Cooper v. Agrify Corporation ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 NICHOLAS COOPER, et al., Cause No. C21-0061RSL-JRC 8 Plaintiffs, 9 v. ORDER ADOPTING IN PART REPORT AND 10 AGRIFY CORPORATION, RECOMMENDATION 11 Defendant. 12 13 The Court, having reviewed the Report and Recommendation of the Honorable Richard 14 Creatura, United States Chief Magistrate Judge, the parties’ objections to the Report and 15 16 Recommendation, and the remaining record, does hereby find and ORDER that the Report and 17 Recommendation is ADOPTED in part. Specifically, the Court dismisses Claim 2 because the 18 commissions, equity, and shares at issue had not accrued at the time of termination and were not, 19 therefore, wrongfully withheld under Georgia’s wage payment provision, O.C.G.A. § 34-7-2. 20 The Court also dismisses claim 12, but grants leave to amend this claim. Any amended 21 complaint must be filed within 21 days of this Order. 22 23 All other causes of action are referred back to Judge Creatura for all pretrial matters. The 24 Court finds that a reference to the American Arbitration Association rules in the subject 25 arbitration clause does not constitute clear and unmistakable evidence that the parties agreed to 26 27 ORDER ADOPTING IN PART 1 arbitrate arbitrability where (a) there is no indication that the party objecting to delegation is 2 sophisticated or otherwise could reasonably be presumed to understand the import of such a 3 reference (see Brennan v. Opus Bank, 796 F.3d 1125, 1130-31 (9th Cir. 2015); Money Mailer, 4 LLC v. Brewer, C15-1215RSL, 2016 WL 1393492, at * 2 (W.D. Wash. Apr. 8, 2016)) and 5 (b) mutual assent appears to be lacking under Washington law because the objecting party was 6 7 not given an opportunity to read the rules at the time they purportedly agreed to them (see 8 Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 49-51 (2020); Hastings v. Unikrn, Inc., 12 Wn. 9 App.2d 1072, 2020 WL 1640250, at *7-8 (2020); McMinimee v. Yakima Sch. Dist. No. 7, No. 10 1:18-CV-3073-TOR, 2021 WL 1559369, at * 21 (E.D. Wash. Mar. 26, 2021)). The Court 11 expresses no opinion on whether the Weinstein release is enforceable, finding only that the 12 record lacks clear and unmistakable evidence of a mutual intent to arbitrate arbitrability. 13 14 15 A copy of this Order shall be sent to Judge Creatura. 16 17 Dated this 27th day of July, 2021. 18 Robert S. Lasnik 19 United States District Judge 20 21 22 23 24 25 26 27 ORDER ADOPTING IN PART