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Nesbitt v. FCNH, Inc.

United States District Court, D. Colorado

November 19, 2014

RHONDA NESBITT, individually, and on behalf of all others similarly situated, Plaintiff,
v.
FCNH, INC., VIRGINIA MASSAGE THERAPY, INC., MID-ATLANTIC MASSAGE THERAPY, INC., STEINER EDUCATION GROUP, INC., STEINER LEISURE LTD., SEG CORT LLC, d/b/a as the " Steiner Education Group" , Defendants

Page 1367

For Rhonda Nesbitt, individually, and on behalf of others similarly situated, Plaintiff: David H. Miller, LEAD ATTORNEY, Sawaya Law Firm, Denver, CO; Brian David Gonzales, Brian D. Gonzales, The Law Offices of, Fort Collins, CO; Leon Marc Greenberg, Leon Greenberg, Attorney At Law, Las Vegas, NV.

For FCNH, INC, Virginia Massage Therapy, Inc., Mid-Atlantic Massage Therapy, Inc., Steiner Education Group, Inc., Steiner Leisure LTD., SEG Cort LLC, doing business as Steiner Education Group, Defendants: Natalia Solis Ballinger, Greenberg Traurig, LLP-Denver, Denver, CO; Scott David Segal, Scott D. Segal, PA, Law Offices of, Miami, FL.

Page 1368

ORDER

R. Brooke Jackson, United States District Judge.

This matter is before the Court on the defendants' Motion to Compel Arbitration

Page 1369

of Individual Claims and to Stay Proceedings [ECF No. 10]. For the following reasons, the motion is denied.

BACKGROUND

The plaintiff, Ms. Nesbitt, filed this action with the Court on April 7, 2014. In her Complaint she alleges violations of the Fair Labor Standards Act (" FLSA" ) and numerous state wage and hour laws. According to the Complaint, the defendants are each involved in the management or operation of, or have an ownership interest in, the Steiner Education Group; and the Steiner Education Group runs schools of massage therapy and esthetics in Arizona, Colorado, Connecticut, Florida, Maryland, Massachusetts, Illinois, Nevada, New Jersey, Pennsylvania, Texas, Utah, Virginia, and Washington. Ms. Nesbitt claims that while enrolled as students of massage therapy at one of these schools, she and the putative class members were required to perform massages for paying members of the general public without compensation. She alleges that the labor provided by herself and the putative class members established an employment relationship for purposes of the FLSA and state labor laws.

In the Complaint, Ms. Nesbitt admits that she entered into an arbitration agreement at the time of enrollment. The Arbitration Agreement provides that

[y]ou, the student, and Steiner Education Group (" SEG" ) agree that any dispute or claim between you and SEG (or any company affiliated with SEG or any of its or SEG's officers, directors, employees or agents) arising out of or relating to (1) this Enrollment Agreement, or the Student's recruitment, enrollment or attendance at SEG, (2) the education provided by SEG, (3) SEG's billing, financial aid, financing options, disbursement of funds or career service assistance, (4) the enforceability, existence, scope or validity of this Arbitration Agreement, or (5) any claim relating in any manner, to any act or omission regarding Student's relationship with SEG or SEG's employees, whether such dispute arises before, during or after Student's attendance at SEG, and whether the dispute is based on contract, statute, tort, or otherwise, shall be resolved through binding arbitration pursuant to this Section (the " Arbitration Agreement" ).

[ECF No. 1-1].

It continues,

Arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association applying federal law to the fullest extent possible, and the substantive and procedural provisions of the Federal Arbitration Act (9 U.S.C. § § 1-16) shall govern this Arbitration Agreement and any and all issues relating to the enforcement of the Arbitration Agreement and the arbitrability of claims between the parties. Judgment upon the award rendered by the Arbitrator may be entered in any court having competent jurisdiction.

Id.

As to costs, the Arbitration Agreement provides that " [e]ach party shall bear the expense of its own counsel, experts, witnesses, and preparation ...


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