United States District Court, E.D. North Carolina, Western Division
SUSAN M. MELLICK, Plaintiff,
CVS PHARMACY, INC., CVS FOUNDATION, INC., f/k/a CVS CORPORATION; and CVS RX SERVICES, INC., Defendants.
C. DEVER III, Chief United States District Judge
November 4, 2016, defendants CVS Pharmacy, Inc., CVS
Foundation, Inc., f/k/a CVS Corporation, and CVS Rx Services,
Inc. ("CVS" or "defendants"), filed a
joint motion to dismiss and to compel arbitration of
plaintiff s claims [D.E. 13]. On December 2, 2016, plaintiff
Susan M. Mellick ("Mellick" or
"plaintiff') responded in opposition [D.E. 17]. On
December 16, 2016, defendants filed a motion to strike the
affidavits of Larry V. Powell and Susan M. Mellick [D.E. 19].
On December 16, 2016, defendants replied to Mellick's
response in opposition to CVS' motion to dismiss [D.E.
arbitration policy at issue provides (among other things)
1. Mutual Obligation to Arbitrate. Under this
Policy, CVS Health (including its subsidiaries) and its
Employees agree that any dispute between an Employee and
CVS Health that is covered by this Policy ("Covered
Claims") will be decided by a single arbitrator
through final and binding arbitration only and will not be
decided by a court or jury or any other forum, except as
otherwise provided in this Policy. This Policy is an
agreement to arbitrate disputes covered by the Federal
Arbitration Act (9 U.S.C. §§ 1-16). Employees
accept this Policy by continuing their employment after
becoming aware of the Policy.
2. Claims Covered by This Policy. Except as
otherwise stated in this Policy, Covered Claims are any and
all legal claims, disputes or controversies that CVS Health
may have, now or in the future, against an Employee or that
an Employee may have, now or in the future, against CVS
Health, its parents, subsidiaries, successors or affiliates,
or one of its employees or agents, arising out of or related
to the Employee's employment with CVS Health or the
termination of the Employee's employment.
Covered Claims include but are not limited to disputes
regarding ... harassment, discrimination, retaliation and
termination arising under the Civil Rights Act of 1964,
Americans with Disabilities Act, Age Discrimination in
Employment Act, Family Medical Leave Act, Fair Labor
Standards Act... and other federal, state and local statutes,
regulations and other legal authorities relating to
Covered Claims also include disputes arising out of or
relating to the validity, enforceability or breach of this
Policy, except as provided below regarding the Class Action
[D.E. 14-1] 7-8. Mellick has not plausibly alleged that CVS
obtained the arbitration policy by fraud or overreaching.
See, e.g.. Carnival Cruise Lines. Inc. v.
Shute. 499 U.S. 585, 595 (1991); Scherk v.
Alberto-Culver Co.. 417 U.S. 506, 519-20 (1974); cf
Fed.R.Civ.P. 9(b). Moreover, neither federal arbitration law,
North Carolina contract law, nor North Carolina public policy
invalidate the arbitration policy. See,
e.g., M/S Bremen v. Zapata Off-Shore Co..
407 U.S. 1, 9-12 (1972); O'Neil v. Hilton Head
Hosp.. 115 F.3d 272, 275-76 (4th Cir. 1997); Johnson
v. Circuit Citv Stores. 148 F.3d 373, 377-79 (4th Cir.
1998); Howard v. Oakwood Homes Corp.. 134 N.C.App.
116, 121-22, 516 S.E.2d 879, 881-83 (1999). Finally, Mellick
has not plausibly alleged that the claims at issue are not
suitable for arbitration. See, e.g..
Rent-A-Ctr.. W.. Inc. v. Jackson. 130 S.Ct. 2772,
2776-81 (2010); Buckeye Check Cashing. Inc. v.
Cardeena. 546 U.S. 440, 443-46 (2006); Green Tree
Fin. Corp.-Alabama v. Randolph. 531 U.S. 79, 91-92
amatter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of
arbitration" Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp.. 460 U.S. 1.24-25 (1983): see
Am. Recovery Corp. v. Computerized Thermal Imaging.
Inc.. 96 F.3d88, 92(4thCir. 1996). Plaintiff s claims
fall within the arbitration clause. Moreover, even if the
language of the arbitration policy were ambiguous, any doubt
would be resolved in favor of arbitration. See,
e.g.. Moses H. Cone. 460 U.S. at 24-25;
Choice Hotels Int'l. Inc. v. BSR Porter
Havden Co. v. Century Indem. Co.. 136 F.3d 380, 381-82
(4th Cir. 1998); Nat'l Ass'n. of Assoc.
Publishers v. Prince Publ'g. Inc.. No. 6:96-CV-1063,
1997 WL 34588520, at *2-4 (M.D. N.C. May 8, 1997)
(unpublished). Thus, defendants' motion to compel
arbitration is granted.
the court DENIES defendants' motion to dismiss without
prejudice and GRANTS defendants' motion to compel
arbitration. See [D.E. 13]. The court ...