation in litigation may be found only when prejudice to the other party

is demonstrated.” Sutherland v. Ernst & Young, LLP, 600 F. App’x 6, 8 (2d Cir. 2015) (quoting

Thyssen, Inc., 310 F.3d at 105); see also Leadertex, Inc., 67 F.3d at 25 (“Although litigation of

substantial material issues may amount to waiver, delay in seeking arbitration does not create a

waiver unless it prejudices the opposing party.” (citation omitted)).

A. Yearlong Delay

Although Plaintiff argues that Defendant waited approximately a year from the time

Plaintiff filed the Complaint to raise the arbitration issue, (Pl.’s Opp’n 3), it is well established

that delay alone cannot support a finding of waiver. See, e.g., Thyssen, Inc., 310 F.3d at 105

(collecting cases and noting that “[t]his Circuit has refused to find waiver . . . where delay in trial

proceedings was not accompanied by substantial motion practice or discovery”); Rush v.

Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir. 1985) (“It is beyond question that defendants’

delay in seeking arbitration during approximately eight months of pretrial proceedings is

insufficient by itself to constitute a waiver of the right to arbitrate . . . .” (citing Carcich v. Rederi

A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968))); Chehebar v. Oak Fin. Grp., Inc., No. 14-CV-

2982, 2017 WL 946292, at *2 (E.D.N.Y. Mar. 7, 2017) (collecting cases finding no waiver

despite delays from four months to three years).

Rather, the extent of delay must be considered “in conjunction with (1) the amount of

litigation that occurred” during the delay and “(2) any proof that [the party opposing arbitration]

was prejudiced by [the other party’s] conduct during that period.” PPG Indus., Inc. v. Webster

Auto Parts, Inc., 128 F.3d 103, 108 (2d Cir. 1997) (citing Leadertex, Inc., 67 F.3d at 25); In re

Arb. Between S & R Co. of Kingston & Latona Trucking, Inc., 984 F. Supp. 95, 103 (N.D.N.Y.

1997) (“Although delay alone is generally insufficient to deny a petition to arbitrate, it

is . . . relevant in determining whether a party has been prejudiced.” (citations omitted)), aff’d

sub nom. S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80 (2d Cir. 1998).

B. Amount of litigation to date

In assessing the amount of litigation for purposes of a waiver analysis, courts find

relevant, inter alia, any motion practice engaged in by the parties and the extent of discovery the

parties have exchanged. See, e.g., Tech. in P’ship, Inc., 538 F. App’x at 39 (affirming district

court’s finding of waiver where the party asserting waiver “had to defend two substantive

motions to dismiss, then produce its witness for deposition, comply with an extensive document

request, and participate in extended discovery disputes”); S & R Co. of Kingston, 159 F.3d at 83

(observing that the waiver analysis includes consideration of “the amount of litigation (including

exchanges of pleadings, any substantive motions, and discovery)”).

The lack of substantive motion practice in this case weighs against a finding of waiver.

See Tech. in P’ship, Inc., 538 F. App’x at 39. Although Plaintiff has been forced to brief the

arbitration issue, neither party has briefed the sufficiency of Plaintiff’s allegations or the merits

of his underlying Title VII claim or filed any other substantive motions. Cf. Rush, 779 F.2d at

888 (explaining that defendants’ “motion [to dismiss] alone, however, does not waive the right to

arbitrate”); Murray v. UBS Sec., LLC, No. 12-CV-5914, 2014 WL 285093, at *6 (S.D.N.Y. Jan.

27, 2014) (collecting cases finding that a defendant’s filing of a motion to dismiss does not itself

result in a waiver of the right to arbitration).

Similarly, the extent of discovery and other litigation activity in this case prior to

Defendant’s pre-motion conference letter raising the issue of arbitration weighs against a finding

of waiver. Since Plaintiff filed the Complaint, Defendant has filed an answer,8 and the parties

have participated in court-annexed mediation that was ultimately unsuccessful, (Minute Entry

dated Aug. 15, 2019), and engaged in settlement negotiations, which also failed, (Minute Entry

dated Dec. 9, 2019).9 No depositions were taken before Defendant raised the issue of arbitration;

8 Plaintiff asserts that Defendant waived the right to compel arbitration because

“Defendant’s Answer included eleven affirmative defenses, but not one mentioned that Plaintiff

was compelled to arbitrate the dispute.” (Pl.’s Opp’n 3 (citing Kulukundis Shipping Co. v.

Amtorg Trading Corp., 126 F.2d 978, 980 (2d Cir. 1942)).) Defendant contends that it did raise

arbitration as an affirmative defense by pleading that “Plaintiff’s claims are barred to the extent

that Plaintiff failed to timely and properly exhaust all necessary administrative, statutory and/or

jurisdictional prerequisites for the commencement of this action.” (Def.’s Mem. 6 (citing

Answer ¶ 21).) Even if Defendant failed to plead or inadequately pleaded arbitration as an

affirmative defense, this fact would be insufficient to establish waiver. See Rush v. Oppenheimer

& Co., 779 F.2d 885, 889 (2d Cir. 1985) (“Nor does defendants’ service of an answer that

contained thirteen affirmative defenses but failed to raise the agreement to arbitrate, constitute a

waiver of arbitration. Absent a demonstration of prejudice by [the plaintiff], the bare fact that

the defendants filed an answer is inadequate by itself to support a claim of waiver of arbitration.”

(citing ITT World Commc’ns, Inc. v. Commc’ns Workers of Am., 422 F.2d 77, 82 (2d Cir.

1970))); Nicosia v. Amazon.com, Inc., 384 F. Supp. 3d 254, 276 (E.D.N.Y. 2019) (same), aff’d,

815 F. App’x 612 (2d Cir. 2020); see also Reives v. Lumpkin, 632 F. App’x 34, 35 (2d Cir. 2016)

(same); Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 105–06 (2d Cir. 2002) (per

curiam) (same).

9 See Satcom Int’l Grp. PLC v. Orbcomm Int’l Partners, L.P., 49 F. Supp. 2d 331, 340

(S.D.N.Y.) (considering settlement conference in assessing amount of litigation), aff’d, 205 F.3d

1324 (2d Cir. 1999); see also NV Petrus SA v. LPG Trading Corp., No. 14-CV-3138, 2017 WL

rather, discovery had been provided “only in anticipation of [the] mediation and a settlement

conference,” (Def.’s Mem. 6), and it had involved only minimal exchange of documents and

responses to interrogatories, (Def.’s Reply 2). Indeed, Plaintiff notes that Defendant had been

“reluctan[t] to participate fully in discovery,” leading to “limited production.” (Pl.’s Opp’n 2.)

This limited activity does not support a finding of waiver.

C. Prejudice

Notwithstanding the above, “[t]he key to a waiver analysis is prejudice”; without

prejudice, there can be no waiver of the right to arbitrate a dispute. Sutherland, 600 F. App’x at

8 (quoting Thyssen, Inc., 310 F.3d at 105); see Enron Power Mktg. Inc. v. Pub. Util. Dist. No. 1

of Snohomish Cnty. (In re Enron Corp.), 364 B.R. 489, 511 (Bankr. S.D.N.Y. 2007) (“[I]t is the

presence or absence of prejudice that is determinative of the issue of waiver.”). Moreover,

“[p]rejudice is not presumed based on the timing of [an] arbitration demand and . . . participation

in litigation — i.e., the first two prongs of the three-part waiver inquiry — standing alone.”

Nat’l Union Fire Ins. Co. of Pittsburgh v. NCR Corp., 376 F. App’x 70, 72 (2d Cir. 2010) (citing

In re Crysen/Montenay Energy Co., 226 F.3d at 162–63).

The Second Circuit has recognized “two types of prejudice: substantive prejudice and

prejudice due to excessive cost and time delay.” Sutherland, 600 F. App’x at 8 (citing Thyssen,

Inc., 310 F.3d at 105). Substantive prejudice exists when, for example, “a party loses a motion

on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration.” Id.

(quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991)). Prejudice due to excessive

1831096, at *3 (E.D.N.Y. May 4, 2017) (considering, inter alia, the parties’ participation in

court-sponsored mediation and concluding that the defendants “actively engaged in ‘protracted

litigation’”); cf. S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 84 (2d Cir. 1998)

(affirming district court’s finding of waiver based on, inter alia, “extensive discovery requests”

and “two settlement conferences”).

cost and time delay may be found “when a party too long postpones his invocation of his

contractual right to arbitration[] and thereby causes his adversary to incur unnecessary delay or

expense.” Id. (quoting Kramer, 943 F.2d at 179); Nat’l Union Fire Ins. Co. of Pittsburgh, 376 F.

App’x at 72 (“Prejudice . . . ‘refers to the inherent unfairness — in terms of delay, expense, or

damage to a party’s legal position — that occurs when the party’s opponent forces it to litigate

an issue and later seeks to arbitrate that same issue.’” (quoting In re Crysen/Montenay Energy

Co., 226 F.3d at 162–63)); S & R Co. of Kingston, 159 F.3d at 83–84 (“Prejudice results ‘when a

party seeking to compel arbitration engages in discovery procedures not available in arbitration,

makes motions going to the merits of an adversary’s claims, or delays invoking arbitration rights

while the adversary incurs unnecessary delay or expense.’” (quoting Cotton v. Slone, 4 F.3d 176,

179 (2d Cir. 1993)) (citing PPG Indus., Inc., 128 F.3d at 109)). A court will not find waiver

where “delay in trial proceedings was not accompanied by substantial motion practice or

discovery.” Sutherland, 600 F. App’x at 8 (quoting Thyssen, Inc., 301 F.3d at 105).

Relying on In re Crysen/Montenay Energy Co., 226 F.3d at 162–63, Plaintiff argues he

will be prejudiced if compelled to arbitrate because he has “expended substantial time, energy,

and resources into this litigation.” (Pl.’s Opp’n 3.) Plaintiff also notes that, if the Court compels

arbitration, he will “be forced to start over on his own.” (Id.)

Although the Court is sympathetic to Plaintiff’s position, the unfairness he alleges does

not rise to the level of prejudice under the law. Apart from time spent learning the Federal Rules

of Civil Procedure and the Court’s rules as a pro se litigant, Plaintiff has not identified any

specific costs incurred, let alone excessive costs. (Id.); Chehebar, 2017 WL 946292, at *2

(noting that costs incidental to the motion practice alone are insufficient). Further, there have

been no substantive motions, no court decisions adverse to Defendant, and no discovery that

would not otherwise be available in arbitration. (Def.’s Reply 2); Sutherland, 600 F. App’x at 8;

S & R Co. of Kingston, 159 F.3d at 83–84. In addition, although Defendant did not move to

compel arbitration until nearly one year after filing its answer, the docket reflects that Defendant

moved soon after the court-ordered mediation on July 25, 2019, failed. (Def.’s Mot.)

Accordingly, viewing the facts in the light most favorable to Plaintiff, yet mindful that

“[w]aiver is not to be lightly inferred,” Nicosia, 815 F. App’x at 614 (quoting Thyssen, Inc., 310

F.3d at 104–05), the Court concludes that Defendant has not waived its right to arbitrate by way

of its litigation conduct and therefore grants Defendant’s motion to stay the action and compel

arbitration. In addition to determining whether Plaintiff’s claims are arbitrable, the arbitrator

will decide any threshold procedural questions, including whether Defendant waived the right to

arbitrate by delaying and ignoring Plaintiff’s requests to do so prior to the filing of this suit.

III. Conclusion

For the foregoing reasons, the Court grants Defendant’s motion to stay the action and

compel arbitration. The Court denies Defendant’s request for attorneys’ fees and costs

associated with its motion. The Clerk of Court is directed to mail a copy of this Memorandum

and Order to Plaintiff at the address of record.

Dated: November 19, 2020

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge