COMMONWEALTH OF MASSACHUSETTS APPEALS COURT No P-0268 APPELLEE'S BRIEF

Transcription

1 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT No P-0268 ESSEX, ss. No D JAYNE CONWAY PLAINTIFF-APPELLEE v. PLANET FITNESS HOLDINGS, LLC. ET AL., PLANET FITNESS-APPELLANTS APPELLEE'S BRIEF Kenneth J. DeMoura BBO No Christopher L. Stanton BBO No DEMOURA!SMITH, LLP One International Place 14th Floor Boston, MA {617) Counsel for Plaintiff- Appellee, Jayne Conway May

2 TABLE OF CONTENTS STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 5 SUMMARY OF ARGUMENT ARGUMENT I. Standard of Review 19 II. Planet Fitness' Appeal of the Denial of Their Motion to Compel Must be Dismissed as It Is Not Properly before the Court 21 III. The Superior Court Correctly Found that Planet Fitness Waived Any Right to Arbitrate This Dispute 24 A. The Planet Fitness have activelylitigated this case and delayed in moving to arbitrate Conway's claims 25 B. Significant judicial resources have been devoted to resolving two substantive motions addressing the merits of the case and the parties have committed the court to further judicial involvement 33 C. Conway has been prejudiced by Planet Fitness' active litigation conduct and delay in requesting arbitration 35 CONCLUSION li

3 TABLE OF AUTHORITIES Cases Atkinson1s Inc. v. Alcoholic Beverage Control Comm'n, 15 Mass. App. Ct. 325 (1983) Cabinetree of Wisconsin, Inc, v. Kraftmaid Cabinetry, Inc., 50 F. 3d 388 (7th Cir.1995) Carpenter v. Pomerantz, 36 Mass. App. Ct. 627 (1994) Commonwealth v Philip Morris, Inc., 448 Mass. 836 (2007) Commonwealth v. Bys, 370 Mass. 350 (1976) Danvers v. Wexler Constr. Co., 12 Mass.App.Ct. 160 (1981) Davis v. Boston Elev. Ry., 235 Mass. 482 (1920) E.T. Simonds Construction Co. v. Local 1330, Int'1 Hod Carriers, 315 F. 2d 291 (7th Cir.1963) Eagle Fund, Ltd, v. Sarkans, 63 Mass.App.Ct. 79 (2005) Edwards v Lauro, 79 Mass. App. Ct (2011) Feeney v Dell, 454 Mass. 192 (2009) Greenleaf v. Massachusetts Bay Transp. Authy., * 22 Mass. App. Ct. 426 (1986) Home Gas Corp, of Massachusetts v. Walter's of Hadley, Inc., 403 Mass. 772 (1989)... 26, 27, 36 m

4 Hooper v. Advance America, 589 F.3d 917 (8th Cir. 2009) 28, 29, 30 Hurley v. Deutsche Bank Trust Co., 610 F. 3d 334 (6th Cir. 2010) In re Mirant Corp., 613 F. 3d 584 (5th Cir. 2010)... 28, 29, 30, 31 In re Pharmacy Benefits Managers Antitrust Litigation, 700 F. 3d 109 (3d Cir.2012) Joca-Roca Real Estate, LLC v Brennan, 772 F. 3d 945 (1st Cir. 2014)... 24, 28, 36 Johnson Associates Corp. v. HL Operating Corp., 680 F. 3d 713 (6th Cir.2012)... 27, 32, 36 Johnson v Kindred Healthcare, Inc., 466 Mass. 779 (2014) Jones Motor Co. v. Chauffeurs, Teamsters & Helpers, Local No. 633 of N.H., 671 F.2d 38 (1st Cir. ) Kramer v. Hammond, 943 F. 2d 176 (2d Cir.1991) Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F. 3d 156 (2d Cir.2010) Machado v System4 LLC, 471 Mass. 204 (2015)... 20, 23 Martin v. Norwood, 395 Mass. 159 (1985)... 18, 20 Mestek, Inc, v. United Pacific Ins. Co., 4 0 Mass. App. Ct. 729 (1996) N. H. Transport Co. v Durham, 102 N.H. 169, 152 A.2d 596 (1959)... 3 O. J. Distrib., Inc, v. Hornell Brewing Co., 340 F. 3d 345 (6th Cir.2003) IV

5 Old Pilgrim Ins. Agency, Inc. v. Monarch Life Ins. Co., 11 Mass. App. Ct. 893 (1980) Panesis v. Loyal Protective Life Ins. Co., 5 Mass. App. Ct. 66 (1977) Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F. 3d 476 (5th Cir.2009) Prima Paint Corp. v. Flood & Conklin Mfq, Co., 388 U.S. 395 (1967)... 3 Quirk v Data Terminal Systems, Inc., 379 Mass. 762 (1980) Rankin v Allstate Insurance Co., 336 F. 3d 8, 14 (1st Cir. 2003) Safety Ins. Co. v. McLeod, 66 Mass. App. Ct (2006) Second Congregation Society v. Hugh Stubbins and Associates, Inc., 108 N.H. 446 (1968)... 26, 27 Shalaby v Arctic Sand Technologies, Inc., 2014 WL (Mass. Superior Court December 15, 2014) St. Mary's Medical Center of Evansville, Inc. v. Disco Aluminum Products Co., Inc., 969 F. 2d 585 (7th Cir.1992) Tyco Int'l Ltd, v. Swartz (In re Tyco Int'l Ltd. Sec. Litig.), 422 F. 3d 41 (1st Cir.2005) Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390 (2009)... 3 ZipRealty, Inc, v. Lopez, 72 Mass. App. Ct (2008)... 20, 25 v

6 Statutes M.G.L. c , 22, 23 M.G.L. c , 21 M. G.L. c (a)(1)... 4 N. H. Rev. Stat. Ann. 542: Rules Fed.R.Civ.P. 12(b)(6)... 31, 33, 37 Mass. R. Civ. P. 30(b)(6) Mass. R. Civ. P. Rule 12 (b)(6)... 11, 13, 29 Mass. R. Civ. P. Rule 60(b) Other Authorities Judicial Involvement in Arbitrations and in the Review of Arbitration Awards, 94 Mass. L. Rev. 8 (2011)... 23

7 STATEMENT OF THE ISSUES 1. Is this appeal pursuant to G.L properly before the Court where the order denying the motion to compel arbitration is an interlocutory order and not a final judgment? 2. Did the Superior Court abuse its discretion in finding that Appellants waived their right to arbitration by engaging in active litigation conduct for over twenty months, including filing multiple motions to dismiss the case on the merits, obtaining an order from the Superior Court requiring Appellee to deposit $500,000 with the Court as a condition of proceeding with the action, entering into stipulations regarding the course, timing and confidentiality of discovery, participating in discovery and additional motion practice, all to the prejudice of the Appellee? 1

8 STATEMENT OF THE CASE The action arises from Planet Fitness'1 fraud in connection with a Separation and Settlement Agreement and the valuation of Conway's membership interest in Planet Fitness Holdings, LLC ("PFH") which was part of her employment compensation. This appeal concerns whether or not Planet Fitness by their 'litigation conduct' in the Superior Court waived any right to arbitrate the disputes between the parties. After a failed attempt to have this case dismissed on the merits, twice; after obtaining an order from the Superior Court requiring Conway to deposit $500,000 with the Court as a condition of proceeding with this action; and, after participating in litigation, discovery and additional motion practice for twenty months, Planet Fitness moved, 1 The Appellants-Defendants in this action, PLANET FITNESS HOLDINGS, LLC, PLA-FIT FRANCHISE, LLC, MICHAEL GRONDAHL, individually and as TRUSTEE OF THE MICHAEL A. GRONDAHL REVOCABLE TRUST OF 2006, MARC GRONDAHL,, individually and as TRUSTEE OF THE MARC GRONDAHL REVOCABLE TRUST OF 2006,CHRISTOPHER RONDEAU individually and as TRUSTEE OF THE CHRISTOPHER J. RONDEAU REVOCABLE TRUST OF 2006, and RICHARD MOORE are referred to collectively as "Planet Fitness" in this brief. The Appellee-Plaintiff, JAYNE CONWAY, is referred to as "Conway". 2

9 unsuccessfully, for an order to compel arbitration and to stay these proceedings. The Court denied the motion to compel arbitration and stay these proceedings in a well-reasoned, fourteen-page Memorandum of Decision and Order. ADD1- ADD14. The Superior Court (Lang, J.) found that "[w]ithout legitimate excuse, Defendants were content to allow Conway to further her suit before this court for over eighteen months before finally, without any apparent change in circumstances, moving to compel arbitration." ADD 13. The Superior Court made clear that Planet Fitness had waived any right to arbitrate the disputes as their "actions were inconsistent with their right to arbitrate and prejudicial to Conway. They were wasteful of the court's time and resources." ADD Policies favoring arbitration were designed "to enforce private agreements to arbitrate according to their terms, not to encourage arbitration of contractual disputes for its own sake." See Warfield v. Beth Israel Deaconess Medical Center, 454 Mass. 390, 395 (2009). They are "as enforceable as other contracts, but not more so." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12 (1967). In her opposition, Conway argued that her claims were not subject to any enforceable agreement to arbitrate. First, the Separation and Settlement Agreement at issue does not include any arbitration provision. The gravamen of Conway's claims are based on fraud and misrepresentation by the defendants which 3

10 Despite paying lip-service to the purported speed and efficiency of arbitration, Planet Fitness did not file a single-justice petition, pursuant to M.G.L. c (first para.), of the Superior Court's interlocutory denial of their motion. Instead, Planet Fitness filed a notice of appeal of the Superior Court's interlocutory order to this full court, incorrectly interpreting the provisions of M.G.L. c. induced her to execute a Separation and Settlement Agreement giving up valuable claims and rights. Second, the arbitration provisions contained in the Employment Agreement and the Restricted Interest Agreement are unenforceable. The defendants describe Conway's claims, including her membership interest claims, as related to her employment relationship with Pla-Fit. Under New Hampshire law, an arbitration clause is not enforceable in the employment relationship unless the agreement specifically provides that it is subject to the provisions of N.H. Rev. Stat. Ann. 542:1. N.H. Rev. Stat. Ann. 542:1; Southwest N.H. Transport Co. v Durham, 102 N.H. 169, 152 A.2d 596 (1959). Because neither of these agreements reference the applicable statute, the arbitration provisions contained in these two agreements are unenforceable. Conway also argued that the arbitration clauses should not be enforced because the individual defendants are not parties to the Employment Agreement or the Restricted Interest Agreement, and the potentially arbitrable claims and plainly non-arbitrable claims are "so integrally connected," that the Court should - as a matter of fairness and judicial economy - litigate this matter in a single forum: in court. The court did not rule on any of these arguments because it found that Planet Fitness had waived any right to request arbitration through its litigation conduct. 4

11 (a)(1) as permitting the same type of appeal permitted for final judgments. STATEMENT OF THE FACTS A. The Claims. Conway, served as Chief Financial Officer of Pla- Fit Franchise, LLC from May 2010 until she was terminated in November JA10; JA32. Pla-Fit Franchise, LLC is an affiliate of PFH Holdings LLC and both LLC's are based in Newington, New Hampshire. JA6. The individual appellants, Michael Grondahl, Mark Grondahl, Christopher Rondeau and Richard Moore, 3 In April 2010, Conway accepted a position as CFO. JA9: Complaint After accepting the employment offer, Conway and the PFH and Pla-Fit entered into various agreements. JA9: Complaint One of the agreements was an Employment Agreement with Pla-Fit. A true and accurate copy of the Employment Agreement is attached to the complaint as Exhibit B. JA56-JA72. On May 3, 2010, Conway became a member of PFH, receiving 100% of the Class B interests in PFH which represented 1.5% of all of the interests in PFH. JA9: Complaint $ 14. Conway's Class B membership interest was granted pursuant to the financial and economic terms offered to Conway to entice her to leave her employment with Gulf Oil LP and join Planet Fitness at a significant reduction in salary compensation. JA9: Complaint Conway received a written grant of her restricted interests in the PFH representing a 1.5% profit interest of the company above an equity threshold value of $240 million dollars, on August 30, JA9-JA10: Complaint A true and accurate copy of the Restricted Interest Agreement is attached to the complaint as Exhibit C. JA73-JA83. 5

12 served as officers or directors of Planet Fitness at all relevant times. JA7-JA8. Conway was wrongfully terminated from her position in November JA12. After her termination, but while she still owned membership interests in PFH, Planet Fitness made misrepresentations to her regarding the value of her membership interest in the company, failed to keep her advised of a transaction to sell the majority interest of Planet Fitness and concealed that they entered into an agreement to sell a majority interest in PFH to a private-equity investor with an enterprise valuation exceeding $500 million. JA13-JA19. Additionally, Planet Fitness deliberately and fraudulent lied to Delphi Valuation Advisors, a third-party appraiser selected by the parties to provide a fair-market valuation, about the transaction and the valuation of PFH. JA13-JA19. Planet Fitness' fraudulent conduct was intended to and did induce Conway to enter into a Separation and Settlement Agreement and deprived her of the true value of her interest in the company. JA19-JA22. Conway filed her complaint against Planet Fitness on May 10, JA1. The complaint alleges that 6

13 Planet Fitness concealed information regarding the $500 million private equity transaction and made affirmative misrepresentations about the transaction. JA5-JA26. The complaint further alleges that Planet Fitness' fraud and deceit caused the inaccurate valuation of Conway's membership interests in PFH and induced her to execute the Separation and Settlement Agreement, accept significantly less than she was entitled to and release significant claims against the Planet Fitness. JA5-JA26. The complaint alleges that during the process of appraising Conway's membership interest in PFH, Planet Fitness represented that PFH was in the process of entering into an agreement with a private equity investor, and the investor was expected to purchase 75% of Planet Fitness at an implied enterprise value of approximately $355 million, resulting in an implied equity value for 100% of the company of approximately $315 million. JA14. Planet Fitness further represented to Conway that the transaction was still under negotiation, subject to the satisfactory completion of the due diligence process and that a final term sheet was not available at the time that the appraisal was issued. JA14. 7

14 In fact, Planet Fitness knew these representations were false. JA15. At the time that the representations were made to Conway the private equity transaction had already occurred and at a significantly higher value than represented. JA15. The value of the transaction was significantly greater than $355 million, and indeed greater than $500 million. JA15. The due diligence for the transaction had already concluded, negotiations regarding the transaction had concluded and a final term sheet for the transaction had already been created and was available on the same day as the issuance of the draft appraisal report. JA15. Conway did not receive any notices regarding the potential private equity transaction with PFH despite her continued ownership of all of the Class B restricted interests in PFH. JA16. Planet Fitness deliberately concealed and misled Conway regarding the status of the private equity transaction. JA17. Planet Fitness misrepresented the status of the private equity transaction. JA18. Conway relied on the representations made by Planet Fitness. JA18. In reasonable reliance on Planet Fitness' misrepresentations, deceit and concealment of 8

15 the true status and terms of the private equity transaction, Conway accepted the valuation of her interests and signed the Separation and Settlement Agreement containing a release of claims. JA18. Had Conway been aware of the true status and amount of the private equity transaction, she would not have accepted the valuation of her vested interests or entered into the Separation and Settlement Agreement for the consideration provided to her. JA19. Conway brought this case to rescind the Separation and Settlement Agreement, obtain declaratory relief and recover damages due to the appellants' fraudulent conduct. JA5-JA26. The Separation and Settlement Agreement does not have an arbitration provision. JA84-JA89. The remaining agreements between the parties, which according to Planet Fitness arise from the employment relationship between Conway and Pla-Fit, include an Employment Agreement, a Restricted Interest Agreement and the Amended and Restated Limited Liability Company Agreement for PFH. These agreements contain arbitration clauses however each of the arbitration 9

16 clauses provide for different procedural rules, before different tribunals, in three different states.4 B. The Course of the Litigation. From the filing of the complaint in May 2013 until January 2015 (twenty months), Planet Fitness actively engaged in litigation and defended against the merits of Conway's claims.5 Conway filed her complaint on May 10, JA1. Planet Fitness accepted service of process on June 11, JA241. On June 27, 2013, Planet Fitness filed a stipulation 4 The Employment Agreement provides for arbitration in Boston, Massachusetts pursuant to the Employment Arbitration and Mediation Procedures of the American Arbitration Association. JA67. The Amended and Restated Limited Liability Company Agreement for PFH provides for arbitration in New Hampshire under the rules of commercial rules for arbitration promulgated by the American Arbitration Association. JA4 4. The Restricted Interest Agreement provides for arbitration in Portland, Maine under the rules of commercial rules for arbitration promulgated by the American Arbitration Association and requiring a decision be issued by the arbitrator within 90 days. JA81. 5 A comprehensive chronicle of Planet Fitness' litigation activity is set forth in the docket for this case, JA1-JA4, as well as the affidavit of Conway's counsel, Kenneth J. DeMoura JA240-JA261 and Conway's affidavit, JA , filed as part of Conway's opposition to the motion to compel arbitration. A timeline provided to the Superior Court during the hearing on the motion to compel by Conway is attached as an addendum to this brief. 10

17 extending the time for them to file an answer or otherwise respond to the complaint. JA1. On October 21, 2013, Planet Fitness filed a motion to dismiss pursuant to Mass. R. Civ. P. Rule 12 (b){6). JA90-JA91. As grounds for relief, Planet Fitness contended that the release contained in the Separation and Settlement Agreement and Conway's failure to tender back the consideration barred all of her claims. JA Planet Fitness also asserted that Conway's claims were barred by a forum selection clause contained in the Separation and Settlement Agreement. JA Planet Fitness did not reference or mention the arbitration provisions contained in any of the agreements as a basis for dismissal of Conway's claims. JA Conway opposed the motion. JA117- JA134. The parties extensively briefed it. Hearing on the motion to dismiss was delayed on several occasions due to requests from Planet Fitness' counsel for postponement. JA241. The motion was heard on April 17, 2014 and the Court (Kirpalani, J.) denied the motion to dismiss on June 16, JA148. The Court issued a thirteen-page memorandum outlining the basis of its denial. JA149-JA

18 After losing the Rule 12(b)(6) motion to dismiss, Planet Fitness answered the complaint on July 11, JA162-JA177. The eighth affirmative defense of Planet Fitness' Answer (out of eighteen) states: "This matter should have been submitted to arbitration, pursuant to Section 4.4 of the Employment Agreement (Exhibit A to the Complaint) and Section 8{j} of the Restricted Interest Agreement (Exhibit C to the Complaint)." JA174. Planet Fitness did not assert, in this affirmative defense, that Conway's claims were subject to arbitration pursuant the Amended and Restated Limited Liability Company Agreement. On August 6, 2014, Planet Fitness filed a Mass. R. Civ. P. Rule 60(b) motion for relief from the court's denial of the Rule 12(b)(6) motion. JA178. Planet Fitness requested that the court reconsider its prior denial and issue an opinion that Conway's release and failure to tender back the consideration she received required dismissal of all of her claims or alternatively require Conway to deposit with the court the consideration she received in connection with the Separation and Settlement Agreement as a condition for further prosecution of her claims in this action. JA178-JA190. Again, Planet Fitness did 12

19 not reference or assert any agreement to arbitrate in support of this motion. JA178-JA190. Conway opposed this motion. JA191-JA200. After extensive briefing, on October 31, 2014, the Court again denied the motion to dismiss but allowed Planet Fitness' request that Conway deposit the settlement consideration she received at the time she executed the Separation and Settlement Agreement as a condition for proceeding with this action. JA210. The Court ordered Conway to deposit these funds with the court within thirty days.6 JA210. The Court {Kirpalani, J.) issued a seven-page memorandum setting forth the basis for the allowance of the motion. JA211-JA217. After the denial of the motion to dismiss, the parties engaged in discovery. JA242-JA248. The parties also entered into several stipulations and agreements regarding discovery. JA242-JA248. Conway served interrogatories and document requests on Planet Fitness. Planet Fitness filed responses to these discovery requests and produced documents in response 6 The parties subsequently negotiated and agreed, with the court's approval, that the funds would be deposited in plaintiff's counsel's IOLTA account. The funds are currently being held in an IOLTA account by plaintiff's counsel. 13

20 to the Rule 34 request. Planet Fitness served a document request on Conway and Conway responded to this request. Both parties noticed depositions, including depositions of third parties. The discovery deadline was extended on two occasions and Planet Fitness joined in the requests for these extensions. The parties also entered into various stipulations regarding discovery, including a Stipulated Protective Order and Confidentiality Agreement ("Protective Order"). JA249-JA261 The Protective Order, which has the caption of this lawsuit on the first page, governs the disclosure and or use of documents designated as confidential information in discovery including at depositions of parties and non-parties. JA249-JA261. The Protective Order addresses the method that confidential information can be filed in court in this action. It permits the disclosure of information designated as "Confidential" to jurors, the Court and court personnel. The Protective Order includes procedures to be undertaken by the parties regarding disputes over confidentiality including the filing of motions (ex parte or otherwise) with this court for ultimate resolution. It provides for the destruction of all 14

21 confidential documents "upon final termination of this action, including all appeals" and further provides that "[t]his Court retains jurisdiction over the parties, counsel for the parties, and all persons, firms, corporations or organizations to whom this Order applies for purposes of enforcement of this Order following the conclusion of this action". The Order does not apply to documents "Admitted as exhibits or through testimony at trial of this action". The Protective Order, signed by Planet Fitness' counsel, was filed by the Planet Fitness' with the court on November 7, Later that day, Planet Fitness' counsel delivered a CD-ROM containing the initial production response to the document request, marked as Confidential pursuant to the Protective Order. JA245-JA246. On December 22, 2014 Conway's counsel requested that Planet Fitness produce all responsive documents along with a privilege log no later than January 9, 2015 and served renewed Notices of Deposition requiring Planet Fitness defendants to appear for their depositions during the week of January 19, JA248. On December 23, 204, during a conference call between Conway's attorney and Planet Fitness' counsel, 15

22 Planet Fitness counsel stated that the Planet Fitness witnesses would be available for their depositions during the week of January 19. JA248. One week before the dates set for Planet Fitness depositions, Planet Fitness served a motion to compel arbitration and stay these proceedings and advised Conway that they would not comply with any further discovery requests pending the resolution of their motion. JA237-JA239. In their motion, Planet Fitness offered no explanation for the eighteen-month delay in asserting the right to arbitrate these claims, despite actively litigating this civil action and repeatedly invoking the court1s jurisdiction to its benefit for almost two years, before abruptly changing course and attempting to force Conway into arbitration. During the hearing of the motion, Planet Fitness' counsel admitted not filing the arbitration motion at the outset of the case was a deliberate, conscious, decision and was not inadvertent: THE COURT: I mean, why? Why would you - why would you put yourselves and why would you put the plaintiff through motions to dismiss in two forums before you get to the contention that we should be in front of an arbitrator? MR. WEBB: Well, to answer your question honestly, Your Honor, this is 16

23 a situation where my client is based in New Hampshire. The parties entered into an agreement that said everything is going to be resolved in New Hampshire. And my client wanted to have this court ruling that we7re having now be done in New Hampshire and asked us to file that motion and we did. That's the truthful answer, Your Honor. JA276-JA277; Transcript of Hearing on Motion to Compel Arbitration. Planet Fitness clearly wanted to wait to see if they won their earlier motions to dismiss on the merits. The Superior Court denied the motion to compel on June 1, ADD1-ADD14.7 SUMMARY OF ARGUMENT The Superior Court correctly denied Planet Fitness' motion to compel arbitration and stay the court proceedings. The Court found, based on the evidence presented, that Planet Fitness had engaged in 7 Ruling on an earlier motion to docket this appeal late, a Single Justice of this Court described the Superior Court's decision as "thoughtful and comprehensive." Memorandum and Order, Conway v Grondahl et al., Mass. Appeals Court No J-0070 (February 23, 2016)(Milkey, J.). The Single Justice, in ruling on the substantive merit of Planet Fitness' appeal after receiving extensive briefing from both sides, called the question "exceptionally close" and further stated that Planet Fitness' "argument that [Judge Lang} erred in denying their motion is certainly not frivolous, neither does it strike me as particularly strong." Id. 17

24 litigation conduct for over eighteen months, to Conway's prejudice, thus waiving any right to arbitrate the dispute between the parties. The decision of the Superior Court should be affirmed because the appellants have not preserved properly their appellate rights and because the Superior Court did not abuse its discretion in denying appellants' motion. Planet Fitness is not entitled to a full three-judge panel appeal of the Superior Court's interlocutory denial of their motion to compel arbitration. The appeal of the denial of an application to compel arbitration "shall be taken in the manner and to the same extent as from orders or judgments in an action". M.G.L. c The denial of a motion to compel is an interlocutory order. If the Court determines that this appeal is properly before it, it must apply the abuse of discretion standard of review. An appellate court, reviewing a trial judge's finding that a party has waived arbitration, must determine whether the judge abused his discretion. Martin v. Norwood, 395 Mass. 159 (1985). 18

25 A review of the Superior Court's denial of Planet Fitness' motion establishes that the correct law was applied to the facts and the trial court, being in the best position to do so, found that Planet Fitness' litigation conduct, established the waiver. I. Standard of Review. ARGUMENT A. The Court Determines Whether or Not this a Proper Appeal de novo. Conway asserts that this appeal must be dismissed because Planet Fitness failed to bring it properly under the single-justice petition procedures of G.L. c (first para.) Whether an appeal is properly before the Appeals Court is a matter of law to determined by the Court de novo. B. The Superior Court's Denial of a Motion to Compel Arbitration is reviewed using an abuse of discretion standard. If this Court determines that Planet Fitness' appeal has properly been brought, it must determine whether the Superior Court judge abused his discretion in finding that Planet Fitness have waived arbitration.8 Martin v. Norwood, 395 Mass. 159, Planet Fitness' argument that the proper standard of review here is de novo relies on cases not involving waiver-by-litigation, inapplicable to this appeal, see 19

26 (1985). See also, ZipRealty, Inc, v. Lopez, 72 Mass. App. Ct (2008); Safety Ins. Co. v. McLeod, 66 Mass. App. Ct (2006). An abuse of discretion is a "judgment 'characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.'" Eagle Fund, Ltd, v. Sarkans, 63 Mass.App.Ct. 79, 85 (2005), quoting from Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986). To prevail on this appeal, Planet Fitness must demonstrate that "no conscientious judge, acting intelligently, could honestly have taken the view taken by him." Commonwealth v. Bys, 370 Mass. 350, 361, (1976), quoting from Davis v. Boston Elev. e.g., Machado v System4 LLC, 471 Mass. 204, 208 (2015)(review of ruling that arbitration clause was unconscionable); Feeney v Dell, 454 Mass. 192, 199 (2009)[cite] (review of ruling that consumer contracts compelling individual arbitration versus class arbitration violated public policy); Commonwealth v Philip Morris, Inc., 448 Mass. 836, 844 (2007) (review of ruling that arbitration clause was enforceable), Carpenter v. Pomerantz, 36 Mass. App. Ct. 627, 632, 634 N.E.2d 587, 590 (1994) (plaintiff's arbitration demand not time barred by a limitations statute),or cases that do not actually use a de novo standard of review. Home Gas Corp, of Massachusetts v. Walter's of Hadley, Inc., 403 Mass. 772 (1989) (no mention of de novo standard of review and cites Martin v Norwood abuse of discretion case as source for standard of review). The one case waiver-by-litigation case Planet Fitness relies on Edwards v Lauro, 79 Mass App Ct 1111 (2011) relies on a non-waiver case (Feeney v Dell) for the proposition that the review is de novo. 20

27 Ry., 235 Mass. 482, 502 (1920). Planet Fitness will be unable to meet this burden. II. Planet Fitness' Appeal of the Denial of Their Motion to Compel Must be Dismissed as It Is Not Properly before the Court. Planet Fitness' appeal is not properly before this Court. Implicit in their appeal to the full court is the assumption that they are entitled to appeal the denial of the Superior Court's order pursuant to G.L. c , permitting appeals from final judgment. However, the appeal of the denial of an application to compel arbitration "shall be taken in the manner and to the same extent as from orders or judgments in an action". M.G.L. c Consequently and to the extent that they have a right of appeal, Planet Fitness should have appealed the denial of the motion to compel using the singlejustice petition practice set forth in M.G.L. c The statute could not be clearer; appeals are to be taken "in the manner and to the same extent as from order or judgments." M.G.L. c (emphasis supplied.) This requires the appellant to follow the appropriate appellate route or risk dismissal of the appeal. See, Atkinson's Inc, v. Alcoholic Beverage Control Comm'n, 15 Mass. App. Ct. 325, 329 (1983) (where statute permits appeal of "orders or judgments", appeal of an interlocutory order, rather than final judgment, is not properly taken under c ). 21

28 118 (first para.) Their failure to do so is fatal to their appeal. Planet Fitness do not contend that the denial of their motion to compel arbitration constitutes a "final judgment" within the meaning of 113, nor could they properly do so. Indeed they repeatedly characterize this as an appeal of an interlocutory order. The denial of a motion to compel arbitration is an interlocutory order. Cf. J & G Construction Co., Inc, v Joseph E. Bennett Co., Inc., 16 Mass. App. Ct.629 (1983). Interlocutory orders are appealable only pursuant to the single-justice petition practice set forth in M.G.L. c (first para.). See, e.g. Johnson v Kindred Healthcare, Inc., 466 Mass. 779, 781 (2014) (in appealing decision on motion relating to arbitration "plaintiff filed petition for review under G.L. c seeking leave to pursue an interlocutory appeal. A single justice allowed the petition, and [the SJC] transferred the case... on [its] own motion."); Quirk v Data Terminal Systems, Inc., 379 Mass. 762 (1980)(appeal from motion to compel arbitration made through single-justice petition). 22

29 Requiring the use of single-justice petition process for interlocutory orders is consistent with the Uniform Arbitration Act's public policy goals of speed and efficiency in providing an expeditious alternative to litigation. See Machado v System4 LLC, 471 Mass. 204, 209 (2015). See also, Henn, J., "Judicial Involvement in Arbitrations and in the Review of Arbitration Awards," 94 Mass. L. Rev. 8 (2011) ("an order denying or compelling arbitration would, at minimum, be interlocutory and subject to review by a "single justice of the appellate court" under 118, First Paragraph.") Interlocutory appeals utilizing the single-justice petition practice provide a faster, less-expensive, method to review a Superior Court's denial of a motion to compel arbitration. Planet Fitness, while paying lip-service to the desirability of speed and efficiency in arbitration, inexplicably eschewed the speed and efficiency of single-justice practice and opted instead to appeal using a procedure reserved for the appeal of final judgments. The appeal must be dismissed. See, Old Pilgrim Ins. Agency, Inc. v. Monarch Life Ins. Co., 11 Mass. App. Ct. 893 (1980) (dismissal required where sole claim of appeal was directed to interlocutory 23

30 order allowing Planet Fitness's motion for summary judgment, rather than final judgment); Panesis v. Loyal Protective Life Ins. Co., 5 Mass.App.Ct. 66 (1977) (Appeals Court would not review trial court's refusal to grant insurer's motion for summary judgment under c. 231, 113 as such claim was not final judgment). III. The Superior Court Correctly Found that Planet Fitness Waived Any Right to Arbitrate This Dispute. "Arbitration clauses are not set in cement: such claims can be waived, either expressly or through conduct." Joca-Roca Real Estate, LLC v Brennan, 772 F.3d 945 (1st Cir. 2014). Planet Fitness waived the right to arbitrate any of Conway's claims expressly and by deliberately waiting over eighteen months before seeking to compel arbitration, and by actively litigating the case in the Superior Court in the meantime. Id. (denial of request to compel arbitration made eight months after suit filed and with discovery deadline close at hand affirmed as undue delay worked waiver). Planet Fitness entered into agreements during this action expressly waiving any right or claim to arbitrate. They entered into a Protective Order 24

31 conferring continued jurisdiction of this matter with this court through trial and entered into agreements stipulating to discovery, stipulating to discovery extensions and stipulating to modifications of the tracking order. By these actions, Planet Fitness have expressly waived any claimed right to arbitrate this dispute. Ziprealty, Inc, v Lopez, 72 Mass App. Ct (2008) (Planet Fitness waived right to arbitrate by agreeing to two joint motions to extend tracking order and prolonging the discovery process). A. The Planet Fitness have actively litigated this case and delayed in moving to arbitrate Conway's claims. Planet Fitness litigated and defended Conway's claims on the merits for eighteen months before moving to compel arbitration. None of the Planet Fitness moved promptly to compel arbitration. Instead they: a. Filed a motion to dismiss; b. Filed a Rule 60(b) motion for relief asking the court to reconsider dismissing all of Conway's claims with prejudice; c. Obtained an order requiring Conway to deposit funds totaling $500,000 with the court as a condition of permitting suit the suit to proceed in Court; d. Negotiated and entered into the Protective Order governing discovery in this action and conferring jurisdiction on the court over all disputes; 25

32 e. Engaged in discovery, including responding to Conway's interrogatories and document requests, serving interrogatories and document requests on Conway, serving a notice of deposition on Conway, and serving a notice of deposition pursuant to Mass. R. Civ. P. 30(b)(6) on a third party witness; f. Joined in motions and stipulations regarding discovery scheduling, and, g. Made an Offer of Judgment. Planet Fitness made no attempt to invoke any alleged contractual right to binding arbitration until their motions to dismiss were denied, Conway had been ordered to deposit $500,000 with the Superior Court and they had no other way of avoiding the completion of discovery. The Superior Court correctly determined that Planet Fitness waived any right to arbitration by their litigation conduct. A party's right to arbitrate may be lost through a failure properly and timely to assert the right. Home Gas Corp. of Massachusetts v. Walter's of Hadley, Inc., 403 Mass. 772, (1989) (internal quotation marks and citation omitted); Second Congregation Society v. Hugh Stubbins and Associates, Inc., 108 N.H. 446 (1968) (right to arbitrate a contract may be waived.) Whether or not a party has waived its right to arbitration is a question of fact 26

33 for the trial court, to be determined from particular circumstances of case. Id. To avoid a waiver of the right to arbitrate "a party must 'proceed with dispatch in seeking arbitration'" Home Gas, 403 Mass, at 775, 532 N.E.2d 681 (internal quotation marks and citation omitted) quoting Jones Motor Co. v. Chauffeurs, Teamsters & Helpers, Local No. 633 of N.H., 671 F.2d 38, 42 (1st Cir.), cert, denied, 459 U.S. 943, 103 S.Ct. 257, 74 L.Ed.2d 200 (1982), quoting in turn E.T. Simonds Construction Co. v. Local 1330, Int1! Hod Carriers, 315 F.2d 291 (7th Cir.1963). A party waives an agreement to arbitrate by "(1) taking actions that are completely inconsistent with any reliance on an arbitration agreement; and (2) 'delaying its assertion to such an extent that the opposing party incurs actual prejudice.'" Johnson Associates Corp. v. HL Operating Corp., 680 F.3d 713 (6th Cir.2012), quoting Hurley v. Deutsche Bank Trust Co. Ams., 610 F.3d 334, 338 (6th Cir.2010), quoting in turn O.J. Distrib., Inc, v. Hornell Brewing Co., 340 F.3d 345, 356 (6th Cir.2003). "[T]here is no brightline rule for a waiver of arbitral rights, and each case is to be judged on its particular facts." Tyco Int 1 Ltd, v. Swartz (In re Tyco Int*! Ltd. Sec. 27

34 Litig.), 422 F.3d 41, 46 (1st Cir.2005); accord, e.g., Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156, 159 (2d Cir.2010); In re Mirant Corp., 613 F.3d 584, 589 (5th Cir.2010). Planet Fitness waived arbitration in this matter by substantially invoking the "litigation machinery" before asserting any claimed arbitration rights. Hooper v. Advance America, 589 F.3d 917, 921 (8th Cir. 2009); Joca-Roca Real Estate, LLC v Brennan, 772 F.3d 945 (1st Cir. 2014); Shalaby v Arctic Sand Technologies, Inc., 2014 WL (Mass. Superior Court December 15, 2014) (Salinger, J.). Conway filed this action on May 10, The Planet Fitness accepted service of process in June Thereafter, Planet Fitness actively litigated this case for over twenty months, waiting until January 15, 2015, to serve a motion to compel arbitration and stay the proceedings. It is clear that Planet Fitness deliberately delayed moving to compel arbitration because they first wanted to press their motions to dismiss and then obtain an order requiring Conway to deposit the $500,000 she had 28

35 received pursuant to the Settlement Agreement in the Superior Court. Planet Fitness filed their motion to dismiss on October 21, By moving to dismiss all of Conway's claims under Mass. R. Civ. P. 12(b)(6), Planet Fitness sought an adjudication and dismissal on the merits that would have res judicata effect. See Mestek, Inc. v. United Pacific Ins. Co., 40 Mass.App.Ct. 729, 731 (1996).10 By filing this motion Planet Fitness made a deliberate choice to seek "an immediate and total victory in the parties' dispute" in Superior Court, and "to see how the case was going in... court before deciding whether it would be better off there or in 10 Planet Fitness' efforts to minimize the significance of the motion to dismiss or characterize it as merely an effort to move the forum do not square with the facts. The motion sought complete dismissal of Conway's claims under Mass. R. Civ. P. 12(b)(6) on the grounds of release, ratification and failure to tender back the consideration. The effort was redoubled when Planet Fitness filed the Rule 60(b) motion requesting an opinion that Conway's claims were barred by these same grounds. Because the Planet Fitness consistently encouraged the court to resolve the entire dispute, they have waived their rights to arbitrate. Hooper v Advance America, 589 F.3d 917, ; In re Mirant Corporation, 613 F.3d 584, 589 (5th Cir. 2010) (effort to dismiss claims by asserting other grounds for avoiding claim (i.e. release) is more than a perfunctory motion to dismiss and consititutes effort to seek decision on merits thereby waiving claim to arbitration). 29

36 arbitration." Hooper v. Advance America, Cash Advance Centers of Missouri, Inc., 589 F.3d 917, 922 (8th Cir.2009). Planet Fitness were happy to litigate Conway's claims in the Superior Court so long they believed they would obtain a judgment in their favor on the merits. Planet Fitness' overt actions evinced "a desire to resolve the arbitrable dispute through litigation rather than arbitration." In re Mirant, 613 F.3d at 589. They only moved to compel arbitration after the motion to dismiss was denied, after they succeeded in obtaining an order requiring Conway to deposit $500,000 with the court and when they could no longer avoid appearing for their depositions. Planet Fitness "'wanted to play heads I win, tails you lose,' which 'is the worst possible reason' for failing to move for arbitration sooner" than they did. Hooper, 589 F.3d at 922, quoting Cabinetree of Wisconsin, Inc, v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir.1995). Planet Fitness repeatedly acted in a manner inconsistent with any right to arbitrate. The motion to dismiss was "extensive and exhaustive, and substantially invoked the litigation machinery". Id. 30

37 at 921 (defendant waived arbitration by moving to dismiss claims under Fed.R.Civ.P. 12(b)(6), and waiting until that motion was denied in part to file separate motion seeking to compel arbitration). "A party waives arbitration by seeking a decision on the merits before attempting to arbitrate." Mirant Corp., 613 F.3d at 589 (5th Cir.) (same), quoting Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480 (5th Cir.2009); accord In re Pharmacy Benefits Managers Antitrust Litigation, 700 F.3d 109, (3d Cir.2012) (same); St. Mary's Medical Center of Evansville, Inc, v. Disco Aluminum Products Co., Inc., 969 F.2d 585, (7th Cir.1992) (same). In addition to moving to dismiss Conway's claims and then filing an answer to the complaint, Planet Fitness also invoked the court's jurisdiction by asking for an order requiring Conway to deposit the settlement proceeds with the Court, negotiating the Protective Order, engaging in discovery and serving an Offer of Judgment. At no point during these events did Planet Fitness move to compel arbitration. In August 2014 the parties filed a Joint Motion to extend discovery. The Court ordered that discovery be completed by December 5, In November 2014 the 31

38 parties again moved to extend discovery and further requested that the court modify its order requiring Conway to deposit funds with the Court. On each occasion, the court resolved the issues raised by these joint motions. At no time during this process did Planet Fitness ever suggest that the Court*s orders were invalid because Conway's claims were subject to compulsory arbitration. In fact, in each case Planet Fitness stipulated to the discovery in this litigation. Similarly, when Conway served discovery requests on Planet Fitness and third parties, Planet Fitness never suggested that Conway was not entitled to discovery because she was required to arbitrate her claims. In fact, Planet Fitness served responses to interrogatories and document requests and noticed depositions of Conway and a third party witness. Planet Fitness also engaged in discovery by serving document requests and interrogatories as well as notices of deposition. When considered together, these circumstances demonstrate that Planet Fitness have "acted completely inconsistently with its right to arbitration." See Johnson Assocs., 680 F.3d at

39 (Planet Fitness engaged in pattern of continued effort to extend discovery deadlines). B. Significant judicial resources have been devoted to resolving two substantive motions addressing the merits of the case and the parties have committed the court to further judicial involvement. Significant judicial resources have been devoted to this action. After full and extensive briefing by both parties, the Superior Court heard and decided a Rule 12(b)(6) motion resulting in a thirteen page memorandum and decision issued two months after hearing. After full and extensive briefing by both parties, the court considered and decided a Rule 60(b) motion resulting in a seven-page memorandum and decision, three months after it was filed. Planet Fitness sought and obtained an order requiring Conway to deposit funds with the Court. The court considered three separate motions to extend the tracking order. The court considered a motion to amend its ruling to require Conway to deposit funds with the court. The matter has been transferred from Lawrence to Newburyport for hearings and transferred back to Lawrence. The Regional Administrative Justice was required to rule on a motion to set aside a dismissal that was entered in error. 33

40 By virtue of the Protective Order, Planet Fitness committed the Superior Court to further judicial involvement and devotion of additional attention to the case. The Protective Order, governing the disclosure and or use of documents, addressed the method that confidential information could be filed in the Superior Court, permitted disclosure of information designated as "Confidential" to jurors, the Court and court personnel, provided for filing of all motions regarding disputes over confidentiality in the Superior Court for ultimate resolution, and further provided that the Superiot "Court retains jurisdiction over the parties, counsel for the parties, and all persons, firms, corporations or organizations to whom this Order applies for purposes of enforcement of this Order following the conclusion of this action". The order also specifically exempted documents "Admitted as exhibits or through testimony at trial of this action." Planet Fitness filed the Stipulation requesting that the court enter it as an order. 34

41 C. Conway has been prejudiced by Planet Fitness' active litigation conduct and delay in requesting arbitration. There is no dispute that Conway has been prejudiced by Planet Fitness' litigation activity and long-delayed request to compel arbitration. In order to comply with the court's order to deposit the funds, Conway liquidated various investments and will suffer tax consequences and other losses in excess of $50,000. This prejudice alone is substantial and required denial of Planet Fitness' motion. Planet Fitness' extensive and active litigation conduct has resulted in significant legal fees and delays all to Conway's prejudice. Conway paid considerable legal fees defending against Planet Fitness' motions, negotiating the Protective Order, conducting discovery, reviewing documents, responding to discovery and litigating this matter. She agreed to extensions of time to complete discovery that she would not have agreed to if Planet Fitness had advised her that they were going to use that time to prepare and file a motion to compel arbitration. 'Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking 35

42 arbitration, or it can be found when a party too long postpones his invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense.'" Johnson Assocs., 680 F.3d at , quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991). "To be sure, prejudice is essential for a waiver but the required showing is 'tame at best.' Some degree of prejudice ordinarily may be inferred from a protracted delay in the assertion of arbitral rights when that delay is accompanied by sufficient litigation activity." Joca- Roca Real Estate, LLC v. Brennan, 772 F.3d at , quoting Rankin v Allstate Insurance Co., 336 F.3d 8, 14 (1st Cir. 2003). "The longer the delay and the more extensive the litigation-related activities that have taken place, the stronger the inference of prejudice becomes." Id. Planet Fitness' "failure to pursue the demand for arbitration early in the proceedings caused the parties and the court to expend a great deal of time, expense, and resources" on litigating this matter in court, "and caused the opportunity for an 'expeditious alternative to litigation' to be lost." Home Gas, 403 Mass, at , 532 N.E.2d 681 (holding that party 36

43 waived arbitration as a result), quoting Danvers v. Wexler Constr. Co.f 12 Mass.App.Ct. 160, 163, 422 N.E.2d 782 (1981). If Planet Fitness' motion to compel arbitration ever had substantive merit, which is denied, then the over eighteen month delay in filing that motion while Planet Fitness were vigorously pressing its Rule 12(b)(6) motion to dismiss, demanding deposits of funds with the court and engaging in discovery forced Conway to incur unnecessary expense and delay. Conclusion For each of the above reasons, the Court should affirm the Superior Court's denial of Planet Fitness' Motion to Compel Arbitration and Stay the Proceedings and remand the action for further proceedings, including trial. Respectfully submitted, JAYNE CONWAY By her attorneys, Kenneth J. DeMoura BBO No kdemouraodemourasmith.com DEMOURA SMITH, LLP One International Place, 14th FI. Boston, MA (617)

44 CERTIFICATION OF COMPLIANCE PURSUANT TO RULE 16(K) OF THE MASSACHUSETTS RULES OF APPELLATE PROCEDURE Pursuant to Mass. R. App. P. 16(k), the undersigned certifies that this brief complies in all material respects with the rules of court pertaining to the filing of briefs, as applicable, including, but not limited to: Mass. R. A. P. 16(a)(6) (pertinent findings or memorandum of decision); Mass. R. A. P. 16(e) (references to the record); Mass. R. A. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16(h) (length of briefs); Mass. R. A. P. 18 (appendix to the briefs); Mass. R. A. P. 20 (form of briefs, appendices, and other papers). Kenneth J. DeMoura 38

45 ADDENDUM TO APPELLEE'S BRIEF 2013 May 10,2013-Complaint Filed July 22, 2013-Defendant Serve Motion to Dismiss Pursuant to Sup, Ct. Rule 9A October Motion To Dismiss Filed November 21, 2013-Defendants request continuance of hearing on Motion to Dismiss 2014 April 17, zoia-tteertag on Motion to Dismiss June 16,2014-Order Denying Motion to Dismiss July 11,2014-Defendants File Answer July 11, 2014-Defendants Serve Motion for Relief from Court's June 16 Order Pursuant to Rule 60(b) pursuant to Rule 9A August 6, 2014-Defendants File Motion for Relief from Court's June 16 Order Pursuant to Rule 60(b) August 28, 2014-Joint Motion to Amend Tracking Order Deadlines Filed September 3,2014-Motion to Amend Tracking Deadlines Denied In Part and Allowed In Part September 3,2014-Court Sends Parties Notice of Pre-Trial Conference for February 26,2015 September 15,2014-Plaintiff serves Rule 34 Requests on Defendants September 15,2014-Ptalntiff Notices Deposition of Third Party Witness (Keeper of Records) September 24,2015-Third Party Witness Complies with Deposition Subpoena and produces documents October 23, 2014-Defendants raise Confidentiality Agreement and Protective Order as requirement for producing documents October 30, 2014-Plaintiff notices depositions of all defendants October 31, 2014-Defendants serve Responses to Plaintiff's First Set Of interrogatories October 31,2014-Order Allowing Rule 60 Motion and Order that Plaintiff Deposit $500,000 with Court November 3, 2014-Defendants serve Rule 34 Requests on Plaintiff November 3,2014-Defendants Notice Depositions of Third Party Witnesses November 3,2014-Defendants Notice Deposition of Plaintiff November 7, 2014-Defendants file Stipulated Protective Order and Confidentiality Agreement with Court November 7, 2014-Defendants deliver CD-ROM containing document production marked CONFIDENTIAL November 14,2014-Parties File Stipulation Regarding Pre-Trial Procedure and Deposit of Funds November 19,2014-Parttes File Emergency Motion Regarding Pretrial Procedure December 1,2014-Plaintiff Flies Notice of Compliance Regarding Deposit of $500,000 December 22,2014-Plaintiff serves responses to Defendants' requests for production of documents December 22,2014-Plaintiff Serves Second Notices of Depositions on Defendants 2015 January 6, 2015-Defendants serve First Set of Interrogatories on Plaintiff January 6,2015-Oafendants advise Plaintiff they intend to fttt Motion to Compel Arbitration January 8,2015-Defendants serve Offer of Judgment on Plaintiff January 15,2015-Defendants serve Motion to Compel Arbitration (Rule 9A) March 6, 2015-Defendants' Motion to Compel Arbitration Filed with Court mmm 8 H T w V p a l «1 4 L 6 7 8? IQ tt It 20 tt '5 If * 17 *1 *4 * J2. 16 *7 es «? 90 A M 21 T x S 1 9 JL A JL X j X 9 jo JL JL JL K i X 17 ta A >p Vi J1 LH ITS LA A ja C tr ttt QJa A T 21 x p 8 i» JLA.a. 6 ~T X A ta \\ JL JL 14 Ji J4. 17 ia r* p 2L lt IT ZL rt *SL ao JL AU4trfba*i<>' "M T w T 8 1 «JL 7 JL X 14 js It li 2L Jl JL 3if ft H ; *,i rt rt *2JE JL 8 M T T V s * X } « It j H JL 4 X >0 >1 rt a *1 25. >6 *7 <8 *? I1 5 M T W X P 8 T T JU Ji tl IV >5 9 X to tl ZX»1 1# -HZ. *8 21 X w. x MM X i». X X X X X 10 it s M x X X X >1 n 1 H M s Xj 23- JS. 3 * Vv«ati»M065J*T s M T W T»p» 1 1 j A e 7? It»} *4 4 t& 17 «rt to tl 11 XX X 16 «T 8 it il Tlw t7i» 3 T w T A 1 1 X 7 B X >0 X X X * 18 It W X «v JL 19, X s»' LJ HS-agasK'-sa DDDDDOP -.H irk-hrl da aswii!i 8 M T W T V 8 1 t A A A <i 7 t u tt «14 15 * 7 U) *? *outa * tt a7 rt 1 1 XXX 6 JL s x 10 n a J3L X JL 16 JL *» X *S *4 rt "31EOEl SIM T w T 4 * l i 1 s & 7 a t [to It t* a *1 i 16 I 17 is to #1 5 *7 *8 8 H rl w T] p 9 ~ 1 ii It I ViT [~4~ x hy X X ~ii 11 ij X j j JL ii, rjy tl [jft J3. a a] 97 H Uw c m11s H 8 T p j. 1 X X : S 6 x a X to. i» it Xs X X P* X to pti JU 21 u s is 1*7 [? L 1 L r7 ttt t 1 XL ffl r j :: twum XJ w X JL a a 1 t XJ x! X!Txi Xx X n x >4 1 IS s X X i2 to n X X J3L x 22, X UL nrjnnnnn w f r nsi sa5!k A x W x x _ l a ~ t x ~r X 9 JO XX JL to X X tl n *4 t*l EE rs &> r C 1 n X M X w X X X T" X 8 i<? x X JL X J3l SI IT w X to 2L n n»1 25 X J2 im w 1 a i JL X ad a 23J je. H SI nj ip IBBSS mm 8 IM T w T p s > j 1 X» 7 a J IO X \ 18 A >7 18 so aitbi «a t X t6 X tali? 8 n T wj T y a 1 «J X X 7 p w \l tt T if 15 rt 17 JL 18 X- 22. n n X rt ij 2 JO P tis^wh w T P S 1 t xlx 6 7 a n n 11 rt *1»frt rt *7 *? tl jo I 1 11: Martin IclW Kin D» an*. to. Mtnta UA«juti ttottvihv... m: VUtnUoftChr 18: Dtr VtotV... - i&oooanuor to: c«*«,9o*<uy klmv 11: Motlwl Dm i4:h*»wrf»ldor '(turn icjtwi ter tmt. '.itiium* ei: Labor CV 7 rtwirtlw mcahmibmoty.... MilteUwtM uilwtnmdvr rr.lwaiwmtuy ts CbrkttM* ttay smi 14: MMth LoHmt Kb«D utvrinitrtrtdar is.ptttrtmu Dw <n:otrtr1d«r oy BttUrSutdi, to: MaOwf't Dtt scmtdnrtadtr -Ufffe* tcmrt Do iw^ ocbrttkndnctoo OnLrtmDw tumihuij ttmnrtm... lithtltmmft 11: VrlcttMDtr