Nicholson v. NPC International, Inc.

Middle District of Florida, flmd-8:2017-cv-00529

ORDER ATTACHED denying without prejudice for failure to comply with Local Rule 3.01(g) {{4}} Motion to Compel Arbitration and to Stay; denying {{4}} Motion to Dismiss; and directing counsel to personally confer within seven (7) days. Signed by Judge Richard A. Lazzara on 3/9/2017. (CCB)

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PageID 70 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SHANE NICHOLSON, Plaintiffs, v. CASE NO. 8:17-cv-529-T-26TGW NPC INTERNATIONAL, INC. d/b/a Pizza Hut, Defendant. / ORDER UPON DUE AND CAREFUL CONSIDERATION of the Defendant's submissions, it is ORDERED AND ADJUDGED as follows: 1) Defendant's Motion to Dismiss (Dkt. 4) is denied. Even if this Court ultimately concludes that Plaintiff's claim is subject to mandatory and binding arbitration, it would commit error by dismissing the complaint. See Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 699 (11th Cir. 1992). The proper procedure would be to stay the case pending arbitration rather than dismissing it. Id.1 2) Defendant's Motions to Compel Arbitration and to Stay Proceedings (Dkt. 4) are denied for failure to comply with the conferral requirements of Local Rule 3.01(g). 1 To the extent that Bender conflicts with Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005) and Lambert v. Austin Ind., 544 F.3d 1192 (11th Cir. 2008), Bender controls because it is the earlier decided case. See United States v. Ohayon, 483 F. 3d 1281, 1289 (11th Cir. 2007); Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir. 1986). PageID 71 3) Counsel for the parties shall confer personally within seven (7) days of the entry of this order in a good faith effort to resolve the merits of the motion without Court intervention. DONE AND ORDERED at Tampa, Florida, on March 9, 2017. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record -2-