United States District Court, W.D. Wisconsin
PAMELA HERRINGTON, individually and on behalf of all other similarly situated persons, Plaintiffs,
WATERSTONE MORTGAGE CORPORATION, Defendant.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
October 22, 2018, the Court of Appeals for the Seventh
Circuit remanded this case so that this court could determine
whether plaintiff Pamela Herrington's employment
agreement with defendant Waterstone Mortgage Corporation
authorized collective arbitration. Herrington v.
Waterstone Mortgage Corp., 907 F.3d 502, 504 (7th Cir.
2018). On remand, I concluded that the parties' agreement
did not authorize collective arbitration. I entered an
opinion and order vacating the damages and attorney fees that
had been awarded to plaintiff and 175 similarly situated
employees in collective arbitration with defendant. Dkt.
#168. On April 29, 2019, I entered judgment, stating that
plaintiff's individual claims must be resolved through
single-plaintiff arbitration. Dkt. #169.
both sides have filed motions seeking to reopen this case.
Defendant seeks an order clarifying that because the
collective arbitration award was vacated, plaintiff's
claims must proceed in a new arbitration proceeding in
Wisconsin. Dkt. #175. Defendant also seeks an order enjoining
arbitration proceedings scheduled for November 18, 2019
before Arbitrator George Pratt, the former judge for the
Court of Appeals for the Second Circuit who presided over the
parties' previous collective arbitration. Dkt. #179.
Plaintiff seeks an order enjoining defendant from pursuing an
arbitration claim for attorney fees incurred litigating this
case after it was remanded. Dkt. #170. Because I conclude
that the parties' questions are not properly before this
court, I will deny both motions, but I will grant
defendant's motion to unseal its motion for a temporary
restraining order. Dkt. #182.
Defendant's Motions to Clarify Judgment and Enjoin
Arbitration before Arbitrator Pratt
this court vacated the collective arbitration award in April
2019, plaintiff notified the American Arbitration Association
of the vacated judgment. She also told the Association that
her individual case remained pending before Arbitrator Pratt.
Defendant objected to any further proceedings before Pratt,
arguing that because the former collective case was over and
judgment had been vacated, the parties had to start a new
arbitration case to resolve plaintiff's individual
claims. Defendant argued that the new arbitration case should
be held in Wisconsin, which is the forum specified by the
parties' arbitration agreement. (The parties had
previously stipulated to conducting collective arbitration
proceedings in New York.) The American Arbitration
Association referred to Pratt the question whether he should
retain jurisdiction over plaintiff's individual claims.
Pratt concluded that he still had jurisdiction, and he issued
orders setting out the parameters for resolving
plaintiff's individual claims. He stated that defendant
would not be bound by previous stipulations or decisions made
in the collective arbitration, but that the parties could use
evidence from the prior proceedings. He also denied
defendant's request to conduct additional discovery.
(Plaintiff had been deposed in the collective arbitration.)
He scheduled the arbitration for November 18, 2019 in New
contends that plaintiff and Arbitrator Pratt are disregarding
this court's and the court of appeals' decisions
vacating the collective action award. In particular,
defendant contends that this court necessarily intended that
plaintiff would pursue her individual claims in an entirely
new arbitration case and not as a continuation of the
now-vacated collective proceeding before Pratt. Defendant
requests that this court issue an order clarifying the
judgment and enjoining the arbitration proceeding scheduled
for November 18.
has not shown that this court has jurisdiction to enjoin the
arbitration proceeding. Federal courts generally have
jurisdiction to determine threshold questions of
arbitrability, such as whether the parties entered into an
arbitration agreement, whether they agreed to class
arbitration or whether their agreement covers a particular
controversy. Rent-A-Ctr., W., Inc. v. Jackson, 561
U.S. 63, 68 (2010); Herrington, 907 F.3d at 503.
See also Blue Cross Blue Shield of Massachusetts, Inc. v.
BCS Ins. Co., 671 F.3d 635, 639 (7th Cir. 2011)
(“The only question that a court should address before
arbitration starts is whether the parties have agreed to
arbitrate at all.”). In this instance, there is no
dispute that the parties entered into an arbitration
agreement, that their agreement covers the plaintiff's
claims and that plaintiff cannot proceed with class or
collective arbitration. Defendant's present objections
concern the procedures that Arbitrator Pratt and the American
Arbitration Association have decided to apply to the
parties' arbitration. Defendant contends that (1)
arbitration must proceed in Wisconsin; (2) a new arbitrator
must be appointed; (3) the parties should not be permitted to
use discovery from the collective proceeding; and (4)
defendant should be permitted to conduct new discovery. These
are procedural matters that are for the arbitrator to decide,
not the court. Blue Cross Blue Shield, 671 F.3d at
638 (“[J]udges must not intervene in pending
arbitration to direct arbitrators to resolve an issue one way
rather than another. Review comes at the beginning or the
end, but not in the middle.”); Trustmark Ins. Co.
v. John Hancock Life Ins. Co. (U.S.A.), 631 F.3d 869,
874 (7th Cir. 2011) (“Arbitrators are entitled to
decide for themselves those procedural questions that arise
on the way to a final disposition, including the preclusive
effect (if any) of an earlier award.”).
contends that this court has authority to clarify the
judgment and decide these questions under Federal Rule of
Civil Procedure 60(a) and the All Writs Act, 28 U.S.C. §
1651. However, defendant's arguments are not persuasive.
Rule 60(a) permits a court to “correct a clerical
mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of
the record.” Fed.R.Civ.P. 60(a). In this instance,
defendant is not seeking correction of a mistake, oversight
or omission in the judgment. Instead, defendant is asking the
court to resolve new questions about arbitration procedures
that were not raised before, were not considered by this
court or the court of appeals and were not part of the
judgment. The parties did not raise any issues on appeal
regarding the procedures used by the American Arbitration
Association for selecting arbitrators or whether the parties
would be able to use the evidence adduced in the collective
arbitration, and the court of appeals did not direct this
court to consider such issues on remand. Therefore, it would
be improper under Rule 60(a) to amend the judgment to include
Writs Act likewise does not give this court jurisdiction to
resolve new questions about arbitration procedures. That Act
gives courts the authority to “issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C.A. § 1651. It would be improper for
this court to issue a writ or order directing the
parties' arbitration to proceed in a particular forum,
before a particular arbitrator or according to particular
procedures, because those issues have never been before this
court. For these reasons, defendant has failed to show that
this court has jurisdiction to consider the questions it
raises in its motions. Accordingly, both motions will be
Plaintiff's Motion to Enjoin Defendant from Seeking
Attorney Fees in Arbitration
has filed a motion seeking to enjoin an entirely different
arbitration proceeding that defendant initiated to recover
attorney fees from plaintiff that defendant incurred after
this case was remanded from the Court of Appeals for the
Seventh Circuit. Defendant contends that it is entitled to
recover fees under the terms of the parties' employment
agreement, while plaintiff contends that the court should
enjoin the other arbitration because it is barred by the
doctrine of claim preclusion and fails for other reasons.
deny plaintiff's motion because plaintiff has not shown
that this court has jurisdiction over the parties'
dispute. Plaintiff asserts that this court has jurisdiction
to decide the dispute because it concerns a threshold
question of arbitrability, but her arguments are not
persuasive. Plaintiff does not deny that the parties'
employment agreement authorizes defendant to recover attorney
fees and requires that all disputes be resolved through
arbitration. Instead, plaintiff argues that defendant's
claim for attorney fees should fail under the doctrine of
claim preclusion, judicial estoppel, timeliness and contract