Petition for Writ of Certiorari — Derek Piersing, Petitioner v. Domino’s Pizza Franchising LLC, et al.

App. 1

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0184p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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HARLEY BLANTON,

Plaintiff,

DEREK PIERSING, on Behalf of

Himself and All Others Similarly

Situated,

No. 19-2388

Plaintiff-Appellant,

v.

DOMINO’S PIZZA FRANCHISING LLC;

DOMINO’S PIZZA MASTER ISSUER

LLC; DOMINO’S PIZZA LLC;

DOMINO’S PIZZA, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit,

No. 2:18-cv-13207—Victoria A. Roberts, District Judge.

Argued: June 10, 2020

Decided and Filed: June 17, 2020

Before: GRIFFIN, THAPAR, and READLER,

Circuit Judges.

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App. 2

COUNSEL

ARGUED: Anne B. Shaver, LIEFF CABRASER

HEIMANN & BERNSTEIN, LLP, San Francisco, California, for Appellant. Norman M. Leon, DLA PIPER

LLP (US), Chicago, Illinois, for Appellees. ON BRIEF:

Anne B. Shaver, Dean M. Harvey, Lin Y. Chan, Yaman

Salahi, Jeremy J. Pilaar, LIEFF CABRASER

HEIMANN & BERNSTEIN, LLP, San Francisco, California, Derek Y. Brandt, Leigh M. Perica, McCUNE

WRIGHT AREVALO, LLP, Edwardsville, Illinois, Sharon S. Almonrode, Emily E. Hughes, Dennis A.

Lienhardt, THE MILLER LAW FIRM, P.C., Rochester,

Michigan, for Appellant. Norman M. Leon, J. Robert

Robertson, John J. Hamill, Michael S. Pullos, Mary M.

Shepro, DLA PIPER LLP (US), Chicago, Illinois, David

H. Bamberger, DLA PIPER LLP (US), Washington,

D.C., Edward J. Hood, CLARK HILL PLC, Detroit,

Michigan, for Appellees.

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OPINION

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THAPAR, Circuit Judge. Derek Piersing and

Domino’s Pizza disagree about whether he should

have to arbitrate his claims against the company. As

in many arbitration cases, the question here is who

should resolve their dispute: an arbitrator or a court.

The district court held that an arbitrator should do so.

We agree and affirm.

App. 3

I.

Domino’s has thousands of pizza restaurants across

the country. Like other large chains, Domino’s operates

many of these restaurants through a franchise model.

Each franchise is an independently owned and managed business with a separate legal identity. But

Domino’s still controls certain aspects of each franchise. Relevant here, Domino’s allegedly required its

franchises to agree not to solicit or hire employees from

other franchises without the prior consent of their employer.

Piersing began working at a Domino’s franchise in

Washington state in the fall of 2014. Four years later,

Piersing sought a second job from a different Domino’s

franchise in the area. When he was hired by the second

franchise, Piersing signed an arbitration agreement,

which requires him to arbitrate a wide array of issues

related to his employment. The agreement also specifies that the arbitration will be conducted according to

the American Arbitration Association National Rules

for the Resolution of Employment Disputes (“AAA

Rules”).

Around the same time, Piersing learned that he

had been fired from the first franchise. According to

Piersing, the store fired him because it thought that its

franchise agreement with Domino’s required it to do so

in order to allow him to work at the second franchise.

Piersing worked at the second franchise for a few

months until he left his job because of a medical condition.

App. 4

Piersing and another plaintiff then filed a class

action against Domino’s, alleging that the company’s

franchise agreement violated federal antitrust law as

well as state law. Domino’s soon moved to compel arbitration under the Federal Arbitration Act. See 9 U.S.C.

§ 1 et seq. The plaintiffs opposed the motion, arguing

that Domino’s couldn’t enforce the arbitration agreements because the company hadn’t signed the agreements (only their franchises had). But the district

court ordered the plaintiffs to go to arbitration anyway,

finding that both Piersing and his co-plaintiff had

agreed to arbitrate not only the merits of certain

claims but also threshold questions about the agreements themselves. This appeal followed.

II.

To understand this case, you first need a little

background about federal arbitration law. The Federal

Arbitration Act reflects the basic principles that “arbitration is a matter of contract” and that contracts must

be enforced “according to their terms.” Rent-A-Center,

W., Inc. v. Jackson, 561 U.S. 63, 67 (2010). As a corollary,

the Supreme Court has recognized that “parties may

agree to have an arbitrator decide not only the merits of a particular dispute but also ‘gateway’ questions of ‘arbitrability,’ such as whether the parties

have agreed to arbitrate or whether their agreement

covers a particular controversy.” Henry Schein, Inc. v.

Archer & White Sales, Inc., 139 S. Ct. 524, 529 (2019)

(cleaned up). After all, such an agreement is “simply an

additional, antecedent agreement” about who should

App. 5

decide these questions. Rent-A-Center, 561 U.S. at 69.

And when parties have agreed to arbitrate “arbitrability,” a court may not disregard their agreement—even

if a particular argument for arbitration seems to be

“wholly groundless.” Henry Schein, 139 S. Ct. at 528–

31.

That leaves the question of how to determine

whether the parties have agreed to arbitrate “arbitrability.” Usually, courts look to state law to interpret

arbitration agreements. See, e.g., Lamps Plus, Inc. v.

Varela, 139 S. Ct. 1407, 1414–15 (2019). (Here, all

agree that Washington contract law applies.) But for

questions of “arbitrability,” the Supreme Court has

adopted an additional interpretive rule: there must be

“clear and unmistakable” evidence that the parties

agreed to have an arbitrator decide such issues. First

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)

(cleaned up); see also Rent-A-Center, 561 U.S. at 69 n.1

(describing this “heightened standard”). In effect, this

rule reverses the usual presumption in favor of arbitration when it comes to questions of “arbitrability.”

See First Options, 514 U.S. at 944–45.

That brings us to the question in this case. In his

arbitration agreement, Piersing agreed that “[t]he

American Arbitration Association (‘AAA’) will administer the arbitration and the arbitration will be conducted in accordance with then-current [AAA Rules].”

R. 61-4, Pg. ID 982. And those Rules provide that “[t]he

arbitrator shall have the power to rule on his or her

own jurisdiction, including any objections with respect

to the existence, scope or validity of the arbitration

App. 6

agreement.” R. 61-6, Pg. ID 989. The question for us is

whether that’s “clear and unmistakable” evidence that

Piersing agreed to arbitrate “arbitrability.”1

There are good reasons to think it is. To start, the

AAA Rules clearly empower an arbitrator to decide

questions of “arbitrability”—for instance, questions

about the “scope” of the agreement. And it’s long been

settled that parties can incorporate outside documents into a contract if their agreement says as much.

See, e.g., W. Wash. Corp. of Seventh-Day Adventists v.

Ferrellgas, Inc., 7 P.3d 861, 865 (Wash. Ct. App. 2000);

11 Williston on Contracts § 30:25 (4th ed. 2012). Piersing’s agreement says as much: it expressly incorporates the AAA Rules into the agreement and even

helpfully includes a link to the AAA’s website, from

which one can easily access the Rules. On its own

1

On that point, we should clarify one question not before us.

The underlying dispute in this case is whether Domino’s (as a

non-signatory) has any right to enforce the arbitration agreement

as a whole. And both parties have litigated this case on the view

that the first question we must answer is whether Piersing agreed

to arbitrate that question of “arbitrability.” But there might be

another, antecedent question here—namely, whether Domino’s

has any right to enforce the specific provision of the agreement

in which Piersing purportedly agreed to arbitrate “arbitrability.”

Cf. Rent-A-Center, 561 U.S. at 69–71 (treating the broader arbitration agreement as separate from the specific agreement to arbitrate “arbitrability” and distinguishing between challenges to

the former and challenges to the latter). Because that is a distinct

question that is not before us, we express no views on it. See

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (reiterating the “principle of party presentation” under which courts

“rely on the parties to frame the issues for decision” and decide

only the “matters the parties present” (citation omitted)).

App. 7

terms, that’s pretty compelling evidence that Piersing

agreed to arbitrate “arbitrability.”

What the text suggests the case law confirms. The

Supreme Court has itself said that the AAA Rules “provide that arbitrators have the power to resolve arbitrability questions.” Henry Schein, 139 S. Ct. at 528. And

the Court has itself relied on the incorporation of

the AAA Rules to determine what the parties agreed

to. See Preston v. Ferrer, 552 U.S. 346, 361–63 (2008);

C & L Enters., Inc. v. Citizen Band Potawatomi Indian

Tribe of Okla., 532 U.S. 411, 418–20 (2001). It’s true

that the Court has yet to put these pieces together so

as to resolve the question in this case. See Henry

Schein, 139 S. Ct. at 531. But there’s no reason for our

court to wait to finish the puzzle. There’s little doubt

about the final picture.

Our own circuit’s precedent counsels—and perhaps compels—the same outcome. In a recent decision,

our court relied on the incorporation of the AAA Rules

to find that the parties had “clearly and unmistakably”

agreed to arbitrate “arbitrability.” McGee v. Armstrong,

941 F.3d 859, 866 (6th Cir. 2019) (citation omitted). To

be sure, our decision also pointed to another provision

in the agreement during the course of its analysis. But

that provision simply described the procedures by

which the parties had to raise questions of “arbitrability” before the arbitrator; it didn’t purport to expand

the arbitrator’s authority to decide such questions. See

id. So it’s unclear what (if anything) the provision

added to the court’s analysis. See In re: Auto. Parts Antitrust Litig., 951 F.3d 377, 382 (6th Cir. 2020) (reading

App. 8

McGee as holding that the incorporation of the AAA

Rules “shows that the parties ‘clearly and unmistakably’ agreed that the arbitrator would decide questions

of arbitrability” (citation omitted)).

What’s more, district courts in our circuit have

long found that the incorporation of the AAA Rules

provides “clear and unmistakable” evidence that the

parties agreed to arbitrate “arbitrability.” See, e.g.,

Cornett v. Cmco Mortg., LLC, Civ. No. 12-169-ART,

2012 WL 12925599, at *2 (E.D. Ky. Nov. 9, 2012); see

also Willacy v. Marotta, 683 F. App’x 468, 477 (6th Cir.

2017) (White, J., concurring). Just another persuasive

reason for us to do the same.

Finally, consider that every one of our sister circuits to address the question—eleven out of twelve by

our count—has found that the incorporation of the

AAA Rules (or similarly worded arbitral rules) provides “clear and unmistakable” evidence that the parties agreed to arbitrate “arbitrability.” See Awuah v.

Coverall N. Am., Inc., 554 F.3d 7, 11–12 (1st Cir. 2009);

Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 208–09

(2d Cir. 2005); Richardson v. Coverall N. Am., Inc., ___

F. App’x ___, 2020 WL 2028523, at *2–3 (3d Cir. 2020);

Simply Wireless, Inc v. T-Mobile US, Inc., 877 F.3d 522,

527–28 (4th Cir. 2017) (same for the “substantively

identical” JAMS Rules), abrogated on other grounds

by Henry Schein, 139 S. Ct. 524; Petrofac, Inc. v. DynMcDermott Petrol. Operations Co., 687 F.3d 671, 675

(5th Cir. 2012); Fallo v. High-Tech Inst., 559 F.3d 874,

878 (8th Cir. 2009); Brennan v. Opus Bank, 796 F.3d

1125, 1130–31 (9th Cir. 2015); Dish Network L.L.C. v.

App. 9

Ray, 900 F.3d 1240, 1246 (10th Cir. 2018); Terminix

Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327,

1332 (11th Cir. 2005); Qualcomm Inc. v. Nokia Corp.,

466 F.3d 1366, 1372–73 (Fed. Cir. 2006), abrogated on

other grounds by Henry Schein, 139 S. Ct. 524; Chevron

Corp. v. Ecuador, 795 F.3d 200, 207–08 (D.C. Cir. 2015)

(same for the United Nations Commission on International Trade Law Rules). And the one remaining circuit

has precedent suggesting that it would join this consensus. See Commonwealth Edison Co. v. Gulf Oil

Corp., 541 F.2d 1263, 1272–73 (7th Cir. 1976) (relying

on the incorporation of the AAA Rules to find that the

parties had agreed to binding arbitration). Indeed, it’s

possible that our circuit has already joined too. See

McGee, 941 F.3d at 866. But to the extent that there’s

any ambiguity in our prior decisions, we officially do so

today.

III.

All that’s straightforward enough. But both parties raise some arguments in response. Some of these

arguments require a bit of explanation. None change

our final decision.

A.

Domino’s argues about the correct choice of law.

The company says that the question here—whether

there’s “clear and unmistakable” evidence that the parties agreed to arbitrate “arbitrability”—presents a

question of state law, not federal law. It’s true that

App. 10

some courts have described the question in this way.

See, e.g., Dish Network, 900 F.3d at 1246; Wells Fargo

Advisors, LLC v. Sappington, 884 F.3d 392, 396–99 (2d

Cir. 2018). But these decisions seem to conflate the

questions of contract formation and interpretation

(which generally involve state law) with the question

whether a particular agreement satisfies the “clear

and unmistakable” standard (which seems to be one of

federal law). See, e.g., Arnold v. Homeaway, Inc., 890

F.3d 546, 552 & n.4 (5th Cir. 2018); Brennan, 796 F.3d

at 1128–30; see also Dish Network, 900 F.3d at 1252 n.1

(Tymkovich, C.J., concurring).

To see why, consider the Supreme Court’s leading

case on the “clear and unmistakable” standard. See

First Options, 514 U.S. 938. That decision explained

that courts should generally “apply ordinary state-law

principles that govern the formation of contracts” in

arbitration cases but then added a “qualification.” Id.

at 944. The “qualification” was that “[c]ourts should not

assume that the parties agreed to arbitrate arbitrability unless there is ‘clear and unmistakable’ evidence

that they did so.” Id. (cleaned up). The Supreme Court

then analyzed for itself whether there was “clear and

unmistakable” evidence that the parties had agreed to

arbitrate “arbitrability.” See id. at 946. Nothing in this

analysis suggests that this new standard should be

governed by state law. Nor have later decisions suggested anything different. See, e.g., Rent-A-Center, 561

U.S. at 69 n.1 (describing the standard as an “interpretive rule” created by the Supreme Court (citation omitted)).

App. 11

In any event, Washington courts have also found

that the incorporation of the AAA Rules (or similarly

worded arbitral rules) provide “clear and unmistakable” evidence that the parties agreed to arbitrate “arbitrability.” See In re Estate of Anches, No. 78732-2-I,

2019 WL 3417100, at *2 (Wash. Ct. App. July 29, 2019);

Raven Offshore Yacht, Shipping, LLP v. F.T. Holdings,

LLC, 400 P.3d 347, 349–50 (Wash. Ct. App. 2017) (same

for similarly worded Maritime Arbitration Association

Rules). And Piersing hasn’t give us any reason to think

that the Washington Supreme Court would ultimately

adopt the minority view in this debate. So in the end,

the choice of law makes no difference here.

B.

For his part, Piersing offers several arguments

why we should be the first circuit court in the country

to find that the incorporation of the AAA Rules doesn’t

provide “clear and unmistakable” evidence that he

agreed to arbitrate “arbitrability.” None prove persuasive.

The Arbitration Agreement. Piersing argues that

his arbitration agreement incorporates the AAA Rules

only as to claims that fall within the scope of the agreement. In other words, he thinks that a court must first

determine whether the agreement covers a particular

claim before the arbitrator has any authority to address its jurisdiction. But nothing in the relevant provision limits the incorporation in this way. Instead, it

simply provides that “the arbitration will be conducted

App. 12

in accordance with then-current. [AAA Rules].” R. 614, Pg. ID 982. Other courts have read similar references to “arbitration” or “the arbitration” as generally

authorizing an arbitrator to decide questions of “arbitrability.” See, e.g., Dish Network, 900 F.3d at 1244–46;

Simply Wireless, 877 F.3d at 525, 527–28; Awuah, 554

F.3d at 9, 11; Terminix Int’l Co., 432 F.3d at 1332. And

on its own terms, Piersing’s reading of the agreement

doesn’t make much sense. He reads the agreement to

say that the arbitrator shall have the power to determine the scope of the agreement only as to claims that

fall within the scope of the agreement. Yet that reading

would render the AAA’s jurisdictional rule superfluous.

It’s true that some courts have read similar provisions more narrowly when an arbitration agreement

carves out certain claims from the very provision that

incorporates the AAA Rules. See, e.g., Archer & White

Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274, 280–82

(5th Cir. 2019), cert. granted ___ S. Ct. ___, 2020 WL

3146679 (June 15, 2020). Imagine that Piersing’s arbitration agreement said that “the arbitration (except

as to antitrust claims against non-signatories) will

be conducted in accordance with then-current [AAA

Rules].” In that scenario, one might think that the

agreement “incorporates the AAA rules—and therefore delegates arbitrability—for all disputes except

those under the carve-out.” Id. at 281. But to the extent that Piersing’s arbitration agreement carves out

certain claims from arbitration, it does so from the

agreement in general, not from the provision that incorporates the AAA Rules. So the carveout goes to the

App. 13

scope of the agreement—a question that the agreement

otherwise delegates to the arbitrator—not the scope of

the arbitrator’s authority to decide questions of “arbitrability.” See id. (describing the “placement of the

carve-out” as “dispositive”); see also Oracle Am., Inc. v.

Myriad Grp. A.G., 724 F.3d 1069, 1076 (9th Cir. 2013)

(warning parties not to “conflate[ ] the scope of the arbitration clause . . . with the question of who decides

arbitrability”); Ally Align Health, Inc. v. Signature

Advantage, LLC, 574 S.W.3d 753, 757–58 (Ky. 2019)

(same). And that’s probably why Piersing doesn’t raise

any argument about the carveout in his agreement.

The AAA Rules. Piersing next offers two reasons

why, in his view, the AAA Rules don’t require him to

arbitrate the question of “arbitrability” at issue in this

case. Neither has merit.

Piersing first argues that the relevant AAA rule

addresses only the “existence, scope or validity” of his

arbitration agreement, not whether a non-signatory

may enforce the agreement under state contract law.

See Arthur Andersen LLP v. Carlisle, 556 U.S. 624,

630–31 (2009) (explaining that state contract law

sometimes allows non-signatories to enforce arbitration agreements under the Federal Arbitration Act).

But Piersing overlooks key language in the rule. In

full, the rule provides that “[t]he arbitrator shall have

the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope

or validity of the arbitration agreement.” R. 61-6, Pg.

ID 989 (emphasis added). The term “including” shows

that the latter issues—“existence, scope or validity”—

App. 14

are meant to illustrate rather than exhaust the concept of “jurisdiction.” See, e.g., Burgess v. United States,

553 U.S. 124, 131 n.3 (2008). So the real issue is

whether the question here goes to the arbitrator’s

“jurisdiction.”

Piersing doesn’t dispute that the question here

goes to the arbitrator’s jurisdiction. In fact, he himself

says that whether Domino’s can enforce the arbitration

agreement against him under state contract law involves a “question of arbitrability.” Piersing Br. at 9.

Hence the AAA Rules cover the question. See, e.g.,

Eckert/Wordell Architects, Inc. v. FJM Props. of

Willmar, LLC, 756 F.3d 1098, 1100 (8th Cir. 2014);

Anderton v. Practice-Monroeville, P.C., 164 So. 3d 1094,

1101–02 (Ala. 2014); cf. Brittania-U Nigeria, Ltd. v.

Chevron USA, Inc., 866 F.3d 709, 715 (5th Cir. 2017)

(holding the same for similarly worded arbitral rules);

Apollo Comput., Inc. v. Berg, 886 F.2d 469, 473 (1st Cir.

1989) (same).

This court has treated the non-signatory question

differently when the non-signatory opposes arbitration. Imagine, for instance, that Piersing had never

signed the arbitration agreement. In that context, our

court has said, the question goes to the very “existence

of [a valid arbitration] agreement” and thus the court

must itself resolve the question even if the agreement

incorporates the AAA Rules. In re: Auto. Parts Antitrust

Litig., 951 F.3d at 385; see also DK Joint Venture 1 v.

Weyand, 649 F.3d 310, 317 (5th Cir. 2011) (same);

cf. 7 Bruner & O’Connor on Construction Law § 21:93

(noting that “arbitrators and judges often draw

App. 15

distinctions between what might be called ‘consenting

non-signatories’ (which seek to arbitrate) and ‘nonconsenting non-signatories’ (which resist arbitration)”

(cleaned up)). But Piersing doesn’t challenge the “existence” of the arbitration agreement here. Probably

because he signed it.

Piersing also argues that even if the relevant AAA

rule gives arbitrators the power to decide questions of

“arbitrability,” it doesn’t give them the exclusive power

to do so. Piersing is right that the rule doesn’t include

the word “exclusive.” But in law the expression of one

thing often implies the exclusion of other things. See,

e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 232–33

(2011). And the same insight holds true in life. Imagine

that during dinner one of your children asks whether

she can use the car that evening, and you reply, “Sure,

you can have the car tonight.” Your other children will

understand that this child is the only person who

should use the car that evening even if you don’t expressly say as much.

Arbitration agreements may be less fun than a

night out with friends. But the same rules of English

apply. Most people who read the sentence, “[t]he arbitrator shall have the power to rule on his or her own

jurisdiction,” wouldn’t then think “but a court may also

rule on this issue.” And things would get pretty chaotic

if the rule were read this way. It would lead to a race

to the courthouse (or arbitrator’s forum) to have each

party’s preferred decisionmaker be the first to rule

on the issue. For if a court ruled on the issue first,

then that ruling could bind the arbitrator under the

App. 16

doctrine of res judicata. See, e.g., Aircraft Braking Sys.

Corp. v. Local 856, Int’l Union, United Auto. Workers,

97 F.3d 155, 159 (6th Cir. 1996). But if the arbitrator

ruled on the issue first, then that ruling would be subject to an exceedingly narrow form of judicial review.

See, e.g., Nationwide Mut. Ins. Co. v. Home Ins. Co., 429

F.3d 640, 643 (6th Cir. 2005); see also First Options, 514

U.S. at 942 (explaining that a court will set aside an

arbitration decision involving an issue on which the

parties agreed to arbitrate “only in very unusual circumstances”). All this would suggest that the AAA

Rules are best read to give arbitrators the exclusive

authority to decide questions of “arbitrability.”

Still, there may be a kernel of truth to Piersing’s

argument. The relevant AAA rule looks like what’s

known in the world of international arbitration as a

“competence-competence” clause. See generally Restatement (Third) of the U.S. Law of Int’l Commercial

and Inv’r-State Arbitration § 2.8 (2019). And there’s

reason to think that these clauses—when first added

to the rules of arbitral institutions almost a century

ago—were not meant to give arbitrators the exclusive

authority to decide their jurisdiction. They simply confirmed that arbitrators could address their jurisdiction. See Richard W. Hulbert, Institutional Rules and

Arbitral Jurisdiction: When Party Intent Is Not “Clear

and Unmistakable,” 17 Am. Rev. Int’l Arb. 545, 551–63

(2006).

Yet the problem for Piersing is that the AAA seems

to have adopted its jurisdictional rule for a different

reason: namely, to provide “clear and unmistakable”

App. 17

evidence that the parties agreed to arbitrate “arbitrability.” That’s at least how the AAA and other

sources described the rule at the time of its adoption.

See, e.g., Alan Scott Rau, Arbitrating “Arbitrability,”

7 World Arb. & Mediation Rev. 487, 542–43 (2013)

(collecting evidence); AAA Revises Commercial Arbitration Rules, 53 Disp. Resol. J. 4, 96 (1998) (describing the new rule as a response to the Supreme

Court’s decision in First Options). But see Hulbert,

supra, at 563 (reading the evidence differently). And

that understanding would seem to undercut any comparison between the AAA’s jurisdictional rule and traditional “competence-competence” clauses.

Whatever you think of all this history, in the end

we need not rely on it to resolve this case. The real issue here isn’t how an arbitrator would have understood the jurisdictional rule in 1918, but how the

parties would have understood it in 2018 (when Piersing signed his agreement). See Rent-A-Center, 561 U.S.

at 69 n.1 (describing the “clear and unmistakable”

standard as about “the parties’ manifestation of intent”). At that time, almost every circuit court in the

country—including Piersing’s local regional circuit—

had held that this rule or similar ones gave arbitrators

the exclusive authority to arbitrate “arbitrability.” See,

e.g., Brennan, 796 F.3d at 1130–31. Washington law

pointed to the same conclusion. See Raven Offshore

Yacht, 400 P.3d at 349–50. As did the plain text of the

rule itself. It’s often said that parties bargain in the

shadow of the law. To adopt a different understanding

App. 18

of the rule now would deprive countless parties of the

benefit of their bargain.

Circuit Precedent. Piersing next claims that our

circuit has already held that the incorporation of the

AAA Rules doesn’t provide “clear and unmistakable”

evidence that the parties agreed to arbitrate “arbitrability.” But the cases he cites address two distinct sets

of issues.

One line of cases addresses whether the incorporation of arbitral rules from the National Association

of Securities Dealers provides “clear and unmistakable” evidence that the parties agreed to arbitrate a specific question of “arbitrability.” See, e.g., Smith Barney,

Inc. v. Sarver, 108 F.3d 92, 96–97 (6th Cir. 1997), abrogated on other grounds by Vaden v. Discover Bank, 556

U.S. 49 (2009). But nothing in those rules—at least

those discussed in the opinion—spoke to the arbitrator’s power to address “jurisdiction.” And nothing in

our decision said that the incorporation of arbitral

rules can never amount to “clear and unmistakable” evidence. Instead, our decision turned on the specific arbitral rules and the specific question of “arbitrability.”

See Smith Barney, 108 F.3d at 96–97. As it turns out,

the question in that case did not even involve one of

“arbitrability.” See Howsam v. Dean Witter Reynolds,

Inc., 537 U.S. 79, 83–86 (2002).

What’s more, two of our sister circuits have concluded that the arbitral rules at issue in that case did

not provide “clear and unmistakable” evidence, while

the arbitral rules at issue in this case do. Compare

App. 19

Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc.,

78 F.3d 474, 480–81 (10th Cir. 1996), and Merrill

Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d

381, 384 (11th Cir. 1995), with Dish Network, 900 F.3d

at 1246, and Terminix Int’l Co., 432 F.3d at 1332. Piersing hasn’t given us any reason not to draw the same

distinction.

The second line of cases addresses whether the

incorporation of the AAA Rules provides “clear and unmistakable” evidence that the parties agreed to arbitrate whether to allow classwide arbitration. See, e.g.,

AlixPartners, LLP v. Brewington, 836 F.3d 543, 553 (6th

Cir. 2016); Huffman v. Hilltop Cos., LLC, 747 F.3d 391,

393–94, 398–99 (6th Cir. 2014); Reed Elsevier, Inc. ex

rel. LexisNexis Div. v. Crockett, 734 F.3d 594, 599–600

(6th Cir. 2013). But again, these cases turned on the

reasoning that nothing in the AAA Rules expressly empowers arbitrators to decide this issue. See, e.g., Reed

Elsevier, 734 F.3d at 600. And again, two of our sister

circuits have distinguished between the question in

those cases and the question in this case based on the

different structure of the rules and the unique concerns raised by classwide arbitration. See Richardson,

2020 WL 2028523, at *2 n.2; Catamaran Corp. v. Towncrest Pharmacy, 864 F.3d 966, 973 & n.4 (8th Cir. 2017);

see also JPay, Inc. v. Kobel, 904 F.3d 923, 945–47 (11th

Cir. 2018) (Graham, J., concurring in part and dissenting in part).

It’s true that a few circuits have reasoned that all

questions of “arbitrability”—whether related to bilateral or classwide arbitration—should be treated the

App. 20

same way. See JPay, 904 F.3d at 942–44; Dish Network,

900 F.3d at 1247–48; Wells Fargo Advisors, 884 F.3d at

398–99. But they did so in holding that the incorporation of the AAA Rules provides “clear and unmistakable” evidence as to all questions of “arbitrability.” That

hardly provides us a basis to hold that the Rules provide such evidence as to none of them. Whatever side

has the better of this debate, all circuits agree that the

incorporation of the AAA provides “clear and unmistakable” evidence here.

“Clear and Unmistakable.” Piersing also insists

that, even if the incorporation of the AAA Rules provides evidence that the parties agreed to arbitrate “arbitrability,” it’s not “clear and unmistakable” evidence.

But his assertion to this effect runs into a solid wall

of contrary authority. See, e.g., Awuah, 554 F.3d at 11

(describing the AAA Rule as “about as ‘clear and unmistakable’ as language can get”). Indeed, at the time

Piersing signed his arbitration agreement, he not only

had the benefit of the text of the agreement but also

judicial precedent from both his regional circuit and a

local state court telling him that the incorporation of

arbitral rules can provide “clear and unmistakable” evidence that the parties agreed to arbitrate “arbitrability.” See Brennan, 796 F.3d at 1130–31; Raven Offshore

Yacht, 400 P.3d at 349–50. And even if we don’t expect

Piersing to read judicial decisions, he certified in his

arbitration agreement that he had time to obtain advice from an attorney (who we do expect to read such

decisions). Cf. First Options, 514 U.S. at 946 (referring

to local circuit precedent in evaluating whether the

App. 21

parties had “clearly” agreed to arbitrate “arbitrability”). Given all this, Piersing had ample notice about

the meaning and effect of the AAA Rules.

Piersing says that we should distinguish his case

because he’s not a sophisticated party. But nothing in

the Federal Arbitration Act purports to distinguish between “sophisticated” and “unsophisticated” parties.

Cf. AT&T Mobility LLC v. Concepcion, 563 U.S. 333,

346 n.5 (2011). And as judges, we have no authority to

redline Congress’s work. That’s probably why other circuit courts have declined to adopt Piersing’s proposed

distinction. See, e.g., Richardson, 811 F. App’x at 104;

Arnold, 890 F.3d at 552 & n.5 (collecting cases). We see

no reason to be the first.

Policy. Piersing finally invokes a policy concern:

that a ruling for Domino’s would mean that anyone

could force him to arbitrate “arbitrability” no matter

how frivolous the argument for arbitration. But just

last year, the Supreme Court rejected a nearly identical argument about “frivolous motions to compel arbitration.” Henry Schein, 139 S. Ct. at 531. The Court

explained that—whatever the merits of this policy

concern—it couldn’t “rewrite” the text of the Federal

Arbitration Act “simply to accommodate [this] concern.”

Id. And it also noted that the concern was “overstate[d]” because arbitrators can quickly resolve frivolous motions and in some cases even impose sanctions

for such motions. Id.

Keep in mind that the question here is quite narrow. It’s not about the merits of the case. It’s not even

App. 22

about whether the parties have to arbitrate the merits.

Instead, it’s about who should decide whether the parties have to arbitrate the merits. And as the Supreme

Court has often said, parties don’t give up any of their

substantive rights when they choose to arbitrate an

issue; they simply select a different forum to resolve

their dispute. See, e.g., Preston, 552 U.S. at 359. That’s

all that happened here.

C.

Aside from the merits, Piersing raises two other

arguments. Neither persuades.

Leave to Amend. Piersing argues that the district

court erred when it refused him leave to amend his

complaint. Yet the record makes clear that the court

never ruled on this issue. Why? Because Piersing never

filed a motion for leave to amend—as contemplated by

the Federal Rules of Civil Procedure as well as the

local rules. See D.E.&J. Ltd. P’ship v. Conaway, 133 F.

App’x 994, 1001 (6th Cir. 2005) (citing E.D. Mich. L.R.

15.1); PR Diamonds, Inc. v. Chandler, 91 F. App’x 418,

444 (6th Cir. 2004) (citing Fed. R. Civ. P. 7(b)). Instead,

Piersing simply included a three-sentence request to

“narrow” his claims at the end of his brief in opposition to the motion to compel arbitration. In doing so,

Piersing didn’t cite any legal authority for his request

or list it in his brief ’s statement of issues. The district

court’s failure to address such a cursory request hardly

amounts to an abuse of discretion. See, e.g., Crosby v.

Twitter, Inc., 921 F.3d 617, 627–28 (6th Cir. 2019); Pulte

App. 23

Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648 F.3d

295, 305 (6th Cir. 2011).

Vacatur of the Opinion. Piersing also asks us to

vacate the portions of the district court’s opinion that

purport to decide whether Domino’s can enforce the arbitration agreement under state contract law (specifically, equitable estoppel). He rightly points out that

this question should be decided by an arbitrator, not a

court. But even so, his request misunderstands our

role: “[o]ur job is ‘to correct wrong judgments, not to

revise opinions.’ ” Flight Options, LLC v. Int’l Bhd. of

Teamsters, Local 1108, 873 F.3d 540, 546 (6th Cir. 2017)

(quoting Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct.

459, 89 L.Ed. 789 (1945)); see also ASARCO, Inc. v. Sec’y

of Labor, 206 F.3d 720, 722 (6th Cir. 2000) (“Appellate

courts review judgments, not statements in an opinion.”). We understand the district court’s “judgment” in

this case to be its order to proceed to arbitration—

nothing more. See 28 U.S.C. § 2106 (noting an appellate

court’s power to “modify . . . any judgment, decree, or

order of a court lawfully brought before it for review”).

And whatever else the court’s opinion says, our opinion

makes clear that the arbitrator should decide for itself

whether Domino’s can enforce the arbitration agreement. We’ll leave matters at that.

We affirm.

App. 24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HARLEY BLANTON and

DEREK PIERSING, on

Behalf of Themselves and

All Others Similar Situated,

Plaintiffs,

v.

DOMINO’S PIZZA

FRANCHISING LLC, a

Delaware Limited Liability Company; DOMINO’S

PIZZA MASTER ISSUER

LLC, a Delaware Limited

Liability Company;

DOMINIO’S PIZZA LLC,

a Michigan Limited Liability Corporation; and

DOMINO’S PIZZA, Inc.,

a Delaware Corporation.

Case No. 18-13207

Hon. Victoria A. Roberts

Defendants.

/

ORDER REGARING DEFENDANTS’ MOTION

TO COMPEL ARBITRATION AND DISMISS

OR STAY PROCEEDINGS [ECF No. 61]

(Filed Oct. 25, 2019)

I.

INTRODUCTION

The issue before the Court is whether Harley

Blanton (“Blanton”) and Derek Piersing (“Piersing”)

App. 25

(“Plaintiffs”) may proceed on their claims against Domino’s Pizza Franchising LLC, Domino’s Pizza Master

Issuer LLC, Domino’s Pizza LLC, and Domino’s Pizza,

Inc. (“Domino’s”) or proceed to arbitration under employment agreements they entered into.

Plaintiffs are former employees of Domino’s franchisees. The franchisees are not named as parties to

this lawsuit. Plaintiffs sue Domino’s on behalf of

themselves and all others similarly situated. Plaintiffs

allege a conspiracy between Domino’s and its franchisees to suppress wages and limit employment opportunities. They sue under the Clayton Act (15 U.S.C.

§§ 15 and 26), the Sherman Act (15 U.S.C. § 4), and

the Washington Consumer Protection Act (Wash. Rev.

Code 19.86.030) (only to the Washington subclass).

As employees of Domino’s franchisees, Plaintiffs

signed contracts agreeing to submit employmentrelated claims to arbitration.

Domino’s says Plaintiffs’ claims against it are

subject to the arbitration agreements and moves to

dismiss or, in the alternative, stay proceedings and

compel arbitration.

For the reasons below, the Court GRANTS Defendants’ Motion to Dismiss.

II.

LEGAL STANDARD

To survive a motion to dismiss, the nonmoving

party must allege enough facts to state a claim to relief

that is plausible on its face. Bell Atlantic Corp. v.

App. 26

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007). The facts must be construed in the

light most favorable to the nonmoving party. Power &

Tel. Supply Co. v. SunTrust Banks, Inc., 447 F.3d 923,

929–30 (6th Cir.2006) (quoting Bovee v. Coopers &

Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001)).

The Federal Arbitration Act (“FAA”) requires

courts to “rigorously enforce” arbitration agreements.

It outlines a “strong federal policy in favor of enforcing

arbitration agreements.” Dean Witter Reynolds, Inc. v.

Byrd, 470 U.S. 213, 217, 221, 105 S.Ct. 1238, 84 L.Ed.2d

158 (1985). Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765

(1983).

Questions about the interpretation and construction of arbitration agreements are governed by federal

substantive law. See, e.g., Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 25, 103

S.Ct. 927, 74 L.Ed.2d 765 (1983). The party opposing

arbitration has the burden to show that the agreement

is not enforceable. Green Tree Financial Corp.—Alabama v. Randolph, 531 U.S. 79, 91–92, 121 S.Ct. 513,

148 L.Ed.2d 373 (2000).

App. 27

III. ANALYSIS

1.

Plaintiffs say that because Domino’s did

not sign the arbitration agreements, it cannot compel arbitration, and the delegation

clauses are invalid

Plaintiffs’ argument is first about contract formation: they say that Domino’s did not sign the arbitration agreements, and so it cannot compel

arbitration or invoke the delegation clauses.

Delegation clauses are clauses in the arbitration

agreements which require “gateway” questions of “arbitrability”—whether the dispute is arbitrable or not,

including any issues of scope, validity, or jurisdiction—

to go to the arbitrator instead of a court. This argument

applies to both Blanton and Piersing’s arbitration

agreements.

Piersing also argues that his arbitration agreement has no delegation clause at all. Domino’s says

that there are valid delegation clauses pertaining to

both agreements and it may invoke them.

There must be “clear and unmistakable” evidence

that the parties intended the arbitrator to decide questions of arbitrability. First Options of Chicago, Inc. v.

Kaplan, 514 U.S. 938, 944 (1995). Absent “clear and unmistakable” evidence that the arbitrator decides questions of arbitrability, the Court has jurisdiction.

App. 28

A. The Arbitration Agreements

Blanton and Piersing’s arbitration agreements

differ; the Court considers them separately. The Court

first addresses whether Domino’s can compel arbitration with either party, and then turns to whether there

is a valid delegation clause in each arbitration agreement.

Blanton

Blanton signed an arbitration agreement when he

began employment at Wilson Pizza Company (“Wilson

Pizza”). He says this arbitration agreement is invalid

because Domino’s did not sign it, and Domino’s cannot

invoke the delegation clause. Domino’s contends that

the broad definition of the “Company” as well as the

broad language of the delegation clause, includes Domino’s.

The Court first examines whether Domino’s is a

party to the arbitration agreement under the contract

language.

a. Contract formation is a question of

state law

Blanton’s arbitration agreement says “this Arbitration Agreement will be governed by the Federal

Arbitration Act. . . . All other legal decisions shall be

determined by the federal, state or local law applicable

in the state where the Team Member primarily works.”

[ECF No. 61-3, PageID.974]

App. 29

Federal courts apply state law to determine

whether ordinary contract law invalidates arbitration

agreements. See, e.g., Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d

902 (1996). “[T]raditional principles of state law” determine whether a “contract [may] be enforced by or

against nonparties to the contract through . . . thirdparty beneficiary theories . . . and estoppel.” Arthur

Andersen LLP v. Carlisle, 556 U.S. 624, 631, 129 S.Ct.

1896, 173 L.Ed.2d 832 (2009) (citation and internal

quotation marks omitted).

Blanton signed the arbitration agreement and

worked in Indiana; Indiana law applies to his contract

formation argument.

b. Domino’s is included in the plain language of the arbitration agreement

The Blanton arbitration agreement states:

In this Arbitration Agreement, the term “the

Company” refers to Wilson Pizza Company,

and includes its parents, franchisors, subsidiaries, affiliates, predecessors, successors, and

assigns . . . the duty to arbitrate under the Arbitration Agreement is mutual, and the decision to accept or to continue employment and

to execute this Arbitration Agreement means

that the Team Member and the Company

have agreed to and are bound by this Arbitration Agreement. [ECF No. 61-3, PageID.974]

App. 30

This language is clear and unmistakable. Domino’s, as the franchisor of Wilson Pizza, is included in

the definition of “the Company.”

Blanton argues the inclusion of “franchisors” in

the definition of “Company” does not include Domino’s

as a signatory. Blanton relies on Daimler Chrylser

Corp. v. Franklin, 814 N.E.2d 281 (Ind. App. Ct. 2004).

But Daimler is factually dissimilar to this case.

In Daimler, an automobile manufacturer attempted to compel arbitration. It was not a party to the

contract. Id. The parties to the contract were the car

dealership and the purchaser. Id. The arbitration

agreement included the “[dealership’s] employees,

agents, successors or assigns” as parties who could

compel, and who were required to, arbitrate. Id. The

automobile manufacturer was not an employee, agent,

successor, or assign, and the court denied its motion to

compel arbitration. Id. at 285. Here, the definition of

“Company” includes Domino’s. Daimler is not instructive, and Blanton points to no other authority.

Domino’s is “the Company” under the arbitration

agreement and can compel arbitration.

Piersing

Piersing signed an arbitration agreement when he

began employment at Carpe Diem Pizza, Inc. (“Carpe

Diem”). The parties:

. . . mutually promise, agree, and consent to

resolve any claim covered by this Agreement

App. 31

through binding arbitration, rather than

through court litigation. Employee and Company further agree that such binding arbitration pursuant to this Agreement shall be the

sole and exclusive remedy for resolving any

claims or disputes covered by this Agreement.

[ECF No. 61-4, PageID.982]

Piersing argues that if there is a delegation clause

in his arbitration agreement, Domino’s cannot invoke

it because Domino’s did not sign the contract. Domino’s

says that Piersing is equitably estopped from making

this argument. Piersing says that even if this is true,

there is no delegation clause in his arbitration agreement. Domino’s contends that the arbitration agreement incorporates the rules of the American

Arbitration Association, which includes delegation of

gateway questions to the arbitrator.

The Court considers whether Piersing is equitably

estopped from avoiding arbitration with Domino’s.

a. Since Piersing alleges a conspiracy between Domino’s and its franchisees, he

is equitably estopped from avoiding arbitration with Domino’s.

Domino’s argues that it can compel arbitration as

a nonsignatory under ordinary conspiracy and agent

principles or equitable estoppel. Domino’s says that because Piersing alleges a conspiracy involving Domino’s

and its franchisees, he is estopped from avoiding arbitration by selectively suing only some of the alleged

conspirators. Piersing did not sue his employer, who he

App. 32

claims was a participant in a civil conspiracy with

Domino’s; he only sued Domino’s, a nonsignatory to the

arbitration agreements.

Equitable estoppel is an ordinary contract defense.

State law applies. Piersing signed his arbitration

agreement in Washington, and a substantial portion of

the events at issue took place in Washington. Washington law applies.

As a general principle, Washington law does not

allow nonsignatory defendants to apply equitable estoppel to a signatory plaintiff. Rajagopalan v. NoteWorld, LLC, 718 F.3d 844, 847 (9th Cir. 2013). However,

the Ninth Circuit noted that “where other circuits have

granted motions to compel arbitration on behalf of

non-signatory defendants against signatory plaintiffs,

it was essential in all of these cases that the subject

matter of the dispute was intertwined with the contract providing for arbitration.” Id. at 848 (internal

quotation and citation omitted). The court clarified

that equitable estoppel prevents a party from claiming

benefits under a contract while avoiding the burdens

of that same contract and held that equitable estoppel

did not apply because the claim in Rajagopalan was

not intertwined with the subject of the arbitration

agreement. Id.

The Washington Court of Appeals has also held

that “where the claims against a parent and subsidiary

are based on the same facts . . . and are inherently inseparable, a court may order arbitration of claims

against the parent even though the parent is not a

App. 33

party to the arbitration agreement.” Wiese v. Cach,

LLL, 358 P.3d 1213, 1222 (Wash. Ct. App. 2015) (internal quotation and citation omitted).

Piersing’s claims are intertwined with his arbitration agreement, which covers all employment-related

claims. Piersing alleges that Domino’s and Carpe Diem

are intertwined and conspired to set unfair wages and

prevent employment opportunities.

Domino’s and Carpe Diem are inseparable. The

claims against them are inseparable. Equitable estoppel applies, and Domino’s may compel Piersing to arbitration.

b. Piersing’s arguments that equitable estoppel does not apply are without merit

Piersing argues: (1) he is not trying to claim any

benefit from the arbitration agreement, so equitable

estoppel does not apply, and (2) his antitrust claims are

not intertwined with the arbitration agreement, and so

he cannot be compelled to arbitration.

i. Whether Piersing seeks direct benefits from the arbitration agreement

is irrelevant

Piersing argues that because the arbitration

agreement was a stand-alone contract and did not confer other employment benefits, equitable estoppel does

not apply.

App. 34

This argument is without merit. Piersing relies on

Javitch v. First Union Securities, Inc., 315 F.3d 619, 628

(6th Cir. 2003). The central question in Javitch was

whether the nonsignatory sought to benefit under a

contract that contained an arbitration agreement, and

therefore was estopped from avoiding arbitration. Id.

Here, Piersing signed a stand-alone arbitration agreement that compels arbitration in all claims relating to

his employment with Domino’s franchisees. Whether

Piersing directly or indirectly benefitted from the arbitration agreements is not at issue; equitable estoppel

rests on whether Piersing’s claims are intertwined

with the arbitration agreements.

ii. The anti-trust claims are intertwined

with the arbitration agreement

Piersing’s anti-trust claims allege that Domino’s is

involved in an illegal civil conspiracy with its franchisees to suppress wages and employment opportunities. Piersing makes these claims pursuant to the

Sherman Act (15 U.S.C. § 1, et seq.) and Clayton Act (15

U.S.C. § 15, et seq.). He further claims that the alleged

conspiracy between Domino’s and the franchisee signatories is not concerted misconduct. This argument is

without merit.

Piersing’s arbitration agreement covers all claims

“arising out of or relating to Employee’s employment

with the Company and/or the termination of Employee’s employment.” [ECF 61-4, PageID.982] Piersing sues over an alleged conspiracy involving hiring,

App. 35

employee opportunities, and wages. The antitrust

claims are clearly intertwined with the subject of the

arbitration agreements.

Equitable estoppel applies.

B. Both arbitration agreements have valid

delegation clauses

Blanton

Blanton’s arbitration agreement has an explicit

delegation clause.

Blanton agreed to submit all covered claims to

binding arbitration. His claims against Domino’s are

clearly within the arbitrator’s jurisdiction:

This Arbitration Agreement specifically includes all claims, disputes, and controversies

by the Team Member or on the Team Member’s behalf against the Company . . . Covered

claims include past, current and future disputes or controversies related to a Team

Member’s job application, hiring, terms and

conditions of employment, job assignments,

payment of wages, benefits, forms of compensation, or termination from the Company.

[ECF No. 61-3 at PageID.974]

The agreement also sets forth “gateway” covered

claims that must be delegated to the arbitrator. They

include:

(5) Any claim, dispute, and/or controversy

relating to the scope, validity, or

App. 36

enforceability of this Arbitration Agreement.

[Id. at PageID.975]

This gateway clause is valid delegation of arbitrability issues to the arbitrator’s jurisdiction.

Piersing

The delegation clause in Piersing’s agreement is

not as explicit as the one in Blanton’s agreement. But

Domino’s contends that the delegation clause that governs Piersing’s claims is in the contract under the

heading “Arbitration Rules and Procedures,” and that

incorporation of this rule is a valid delegation clause.

The Court agrees.

The relevant section reads:

The American Arbitration Association (“AAA”)

will administer the arbitration and the arbitration will be conducted in accordance with

the then-current AAA National Rules for the

Resolution of Employment Disputes (“AAA

Rule”). [ECF No. 61-4, PageID.982]

The applicable AAA Rule is Rule 6(a) of the Rules for

the Resolution of Employment Disputes. It says “the

arbitrator shall have the power to rule on his or her

own jurisdiction, including any objections with respect

to the existence, scope or validity of the arbitration

agreement.” [ECF No. 61-6, PageID. 989]

Circuit courts are virtually united on the question

of whether AAA rules are “clear and unmistakable”

evidence that questions of arbitrability are for the

App. 37

arbitrator. They routinely hold that incorporation of

AAA rules into arbitration agreements is clear evidence of intent to delegate questions of arbitrability

to the arbitrator. See Brennan v. Opus Bank, 796 F.3d

1125, 1130-31 (9th Cir. 2015) (citing additional case

law from seven other circuits).

Federal district courts in the Sixth Circuit regularly find that incorporation of AAA rules is clear and

unmistakable evidence that questions of arbitrability

are for the arbitrator. See e.g. Aerpio Phamaceuticals,

Inc. v. Quaggin, Case No. 1:18-cv-794, 2019 WL

4717477 at *10 (S.D. Ohio Sept. 26, 2019); Jacobs Field

Services North America, Inc. v. Wacker Polysilicon

North America, LLC, 375 F.Supp.3d 898, 913 (E.D.

Tenn. Mar. 15, 2019).

Although the Sixth Circuit has not definitively

made such a ruling, it has delegated gateway questions

of arbitrability to the arbitrator based on a contract

that incorporated AAA rules. Milan Exp. Co., Inc. v.

Applied Underwriters Captive Risk Assur. Co., Inc., 590

Fed. Appx. 482, 484 (6th Cir. 2014):

“It is the express intention of the parties to resolve any disputes arising under this Agreement without resort to litigation . . . Any

dispute or controversy that is not resolved informally . . . shall be fully determined in the

British Virgin Islands under the provisions of

the American Arbitration Association.” Id.

The court emphasized that the words “any,” “all,” and

“exclusively,” evidenced a clear and unmistakable

App. 38

agreement to arbitrate according to AAA rules. Id. This

language is similar to Piersing’s arbitration agreement.

Piersing makes an unsupported argument that incorporation of AAA rules does not grant the arbitrator

exclusive jurisdiction over gateway questions, and

cites to inapplicable case law.

In AlixPartners, LLP v. Brewington, 836 F.3d 543,

553 (6th Cir. 2016) the arbitration agreement only discussed delegating individual claims to the arbitrator;

the Sixth Circuit found that AAA rules did not delegate

classwide claims to the arbitrator because the contract

was silent on delegating classwide claims. That is not

the issue before the Court. Piersing’s arbitration agreement explicitly states that “no covered claims may be

asserted as part of a multi-plaintiff, class or collective

action. Moreover, no covered claims may proceed to arbitration on a multi-plaintiff, class or collective basis.”

[ECF No. 61-4, PageID.982] Piersing makes no arguments about classwide, as opposed to individual, arbitration.

In Smith Barney, Inc. v. Sarver, 108 F.3d 92, 95

(6th Cir. 1987) the court held that the rules of a different arbitration organization—not the AAA—were too

vague to be “clear and unmistakable” evidence of intent to delegate. Piersing’s agreement concerns AAA

rules, and Smith Barney addresses a different question

of law.

Neither AlixPartners nor Smith Barney is instructive.

App. 39

The Court finds that incorporation of AAA rules

and procedures is clear and unmistakable evidence

that questions of arbitrability are for the arbitrator,

and that Piersing’s arbitration agreement contains a

valid delegation clause.

All gateway questions related to Piersing’s claims

are for the arbitrator to decide.

2.

The Court does not have jurisdiction to

consider the Plaintiffs’ other arguments

Blanton argues that his arbitration agreement

was obtained improperly. This is a question of fact for

the arbitrator. Because of the delegation clause, the

Court does not have jurisdiction to consider this argument.

All questions regarding arbitrability and the merits of the claims are for the arbitrator to decide.

IV. CONCLUSION

The Court GRANTS Defendants’ Motion to Compel Arbitration and Dismiss. The Motion to Stay is

MOOT.

IT IS ORDERED.

s/ Victoria A. Roberts

Victoria A. Roberts

United States District Judge

Dated:

10/25/2019

App. 40

Sage HRMS

HR Actions®

Employee Name:

Employee ID:

Action ID:

Submitter Name:

Effective Date: *

Arbitration Agreement CDP

Derek Piersing

REDACTED

43413

Derek Piersing

8/15/2018

EMPLOYER:

CARPE DIEM PIZZA INC

STORE NUMBER: 7084 – UW

SUPERVISOR:

Joey Lark

WAGE TYPE:

6130 – Driver’s Wage

BONUS GL:

6131 Employee Bonus

Initiated Date:

8/15/2018 3:23 PM

Submitter Comments:

0 of 5000 max chars.

* = Required, + = Not Blankable

CURRENT VALUE

NEW VALUE

Carpe Diem Pizza Inc., DBA Domino’s Pizza

Arbitration Agreement

This Mutual Agreement to Arbitrate Claims (“Agreement”) is entered into between the Team Member

(“Employee”) and Carpe Diem Pizza, Inc. (“Company”).

App. 41

1. Binding Arbitration of Disagreements and

Claims

Employee and Company mutually promise, agree, and

consent to resolve any claim covered by this Agreement

through binding arbitration, rather than through court

litigation. Employee and Company further agree that

such binding arbitration pursuant to this Agreement

shall be the sole and exclusive remedy for resolving

any claims or disputes covered by this Agreement.

2. Claims Covered By This Agreement

The claims covered by this Agreement include any and

all claims, disputes, or controversies arising out of or

relating to Employee’s employment with the Company

and/or the termination of Employee’s employment.

Some, but not all, of the types of claims covered by this

Agreement include: claims for unpaid wages, commissions, or other compensation, including bonuses or

overtime; claims for reimbursed expenses; claims for

discrimination or harassment on the basis of race,

sex, age, national origin, religion, disability or any

other unlawful basis; claims for breach of express or

implied contract; claims for unlawful retaliation;

claims for wrongful discharge on any basis; clams for

defamation or invasion of privacy; employment-related

tort claims; claims arising under the Fair Labor Standards Act or the Family and Medical Leave Act; and

claims arising under the Employee Retirement Income

Security Act.

App. 42

For all covered claims, Employee and the Company expressly waive any right to a trial by jury. No covered

claims may be asserted as part of a multi-plaintiff,

class or collective action. Moreover, no covered claims

may proceed to arbitration on a multi-plaintiff, class

or collective basis. Rather, each alleged aggrieved employee must proceed to arbitration separately and individually, and the Employee’s arbitration proceeding

shall encompass only covered claims asserted by such

individual Employee.

This Agreement does not limit or restrict Employee’s

opportunity to seek relief from state or federal agencies such as the National Relations Board or the Equal

Employment Opportunity Commission.

3. Claims not covered by this Agreement

The only claims between Employee and the Company

not covered by this Agreement are:

a) Any claim by Employee for worker’s compensation or other related benefit plans, including unemployment compensation benefits; and

b) Any claim by either party for injunctive or

declaratory relief arising from alleged inference with

business, unfair compensation, unfair business practices, breach of the duty of loyalty, unauthorized disclosure of trade secrets or confidential information, or

the breach of covenants between parties.

App. 43

4. Arbitration Rules and Procedures

• AAA rules

The American Arbitration Association (“AAA”) will administer the arbitration and the arbitration will be

conducted in accordance with then-current AAA National Rules for the Resolution of Employment Disputes (“AAA Rule”). The AAA Rules are available on

AAA’s website (www.adr.org). The Arbitrator shall

have the authority to consider and rule on dispositive

motions to dismiss or motions established by the applicable federal district court in the district where the

arbitration proceeding is pending. The Arbitrator may

establish appropriate procedures for such motions consistent with the expedited and informal nature of arbitration proceedings.

5. Representation

The Company and the Employee have the right to retain an attorney to represent them in connection with

arbitration, but they are not required to do so.

6. Fees and Costs

The party demanding arbitration shall pay the AAA

filing fee, subject to any caps applicable under the AAA

rules. The remaining fees and expenses of the arbitration, including the cost of the arbitrator’s fee, will be

allocated in accordance with the AAA Rules. Each

party will pay for the fees and expenses of its own

attorneys, experts, witnesses, and preparation and

App. 44

presentation of evidence and any pre or post-hearing

briefs. If a party prevails on a claim for which attorney’s fees or costs are recoverable by statute or contract, the arbitrator shall have discretion to order

non-prevailing party to pay the reasonable fees and

costs of the prevailing party.

7. Discovery

The parties shall be permitted to engage in written

discovery including interrogatories, request for production of documents and requests for admissions. In

conducting discovery before such arbitration, each

party shall be limited to taking the deposition of three

persons and expert witnesses designated by another

party. If a party shows substantial need, the arbitrator

may allow that party to take additional depositions.

8. Enforcement of Award

This Agreement shall be governed by the Federal Arbitration Act (“FAA”), and any act on to compel arbitration or to enforce or vacate the arbitrator’s award shall

also be governed by the FAA and otherwise by applicable state law.

9. Relief Available

The arbitrator shall have the authority to award the

same relief to the Employee or the Company as if the

dispute had proceeded in litigation rather than arbitration.

App. 45

5. Miscellaneous Provisions

• Definitions

For purposes of the scope of the obligation to arbitrate

disputes, the term “Company” shall include King Beast

Pizza, Inc. and al related entities, all officers, directors,

agents, owners, shareholders, partners, benefit plans,

benefit plan sponsors, fiduciaries, administrators, employees (current or former) or affiliates of any of the

above; and all successors and assigns f any of the

above.

• Dismissal of Court Action

If either party pursues a covered claim against the

other in a court proceeding, the filing party agrees that

the responding party shall be entitled to a dismissal,

stay and/or injunctive relief regarding such action, and

recovery of all costs and attorney’s fees related to such

court action proceeding.

• Entire Agreement

This is the complete Agreement between the parties

on the subject of arbitration of disputes claims. This

Agreement supersedes any prior or contemporaneous

oral, written, or implied understanding on the subject,

shall survive the termination of Employee’s employment, and can only be revoked or modified upon 30

days written notice from the Company of intent to revoke or modify the Agreement. If any provision of this

Agreement is adjudged to be void and otherwise unenforceable in whole or in part, such unenforceability

shall not affect the validity of the remainder of the

App. 46

Agreement. This Agreement is not, and shall not be

constructed to create, any contract of employment, express or implied, nor does this Agreement in any way

alter the “at-will” status of Employees employment.

6. Opportunity to Review and Consult

Employee acknowledges that he/she has had the opportunity to review this Agreement with and obtain

advice from a private attorney, has had sufficient time

to, and in fact has carefully read and fully understands

all the provisions of this Agreement, and is knowingly

and voluntarily entering this Agreement.

Employee Signature Instructions

Please sign this form by entering your name in to the

signature block, todays date and the last 4 of your SSN.

Employee Signature:

Employee Signature:

Derek Piersing

Last 4 digits SSN:

REDACTED

Employee Signature Date:

8/15/2018

App. 47

Approval Instructions:

ROUTING

Derek Piersing

Timestamp:

8/15/2018 3:23:42 PM

Comments:

No approval sequence available for

this situation.

Piersing, Derek

(Admin)

Timestamp: 8/15/2018 3:23:42 PM

Comments:

Action saved into HRActions database by: HR Actions® System.

Saved on: 8/15/2018 3:23:42 PM

Submit Instructions:

Auditor Comments:

If you need assistance, please call Crystal in HR at

(360) 830-0354 X 2