Caiceros v. SDH Services West, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GIOVANNI CAICEROS, :

:

Plaintiff, :

: REPORT AND

-against- : RECOMMENDATION

:

SDH SERVICES WEST, LLC, : 24-CV-7606 (LDH)(MMH)

:

Defendant. :

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MARCIA M. HENRY, United States Magistrate Judge:

Plaintiff Giovanni Caiceros sued Defendant SDH Services West, LLC (“SDH”),

alleging violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law

(“NYLL”) for unpaid overtime wages, withheld wages, and retaliatory and discriminatory

termination. (See generally Compl., ECF No. 1.)1 Before this Court is SDH’s motion to

compel arbitration and stay the action pending arbitration proceedings. (See generally Mot.,

ECF No. 9.) The Honorable LaShann DeArcy Hall referred the motion for report and

recommendation. For the reasons below, the Court respectfully recommends that the motion

to compel arbitration should be granted and that this action should be stayed pending

arbitration.

I. BACKGROUND

A. Factual Allegations

SDH is a New York limited liability company with its principal place of business at the

John F. Kennedy International Airport (“JFK”) in Queens County, New York. (Compl., ECF

1 All citations to documents filed on ECF are to the ECF document number (i.e., “ECF No. ___”)

and pagination “___ of ___” in the ECF header unless otherwise noted.

No. 1 ¶ 11.) SDH is a subsidiary of Sodexo, Inc. and operates restaurants and food outlets at

JFK. (Id. ¶ 13; see also Sanders Decl. Ex. A, ECF No. 10-1 at 2.)

From February 2023 to September 13, 2024, SDH employed Caiceros as a manual

worker, whose duties included setting up outlets, cleaning up, loading/unloading, packing,

unpacking, moving, and serving food. (Compl., ECF No. 1 ¶¶ 15–16.) Caiceros typically

worked at least 50 to 55 hours each week and five to seven days per week. (Id. ¶ 18.)

Caiceros’s last hourly pay rate was about $56.67. (Id. ¶ 17.) Caiceros alleges that SDH did

not pay him an overtime premium for hours worked above 40 each week during his

employment. (Id. ¶ 19.) He further claims that SDH paid him bi-weekly instead of weekly

and did not issue wage notices and wage statements. (Id. ¶¶ 22, 25–26.) Caiceros also alleges

that in 2023, he complained to his supervisor’s boss that his supervisor did not allow him to

use his paid time off; thereafter, his supervisor was very upset and their relationship

deteriorated. (Id. ¶ 59.) Only a few months later, Caiceros’s supervisor asked him to look for

other work and Caiceros was terminated on or about September 13, 2024. (Id.) He claims that

his termination was in retaliation for objecting to his supervisor’s decision not to let him use

his paid time off. (Id.)

B. Arbitration Provisions

On January 9, 2023, Caiceros received an offer letter from Sodexo (the “Offer Letter”)

for a position as General Manager, Aviation Lounge I, with an effective date of January 14,

2023. (Sanders Decl., ECF No. 10 ¶ 6; id. Ex. B, ECF No. 10-2 at 3–5.) The Offer Letter

included a Terms of Employment Statement (“Terms Statement”), which provided information

about Plaintiff’s pay, benefits, and required actions before employment. (Sanders Decl. Ex.

B, ECF No. 10-2 at 3–5.) The Terms Statement’s “Arbitration Agreement” section states:

As a condition of your employment, you are also required to sign and comply

with an Employment Arbitration Agreement. The Agreement and Frequently

Asked Questions (FAQs) are available on Sodexo’s Employee On-Boarding

Portal. Please review this information carefully, as the program affects the legal

rights of both you and the Company (including a waiver of the right to bring a

civil action in federal or state court before a civil judge or jury, as well as a

waiver of the right to bring or participate in a class action, collective action or

representative action). Please note that we must receive your signed Agreement

before your first day of employment.

(Id. at 3.)

The Mutual Agreement to Arbitrate Claims (the “Arbitration Agreement”) was one of

the new-hire documents referenced in the Offer Letter. (Sanders Decl., ECF No. 10 ¶ 8.) The

first sentence of the Arbitration Agreement states the following:

I recognize that disputes may arise between me and Sodexo, Inc. or any parent,

subsidiary or affiliate of Sodexo, Inc. (collectively, “Sodexo”) during or

following my employment with Sodexo, and that those differences may or may

not be related to my employment.

(Sanders Decl. Ex. C, ECF No. 10-3 at 2.) In a section entitled “Claims Covered by the

Agreement,” the Arbitration Agreement provides, in relevant part:

Sodexo and I mutually consent to the resolution by arbitration all claims or

controversies (“claims”), past, present or future, whether or not arising out of

my employment (or its termination), that Sodexo may have against me or that I

may have against any of the following: (1) Sodexo, (2) its officers, directors,

employees or agents in their capacity as such or otherwise, (3) Sodexo’s

parents, subsidiaries and affiliated entities, (4) Sodexo’s benefit plans or the

plans’ sponsors . . . and/or (6) all successors and assigns of any of them.

The only claims that are arbitrable are those that are justiciable under applicable

federal, state, or local law. Arbitrable claims include, but are not limited to:

claims for wages or other compensation due; claims for breach of any contract

or covenant (express or implied); tort claims; claims for retaliation or

discrimination (including, but not limited to, race, national origin, religion, sex,

sexual orientation, gender identity, marital status, age, physical or mental

disability or handicap, or medical condition); claims for benefits (except as

provided below); and claims for violation of any federal, state, or other

governmental law, statute, regulation, or ordinance (except as provided below).

(Id.)2 As part of his employment offer, Caiceros was required to review and sign the

Arbitration Agreement before his first day of employment. (Sanders Decl., Ex. B, ECF No. 10-

2 at 3.)

To complete the onboarding process, Caiceros was required to create his own personal

profile on Sodexo’s Career Center website portal (the “Portal”) by entering his name and

personal email address, and then creating a unique username and password, which he could

thereafter use to access the Portal. (Sanders Decl., ECF No. 10 ¶ 7.) After accessing the Portal,

Caiceros was presented with new-hire materials to complete and/or electronically sign,

including a link to the Arbitration Agreement. (Id. ¶ 8.) Below the link, was the statement:

“Once you review, please click the ‘Add My Signature’ button. By clicking the button below,

you are applying your electronic signature.” (Id. ¶ 9.) Upon clicking the link entitled “Mutual

Agreement to Arbitrate Claims,” the Arbitration Agreement was viewable in a separate tab.

(Id. ¶ 8.) Sodexo’s electronic applicant tracking system automatically creates a record

memorializing the date and time the employee clicked the “Add My Signature” button and

electronically agreed to the new-hire documents, including the Arbitration Agreement. (Id.

¶ 9.)

Caiceros electronically signed the Offer Letter on January 9, 2023 at 12:37 p.m.,

immediately below the following statement: “I have read and accept this employment offer

and the Terms of Employment Statement.” (Sanders Decl. Ex. B, ECF No. 10-2 at 5.) Less

2 Excluded from the Arbitration Agreement are workers’ compensation or unemployment benefits

claims, non-preempted claims that are not subject to arbitration, claims under the Franken

Amendment (related to defense contracts), and claims under an employee benefit or pension plan.

(See Sanders Decl. Ex. C, ECF No. 10-3 at 2–3.)

than two hours later, he electronically agreed to the Arbitration Agreement on January 9, 2023

at 1:57 p.m. (Sanders Decl., ECF No. 10 ¶ 10; id. Ex. D, ECF No. 10-4 at 2.)

C. Procedural History

On October 30, 2024, Caiceros commenced this action, alleging violations of the FLSA

and NYLL for unpaid overtime wages, withheld wages, and retaliatory and discriminatory

termination. (See generally Compl., ECF No. 1.) SDH filed the instant motion on December

23, 2024. (See Mot., ECF No. 9.) Four days later, Caiceros requested mediation, arguing that

the Arbitration Agreement does not contain his signature and seeking discovery and a trial.

(See Mot. to Request Mediation, ECF No. 13 at 2.) SDH opposed any mediation. (See

Generally Def. Ltr., ECF No. 14.) The Court denied Caiceros’s request for referral to

mediation. (Jan. 29, 2025 Order.) On March 4, 2025, Judge DeArcy Hall referred SDH’s

motion for report and recommendation.

II. LEGAL STANDARDS

Pursuant to the Federal Arbitration Act (“FAA”), a written agreement to arbitrate “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. A party may move for an order compelling

arbitration, and the court must grant the motion “upon being satisfied that the making of the

agreement for arbitration or the failure to comply therewith is not in issue.” Id. § 4; Arnaud v.

Doctor’s Assocs. Inc., No. 18-CV-3703 (NGG)(SJB), 2019 WL 4279268, at *3 (E.D.N.Y.

Sept. 10, 2019) (citing AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 354–55 (2011));

aff’d, 821 F. App’x 54 (2d Cir. 2020).

“[A] court may order arbitration of a particular dispute only where the court is satisfied

that the parties agreed to arbitrate that dispute.” Granite Rock Co. v. Int’l Bhd. of Teamsters,

561 U.S. 287, 297 (2010) (emphasis in original) (citing First Options of Chicago, Inc. v.

Kaplan, 514 U.S. 938, 943 (1995) and AT&T Mobility, 563 U.S. at 648–49); see also Soliman

v. Subway Franchisee Advert. Fund Tr., Ltd., 999 F.3d 828, 834 (2d Cir. 2021) (“[T]he FAA

is not a substitute for contractual assent, and we will not enforce arbitration unless and until it

is determined that an agreement exists.”). Therefore, when considering a motion to compel

arbitration, the court must determine: (1) whether the parties agreed to arbitrate and (2) if so,

the scope of that agreement. Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019) (cleaned

up).

“The party seeking to compel arbitration bears an initial burden of demonstrating that

an agreement to arbitrate was made . . . . This burden does not require the moving party to

show that the agreement would be enforceable—only that an agreement to arbitrate existed.”

Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 101–02 (2d Cir. 2022) (citing

Doctor’s Assocs., Inc. v. Alemayehu, 934 F.3d 245, 251, 254 (2d Cir. 2019)). “Once the

existence of an agreement to arbitrate is established, the burden shifts to the party seeking to

avoid arbitration to ‘show[ ] the agreement to be inapplicable or invalid.’” Id. (quoting

Harrington v. Atl. Sounding Co., 602 F.3d 113, 124 (2d Cir. 2010)). “Ordinary principles of

contract law guide the inquiry into whether an arbitration agreement was validly formed and

whether the parties consented to arbitrate a particular dispute.” Loc. Union 97, Int’l Bhd. of

Elec. Workers, AFL-CIO v. Niagara Mohawk Power Corp., 67 F.4th 107, 113 (2d Cir. 2023)

(citing Granite Rock, 561 U.S. at 296).

“In the context of motions to compel arbitration brought under [section 4 of the FAA],

the court applies a standard similar to that applicable for a motion for summary judgment.”

Bensadoun v. Jobe–Riat, 316 F.3d 171, 175 (2d Cir. 2003). “The summary judgment standard

requires a court to ‘consider all relevant, admissible evidence submitted by the parties and

contained in pleadings, depositions, answers to interrogatories, and admissions on file,

together with . . . affidavits.’” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)

(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002)). “In doing so, the

court must draw all reasonable inferences in favor of the non-moving party.” Nicosia,

834 F.3d at 229.

III. DISCUSSION

As set forth below, while the Court finds that an agreement to arbitrate exists, several

questions regarding its enforceability should be resolved by the arbitrator pursuant to the

agreement’s terms.

A. FAA’s Applicability

The Court first addresses Caiceros’s argument that the FAA does not apply to the

Arbitration Agreement. Marino v. CVS Health, 698 F. Supp. 3d 689, 696 (S.D.N.Y. 2023)

(“Before a court can ‘invoke its statutory powers under [Sections] 3 and 4 [of the FAA] to stay

litigation and compel arbitration according to a contract’s terms, [it] must first know whether

the contract itself falls within or beyond the bounds of [Sections] 1 and 2 [of the FAA].’”)

(quoting New Prime Inc. v. Oliveira, 586 U.S. 105, 111 (2019)).

Section 2 of the FAA makes enforceable a written arbitration provision in “a contract

evidencing a transaction involving commerce,” 9 U.S.C. § 2, while Section 1 excludes from

the FAA “contracts of employment of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce,” id. § 1. Caiceros argues that SDH does

not establish that he was engaged in “interstate commerce” as required under the FAA (but

does not claim that the Arbitration Agreement is exempt from the FAA under Section 1). (Pl.

Mem., ECF No. 17 at 18–20.) This argument fails. “The commerce requirement is interpreted

‘broadly, extending the [FAA’s] reach to the limits of Congress’ Commerce Clause power’

and encompassing activities that generally ‘affect’ or ‘involve’ commerce.” Simeon v.

Domino’s Pizza LLC, No. 17-CV-5550 (RJD)(ST), 2019 WL 7882143, at *3 (E.D.N.Y. Feb.

6, 2019) (quoting Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 268

(1995)); see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (FAA applies

to all employment contracts unless exempt under Section 1).

The record sufficiently establishes that Caiceros’s activities were “involving

commerce” within the meaning of the FAA. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52,

56–57 (2003) (“Congress’ Commerce Clause power may be exercised in individual cases

without showing any specific effect upon interstate commerce if in the aggregate the economic

activity in question would represent a general practice . . . subject to federal control.”) (cleaned

up). As alleged, Caiceros was “a manual worker at Defendant’s restaurants and food outlets

performing a variety of physical duties such as setting up outlets, cleaning up,

loading/unloading, packing, unpacking, moving, and serving food” at JFK. (Compl., ECF

No. 1 ¶¶ 13, 16.) “The Arbitration Agreement falls within the FAA’s commerce requirement

because it relates to a general practice involving or affecting commerce—the preparation [] of

meals to individuals in exchange for payment” and “a business that uses materials and

ingredients involved in interstate commerce.” Simeon, 2019 WL 7882143, at *3 (cleaned up)

(citing Citizens Bank, 539 U.S. at 57 and Allied-Bruce, 513 U.S. at 282). As noted, Caiceros

does not (and cannot) allege that he is a transportation worker subject to the Section 1

exclusion. Therefore, the FAA governs the Arbitration Agreement.

B. Agreement to Arbitrate

1. Prima Facie Case

“Whether an agreement to arbitrate exists between the parties is governed by state

contract law.” Soliman, 999 F.3d at 834; Nicosia, 834 F.3d at 229 (“The threshold question of

whether the parties indeed agreed to arbitrate is determined by state contract law principles.”).

The Arbitration Agreement is silent as to what state law applies to its interpretation, although

it states that the FAA applies otherwise. (Sanders Decl. Ex. C, ECF No. 10-3 at 2, 4.) The

parties appear to apply New York contract principles. (See, e.g., Def. Mem., ECF No. 11 at

14; Pl. Mem., ECF No. 17 at 10–11.) “‘[U]nder New York choice-of-law principles, courts

apply . . . the law of the jurisdiction with the most significant relationship to the dispute . . . In

contract disputes, courts apply a center of gravity or grouping of contacts test to determine

which jurisdiction . . . has the most significant relationship to the transaction and the parties.’”

Hu v. Barclays Cap. Inc., No. 24-CV-7580 (JPO), 2025 WL 1307700, at *2 (S.D.N.Y. May 6,

2025) (quoting Eccles v. Shamrock Cap. Advisors, LLC, 42 N.Y.3d 321, 335–36 (2024)).

Here, Caiceros resides in New York; his claims and SDH’s request to compel their arbitration

arise from his employment in New York. (Compl., ECF No. 1 ¶¶ 8, 11.) Under these

circumstances, the center of gravity for the parties’ dispute is New York, and the Court will

apply New York law.

“‘To form a valid contract under New York law, there must be an offer, acceptance,

consideration, mutual assent and intent to be bound.’” Saizhang Guan v. Uber Techs., Inc.,

236 F. Supp. 3d 711, 722 (E.D.N.Y. 2017) (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d

393, 427 (2d Cir. 2004)). “It is ‘well settled’ under New York law that arbitration will not be

compelled absent the parties’ ‘clear, explicit and unequivocal agreement to arbitrate.’” Lopez

v. Lidl US, LLC, No. 22-CV-4271 (ALC), 2023 WL 2674757, at *3 (S.D.N.Y. Mar. 29, 2023),

reconsideration denied, 2024 WL 1329776 (S.D.N.Y. Mar. 28, 2024) (quoting Manigault v.

Macy’s E., LLC, 318 F. App’x 6, 7–8 (2d Cir. 2009)).

SDH satisfies its burden to establish by a preponderance of the evidence that Caiceros

agreed to arbitrate his claims within the meaning of the FAA. “Courts consistently compel

arbitration of employment claims pursuant to valid arbitration agreements in offer letters.”

Etienne v. Barclays Bank, No. 18-CV-5168 (ALC), 2019 WL 3325841, at *2 (S.D.N.Y. July

24, 2019) (collecting cases); see also Jabbour v. Brillio, LLC, No. 24-CV-2704 (PKC), 2025

WL 834431, at *3 (S.D.N.Y. Mar. 14, 2025). Caiceros accepted SDH’s offer of employment

when he signed the Offer Letter, which incorporates by reference the Terms Statement

describing the Arbitration Agreement. (See Sanders Decl., Ex. B, ECF No. 10-2.) As plainly

stated in the Terms Statement, the employment offer was contingent upon his acceptance of

the Arbitration Agreement. (Id. at 3 (“Please note that we must receive your signed

[Arbitration] Agreement before your first day of employment.”).) Comparable notice of the

contingent nature of an offer of employment, and the employee’s acceptance of same, is

acceptable evidence of an agreement to arbitrate. See Lopez, 2023 WL 2674757, at *3 (finding

valid agreements to arbitrate when offer letters “clearly state that Plaintiff’s employment was

conditioned on her acceptance of [defendant’s] arbitration agreement”).

Additionally, “it is settled law in New York that an agreement to exchange continued

employment for a commitment to arbitrate is enforceable.” Hu, 2025 WL 1307700, at *3

(citing Credit Suisse First Bos. Corp. v. Pitofsky, 4 N.Y.3d 149, 155 (2005)). “When an

individual begins employment with the understanding that the employer has an arbitration

policy, there is an inference that the individual agrees to the terms of that policy.” Pettersen

v. Volcano Corp., No. 18-CV-3021 (PKC)(PK), 2020 WL 6323937, at *5 (E.D.N.Y. Sept. 8,

2020), R. & R. adopted, 2020 WL 6323122 (E.D.N.Y. Oct. 27, 2020) (citing Manigault v.

Macy’s E., LLC, 318 F. App’x 6, 8 (2d Cir. 2009)). Before Caiceros began his employment at

SDH, he knew from the Offer Letter and Terms Statement that arbitration was required for any

disputes with SDH, yet he began and continued working for SDH after signing the Offer Letter

and acknowledging the Arbitration agreement. His actions are thus sufficient evidence of his

intent to be bound by the Arbitration Agreement. See Manigault, 318 F. App’x at 8 (“A

contract may be formed by words or by conduct that demonstrate the parties’ mutual assent.”).

2. Plaintiff’s Challenges

Caiceros offers multiple reasons why there is a material issue of fact as to whether he

agreed to arbitrate his claims (see Pl. Mem., ECF No. 17 at 10–24), but each argument fails.3

Caiceros argues that SDH fails to support an agreement to arbitrate his claims with

admissible evidence because the witness lacks personal knowledge. (Id. at 24.) The record

belies this claim. SDH submits the affidavit of Rita Sanders, a Senior Human Resources

Systems Administrator at Sodexo. Sanders testified that she began working at Sodexo in 1998

and has been in her current role since 2018; in this role, she has access to Sodexo’s business

records and those of its subsidiaries. (Sanders Decl., ECF No. 10 ¶ 2.) Based on her

experience with Sodexo, she is “deeply familiar with Sodexo’s policies and procedures for

tracking the onboarding of employees of Sodexo and its affiliates and subsidiaries,” including

SDH. (Id. ¶ 3.) She has access to and has reviewed Sodexo’s records documenting “the

3 As noted below, however, Plaintiff’s arguments as to the Arbitration Agreement’s enforceability

are for the arbitrator to decide. (See § III.B., infra.)

completion of all employee onboarding requirements,” including records related to Caiceros,

and those records are “made in the ordinary course of Sodexo’s business at or near the time”

of the events to which they relate. (Id. ¶ 4; see also id. Exs. B–E, ECF Nos. 10-2 through 10-

5.) “As required to lay a proper foundation for the admission of a business record under

[Federal Rule of Evidence] 803(6), [Sanders] has demonstrated that [she] is a qualified witness,

that the statements are based on personal knowledge or [her] review of [Sodexo’s] business

records, and that the documents were kept in the ordinary course of business.” Vitrano v.

N.A.R., Inc., No. 18-CV-6754 (KAM)(RLM), 2020 WL 1493620, at *8 (E.D.N.Y. Mar. 27,

2020) (citing United States v. Komasa, 767 F.3d 151, 156 (2d Cir. 2014)). This evidence is

sufficient to sustain SDH’s burden in this summary judgment posture. See Parker v.

Mandarich Law Grp., LLP, No. 19-CV-6313, 2021 WL 2351177, at *4–5 (E.D.N.Y. June 9,

2021).

Caiceros also argues that the Offer Letter expressly disclaims any classification as a

contract. (See Pl. Mem., ECF No. 17 at 13–14.) The relevant language of the Offer Letter

states, “Nothing in this letter, the included Terms of Employment Statement, or statements

made by a Sodexo representative are intended to create a contract. This letter contains all the

commitments that have been extended to you and you should not rely on any verbal promises

or other representations that are not included.” (Sanders Decl. Ex. B, ECF No. 10-2 at 2.)

“However, this language does not indicate that the offers letters have no contractual value, but

merely explains that [Caiceros] would be an employee ‘at-will.’” Lopez, 2023 WL 2674757,

at *3. Moreover, at least one court has rejected similar arguments regarding disclaimer

language in employment policy or onboarding documents. See Akhter v. Compass Grp. USA,

Inc., No. 22-CV-2194 (JMF), 2022 WL 4638635, at *1 (S.D.N.Y. Sept. 30, 2022).

In sum, Caiceros fails to show a genuine issue of material fact as to whether he entered

into the Arbitration Agreement. Accordingly, the Court finds that SDH satisfies its burden of

showing that an agreement to arbitrate exists.

C. Scope of the Arbitration Agreement

After finding that an arbitration agreement exists, the court must evaluate its scope, or

whether the Arbitration Agreement applies to Caiceros’s claims against SDH in this action.

Chen-Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d 216, 243 (2020) (citing Daly, 939 F.3d

at 421). However, “when . . . parties explicitly incorporate rules that empower an arbitrator to

decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of

the parties’ intent to delegate such issues to an arbitrator.” Mobile Real Est., LLC, 460 F. Supp.

3d at 473 n.9 (quoting Contec Corp. v. Remote Sol., Co., Ltd., 398 F.3d 205, 208 (2d Cir.

2005)). Importantly, “[w]hen the parties’ contract delegates the arbitrability question to an

arbitrator, a court may not override the contract.” Henry Schein, Inc. v. Archer & White Sales,

Inc., 586 U.S. 63, 68 (2019).4

The Arbitration Agreement states that any arbitration will be held “under the auspices

of the professional arbitration firm JAMS . . . in accordance with the JAMS Employment

Arbitration Rules & Procedures (and no other rules), which are currently available at

http://www.jamsadr.com/rules-employment-arbitration.” (Sanders Decl. Ex. C, ECF No. 10-

3 at 4.)5 Under the relevant JAMS rules, the arbitrator decides questions of arbitrability. See

4 The parties do not address this jurisprudence at all, instead arguing that the Arbitration Agreement

is broad enough in scope to encompass Caiceros’s claims (Def. Mem., ECF No. 11 at 17–18) or

that a mandatory arbitration provision for FLSA and NYLL is impermissible. (Pl. Mem., ECF

No. 17 at 20–23).

5 The website was last visited on September 3, 2025.

JAMS Employment Arb. Rs. & Procs. R. 11(b) (effective June 1, 2021) (“Jurisdictional and

arbitrability disputes . . . shall be submitted to and ruled on by the Arbitrator.”) “‘Such a

delegation provision ‘is simply an additional, antecedent agreement the party seeking

arbitration asks the federal court to enforce’ and is ‘valid under § 2 save upon such grounds as

exist at law or in equity for the revocation of any contract.’” Saizhang Guan, 236 F. Supp. 3d

at 727 (quoting Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63, 70 (2010)). “Accordingly,

the parties’ incorporation of . . . JAMS rules into the Arbitration Agreement and those rules’

language on arbitrability serve as ‘clear and unmistakable evidence of the parties’ intent’ to

delegate arbitrability issues to the arbitrator.” Alderson v. DeVere USA, Inc., No 18-CV-5081

(JFK), 2018 WL 3756451, at *2 (S.D.N.Y. July 24, 2018) (quoting Contec, 398 F.3d at 208).

For example, Caiceros asserts that SDH is not a party to the Arbitration Agreement because it

is not mentioned in the Arbitration Agreement, that the Arbitration Agreement is

unconscionable because he did not have an opportunity to confer with an attorney before

signing, and that the FLSA, NYLL, and New York Civil Practice Law and Rules preclude

arbitration of his retaliation claim—all of which implicate whether the Arbitration Agreement

is enforceable (but not whether an agreement to arbitrate exists). (Pl. Mem., ECF No. 17 at

16–18, 20–24.) “Insofar as [JAMS Rule 7(b)] provide[s] that the arbitrator has the power to

determine the scope and validity of the arbitration provision, and the parties have incorporated

this rule into the [Arbitration] Agreement, Plaintiff’s arguments regarding the enforceability

of the arbitration provision here falls within the province of the arbitrator.” McCrae, 2024 WL

4692047, at *9 (discussing similarly worded AAA arbitration rule); see also Emilio v. Sprint

Spectrum L.P., 508 F. App’x 3, 5–6 (2d Cir. 2013) (relying on prior version of JAMS Rule

11(b) to conclude that the parties had committed gateway questions of arbitrability to the

arbitrator).

The Court therefore respectfully recommends that these issues, as well as whether

Caiceros’s FLSA and NYLL claims fall within the scope of the Arbitration Agreement, should

be decided by the arbitrator.

D. Stay of this Action

SDH also moves to stay this action. (Mot., ECF No. 9; Def. Mem., ECF No. 11 at 19.)

When a court determines that arbitration is appropriate, the court “shall on application of one

of the parties stay the trial of the action until such arbitration has been had in accordance with

the terms of the agreement, providing the applicant for the stay is not in default in proceeding

with such arbitration.” 9 U.S.C. § 3 (emphasis added); see Smith v. Spizzirri, 601 U.S. 472,

475–76 (2024) (“When a federal court finds that a dispute is subject to arbitration, and a party

has requested a stay of the court proceeding pending arbitration, the court does not have

discretion to dismiss the suit on the basis that all the claims are subject to arbitration.”) In this

case, a stay is required because an agreement to arbitrate exists and SDH requests the stay

pending arbitration. Katz v. Cellco P’ship, 794 F.3d 341, 345 n.6 (2d Cir. 2015). Accordingly,

the Court respectfully recommends a stay of this action pending completion of arbitration

proceedings.

IV. CONCLUSION

Based on the foregoing, the Court respectfully recommends that Defendant SDH

Services West, LLC’s motion to compel arbitration and stay proceedings at ECF No. 9 should

be granted and this action should be stayed in its entirety. The Court further recommends

that, if the parties proceed to arbitration, then they shall submit a joint status report within 14

days of the resolution of the arbitration.

A copy of this Report and Recommendation is being served on all parties via ECF.

Within 14 days of service, any party may serve and file specific written objections to this

Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests

for an extension of time to file objections shall be directed to Judge DeArcy Hall. If a party

fails to object timely to this Report and Recommendation, it waives any right to further

judicial review of this decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir.

2022).

SO ORDERED

Brooklyn, New York

September 3, 2025

/s/Marcia M. Henry

MARCIA M. HENRY

United States Magistrate Judge