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Singh v. Dish Network LLC

United States District Court, D. Utah, Central Division

July 11, 2019




         This matter is before the court on Defendants' Motion to Dismiss and Compel Arbitration. The court held a hearing on the Motion on June 26, 2019. At the hearing, Plaintiff was represented by Russell T. Monahan, and Defendants were represented by Eric G. Goodrich and Jarom R. Jones. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and the facts relating to the Motion. Now being fully advised, the court issues the following Memorandum Decision and Order.


         In 2016, Sling T.V. LLC[1] (Echosphere LLC)[2] hired Plaintiff Nagendra Singh (“Singh”). In March 2017, Echosphere entered into a merging transaction with Defendant DISH Network LLC (collectively, with Sling T.V. LLC and Echosphere LLC, “DISH”). As a result of the merger, certain employees of Echosphere, including Singh, became employed by DISH and were required to sign new “onboarding” documents. According to DISH, the onboarding documents were composed of six documents: (1) Mutual Arbitration of Disputes - Waiver of Rights Agreement (“Arbitration Agreement”); (2) Agreement Regarding Confidential Information, Proprietary Development and Conflict of Interest (“Confidentiality Agreement”); (3) Drug and Alcohol Policy; (4) Release of Claims; (5) Acknowledgments; and (6) Veteran's Self ID Form.

         The onboarding documents were reviewed and signed by the new employees through an online portal and tracking system called iCims. This system utilized a feed from Oracle, DISH's human capital management system, to create employee profiles, which resulted in the creation of an employee profile for Singh. On May 17, 2017, after employees' iCims profiles had been created, a member of DISH's H.R. Compliance Team sent an email invitation to certain employees, including Singh, containing a link to complete onboarding paperwork and a link to reset their password if necessary. Once logged in, employees could review each of DISH's onboarding documents. DISH employees would indicate their assent to the onboarding documents by selecting the radio button next to “Yes” at the bottom of each document and then clicking submit at the end of the form. All documents pre-populated the employee's name and date. The Arbitration Agreement presented by DISH did not have the “I Accept” notation that the other onboarding documents contained. Rather, it contained an “Employee Signature” with a signature and a time stamp.

         iCims creates an audit trail for each completed onboarding document. According to DISH's H.R. Compliance Manager, AK Miller, the audit trails reveal that Singh executed the onboarding documents on May 18, 2017 at the following times: (1) Arbitration Agreement - 9:09 am; (2) Confidentiality Agreement - 9:11 am; (3) Drug and Alcohol Policy - 9:12 am; (4) Release of Claims - 9:12 am; (5) Acknowledgments - 9:13 am; and (6) Veteran's Self ID Form - 9:13 am. Importantly, the Arbitration Agreement that Singh signed and agreed to provides, in relevant part:

In consideration of the mutual promises contained within this Agreement, Employee and DISH mutually agree that any past, present, or future claim, controversy and/or dispute between them, including without limitation any claim or dispute arising out of or related to Employee's application for employment, employment, and/or termination of employment shall be resolved by binding arbitration administered by the American Arbitration Association. ¶ 1.

Arbitration Agreement at ¶ 1 (emphasis added).

         Singh filed the instant action in this court, alleging DISH maintained unlawful employment practices under Title VII. Specifically, Singh's Complaint alleges causes of action for hostile work environment, discrimination, and retaliation. DISH now moves to dismiss the Complaint and compel arbitration as required by the Arbitration Agreement. DISH asserts that Singh, as part of his employment with DISH, signed the Arbitration Agreement thereby agreeing to submit all claims - including claims arising out of or relating to his application for employment, employment, or termination of employment - to binding arbitration.


         The Federal Arbitration Act (“FAA”) provides that “an agreement in writing to submit to arbitration an existing controversy arising out of … a contract [or] transaction … 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. Consequently, when deciding a motion to dismiss and compel arbitration, a court must first determine whether a valid arbitration agreement exists. BOSC, Inc. v. Bd. of City Comm'rs of City of Bernalillo, 853 F.3d 1165, 1177 (10th Cir. 2017) (noting that the moving party “bears the initial burden of presenting evidence sufficient to demonstrate the existence of an enforceable agreement”). Once a valid arbitration agreement has been established, a court must then determine whether there is a “genuine dispute of material fact regarding the existence of an agreement.” Id. (noting that the “burden shifts to the nonmoving party to raise a genuine dispute of material fact”). If a court is “satisfied” that there is no genuine dispute of material fact, and that the making of the arbitration agreement is “not in issue, ” the FAA instructs courts to direct “the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4; see BOSC, Inc., 853 F.3d at 1177 (“When a quick look at the case reveals that no material disputes of fact exist, a district court may decide the arbitration question as a matter of law.”). If, however, the court feels that the making of the arbitration agreement “be in issue, the court shall proceed summarily to the trial thereof.” 9 U.S.C. § 4; see BOSC, Inc., 853 F.3d at 1177 (“[I]f material disputes of fact do exist, the FAA calls for summary trial - not death by discovery.”).

         A. The Existence of a Valid Arbitration Agreement

         In this case, Singh disputes that the Arbitration Agreement was included among DISH's onboarding documents and denies reviewing or accepting the Arbitration Agreement. Arguing that this constitutes a genuine dispute of material fact, Singh urges the court to deny DISH's Motion to Dismiss and Compel Arbitration. However, Dish points out that Singh actually testified in his declaration and while under oath that he has no recollection of either signing or reviewing the Arbitration Agreement, and courts have repeatedly held that “a party's inability to remember signing contracts” is insufficient “to raise a material issue as to the validity of the agreements.” See Ernest v. Lockheed Martin Corp., No. 07-CV-02038-WYD-KLM, 2008 WL 2958964, at *5-6 (D. Colo. July 29, 2008); see also Mitchell v. Craftworks Restaurants & Breweries, Inc., No. 18-879 (RC), 2018 WL 5297815, at *7 (D.D.C. Oct. 25, 2018); Pataky v. Brigantine, Inc., 259 F.Supp.3d 1075, 1080 (S.D. Cal. 2017); Tally v. Brinker Oklahoma, Inc., No. CIV-16-451-W, 2016 WL 4523919, at *2-3 (W.D. Okla. Aug. 22, 2016); Rembert v. J.C. Penny Corp., No. 2:13-CV-1074, 2014 WL 790785, at *2 (S.D. Ohio Feb. 26, 2014); Otis v. Arise Virtual Solutions, Inc., No. 12-62143-CIV, 2013 WL 12106056, at *3 (S.D. Fla. Aug. 5, 2013); Abbott v. Lexford Apartment Services, Inc., No. 01-1243-C-B/S, 2002 WL 18000230, at *3 (S.D. In. Aug. 2, 2002). The Tenth Circuit has specifically determined that a party's “lack of memory about the form is entitled [to] little weight in determining whether they actually signed it.” Cross v. United States, No. 96-3243, 1998 U.S. App. LEXIS 10160, at *21 (10th Cir. May 19, 1998).

         Further, Singh's arguments bear striking similarities to the arguments the United States District Court for the District of Colorado rejected in Ernest, where an employer moved the court to compel the employee to arbitrate his claims based on the parties' arbitration agreement. 2008 WL 2958964, at *2. Not only did the court in Ernest determine that the lack of recollection in signing the arbitration agreement did not create a genuine dispute of material fact, it questioned the consistency and plausibility of such argument as the employee did not dispute his assent to other agreements made on the same day, just as Singh did here. Id. at *6. The only onboarding document Singh disputes is the Arbitration Agreement. Yet, according to the audit trails, Singh signed the Confidentiality Agreement on May 18, 2017 at 9:11 am, two ...

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