Gobena v. CourierNet, Inc.

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WAGAYE GOBENA, on behalf of herself and all others similarly situated, Plaintiff, v. COURIERNET INC., Defendant.

Civil Action No. 3:20-CV-00290-RJC-DSC

United States District Court, W.D. North Carolina, Charlotte Division

February 1, 2022

MEMORANDUM AND RECOMMENDATION

David S. Cayer, United States Magistrate Judge.

THIS MATTER is before the Court on Defendant's “Renewed Motion to Dismiss and Compel Arbitration ” Doc. 23, and the parties' briefs and exhibits.

The Motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and is now ripe for the Court's consideration.

Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be administratively denied as moot without prejudice and Defendant's Motion to Compel Arbitration be granted as discussed below.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff Wagaye Gobena (“Gobena”) is a former employee of Defendant CourierNet Inc. (“CourierNet”), a company specializing in on-demand deliveries, pharmaceutical transportation, and custom distribution networks. Doc. 1 at 3-4. Gobena worked as a dispatcher and courier at CourierNet's offices in Morrisville and Cary, North Carolina. Id. at 3. She signed an Employment Agreement dated July 11, 2016 when hired by CourierNet. Doc. 9-3 at 14. The Employment Agreement contained two pertinent clauses:

12. Duty to Seek Early Resolution Conference: This Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, to help avoid unnecessary disputes and litigation, if Employee has grounds to challenge the enforceability of any provision of this Agreement, Employee shall give Company at least thirty (30) calendar days advance notice in writing before Employee engages in any conduct that would foreseeably violate the terms of this Agreement. Employee shall meet with the Company in a good faith attempt to resolve any disagreements between the parties if the Company desires such a meeting. Employee agrees that if the Company elects to take no action in response to Employee's notification, such decision shall not be considered a waiver of any rights to subsequent relief that the Company may have.

17. Arbitration: (a) In consideration for his continued employment with the Company, and other consideration, the sufficiency of which is hereby acknowledged, Employee acknowledges and agrees that any controversy or claim arising out of or relating to Employee's employment, termination of employment, or written employment agreement with the Company that is protected by any federal, state, or local statute, regulation, or common law, shall be settled by arbitration pursuant to the Federal Arbitration Act. This includes violations or alleged violations of any federal or state statute or common law (including, but not limited to, the laws of the United States or of any state, or the Constitution of the United States or of any state), or of any other law, statute, ordinance, including but not limited to, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended [. . .] and any other statute or common law.

Doc. 9-3 at 8, 10. She did not sign a separate arbitration agreement. No. representative from CourierNet signed the Employment Agreement simultaneously with Gobena in July 2016.

On May 22, 2020, Gobena, individually and on behalf of all others similarly situated, brought a collective and class action Complaint against Defendant. Doc. 1. The Complaint alleges violations of the Fair Labor Standards Act, the North Carolina Wage and Hour Act, and the Age Discrimination in Employment Act. She also brings individual claims for Age Discrimination, Hostile Work Environment, Wrongful Termination, and Retaliation and Wrongful Discharge in Violation of North Carolina Public Policy.

On June 19, 2020, Defendant filed a Motion to Dismiss and Compel Arbitration. Doc. 9. The Employment Agreement attached to Defendant's Motion bore the signature of Jay Arena, the CEO of CourierNet, and Gobena. Doc. 9-3 at 14.

On July 13, 2020, Gobena attached a “28 U.S.C. § 1746 DECLARATION OF WAGAYE GOBENA” in her Response in Opposition to Defendant's Motion. Doc. 15-4. In her Declaration, she stated, under oath, the following:

¶ 4: I have no recollection of ever previously seeing this purported agreement, much less signing it. In other words, I do not recall CourierNet providing me this agreement at any point during my employment with CourierNet.

¶ 6: I do not believe that the signature contained on the last page of the purported agreement is my signature; however, the signature present on the “Proprietary Information and Confidentiality Policy, ” or the last page of “Exhibit A” to CourierNet's Motion to Dismiss and Compel Arbitration, is my signature.

Doc. 15-4 at 3. On August 18, 2020, the Court entered an Order administratively denying Defendant's Motion to Dismiss and Compel Arbitration without prejudice to renew the Motion following completion of limited discovery. Doc. 18. The Court ordered limited discovery on the issue of the authenticity of Plaintiff's signature on the Employment Agreement. Id.

On November 4, 2020, Defendant deposed Gobena concerning the authenticity of her signature on the Employment Agreement. Counsel for Defendant asked her to look at Exhibit 7 (Doc. 27-3), which contained eight of her signatures. Doc. 21-1 at 7, 9. Counsel asked Gobena multiple times, “Is that your signature or appear to be your signature?” Doc. 21-1 at 12-14. Each time counsel asked that question in regard to Exhibit 7, Plaintiff's counsel objected, stating that she had not seen that document before the deposition. Id. at 7-9, 12-14. She instructed her client not to answer any questions about it. Id.

Plaintiff violated Rules 30(c)(2) and 37(b)(2) of the Federal Rules of Civil Procedure by refusing to comply with the Court's Order directing limited discovery on the authenticity of her signature on the Employment Agreement. She raised the issue of the validity of her signature. By refusing to answer relevant questions about her signature, Plaintiff thwarted the purpose of the Court's limited discovery order. Plaintiff's counsel also failed to lodge a proper objection at the deposition.

The Court warns Plaintiff and her counsel that they must comply with the Court's orders, including the Pretrial Order and Case Management Plan, the Local Rules, and the Federal Rules of Civil Procedure. Failure to comply fully with any of the Court's orders, the Local Rules, or the Rules of Civil Procedure may result in imposition of sanctions. Sanctions may include Plaintiff and/or Plaintiff's counsel being ordered to pay Defendant's costs, including reasonable attorney's fees in their entirety, and may also include dismissal of the Complaint with prejudice.

On January 19, 2021, CourierNet renewed its Motion to Dismiss and Compel Arbitration. Doc. 23.

II. DISCUSSION

A. Plaintiff's counsel did not lodge a proper objection at Gobena's deposition.

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may obtain discovery regarding any non-privileged matter that is relevant to the subject matter involved in the pending action. See Fed.R.Civ.P. 26(b)(1); see also Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977). The broad discovery rules permit “either party [to] compel the other to disgorge whatever facts he has in his possession.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). Rule 30 of the Federal Rules of Civil Procedure provides:

An objection at the time of the examination-whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

Fed. R. Civ. P. 30(c)(2) (emphasis added).

In the Fourth Circuit, “deposition questions must be answered, even if objection is made, unless a claim of evidentiary privilege is raised.” Alexander v. Cannon Mills Co., 112 F.R.D. 404, 405 (M.D. N.C. 1986). A deponent not asserting a claim of evidentiary privilege “must answer deposition questions or affirmatively act under Fed.R.Civ.P. 30(d) to move to terminate or limit the examination.” Id. (citing Ralston, 550 F.2d at 973-74). Questions that pertain to the subject matter of the pending action fall within the scope of discovery and should be answered. See Ralston, 550 F.2d at 973.

Plaintiff's counsel did not assert any evidentiary privilege or attempt to enforce a court-ordered limitation, as required if counsel was to instruct Gobena not to answer questions about Exhibit 7. See Fed.R.Civ.P. 30(c)(2). Rather, Gobena's counsel objected to Exhibit 7 on the grounds that she had not been provided with a copy before the deposition and the document was outside the scope of the Court's limited discovery Order. These are not valid objections. Deposition witnesses are routinely presented with documents that are not disclosed in advance. The Federal Rules of Civil Procedure only require parties to exchange exhibits before trial. See Fed. R. Civ. P. 26(a)(3)(A)(iii). No. such rule compels the exchange of documents prior to a deposition or authorizes a party to refuse to answer questions on that basis.

Plaintiff raised the issue of the authenticity of her signature. When given an opportunity...