1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYAN BISHOP, on behalf of himself and Case No.: 3:18-cv-02701-BEN-MSB all others similarly situated, 12

ORDER GRANTING DEFENDANT’S

Plaintiff, 13 MOTION TO COMPEL v. ARBITRATION AND DISMISSING 14

PLAINTIFF’S FIRST AMENDED

BORAL INDUSTRIES, INC., a 15 COMPLAINT California Corporation; BORAL 16 ROOFING, LLC, a Delaware Limited Liability Corporation; and DOES 1 to 10, 17 Defendants. 18 19 Before the Court is a Motion to Compel Arbitration submitted by Defendants Boral 20 Industries, Inc. and Boral Roofing, LLC (collectively “Defendants”). ECF No. 20. The 21 docket shows Plaintiff Ryan Bishop has not filed a response to the motion. For the 22 following reasons, the Court GRANTS the Motion to Compel Arbitration. The Court 23 also DISMISSES Plaintiff’s First Amended Complaint with prejudice. 24 I. BACKGROUND 25 On October 28, 2018, Plaintiff filed a complaint against Defendants in state court 26 alleging Defendants engaged in unfair business practices by failing to (1) provide meal 27 breaks, (2) provide rest breaks, (3) pay final wages, and (4) provide timely and accurate 28 1 wage statements. ECF No. 1, Exh. A ¶¶ 9-14. Plaintiff also sought to represent a class of 2 similarly situated persons. Id. at ¶¶ 20-27. Defendants removed the case to this Court on 3 November 29, 2018. ECF No. 1. Following a motion to dismiss that was granted in part, 4 Plaintiff filed a First Amended Complaint alleging the same underlying claims. 5 On February 19, 2020, Defendants filed this Motion to Compel Arbitration 6 pursuant to the Federal Arbitration Act (“FAA”). ECF No. 20; 9 U.S.C. § 1 et seq. 7 Defendants also requested the Court dismiss Plaintiff’s class claims with prejudice. ECF 8 No. 20, 17-18. Defendants argue Plaintiff is subject to a valid arbitration agreement that 9 encompasses the issues in dispute here, and that the arbitration agreement requires all 10 disputes be arbitrated individually. Id. at 8-17. 11 II. DISCUSSION 12 Local Rule 7.1(f)(3)(C) provides that failure to file an opposition when due can 13 constitute consent to the granting of a motion. On this basis alone the Court could grant 14 Defendants’ motion. However, because the Court also concludes dismissal is appropriate 15 it addresses the motion fully below. 16 Under the FAA, arbitration agreements “shall be valid, irrevocable, and 17 enforceable, save upon such grounds that exist at law or in equity for the revocation of a 18 contract.” 9 U.S.C. § 2. The FAA requires the Court to determine “(1) whether a valid 19 agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the 20 dispute at issue.” Kilgore v. KeyBank, Nat'l Ass'n, 718 F.3d 1052, 1058 (9th Cir. 2013) 21 (en banc) (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th 22 Cir. 2000)). “If the response is affirmative on both counts, then the Act requires the court 23 to enforce the arbitration agreement in accordance with its terms.” Chiron Corp, 207 24 F.3d at 1130. “[T]he party resisting arbitration bears the burden of proving that the 25 claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp. v. Randolph, 531 26 U.S. 79, 91-92 (2000). 27 28 1 Defendants submit Plaintiff signed an arbitration agreement while applying to 2 work for Real Time Staffing Services, LLC, a staffing agency, which does business in 3 California as Select Staffing. ECF No. 20, 2. Select Staffing thereafter sent Plaintiff to 4 work at Defendants’ facility. Id. Defendants argue the arbitration agreement applies to 5 them, as the arbitration agreement Plaintiff signed applies to “the Company,” which is 6 broadly defined therein as “Select Staffing…and all related entities, including entities 7 where employees are sent to work.” Id. at Ex. 1. The agreement covers “any dispute 8 between Ryan B Bishop and the Company relating to or arising out of the employment or 9 the termination of Ryan B Bishop,” including “claims for breach of contract, fraud… 10 wages, salary, compensation, reimbursement, penalties, wrongful termination… and state 11 laws regarding unfair competition or unfair business practices.” Id. Finally, the 12 arbitration agreement provides that “class action, collective action, and representative 13 action procedures shall not be asserted, nor will they apply, in any arbitration proceeding 14 pursuant to this Agreement.” Id. 15 Defendants argue the agreement is valid under the FAA, Plaintiff’s claims fall 16 within the scope of the agreement, and the agreement requires Plaintiff to arbitrate his 17 claims individually. ECF No. 20. The Court agrees. Defendant has sufficiently 18 demonstrated these points, and Plaintff has not offered argument to rebut. Accordingly, 19 Plaintiff must arbitrate his claims and he must do so individually. 20 The Court must next determine whether staying the litigation pending arbitration is 21 appropriate. Here, the Court concludes dismissal is appropriate. 22 Where a dispute is subject to arbitration under the FAA, “the court in which such 23 suit is pending, upon being satisfied that the issue involved in such suit or proceeding is 24 referable to arbitration under such an agreement, shall on application of one of the parties 25 stay the trial of the action until such arbitration has been had in accordance with the terms 26 of the agreement.” 9 U.S.C. § 3; AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 27 (2011) (courts are “required to stay litigation of arbital claims pending arbitration of 28 1 || those claims ‘in accordance with the terms of the agreement’). However, this duty is not 2 mandatory where, as here, the Court finds each of the claims before it are arbitrable. See 3 || Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 637-38 (9th Cir. 1988) (finding that 4 although not requested, dismissal with prejudice for failure to state a claim was proper 5 || where the trial court, on its own initiative, noted the inadequacy of a complaint because 6 || all of the plaintiffs claims were subject to arbitration); see also Salberg v. Massage Green 7 Franchise Corp., No. 15-CV-2805-GPC-WVG, 2016 WL 3667154 (S.D. Cal. Jul. 8 || 11 2016) (exercising the court’s discretion to dismiss where all of the plaintiffs 9 ||individual claims were subject to arbitration). 10 Staying these proceedings would serve little purpose, as the Court has found each 11 || of Plaintiffs claims arbitrable. See Salberg, 2016 WL 3667154, at *3. Moreover, the 12 || valid arbitration clause applicable to all of Plaintiff’s claims renders him unable to amend 13 || and possibly win relief, and therefore dismissal with prejudice is appropriate on the 14 || Court’s initiative. See Wong v. Bell, 642 F.2d 359 (9th Cir. 1981). 15 Hr. CONCLUSION 16 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Compel 17 || Arbitration. The Court further DISMISSES Plaintiff’s First Amended Complaint with 18 || prejudice. 19 IT IS SO ORDERED. : 20 71 Dated: August 6, 2020

HON. ROGER T. BENITE

22 United States District Judge 23 24 25 26 27 28 3:18-cv-02701-BEN-MSB