United States District Court, District of Columbia
MEMORANDUM AND ORDER
A. HOWELL CHIEF JUDGE
Lee initiated this action, pursuant to the Fair Labor
Standards Act, 29 U.S.C. §§ 201, et seq.,
the District of Columbia Minimum Wage Act, D.C. Code
§§ 32-1001, et seq., and the District of
Columbia Wage Payment and Collection Law, D.C. Code
§§ 32-1301, et seq., seeking unpaid
minimum and overtime wages of an unspecified amount from her
former employer PSI Services III, Inc. (“PSI
Services”), the estate of Elizabeth Abramowitz, who
owned PSI Services, and Yvonne B. Ali, the President of PSI
Services. Compl. ¶¶ 1-2, 18-24, ECF No. 1. Pending
before the Court is the defendants' Motion to Stay
Litigation Pending Arbitration (“Mot. Stay”), ECF
No. 17, brought pursuant to the Federal Arbitration Act
(“FAA”), 9 U.S.C. § 3. For the reasons set
forth below, the motion to stay is denied.
the filing of plaintiff's complaint, on May 31, 2018,
until the filing of defendants' motion to stay on
November 28, 2018, the defendants never mentioned, much less
actually invoked, their alleged right to compel arbitration
of plaintiff's claims. Instead, during this intervening
six-month period from May to November, the defendants filed
answers to plaintiff's complaint, see Answer by
Yvonne B. Ali, ECF No. 10; Answer by PSI Services, ECF No.
11; Answer by Estate of Elizabeth Abramowitz, ECF No. 12;
requested referral to mediation before a Magistrate Judge,
see Meet and Confer Statement, ECF No. 14; and were
so referred, see Minute Order, dated October 17,
2018. Just two days before a scheduled settlement conference
before a Magistrate Judge, the defendants brought the instant
motion seeking a stay, prompting the Magistrate Judge to
vacate the scheduled settlement conference. See
Minute Order, dated November 29, 2018.
is well settled in this Circuit that a defendant seeking to
invoke the right to arbitration must do so “on the
record at the first available opportunity, typically in
filing his first responsive pleading or motion to
dismiss.” Zuckerman Spaeder, LLP v.
Auffenberg, 646 F.3d 919, 922 (D.C. Cir. 2011).
“[F]ailure to invoke arbitration at the first available
opportunity will presumptively extinguish a client's
ability later to opt for arbitration.” Id. at
924. See, e.g., Kelleher v. Dream Catcher,
L.L.C., 263 F.Supp.3d 253, 254 (D.D.C. 2017) (finding
that the defendant had forfeited its right to move for
arbitration after waiting nearly six months to move for
arbitration); Cho v. Mallon & McCool, LLC, 263
F.Supp.3d 226, 229 (D.D.C. 2017) (finding that the plaintiff
had forfeited his right to invoke arbitration by waiting
thirteen months into the litigation before requesting
arbitration). The presumption of forfeiture may be overcome
if the defendant's failure to compel arbitration
“did not prejudice his opponent or the court, ”
Auffenberg, 646 F.3d at 923, by showing that the
delay “imposed no or little cost upon opposing counsel
and the courts, ” id.
instant case, the defendants do not dispute that they failed
to invoke their alleged right to arbitrate at the first
available opportunity, when they filed their answers. The
right to arbitrate was therefore presumptively forfeited. The
only question for resolution is whether the defendants have
overcome the presumption of forfeiture by sufficiently
showing that no prejudice to the opposing party or the Court
has resulted. Though a close case, the defendant has failed
to show the requisite lack of prejudice.
plaintiff contends that it “has incurred real costs and
expenses that it would not have incurred but for
Defendants' delay.” Pl.'s Opp'n Defs.'
Mot Stay (“Pl.'s Opp'n”) at 6, ECF No.
20. In particular, the plaintiff “has expended time and
attorney's fees conferring with Defendants regarding
discovery, drafting and filing the parties' joint report
setting forth the discovery schedule, preparing
Plaintiff's initial disclosures …, requesting and
preparing for mediation, drafting and submitting a
confidential mediation statement in compliance with the
Magistrate Judge's orders, and preparing and filing
several motions to extend time.” Id. at 6-7.
The defendants attempt to minimize these costs and
expenditures by characterizing them as “preliminary
acts that would have been required regardless of whether the
Parties were in a judicial or arbitral forum.”
Defs.' Reply Supp. Mot. Stay (“Defs.'
Reply”) at 15, ECF No. 23. This is simply not the case.
Clearly the parties would not have requested, been referred
to, and then prepared for, mediation before a Magistrate
Judge had the defendants timely sought to compel arbitration.
defendants further claim that “due to a recordkeeping
error and the replacement of its records custodian”
they only “first learned of the existence of the
arbitration provision applicable to Plaintiff's
claims” on November 7, 2018, Defs.' Reply at 14-but
this assertion is inapposite. Even if true, the
defendants' delayed discovery of their arbitration
agreement would only be applicable to the issue of whether
the defendants waived their rights, not whether, as
here, they forfeited their rights by failing to
assert them. See United States v. Olano, 507 U.S.
725, 733 (1993) (“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.'”
(quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938))). The D.C. Circuit has made clear that
“forfeiture, not waiver, is the appropriate standard
for evaluating a late-filed motion under Section 3 of the
FAA, ” Auffenberg, 646 F.3d at 922, and
“unlike waiver, [forfeiture] entails no element of
intent, ” id. (citing Olano, 507 U.S.
at 733). See also Dream Catcher, L.L.C., 263
F.Supp.3d at 256 (explaining that because forfeiture doctrine
applies, “it does not matter” when counsel first
learned of the arbitration clause it seeks to enforce, only
when that right was first invoked). Thus, even if the
defendants did not intend to waive their right to arbitrate,
they nonetheless forfeited that right by failing to timely
it is hereby ORDERED that the
defendants' Motion to Stay Litigation Pending
Arbitration, ECF No. 17, is DENIED; and it
is further ORDERED that the plaintiffs
Motion to Hold Discovery in Abeyance Pending the Court's
Decision on Defendants' Motion to Stay, ECF No. 18, is
DENIED as moot.