Glass v. Tradesmen International, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JENNIFER GLASS, et al., CASE NO. 5:19-CV-01331

Plaintiffs,

-vs- JUDGE PAMELA A. BARKER

TRADESMEN INTERNATIONAL, LLC,

et al., MEMORANDUM OF OPINION AND

ORDER

Defendants.

This matter comes before the Court upon several motions of the parties. On June 17, 2019,

Defendant Tradesmen International, LLC (“Tradesmen”) filed a Motion to Dismiss or Strike

Plaintiffs’ Class Claims (“Motion to Strike Class Claims”). (Doc. No. 8.) Plaintiffs Jennifer Glass

(“Glass”), Kristie Masiella (“Masiella”), and Tracy Reese (“Reese”) (collectively, “Plaintiffs”) filed

a brief in opposition to Tradesmen’s Motion to Strike Class Claims on July 1, 2019, to which

Tradesmen responded on July 15, 2019. (Doc. Nos. 14, 16.) Also, on June 17, 2019, Tradesmen

filed a Motion to Compel Individual Arbitration and to Dismiss the Claims of Plaintiffs Masiella and

Glass (“Motion to Compel Arbitration”). (Doc. No. 9.) Plaintiffs filed a brief in opposition to

Tradesmen’s Motion to Compel Arbitration on July 1, 2019, to which Tradesmen responded on July

15, 2019. (Doc. Nos. 15, 18.)

On June 19, 2019, Defendant Matthew McClone (“McClone”) filed a Motion to Join Pending

Dispositive Motions (“Motion to Join”), seeking to join as a moving party with respect to both of

Tradesmen’s Motions. (Doc. No. 12.) Plaintiffs have not opposed McClone’s request.

Finally, on July 1, 2019, Plaintiffs filed a Motion to Remand, or, in the Alternative for

Expedited Discovery Regarding Prospective Class (“Motion to Remand”). (Doc. No. 13.)

Tradesmen filed a brief in opposition to Plaintiffs’ Motion to Remand on July 15, 2019, to which

Plaintiffs responded on July 22, 2019. (Doc. Nos. 17, 19.) After the Court permitted Plaintiffs to

conduct limited discovery regarding the prospective class, Plaintiffs and Tradesmen filed

supplemental briefs on October 3, 2019 and October 17, 2019, respectively. (Doc. Nos. 23, 24.)

For the following reasons, McClone’s Motion to Join (Doc. No. 12) is GRANTED, Plaintiffs’

Motion to Remand (Doc. No. 13) is DENIED, Tradesmen’s Motion to Strike Class Claims (Doc. No.

8) is GRANTED, and Tradesmen’s Motion to Compel Arbitration (Doc. No. 9) is GRANTED IN

PART.

I. Background

a. Factual Background

i. Plaintiffs’ Employment at Tradesmen

Tradesmen describes itself as a staffing company that specializes in providing skilled and

experienced craft professionals to employers throughout the United States and Canada. (Doc. No. 8-

1 at 2.) It is a Delaware limited liability company, but maintains its corporate headquarters in

Macedonia, Ohio. (Doc. No. 1-3 at ¶¶ 4-5.)

Plaintiffs are all former Tradesmen employees that worked in various positions in the

company between 2004 and 2017. (Doc. No. 1-2 at ¶¶ 52, 67-68, 81.) Plaintiffs each claim that they

were subjected to severe discrimination and sexual harassment while they were employed by

Tradesmen. (See id. at ¶¶ 52-91.)

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In particular, Masiella and Reese allege that their supervisor, McClone, harassed and unfairly

targeted them for negative treatment after they rebuffed his sexual advances and that Tradesmen took

no action against him despite their complaints to Tradesmen’s Human Resources and other upper-

level executives. (Id. at ¶¶ 52-80.) Masiella claims that she was forced to take another position for

less pay at Tradesmen in order to get away from McClone, but the new position was not sustainable,

and she ended up leaving Tradesmen. (Id. at ¶ 66.) Reese claims McClone eventually fired her for

not having sex with him and for complaining to Human Resources about his behavior. (Id. at ¶ 80.)

Glass does not make any specific allegations against McClone, but asserts that her male

colleagues, managers, and even senior executives would frequently remark on her dress, her breasts,

and other parts of her body, tell obscene and sexually-charged jokes, and engage in sexual innuendo

that had the effect of objectifying women. (Id. at ¶¶ 84-85.) Glass also claims that she was groped

by her superiors and denied promotions because she was a woman. (Id. at ¶¶ 87-89.) According to

Glass, she left Tradesmen after learning that Tradesmen had begun to search for someone to replace

her and that she was going to lose her job. (Id. at ¶¶ 90-91.)

Plaintiffs assert that similar unlawful conduct and differential treatment between male and

female employees occurs as a pattern and practice throughout all of Tradesmen’s offices. (See id. at

¶¶ 30-38.)

ii. Tradesmen’s Employment Arbitration Agreement

On October 7, 2016, while Masiella and Glass were still employed at Tradesmen, Tradesmen

emailed an Employment Arbitration Agreement (the “Arbitration Agreement”) to all employees with

active Tradesmen email addresses, including Masiella and Glass. (Doc. No. 10 at ¶¶ 5, 10-11.) On

October 11, 2016, Tradesmen sent a follow-up email containing the Arbitration Agreement to all

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Tradesmen employees with active email addresses who did not open the earlier email sent on October

7, 2016, including Masiella. (Id. at ¶¶ 6, 12.)

Tradesmen’s records show that both Masiella and Glass received and opened an email

containing the Arbitration Agreement. (Id. at ¶¶ 16-23.) Tradesmen utilizes software that, among

other things, allows it to track activity associated with sent emails and to generate reports reflecting

that activity. (Id. at ¶¶ 13-17.) Tradesmen utilized this software on October 7, 2016, when it sent the

Arbitration Agreement to Glass, and it utilized this software on October 11, 2016, when it sent the

Arbitration Agreement to Masiella. (Id. at ¶ 16.) According to Tradesmen’s records, Glass opened

the October 7, 2016 email containing the Arbitration Agreement fifteen times—nine times on October

7, 2016, five times on October 9, 2016, and one time on October 10, 2016. (Id. at ¶ 20.) In addition,

Masiella opened the October 11, 2016 email containing the Arbitration Agreement twenty-three

times—twenty-one times on October 12, 2016, one time on October 13, 2016, and one time on

November 14, 2016. (Id. at ¶ 23.)

The first paragraph of the Arbitration Agreement provides in bold: “You consent to this

Agreement by continuing or accepting employment with Tradesmen International, LLC, unless

you take the steps to opt out of this Agreement as described below.” (Doc. No. 10-1 at 2.) In

Paragraph C.2, the Arbitration Agreement further explains:

If you are actively employed with Tradesmen, as defined above, your consent to this

Agreement will be expressed by: (a) continuing employment with Tradesmen on and

after October 21, 2016; or (b) your acceptance of any assignment, wages, salary,

promotion, increase, transfer, bonus or other benefit of employment after on or [sic]

October 21 , 2016, provided that you have not previously opted out of this Agreement.

If you do not agree to the terms of this Agreement, you must notify Tradesmen that

you are opting out of this Agreement by no later than October 21, 2016 by sending a

completed copy of the attached Opt Out Form by certified mail or overnight delivery

to Tradesmen International, LLC, Human Resources Department (“Tradesmen HR”):

Attention Arbitration, 9760 Shepard Road, Macedonia, Ohio 44056.

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(Id. at 5.) With respect to the opt-out procedure, the Opt-Out Form similarly provided: “I understand

that I am responsible for sending this opt out form to Tradesmen International, LLC, Human

Resources Department: Attention Arbitration, 9760 Shepard Road, Macedonia, OH 44056, by

certified mail or overnight delivery, and that I should retain proof that I have sent this form to the

above address by either certified mail or overnight delivery.” (Doc. No. 18-1 at Ex. 7.)

In Paragraph A.2, the Arbitration Agreement also expressly recites several purported forms

of consideration for the mutual agreements contained in the Arbitration Agreement, including, among

other things, “your continued employment with Tradesmen,” “your acceptance of any assignment,

wages, salary, promotion, increase, transfer, bonus, or other benefit of employment,” and “our mutual

promise to follow this Agreement’s provisions, including those governing mandatory, binding

arbitration.” (Doc. No. 10-1 at 3.) Paragraph A.2. further provides:

[Y]ou and Tradesmen agree that if we are not able to first resolve “Covered Claims”

(as defined below), we agree to binding arbitration as the exclusive means to resolve

the disputes that may arise out of the Covered Claim. In this regard, you and

Tradesmen thus agree that as otherwise provided in this Agreement, neither of us may

initiate or prosecute any lawsuit or administrative action in any way related to a

Covered Claim. Thus, we understand and agree that arbitration is the only

litigation forum for resolving Covered Claims, and that both of us are waiving

the right to a trial before a judge or jury in federal or state court in favor of

arbitration.

(Id.) The Arbitration Agreement defines Covered Claims as including “all claims or controversies,

past, present or future” arising from “employment or termination of employment,” including claims

for “discrimination and/or harassment.” (Id.)

Finally, with respect to class litigation, the Arbitration Agreement provides:

You and Tradesmen agree that each of us will bring any dispute only in an individual

capacity, not as a plaintiff or class member in any purported class, collective, or

representative proceeding. We also agree that the Arbitrator in any dispute between

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us may not consolidate more than one person’s claims, and may not otherwise preside

over any form of a representative, collective, or class proceeding.

(Id. at 4.)

Neither Masiella nor Glass dispute that they received the Arbitration Agreement in October

2016. Subsequently, Glass did not submit an Opt-Out Form and continued her employment with

Tradesmen through the first week of November 2016. (Doc. No. 11 at ¶¶ 12, 14; Doc. No. 15-1 at ¶

7.) However, Glass contends that although she continued to work for Tradesmen through the first

week of November 2016, she had already accepted a job from a new employer prior to the October

21, 2016 deadline for opting out of the Arbitration Agreement. (Doc. No. 15-1 at ¶¶ 6-7.)

Masiella continued her employment with Tradesmen through approximately January 27,

2017. (Doc. No. 11 at ¶ 15.) According to Tradesmen’s former Director of Human Resources,

Jeannie Woodall (“Woodall”)—who was responsible for overseeing the logging and maintaining of

copies of any Opt-Out Forms submitted to Tradesmen—Masiella did not return an Opt-Out Form and

does not appear on a spreadsheet that tracked which employees had submitted an Opt-Out Form. (Id.

at ¶¶ 2, 9-13.) In contrast, Masiella contends that, before October 21, 2016, she executed an Opt-Out

Form, brought it into Tradesmen, and hand-delivered it to Woodall. (Doc. No. 15-2 at ¶ 5.) Masiella

claims that Woodall accepted the Opt-Out Form from her and at no time stated that Masiella needed

to mail the form to her. (Id.) Masiella asserts that she chose to opt out of the Arbitration Agreement

after consulting her husband, who told her to sign the Opt-Out Form and that he had faced a similar

situation at a previous employer. (Id. at ¶ 2.)

b. Procedural History

On May 10, 2019, Plaintiffs filed a Class Action Complaint (“Complaint”) against Tradesmen

and McClone (collectively, “Defendants”) in the Court of Common Pleas of Summit County, Ohio.

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(Doc. No. 1-2.) In the Complaint, Plaintiffs assert claims on behalf of themselves and a putative class

of female employees against Defendants for gender discrimination, sexual harassment/hostile work

environment, retaliation, and aiding and abetting discrimination in violation of the Ohio Civil Rights

Act, Ohio Rev. Code § 4112. (Id.) Plaintiffs define the proposed class as “all females who are, have

been, or will be employed by Tradesmen during the applicable liability period until the date of

judgment.” (Id. at ¶ 19.)

On June 10, 2019, Tradesmen removed the suit to this Court, asserting that federal jurisdiction

exists pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”). (Doc. No. 1.)

Shortly thereafter, on June 17, 2019, Tradesmen filed its Motion to Strike Class Claims, seeking to

dismiss or strike Plaintiffs’ class claims for a variety of reasons. (Doc. No. 8.) On the same day,

Tradesmen also filed its Motion to Compel Arbitration, requesting an order compelling individual

arbitration and dismissing the claims of Glass and Masiella. (Doc. No. 9.)1

On July 1, 2019, Plaintiffs filed their Motion to Remand. (Doc. No. 13.) Based on certain

exceptions to CAFA jurisdiction, Plaintiffs claim that this Court either lacks subject matter

jurisdiction entirely or should decline to accept such jurisdiction. (Id.) Plaintiffs also sought limited

discovery regarding prospective class members in support of their position that an exception to CAFA

jurisdiction applies in this case. (Id.) On August 19, 2019, the Court granted Plaintiffs’ request for

expedited discovery regarding prospective class members and permitted both parties to submit

supplemental briefs once discovery was completed, which Plaintiffs and Tradesmen did on October

3, 2019 and October 17, 2019, respectively. (Doc. Nos. 22-24.)

1 On June 19, 2019, McClone moved to join as a moving party in both Tradesmen’s Motion to Strike Class Claims and

its Motion to Compel Arbitration. (Doc. No. 12.) Plaintiffs have not opposed that request. The Court finds McClone’s

unopposed Motion to Join well-taken, and it is thus granted.

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II. Plaintiffs’ Motion to Remand

a. Legal Standard

The Court will consider Plaintiffs’ Motion to Remand first, as jurisdiction is a threshold matter

that must be decided before the Court may rule on other issues. See Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 577 (1999) (“The requirement that jurisdiction be established as a threshold matter

. . . is inflexible and without exception . . . for [j]urisdiction is power to declare the law, and [w]ithout

jurisdiction the court cannot proceed at all in any cause.”) (internal quotations and citations omitted).

Pursuant to 28 U.S.C. § 1447(c), “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.” Ordinarily, “[a]ll doubts

as to the propriety of removal are resolved in favor of remand.” Coyne v. Am. Tobacco Co., 183 F.3d

488, 493 (6th Cir. 1999). However, “no antiremoval presumption attends cases invoking CAFA,

which Congress enacted to facilitate adjudication of certain class actions in federal court.” Dart

Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). Indeed, CAFA is “not to be

read narrowly, but as a broad grant of jurisdiction in interstate class actions.” Davenport v. Lockwood,

Andrews & Newnam, Inc., 854 F.3d 905, 910 (6th Cir. 2017).

However, “nothing in CAFA alters the traditional rule that the removing party bears the

burden of establishing the jurisdictional elements.” Mason v. Lockwood, Andrews & Newnam, P.C.,

842 F.3d 383, 389 (6th Cir. 2016). CAFA vests district courts with original jurisdiction over class

actions in which any member of the plaintiff class is a citizen of a state different from any defendant,

the aggregate number of proposed plaintiffs is 100 or greater, and the amount in controversy exceeds

$5 million. See 28 U.S.C. § 1332(d)(2). Once these jurisdictional requirements of CAFA have been

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established, “the party seeking to remand bears the burden of establishing an exception to CAFA

jurisdiction by a preponderance of the evidence.” Mason, 842 F.3d at 389.

b. Analysis

Plaintiffs do not challenge the fact that Tradesmen has established the jurisdictional

requirements under CAFA. There is no dispute that minimal diversity of citizenship exists, that the

proposed class includes at least 100 members, and that the aggregate amount in controversy exceeds

$5 million. (See Doc. No. 1 at ¶¶ 4-13.) Instead, Plaintiffs contend that two exceptions under

CAFA—the “local controversy” exception and the “interests of justice” exception—warrant remand.

(Doc. No. 13-1 at 4-10.)

i. Local Controversy Exception

Tradesmen claims that the local controversy exception is inapplicable because Plaintiffs

cannot satisfy their burden to prove that more than two-thirds of the members of Plaintiffs’ proposed

class are citizens of Ohio. (Doc. No. 17 at 6-12.) While Plaintiffs originally moved to remand the

case based on the local controversy exception, they appear to concede in their supplemental brief—

filed after conducting discovery—that they cannot satisfy the exception’s requirements. (See Doc.

No. 13-1 at 4-8; Doc. No. 23.) Nonetheless, the Court will address the issue and concludes that the

local controversy exception does not require the Court to remand the case to state court.

Under the “local controversy” exception to CAFA jurisdiction, “a district court must decline

to exercise CAFA jurisdiction over any class action in which (1) more than two-thirds of the members

of all proposed plaintiff classes (in the aggregate) are citizens of the state in which the class action

was originally filed; (2) at least one defendant from whom significant relief is sought, and whose

alleged conduct forms a significant basis for the plaintiffs’ claims, is a citizen of the state in which

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the class action was originally filed; (3) the principal injuries resulting from the alleged conduct of

each defendant were incurred in the state in which the class action was originally filed; and (4) during

the three-year period preceding the filing of the class action, no other class action has been filed.”

Evans v. AMISUB (SFH), Inc., No. 17-cv-2528-JPM-tmp, 2017 WL 9807437, at *1 (W.D. Tenn. Dec.

8, 2017) (citing 28 U.S.C. § 1332(d)(4)(A)).2

Generally, courts assess the citizenship of prospective class members based on the definition

of the proposed class enumerated in the complaint. Courts have recognized that “[t]he proposed class

definition is crucial to the citizenship analysis, and a plaintiff who defines a class narrowly is much

more likely to achieve remand.” Id. at *2. Indeed, plaintiffs can specifically limit the citizenship of

the proposed class in their complaint to avoid federal jurisdiction under CAFA. See In re Sprint

Nextel Corp., 593 F.3d 669, 676 (7th Cir. 2010) (“Alternatively, the plaintiffs might have defined

their class as all Kansas citizens who purchased text messaging from Sprint Nextel or an alleged

coconspirator. By using that definition, the plaintiffs could have guaranteed that the suit would

remain in state court.”); Johnson v. Advance Am., 549 F.3d 932, 937 (4th Cir. 2008) (“In this case,

the plaintiffs, as masters of their complaint, limited the class to citizens of South Carolina.”).

On the other hand, when a complaint includes a broad class definition, it is more difficult to

show that remand is appropriate. For example, in Evans, the court noted that “[o]n its face, th[e] class

definition appears to include (1) individuals against whom Tennessee hospital liens were wrongly

filed prior to 2015 or since 2016, (2) individuals against whom non-Tennessee hospital liens were

2 “Similarly, under the ‘home state controversy’ exception to CAFA jurisdiction, a district court must decline to exercise

CAFA jurisdiction if (1) at least two-thirds of the members of all proposed plaintiff classes (in the aggregate) are citizens

of the state in which the class action was originally filed, and (2) all of the primary defendants are citizens of the state in

which the class action was originally filed.” Evans, 2017 WL 9807437, at *1 (citing 28 U.S.C. § 1332(d)(4)(B)).

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wrongly filed at any time, and (3) individuals who were overcharged for medical services but against

whom no hospital liens were filed.” 2017 WL 9807437, at *3. Yet, the plaintiffs failed to present

any evidence with respect to the citizenship of the individuals in these three groups. Id. Accordingly,

the court found that plaintiffs had failed to meet their burden of demonstrating that their suit fell

within the local controversy exception to CAFA jurisdiction. Id. at *4.

Here, Plaintiffs have failed to establish that two-thirds of the members of their proposed class

are citizens of Ohio, the state in which this action was originally filed. In their Complaint, Plaintiffs

define their proposed class as follows:

The Proposed Rule 23 Class consists of all females who are, have been, or will be

employed by Tradesmen during the applicable liability period until the date of

judgment.

(Doc. No. 1-2 at ¶ 19.) This definition unambiguously proposes a nationwide class of all of

Tradesmen’s female employees. Plaintiffs provide no evidence that demonstrates that two-thirds of

such individuals are citizens of Ohio, while Tradesmen has submitted evidence indicating that more

than two-thirds of the putative class members are citizens of states other than Ohio. (See Doc. No.

1-3 at ¶¶ 8-15.) As such, Plaintiffs have failed to meet their burden to show that the local controversy

exception applies.

To avoid this conclusion, Plaintiffs contend that despite the class definition in their Complaint,

their proposed class does not encompass all Tradesmen employees nationwide, but is limited to those

employees who could bring claims under the Ohio Civil Rights Act. (Doc. No. 13-1 at 7.) Plaintiffs

assert “it was never the intent of Plaintiffs to move for class certification for any individuals who

could not bring a claim under Ohio law.” (Id.) Plaintiffs argue this intent is demonstrated by the fact

that their Complaint only sets forth claims under Ohio law and refers to members of the putative class

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as “members of the R.C. §4112.99 Class.” (Doc. No. 1-2 at ¶ 20.) They also argue that Tradesmen’s

interpretation is overly formalistic and that courts often permit ongoing revisions to class definitions.

(Doc. No. 19 at 2-3.)

The Court finds Plaintiffs’ arguments unpersuasive. Plaintiffs’ class definition is

unambiguous. It contains no limitations as to the citizenship of the class members and proposes a

class consisting of all of Tradesmen’s female employees, regardless of where they live or their

connections to Ohio. Moreover, the allegations in Plaintiffs’ Complaint indicate an intention not to

limit the class to those employees who were harmed in Ohio, as Plaintiffs allege the following:

“Tradesmen’s employment policies, practices, and procedures are not unique or limited to any office;

rather, they apply uniformly and systematically to employees throughout the company, occurring as

a pattern and practice throughout all office locations. They thus affect the Class Representatives and

Class members in the same ways regardless of the office location in which they work.” (Doc. No. 1-

2 at ¶ 33.) A single reference in the Complaint to the class as the “R.C. §4112.99 Class” does not

alter the scope of the class definition spelled out in the Complaint.

Nor may Plaintiffs amend their class definition through their motion papers. See Brown v.

Whirlpool Corp., 996 F. Supp. 2d 623, 645 (N.D. Ohio 2014) (“[I]t is hornbook law that ‘a complaint

cannot be amended by briefs in opposition to a motion to dismiss.’”) (quoting Dana Ltd. v. Aon

Consulting, Inc., 984 F. Supp. 2d 755, 767 n. 2 (N.D. Ohio 2013)). The cases cited by Plaintiffs in

support of their contention that courts may accept revisions to clarify a class definition are each in

the context of motions for class certification—not the determination of whether a CAFA exception

applies, which is ordinarily based on the face of the complaint. See Powers v. Hamilton Cty. Public

Def. Comm’n, 501 F.3d 592, 619 (6th Cir. 2007) (“As demonstrated by our own clarifying revision

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to the class definition, courts must be vigilant to ensure that a certified class is properly constituted.”);

In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) (“If the class is certified on remand,

we trust that the plaintiffs or district court will amend the definition accordingly.”).

Additionally, even if the Court could consider an amended definition, Plaintiffs themselves

have proposed an unworkable number of inconsistent class definitions in an attempt to limit the class

to employees with claims under Ohio law. (Compare Doc. No. 13-1 at 7 (“[T]he putative class of

women nationwide would only include those women employees at Tradesmen who are either

residents of Ohio or who worked in Ohio during the relevant period.”), with Doc. No. 14 at 6 (“[T]here

are some potential class members that travelled into the State of Ohio or otherwise experienced sexual

harassment or discrimination that is directly tied to conduct that occurred in the State of Ohio.”).)

Accordingly, as set forth above, the Court must look to the class definition pled in Plaintiffs’

Complaint, which unambiguously consists of all female Tradesmen employees. Plaintiffs have failed

to establish that two-thirds of the members of this class are citizens of Ohio, and thus have failed to

meet their burden to show that the local controversy exception applies.3

ii. Interests of Justice Exception

Tradesmen argues that Plaintiffs cannot show that even one-third of the members of the

proposed class are citizens of Ohio, and that the interests of justice exception is therefore also

inapplicable. (Doc. No. 24 at 9.) Alternatively, Tradesmen asserts that even if the Court finds that

the one-third threshold has been met, a balancing of the relevant factors does not support remand.

3 Even if this Court were to entertain some version of Plaintiffs’ revised class definition—which, in Plaintiffs

supplemental brief, appears to include all female Tradesmen employees who lived in Ohio or traveled to Ohio in

connection with their employment during the relevant time frame—the evidence shows that Plaintiffs have still not met

their burden. Plaintiffs concede that, even under their revised class definition, discovery shows that only 57.8 percent of

the putative class members are residents of Ohio. (Doc. No. 23 at 9.)

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(Id. at 10-18.) Plaintiffs once again argue that Tradesmen misconstrues the scope of their proposed

class and that the factors indicate the Court should decline jurisdiction. (Doc. No. 23 at 7-10.)

Under CAFA, courts may exercise their discretion to decline jurisdiction under the interests

of justice exception based on the consideration of several factors. This exception provides:

(3) A district court may, in the interests of justice and looking at the totality of the

circumstances, decline to exercise jurisdiction under paragraph (2) over a class action

in which greater than one-third but less than two-thirds of the members of all proposed

plaintiff classes in the aggregate and the primary defendants are citizens of the State

in which the action was originally filed based on consideration of--

(A) whether the claims asserted involve matters of national or interstate

interest;

(B) whether the claims asserted will be governed by laws of the State in which

the action was originally filed or by the laws of other States;

(C) whether the class action has been pleaded in a manner that seeks to avoid

Federal jurisdiction;

(D) whether the action was brought in a forum with a distinct nexus with the

class members, the alleged harm, or the defendants;

(E) whether the number of citizens of the State in which the action was

originally filed in all proposed plaintiff classes in the aggregate is substantially

larger than the number of citizens from any other State, and the citizenship of

the other members of the proposed class is dispersed among a substantial

number of States; and

(F) whether, during the 3-year period preceding the filing of that class action,

1 or more other class actions asserting the same or similar claims on behalf of

the same or other persons have been filed.

28 U.S.C. § 1332(d)(3).

The Court concludes that Plaintiffs have failed to meet their burden to show that more than

one-third of the members of their proposed class are citizens of Ohio. As discussed above, the Court

finds that the class definition in Plaintiffs’ Complaint unambiguously sets forth a nationwide class

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consisting of all female Tradesmen employees, and that this is the relevant definition for purposes of

determining whether CAFA jurisdiction exists. Again, Plaintiffs provide no evidence that

demonstrates that one-third of the class members under this definition are citizens of Ohio. The

evidence submitted by Plaintiffs only relates to the citizenship of employees that either resided in

Ohio or traveled to Ohio in connection with their employment, which fails to address the citizenship

of all the members of the nationwide class pled in the Complaint. In contrast, Tradesmen has provided

evidence indicating that less than one-third of the putative class members nationwide are citizens of

Ohio. (See Doc. No. 1-3 at ¶¶ 8-15.) As a result, Plaintiffs have failed to meet their burden to show

that the threshold requirement for the interests of justice exception has been satisfied. As such, the

Court need not analyze the factors enumerated in 28 U.S.C. § 1332(d)(3).

Because neither the local controversy nor the interests of justice exceptions to CAFA

jurisdiction are applicable to Plaintiffs’ class action, the Court denies Plaintiffs’ Motion to Remand.4

III. Tradesmen’s Motion to Strike Class Claims

a. Legal Standard

Federal Rule of Civil Procedure 23 governs class actions brought in federal court. “To obtain

class certification, a claimant must satisfy two sets of requirements: (1) each of the four prerequisites

under Rule 23(a), and (2) the prerequisites of one of the three types of class actions provided for by

Rule 23(b).” Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 945-46 (6th Cir. 2011). Plaintiffs

seek certification under both Rule 23(b)(2) and Rule 23(b)(3). (See Doc. No. 1-2 at ¶¶ 19-51.)

4 The Court also denies Plaintiffs’ request to conduct additional discovery related to their Motion to Remand. Plaintiffs

have not shown that any unproduced materials would help them establish an exception to CAFA jurisdiction. Moreover,

Plaintiffs did not notify Tradesmen of the discovery issues raised in their supplemental brief in support of their Motion

to Remand until two minutes before filing their brief. (Doc. No. 24-1 at ¶¶ 8-9.) As such, Plaintiffs failed to comply with

Local Rule 37.1 regarding discovery disputes.

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Rule 23(a) requires that “(1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses

of the representative parties are typical of the claims or defenses of the class; and (4) the representative

parties will fairly and adequately protect the interests of the class.”

Rule 23(b)(2) and Rule 23(b)(3) require, respectively, that:

(2) the party opposing the class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or corresponding declaratory relief

is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already

begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the

claims in the particular forum; and

(D) the likely difficulties in managing a class action.

“Rule 23 does not set forth a mere pleading standard,” and “[a] party seeking class

certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 350 (2011). In addition, “certification is proper only if ‘the trial court is

satisfied, after a rigorous analysis,’” that all prerequisites have been satisfied. Id. at 350-51. Pursuant

to Rule 23(c)(1)(A), courts should make such a determination “[a]t an early practicable time.” “Either

party may freely move for resolution of the class-certification question at any stage of the

proceedings, and the class action allegations may be stricken prior to a motion for class certification

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where the complaint itself demonstrates that the requirements for maintaining a class action cannot

be met.” Rikos v. Procter & Gamble Co., No. 1:11–cv–226, 2012 WL 641946, at *3 (S.D. Ohio Feb.

28, 2012).

b. Analysis

Tradesmen moves to dismiss Plaintiffs’ class claims pursuant to Rule 12(b)(6) or, in the

alternative, to strike Plaintiffs’ class allegations pursuant to Rules 12(f) and 23(d)(1)(D) because

Plaintiffs’ proposed nationwide class of Tradesmen employees (1) cannot be maintained because the

Ohio Civil Rights Act does not apply extraterritorially, (2) applying Ohio law nationwide would

violate the Erie doctrine, and (3) applying Ohio law nationwide would violate the Commerce Clause.

(Doc. No. 8.) Plaintiffs do not dispute Tradesmen’s analysis of the law, but argue that Tradesmen’s

Motion to Strike Class Claims should be denied because it relies on the false assumption that

Plaintiffs’ proposed class covers female Tradesmen employees nationwide, rather than only those

employees who could have brought claims under the Ohio Civil Rights Act. (Doc. No. 14.)

Alternatively, Plaintiffs request leave to amend their Complaint to clarify their class allegations. (Id.

at 5 n.1.) The Court will strike Plaintiffs’ class allegations, but permit Plaintiffs to amend their

Complaint.

Plaintiffs’ arguments regarding the intended scope of its proposed class are the same as those

that the Court rejected above in ruling on Plaintiffs’ Motion to Remand. Once again, the Court finds

that Plaintiffs failed to limit the scope of the proposed class in their Complaint in the way that they

claim. As noted above, Plaintiffs’ class definition unambiguously applies to all female Tradesmen

employees and contains no limitations regarding class members’ connections to Ohio. Accordingly,

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the Court must consider Tradesmen’s Motion to Strike Class Claims in the context of Plaintiffs’

proposed nationwide class. Such a class cannot be maintained.

Courts have stricken class allegations when a nationwide class is asserted with respect to

claims under the laws of a single state that have no extraterritorial effect. Cotter v. Lyft, Inc., 60 F.

Supp. 3d 1059, 1063-66 (N.D. Cal. Aug. 7, 2014) (striking nationwide class claims because “plaintiffs

propose to represent class members who are residents of other states, who drive for Lyft exclusively

in those states, and who apparently never set foot in California” and “[t]he California wage and hour

laws at issue here do not create a cause of action for people who fit this description”); see also Rikos

v. Procter & Gamble Co., No. 1:11–cv–226, 2012 WL 641946, at *5 n.2 (S.D. Ohio Feb. 28, 2012)

(holding a nationwide class could not be certified due to constitutional limitations, but “[e]ven if

Plaintiff could satisfy the Constitutional limitations on its claims, he would be unable to bring claims

under [California’s Unfair Competition Law] on behalf non-resident class members who purchased

Align outside of California”).

Here, all of Plaintiffs’ claims are based on the Ohio Civil Rights Act, and Plaintiffs concede

that the Ohio Civil Rights Act only covers claims that are based on conduct tied to Ohio. (Doc. No.

1-2 at ¶¶ 92-138; Doc. No. 14 at 2.) Yet, Plaintiffs’ Complaint seeks to certify a nationwide class of

female Tradesmen employees, which includes employees who are employed outside of Ohio, many

of whom have apparently never traveled to Ohio in connection with their employment. (Doc. No. 1-

2 at ¶ 19; Doc. No. 1-3 at ¶¶ 8-15.) Plaintiffs cannot impose the Ohio Civil Rights Act on Tradesmen

employees with no connection to Ohio, and striking Plaintiffs’ class allegations is thus appropriate.

Moreover, the application of the Ohio Civil Rights Act to a nationwide class of female

Tradesmen employees would raise serious constitutional concerns. See Cotter, 60 F. Supp. 3d at

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1063 (“The Commerce Clause . . . precludes the application of a state statute to commerce that takes

place wholly outside of the State’s borders, whether or not the commerce has effects within the

State.”) (quoting Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982)); Rikos, 2012 WL 641946, at

*3 (“[D]ue process concerns create constitutional limitations on a state’s application of its law to the

claims of nonresident class members in a nationwide class action.”).

Nor, as Plaintiffs claim, is striking Plaintiffs’ class claims at this juncture premature, as a

district court may strike class allegations prior to discovery when no discovery or factual development

“would alter the central defect in th[e] class claim.” Pilgrim, 660 F.3d at 949.

Accordingly, the Court finds that a nationwide class may not be certified for Plaintiffs’ claims

and strikes Plaintiffs’ class allegations.

IV. Tradesmen’s Motion to Compel Arbitration

a. Legal Standard

The Federal Arbitration Act (“FAA”) provides that an arbitration clause in “a contract

evidencing a transaction involving commerce . . . shall be 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. “This

provision establishes ‘a liberal federal policy favoring arbitration agreements’” and “requires courts

to enforce agreements to arbitrate according to their terms.” CompuCredit Corp. v. Greenwood, 565

U.S. 95, 98 (2012) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983)). The FAA also “establishes that, as a matter of federal law, any doubts concerning the scope

of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the

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construction of the contract language itself or an allegation of waiver, delay, or a like defense to

arbitrability.” Mercury Constr. Corp., 460 U.S. at 24-25.5

The FAA further provides that “[a] party aggrieved by the alleged failure, neglect, or refusal

of another to arbitrate under a written agreement for arbitration may petition any United States district

court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in

admiralty of the subject matter of a suit arising out of the controversy between the parties, for an

order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C.

§ 4. If the court finds that a party’s claims are referable to arbitration, the court shall “stay the trial

of the action until such arbitration has been had in accordance with the terms of the agreement.” 9

U.S.C. § 3. However, “[i]f all the claims in the case are within the scope of the arbitration agreement

and ‘there is “nothing left for the district court to do but execute judgment,” dismissal [of the case] is

appropriate.’” Stachurski v. DirecTV, Inc., 642 F. Supp. 2d 758, 764 (N.D. Ohio 2009) (quoting

Ewers v. Genuine Motor Cars, Inc., No. 1:07 CV 2799, 2008 WL 755268, at *7 (N.D. Ohio Mar. 19,

2008)).

“In determining whether to grant motions to dismiss or stay proceedings and compel

arbitration, courts must apply a four-pronged test: (1) whether the parties agreed to arbitrate; (2) the

scope of that agreement; (3) if federal statutory claims are asserted, whether Congress intended those

claims to be arbitrated; and (4) whether to stay the remainder of the proceedings pending arbitration.”

Uszak v. AT & T, Inc., No. 1:14CV2800, 2015 WL 13037500, at *3 (N.D. Ohio Oct. 6, 2015).

5 Ohio policy also strongly favors arbitration. See Eagle v. Fred Martin Motor Co., 809 N.E.2d 1161, 1167 (Ohio Ct.

App. 9th Dist. 2004) (“Ohio’s public policy encourages arbitration as a method to settle disputes.”); Ohio Rev. Code §

2711.01.

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Thus, before granting a motion to compel arbitration, a court must first determine whether a

valid agreement to arbitrate exists between the parties. If the court “is satisfied that the agreement to

arbitrate is not ‘in issue,’ it must compel arbitration.” Great Earth Companies, Inc. v. Simons, 288

F.3d 878, 889 (6th Cir. 2002). However, “[i]f the validity of the agreement to arbitrate is ‘in issue,’

the court must proceed to a trial to resolve the question.” Id. (citing 9 U.S.C. § 4). The validity of

the agreement is “in issue” when the party opposing arbitration “show[s] a genuine issue of material

fact as to the validity of the agreement to arbitrate.” Id. This showing “mirrors that required to

withstand summary judgment in a civil suit.” Id. Thus, “a court must view all facts and inferences

in the light most favorable to the party opposing arbitration, and determine whether a valid agreement

to arbitrate exists.” Grynko v. Sears Roebuck and Co., No. 1:13 CV 2482, 2014 WL 66495, at *3

(N.D. Ohio Jan. 6, 2014).

b. Analysis

The sole issue in dispute in this case is whether the parties agreed to arbitrate. Tradesmen

contends that it entered into valid agreements to arbitrate with Glass and Masiella, while Plaintiffs

contend that the Arbitration Agreement lacks valid consideration and that neither Glass nor Masiella

accepted the Arbitration Agreement. (Doc. No. 9-1 at 7-8; Doc. No. 15 at 5-9.) Plaintiffs also request

expedited discovery and an evidentiary hearing, if necessary, to determine whether the Arbitration

Agreement should be enforced. (Doc. No. 15 at 9-10.)

“Because arbitration agreements are fundamentally contracts, we review the enforceability of

an arbitration agreement according to the applicable state law of contract formation.” Uszak, 2015

WL 13037500, at *3. In Ohio, “[a] valid arbitration agreement, like any contract, requires an offer

and acceptance that is supported by consideration and is premised on the parties’ meeting of the minds

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as to the essential terms of the agreement.” Corl v. Thomas & King, No. 05AP-1128, 2006 WL

1629740, at *2 (Ohio Ct. App. 10th Dist. June 13, 2006); see also Tidewater Fin. Co. v. Cowns, 968

N.E.2d 59, 63 (Ohio Ct. App. 1st Dist. 2011) (“For a valid contract to exist, there must be an offer on

one side, an acceptance on the other side, and mutual assent between the parties with regard to the

consideration for the bargain.”) (citation omitted). “Mutual assent ‘ordinarily takes the form of an

offer or proposal by one party followed by an acceptance by the other party or parties.’” Dantz v.

Am. Apple Group, LLC, 123 F. App’x 702, 707 (6th Cir. 2005) (citation omitted).

i. Consideration

Plaintiffs assert that the Arbitration Agreement is invalid because it fails to provide adequate

consideration. Plaintiffs claim adequate consideration does not exist because acceptance of the

agreement was not required for continued employment and Tradesmen’s promise to arbitrate was not

mutual since the Arbitration Agreement contains a class action waiver. (Doc. No. 15 at 5-7.) In

response, Tradesmen asserts that both continued employment and Tradesmen’s promise to arbitrate

constitute sufficient consideration. (Doc. No. 18 at 11-14.) The Court finds that regardless of the

validity of Glass and Masiella’s continued employment as consideration, the Arbitration Agreement

is supported by adequate consideration in Tradesmen’s mutual promise to arbitrate.

“Ohio law requires that consideration be present for a contract to be enforceable.” Dantz, 123

F. App’x at 708. In general, “[c]onsideration may consist of either a detriment to the promisee or a

benefit to the promisor. A benefit may consist of some right, interest or profit accruing to the

promisor, while a detriment may consist of some forbearance, loss or responsibility given, suffered

or undertaken by the promisee.” Id. (quoting Harmon v. Phillip Morris, Inc., 697 N.E.2d 270, 272

(Ohio Ct. App. 8th Dist. 1997)). With respect to agreements to arbitrate, numerous courts have

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recognized that “[w]here . . . both parties agree to take certain disputes to arbitration and to be bound

by the outcome, sufficient consideration exists.” Corl, 2006 WL 1629740, at *5; accord Dantz, 123

F. App’x at 708-09 (holding consideration was present when “[b]oth the employee and the employer

are required to take certain defined disputes to arbitration and be bound by the outcome”); Raasch v.

NCR Corp., 254 F. Supp. 2d 847, 865 (S.D. Ohio 2003) (“NCR’s promise to adhere to the terms of

[the arbitration policy] was sufficient consideration.”). “No consideration is required above and

beyond the agreement to arbitrate.” Corl, 2006 WL 1629740, at *5.

Here, sufficient consideration for the Arbitration Agreement exists. The Arbitration

Agreement specifically provides that both Plaintiffs and Tradesmen “agree to binding arbitration as

the exclusive means to resolve the disputes that may arise out of the Covered Claim.” (Doc. No. 10-

1 at 3.) Thus, in exchange for Plaintiffs’ agreement to arbitrate claims against Tradesmen, Tradesmen

likewise agreed to arbitrate claims against Plaintiffs. Plaintiffs assert that Tradesmen’s agreement to

arbitrate in and of itself cannot suffice as consideration because “the agreement is not mutual

inasmuch as the arbitration program also contains a class action waiver which by its very terms cannot

be mutual.” (Doc. No. 15 at 6 n.1.) However, mutuality does not require “equally balanced” terms.

Raasch, 254 F. Supp. 2d at 856. Instead, mutuality requires only that both parties “be bound to the

terms of any dispute that is required to be submitted to the arbitrator.” Id. Thus, the class action

waiver is irrelevant to the determination of whether Tradesmen provided valid consideration.

Accordingly, the Arbitration Agreement does not fail for lack of consideration.

ii. Offer and Acceptance

Next, Plaintiffs argue that even if adequate consideration exists, neither Glass nor Masiella

entered into the Arbitration Agreement. Plaintiffs assert that Glass was never offered and never

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accepted continued employment as consideration for the Arbitration Agreement because she accepted

a new job offer prior to the opt-out deadline, and that Masiella opted out of the Arbitration Agreement

by returning the Opt-Out Form to Tradesmen’s Human Resources Department. (Doc. No. 15 at 7-9.)

In response, Tradesmen argues that Glass continued her employment with Tradesmen long enough

to establish her acceptance of the Arbitration Agreement, and that Masiella failed to follow the

required opt-out procedures. (Doc. No. 18 at 9-10.) The Court concludes that Glass accepted

Tradesmen’s offer to enter into the Arbitration Agreement, and that her claims therefore must be

submitted to arbitration. However, there is a genuine issue of material fact with respect to whether

Masiella opted out of the Arbitration Agreement, which requires an evidentiary hearing to resolve.

An offer may come in the form of an email informing an employee that the employer has

created an arbitration program for resolving disputes. See Uszak, 2015 WL 13037500, at *5. In

addition, in Ohio, an employee’s act of continuing to work for an employer after the employer stated

that doing so would constitute acceptance of an arbitration agreement is sufficient to demonstrate the

employee’s assent to or acceptance of its terms. For example, in Dantz, the defendant sent a letter to

employees providing that their acceptance of an arbitration agreement would be expressed by their

“continuing employment with the Company from and after October 1, 2001.” 123 F. App’x at 704.

On appeal, the Sixth Circuit agreed with the district court’s reasoning that the “plaintiff, an at-will

employee, manifested her assent in the very way that the Company requested, that is, by continuing

her employment after October 1, 2001.” Id. at 708; see also Legair v. Circuit City Stores, Inc., 213

F. App’x 436, 439 (6th Cir. 2007) (finding “plaintiff by his conduct demonstrated his agreement to

be bound” because he “failed to take the required action to opt out”); Raasch, 254 F. Supp. 2d at 867

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(holding plaintiff’s “act of continuing to work for NCR after it stated that doing so would constitute

acceptance of the new term of employment demonstrates his assent to, or acceptance of, same”).

In this case, in its very first paragraph, the Arbitration Agreement provides in bold that an

employee “consent[s] to this Agreement by continuing or accepting employment with

Tradesmen International, LLC, unless you take the steps to opt out of this Agreement as

described below.” (Doc. No. 10-1 at 2.) In Paragraph C.2, the Arbitration Agreement further

explains that an employee’s consent to the agreement is expressed by “continuing employment with

Tradesmen on and after October 21, 2016” or the “acceptance of any assignment, wages, salary,

promotion, increase, transfer, bonus or other benefit of employment after on or [sic] October 21,

2016.” (Id. at 5.)

With respect to Glass, there is no dispute that she received an email from Tradesmen on

October 7, 2016 that contained the Arbitration Agreement. Indeed, Tradesmen’s records show that

Glass opened this email numerous times between October 7, 2016 and October 10, 2016. (Doc. No.

10 at ¶ 20.) Glass thus received a valid offer to enter into the Arbitration Agreement with Tradesmen.

Moreover, Glass admits that she continued her employment with Tradesmen through the first week

of November 2016 and does not claim that she ever submitted an Opt-Out Form to Tradesmen. (Doc.

No. 15-1 at ¶ 7.) By failing to opt out and continuing her employment with Tradesmen past October

21, 2016, Glass manifested her assent to the Arbitration Agreement.

Plaintiffs argue that Glass located and secured another job with a different employer before

October 21, 2016 and therefore did “not accept[] Tradesmen’s offer of continued employment even

if it was being offered.” (Doc. No. 15 at 8.) The Court finds this argument unpersuasive. Glass does

not contend that she terminated her employment with Tradesmen before October 21, 2016, only that

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she had accepted another job. The fact that Glass eventually found another job and left her position

at Tradesmen in November 2016 is immaterial to her previous acceptance, which she expressed by

continuing her employment with Tradesmen after October 21, 2016. Therefore, the Court concludes

that Tradesmen and Glass entered into a valid and binding agreement to arbitrate. In addition, there

is no dispute that all of Glass’s claims are within the scope of the Arbitration Agreement, and

dismissal of her claims is thus appropriate.

With regard to Masiella, there is also no dispute that she received an email from Tradesmen

on October 11, 2016 that contained the Arbitration Agreement and opened it numerous times

thereafter. (Doc. No. 10 at ¶ 23.) Masiella thus received a valid offer to enter into the Arbitration

Agreement with Tradesmen. Masiella also continued her employment with Tradesmen past October

21, 2016. (Doc. No. 11 at ¶ 15.)

However, Plaintiffs claim that she did not accept the Arbitration Agreement because she opted

out prior to the deadline. (Doc. No. 15 at 8-9.) In support of this claim, Masiella submitted a

declaration in which she states that before October 21, 2016, she executed an Opt-Out Form, brought

it into Tradesmen, and hand-delivered it to Woodall. (Doc. No. 15-2 at ¶ 5.) Masiella claims that

Woodall accepted the Opt-Out Form from her and at no time stated that Masiella needed to mail the

form to her. (Id.) Masiella also asserts that she chose to opt out of the Arbitration Agreement after

consulting her husband, who told her to opt out and that he had faced a similar situation at a previous

employer. (Id. at ¶ 2.) Plaintiffs also submitted the email chain in which Masiella forwarded the

Arbitration Agreement she received from Tradesmen to her husband. (Doc. No. 15-3.) In direct

contrast to Masiella’s declaration, Woodall has declared that Masiella did not return an Opt-Out Form

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and does not appear on a spreadsheet that tracked which employees had submitted an Opt-Out Form.

(Doc. No. 11 at ¶¶ 12-13.)

Tradesmen asserts that even if Masiella did deliver the Opt-Out Form to Woodall, Masiella

failed to opt out of the Arbitration Agreement because both the Arbitration Agreement and the Opt-

Out Form specified that the Opt-Out Form had to be sent by certified mail or overnight delivery to

Tradesmen’s Human Resources Department. (Doc. No. 10-1 at 5; Doc. No. 18-1 at Ex. 7.) Thus,

Tradesmen contends Masiella cannot demonstrate that she opted out in accordance with the terms of

the Arbitration Agreement and she is therefore bound by it. (Doc. No. 18 at 9.) The Court disagrees.

In Ohio, “[t]he long and uniformly settled rule as to contracts requires only a substantial

performance in order to recover upon such contract. Merely nominal, trifling, or technical departures

are not sufficient to breach the contract.” Atsco Holdings Corp. v. Air Tool Serv. Co., No.

1:15CV1586, 2017 U.S. Dist. LEXIS 224626, at *11-12 (N.D. Ohio Dec. 20, 2017) (quoting

Stonehenge Land Co. v. Beazer Homes Invests., L.L.C., 893 N.E.2d 855, 863 (Ohio Ct. App. 10th

Dist. 2008)). “A court should confine the application of the doctrine of substantial performance to

cases where the party has made a [sic] honest or good faith effort to perform the terms of the contract.”

Burlington Resources Oil & Gas Co. v. Cox, 729 N.E.2d 398, 402 (Ohio Ct. App. 4th Dist. 1999). In

addition, “[f]or the doctrine of substantial performance to apply, the part unperformed must not

destroy the value or purpose of the contract.” Hansel v. Creative Concrete & Masonry Constr. Co.,

772 N.E.2d 138, 141 (Ohio Ct. App. 10th Dist. 2002).

Applying this doctrine, multiple courts have found that a party substantially complied with

notice provisions in a contract despite not adhering to the exact requirements as to the method of

notice. See Atsco Holdings, 2017 U.S. Dist. LEXIS 224626, at *11 (finding notice of a claim by

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email was “sufficient under the law” even though the contract required that notice be “hand delivered

or sent by certified or registered mail, return receipt requested and postage prepaid, overnight mail or

courier, or telecopier”); Stonehenge Land, 893 N.E.2d at 863-64 (“Stonehenge’s attorney’s letter to

Beazer’s attorney may have deviated from the contract’s express terms as to where Stonehenge was

required to send written notice of default and election to pursue contractual remedies for breach.

However, under the facts and circumstances of this case, we cannot say that this technical deviation

was sufficient to constitute breach of the 2004 contract that would relieve Beazer of liability for its

breach.”).

Likewise, here, Masiella claims that she hand-delivered her executed Opt-Out Form to

Woodall—Tradesmen’s Human Resources Director—who did not inform her that she could not

accept the Opt-Out Form or that it had to be mailed. While not strictly compliant with the requirement

that the Opt-Out Form be mailed to Tradesmen’s Human Resources Department by certified or

overnight mail, Masiella’s conduct, if taken as true, substantially complied with the opt-out provision

of the Arbitration Agreement. However, Woodall has stated in her declaration that Masiella never

returned an Opt-Out Form to Tradesmen. (Doc. No. 11 at ¶ 12.) Based on this conflicting evidence,

the Court finds a genuine issue of material fact exists with respect to whether Masiella opted out of

the Arbitration Agreement. As such, the validity of the Arbitration Agreement is in issue, and an

evidentiary hearing is required.

V. Conclusion

For the reasons set forth above:

McClone’s Motion to Join (Doc. No. 12) is GRANTED.

Plaintiffs’ Motion to Remand (Doc. No. 13) is DENIED.

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Tradesmen’s Motion to Strike Class Claims (Doc. No. 8) is GRANTED. The class allegations

in Plaintiffs’ Complaint are stricken. Plaintiffs are granted leave to amend their Complaint within 30

days of this order.

Tradesmen’s Motion to Compel Arbitration (Doc. No. 9) is GRANTED IN PART, as follows.

Glass’s claims are dismissed, and Glass and Defendants are ordered to arbitration pursuant to the

terms of the Arbitration Agreement. The Court will defer ruling on Tradesmen’s Motion to Compel

Arbitration with respect Masiella until the completion of an evidentiary hearing to determine whether

there exists an enforceable arbitration agreement between Masiella and Tradesmen. Accordingly, an

evidentiary hearing is set on April 14, 2020 at 1:30 p.m. The parties may conduct discovery prior to

the hearing on issues relevant to the existence of an enforceable arbitration agreement between

Masiella and Tradesmen. All written discovery requests must be issued within seven (7) days from

the date of this order, and responses are due within fourteen (14) days after service of the request.

All depositions must be completed prior to the evidentiary hearing.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: February 19, 2020 U. S. DISTRICT JUDGE

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