United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion to Compel
Arbitration and Dismiss Complaint. ECF No. 5. Defendant
argues in its motion that, pursuant to Federal Rule of Civil
Procedure 12(b)(3), this action should be dismissed for
improper venue because the dispute is covered by a binding
arbitration clause in the parties' employment agreement.
See Mot. to Dismiss, ECF No. 5. Plaintiff, however,
argues that Defendant's motion should be denied because
the arbitration clause is “substantively
unconscionable, ” as it allegedly denies Plaintiff some
of his statutory rights. See Resp. in Opp. to Def's
Mot. to Dismiss, ECF No. 7, at 3.
parties have fully briefed the issues and the motion is now
ripe for adjudication. As explained below, the Court
GRANTS, IN PART,
and DENIES, IN PART,
Defendant's Motion to Compel Arbitration and Dismiss
thirteen years, Plaintiff worked for Defendant as a chief
meteorologist. See Compl., ECF No. 1-1, at
¶¶ 8-9. For at least the first decade of
Plaintiff's employment, his employment contract was
renewed on a two-year or three-year basis. See Id.
at ¶ 11. However, in July of 2017, Defendant renewed
Plaintiff's contract for only one year. See Id.
at ¶ 13. Plaintiff was approximately sixty years old at
the time. Id.
August of 2017, Plaintiff signed the aforementioned
employment agreement with Defendant. See Mem. in Supp. of
Def's Mot. to Dismiss, ECF No. 6, at 1;
Agreement, ECF No. 5-1. The term of the agreement
began on August 1, 2017, and ended July 31, 2018. See
Mem. in Supp. of Def's Mot. to Dismiss, at 2. The
agreement contained an arbitration clause, which provided:
Employee and Employer agree to submit any dispute or
controversy arising out of or relating to this Agreement
including, but not limited to, claims of termination
allegedly resulting from discrimination of any type, claims
based on common law, contract, or statutorily created or
protected rights or any other basis prohibited by law,
exclusively to final and binding arbitration before a neutral
See Agreement, at 9.
January of 2018, Plaintiff's supervisor allegedly told
Plaintiff that Defendant's weather presentation needed to
be “younger and hipper.” See Id. at
¶¶ 14-15. Defendant then fired Plaintiff on June 1,
2018, and allegedly replaced him with a thirty-nine-year-old
individual. See Id. at ¶¶ 16-17.
subsequently filed a complaint in the Circuit Court of Cabell
County, West Virginia, alleging age discrimination in
violation of the West Virginia Human Rights Act and in
violation of the federal Age Discrimination in Employment Act
of 1967. See Compl., at 10-11. On January 3, 2019,
Defendant removed the matter to this Court. ECF No. 1.
Standard of Review
is, “in effect, a specialized kind of forum-selection
clause ….” See Bartels v. Saber Healthcare
Grp., LLC, 880 F.3d 668, 679 n.2 (4th Cir. 2018)
(quoting Scherk v. Alberto- Culver Co., 417
U.S. 506, 519 (1974)). In the past, the Fourth Circuit
“treated motions to dismiss based on a forum selection
clause as motions to dismiss for improper venue under
Fed.R.Civ.P. 12(b)(3) ….” BAE Sys. Tech.
Sol. & Servs. v. Republic of Korea's Def. Acquisition
Program Admin., 884 F.3d 463, 470 n.4 (4th Cir. 2018).
However, the Supreme Court later “clarified that a
party may not seek to enforce a forum selection
clause by moving to dismiss for improper venue; instead,
‘the appropriate way to enforce a forum-selection
clause pointing to a ... foreign forum is through the
doctrine of forum non
conveniens.'” Id. (emphasis added)
(quoting Atlantic Marine Construction Co. v. U.S.
District Court, 571 U.S. 49, 60 (2013)).
rather than using the doctrine of forum non
conveniens to enforce arbitration, a party may
also move to compel arbitration pursuant to the
Federal Arbitration Act (“FAA”). 9 U.S.C. §
1 et seq. If a party chooses this latter route to
compel arbitration, the FAA requires a district court to
stay the action and direct the parties to proceed to
arbitration if the court decides that an arbitration clause
covers the dispute. See Id. at §§ 3-4. Of
course, because “Congress did not intend for the FAA to
force parties who had not agreed to arbitrate into a
non-judicial forum, ” the FAA allows a party to
challenge the enforceability of an arbitration clause in a
district court by relying on state contract principles.
See Sydnor v. Conseco Fin. Serv. Corp., 252 F.3d
302, 305 (4th Cir. 2001).
motion to stay and compel arbitration is challenged,
“the applicable legal standard is similar to that
applied at summary judgment. Specifically, the pleadings and
‘all relevant, admissible evidence submitted by the
parties' are considered and ‘all reasonable
inferences' are drawn in favor of the non-moving
party.'” Meridian Imaging Sol'ns, Inc. v.
Omni Bus. Sol'ns LLC, 250 F.Supp.3d 13, 21 (E.D. Va.
2017) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d
220, 229 (2d Cir. 2016)).
reflects the “fundamental principle that arbitration is
a matter of contract, ” and “places arbitration
agreements on equal footing with other contracts
….” Rent-A-Ctr., W., Inc. v. Jackson,
561 U.S. 63, 67 (2010). In the Fourth Circuit, a party may
compel arbitration if it demonstrates the following:
“(1) the existence of a dispute between the parties,
(2) a written agreement that includes an arbitration
provision which purports to cover the dispute, (3) the
relationship of the transaction, which is evidenced by the
agreement, to interstate or foreign commerce, and (4) the
failure, neglect or refusal of the defendant to arbitrate the
dispute.” Whiteside v. Teltech Corp., 940 F.2d
99, 102 (4th Cir. 1991).
argues that this action should be dismissed, and arbitration
should be compelled, because the four elements above are met.
See Mot. to Dismiss. While Plaintiff does not
dispute that all the elements above are met, he argues that
the arbitration clause should not be enforced because it is
substantively unconscionable. See Resp. in Opp. to
Def's Mot. to Dismiss, at 3.
doctrine of unconscionability means that, because of an
overall and gross imbalance, one-sidedness or lop-sidedness
in a contract, a court may be justified in refusing to
enforce the contract as written. The concept of
unconscionability must be applied in a flexible manner,
taking into consideration all of the facts and circumstances
of a particular case.” Brown v. Genesis Healthcare
Corp., 724 S.E.2d 250, 283-84 ( W.Va. 2011) (reversed on
other grounds). “A determination of unconscionability
must focus on the relative positions of the parties, the
adequacy of the bargaining position, the meaningful
alternatives available to the plaintiff, and the existence of
unfair terms in the contract.” See Id. at 284
(internal quotations omitted). “A contract term is
unenforceable if it is both procedurally and
substantively unconscionable. However, both need not be
present to the same degree. Courts should apply a
‘sliding scale' in making this determination: the
more substantively oppressive the contract term, the less
evidence of procedural unconscionability is required to come
to the conclusion that the clause is unenforceable, and vice
versa.” See Id. at 289 (emphasis added).
Whether the Arbitration Clause is Procedurally
addressing the merits of Plaintiff's claim that the
arbitration clause is substantively unconscionable, Defendant
argues that, because “Plaintiff did not allege that the
arbitration clause was [also] procedurally
unconscionable … the clause cannot be held to be
unconscionable as a whole ...