Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 1 of 13
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`Ricardo J. Prieto (Admitted PHV)
`rprieto@eeoc.net
`SHELLIST | LAZARZ | SLOBIN LLP
`11 Greenway Plaza, Suite 1515
`Houston, Texas 77046
`Telephone: (713) 621-2277
`Facsimile: (713) 621-0993
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`Melinda Arbuckle (Cal. Bar No. 302723)
`marbuckle@eeoc.net
`SHELLIST | LAZARZ | SLOBIN LLP
`402 West Broadway, Suite 400
`San Diego, California 92101
`Telephone: (713) 621-2277
`Facsimile: (713) 621-0993
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`Robert R. Debes, Jr. (Admitted PHV)
`bdebes@debeslaw.com
`DEBES LAW FIRM
`5909 West Loop South, Suite 510
`Bellaire, Texas 77401
`Telephone: (713) 623-0900
`Facsimile: (713) 623-0951
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`Counsel for Plaintiff, Jacob McGrath, and
`Proposed Collective Action Members
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`JACOB McGRATH, on behalf of himself and
`all others similarly situated,
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`Plaintiff,
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`vs.
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`DOORDASH, INC.,
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`Defendant.
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`Case No: 3:19-cv-05279-EMC
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`PLAINTIFF’S MOTION FOR LEAVE TO
`FILE MOTION FOR
`RECONSIDERATION OF ORDER
`COMPELLING ARBITRATION [ECF NO.
`199]
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`Action Filed: August 23, 2019
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`Judge: Edward M. Chen
`Date:
`N/A
`Time:
`N/A
`Place: Courtroom 5, 17th Floor
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`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 2 of 13
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`MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF ORDER
`COMPELLING ARBITRATION [ECF NO. 199]
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`Pursuant to Northern District of California Civil Local Rule 7-9 (b)(3), Plaintiff Jacob
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`McGrath moves this Court for an order granting him leave to file a Motion for Reconsideration
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`of this Court’s November 5, 2020 Order Granting Defendant’s Motion to Compel Arbitration
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`(ECF No. 199) (the “Order”). As required by Civil Local Rule 7-9, Plaintiff respectfully
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`contends, as discussed more fully below, that the Order is “[a] manifest failure by the Court to
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`consider material facts or dispositive legal arguments which were presented to the Court before
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`such interlocutory order.”
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`Plaintiff files this Motion for Leave approximately one week from when the Court issued
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`the Order, and as such, satisfies L.R. 7-9’s ‘diligence’ requirement.
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`I.
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`INTRODUCTION
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`Under Northern District Civil Local Rule 7-9, a party may seek leave to file a motion for
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`reconsideration any time before judgment. L.R. 7-9(a). A Motion for Reconsideration may be
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`made on one of three grounds: (1) a material difference in fact or law exists from that which was
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`presented to the Court, which, in the exercise of reasonable diligence, the party applying for
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`reconsideration did not know at the time of the order; (2) the emergence of new material facts or
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`a change of law; or (3) a manifest failure by the Court to consider material facts or dispositive
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`legal arguments presented before entry of judgment. L.R. 7-9 (b)(1)-(3). Accord School Dist. No.
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`1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (“Reconsideration is
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`appropriate if the district court (1) is presented with newly discovered evidence, (2) committed
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`clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in
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`controlling law.”).
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`Plaintiff seeks leave to move for reconsideration of the Order because of, respectfully, a
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`manifest failure by the Court to consider material facts or dispositive legal arguments presented
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`before the entry of judgment, as evidenced by the following:
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`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 3 of 13
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`(1)
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`The Court failed to consider Plaintiff’s timely-lodged Objection (ECF No. 192),
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`which objects to Defendant’s current arbitration agreement roll-out that took place during this
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`litigation. See O'Connor v. Uber Technologies, Inc., 2013 WL 6407583, at *7 (N.D. Cal. Dec. 6,
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`2013) (Chen, J.) (refusing to enforce arbitration agreements which were presented to putative
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`class members during the pendency of an action);
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`(2) Moreover, the Court erred when it failed to consider Plaintiff’s Objection
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`concerning Defendant’s cram down of its current arbitration agreement to Opt-In Plaintiffs
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`without notifying their undersigned counsel. See Cal. R. of Prof’l Conduct 4.2(a); and
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`(3)
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`Defendant’s Motion to Compel Arbitration (ECF No. 116) did not seek to compel
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`every Opt-In Plaintiff in this case (see ECF No. 187-1; Exhibits B and C to the Declaration of
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`Stanley Tang).1 Thus, the Court committed error when it compelled all Opt-In Plaintiffs (with the
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`exception of opt-outs), which was not requested by Defendant or supported by the evidence
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`presented with Defendant’s original Motion to Compel Arbitration as is required by the Federal
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`Arbitration Act (“the FAA”).
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`II.
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`ARGUMENT AND AUTHORITY
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`A.
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`Plaintiff’s Objection (ECF No. 192) raised Material Facts and Dispositive Legal
`Arguments Critically Relevant to Defendant’s Motion to Compel Arbitration. The
`Court Erred When It Failed to Consider Plaintiff’s Objection.
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`Plaintiff objected to Defendant’s late-filed evidence in support of its Motion to Compel
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`Arbitration because it did not provide the Opt-In Plaintiffs with an adequate opportunity to
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`respond. (See ECF No. 192). However, nowhere in its Order did the Court address Plaintiff’s
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`Objection. Had the Court provided the Opt-In Plaintiffs with an opportunity to respond to
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`Defendant’s late-filed evidence, they would have demonstrated that DoorDash’s latest iteration
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`of its arbitration agreement is not enforceable, at least as to some of the Opt-In Plaintiffs,
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`1 Defendant sought to compel 2,662 individuals out of the current total of approximately
`3,256 Plaintiffs.
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`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 4 of 13
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`because the agreement was rolled-out during this litigation and to Opt-in Plaintiffs that were
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`represented by legal counsel not notified of the arbitration roll out. (Compare, e.g., ECF No. 45,
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`Ex. 23 consent form for Yassim Ali filed on 12/20/19, with ECF No. 187-1 declaring that Mr.
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`Ali accepted Defendant’s CPR agreement on 5/8/20).
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`1.
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`Defendant’s Efforts to Compel Arbitration as to the CPR Agreement Are In
`Violation of Its Counsel’s Obligation to Present Legally Operative
`Documents to Counsel for the Opt-in Plaintiffs.
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`In his to-be filed Motion for Reconsideration, Plaintiff will present further argument and
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`evidence that Defendant’s counsel violated their ethical obligation to present documents with
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`binding legal effect to counsel for the Opt-in Plaintiffs, instead using their client as an instrument
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`for their coercive and inappropriate communications, and that this violation should result in the
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`ineffectiveness of such arbitration agreements. See Cal. R. of Prof’l Conduct 4.2(a) (“In
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`representing a client, a lawyer shall not communicate directly or indirectly about the
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`subject of the representation with a person* the lawyer knows* to be represented by
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`another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”) (emphasis
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`added).
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`Each of the Opt-in Plaintiffs filed their consent to join in this action with the intent of
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`participating in federal court while represented by Plaintiff’s counsel. (See, e.g., ECF No. 5-1
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`(Smiley Consent to Become A Party Plaintiff) (agreeing to be bound by judgment by the Court
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`and recognizing representation by Plaintiff’s counsel)). Nonetheless, on or about November 9,
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`2019 (see ECF No. 116 at p. 4), over seven months after the filing of the initial lawsuit against
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`DoorDash by Plaintiff’s Counsel, the Goldman-Hull lawsuit (filed with this Court on March 22,
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`2019), and over two months after the filing of this lawsuit, DoorDash rolled out a new arbitration
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`agreement to all of its workers. There is clear evidence that Defense counsel was the architect of
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`the CPR arbitration agreement (or at least played a significant role in its creation and
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`Motion for Reconsideration
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`implementation),2 and communication of the arbitration agreement to the Opt-in Plaintiffs was
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`not a party to party communication that stemmed from DoorDash’s own instance.
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`Notwithstanding Defense counsel’s clear knowledge and understanding that Plaintiff’s
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`counsel represented dashers who could be affected by that roll out, at no time did Defendant
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`notify Plaintiff’s counsel of its presentation of the CPR agreement to represented Opt-in
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`Plaintiffs. The CPR arbitration agreement itself purports to encourage dashers to seek counsel.
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`(See ECF No. 116-1; Exhibit E at p. 51 (“CONTRACTOR has the right to consult with counsel
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`of CONTRACTOR’S choice concerning this Mutual Arbitration Provision (or any other
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`provision of this Agreement”)), yet Defense counsel could not be bothered to confer with
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`Plaintiff’s counsel regarding the roll out.
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`In the case of Mr. Ali, who had been represented since December of 2019, Defense
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`counsel had knowledge of the representation for over four months between when Mr. Ali filed
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`his consent form and when he purportedly agreed to the CPR arbitration agreement, yet still
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`presented the arbitration agreement directly to Mr. Ali without the knowledge of Plaintiff’s
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`counsel. (Compare, e.g., ECF No. 45, Ex. 23 consent form for Yassim Ali filed on 12/20/19,
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`with ECF No. 187-1 declaring that Mr. Ali accepted Defendant’s CPR agreement on 5/8/20).
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`Defense counsel’s failure to communicate with Plaintiff’s counsel regarding the arbitration roll-
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`out affects potentially dozens or hundreds of other Opt-in Plaintiffs.3 This issue is critical
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`because had Plaintiff’s counsel been made aware of the new CPR agreement, counsel would
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`have advised the Opt-in Plaintiffs to exercise the arbitration agreement’s opt-out provision and
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`provided legal assistance to that end. See Balasanyan v. Nordstrom, Inc., No. Civ. A. 11–cv-
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`2609–JM–WMC, 2012 WL 760566, at *1-2, 4 (S.D. Cal. Mar. 8, 2012) (refusing to enforce
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`2 See ECF No. 199 at p. 14, summarizing findings by Judge Alsup in Abernathy v.
`DoorDash, Inc., No. C-19-7545 WHA (N.D. Cal.) (Docket No. 177) (Order at 7).
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`3 Plaintiff is currently reviewing records to determine affected Opt-in Plaintiffs. Plaintiff
`will present the result of such review in the Motion for Reconsideration.
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 6 of 13
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`arbitration agreement in an FLSA action because the defendant’s imposition of the agreement
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`was an improper class communication) (“In sum, because Nordstrom’s communication
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`constituted an improper attempt to alter the pre-existing arbitration agreement with putative class
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`members during litigation, this court invalidates the ‘rolled out’ 2011 agreement as to putative
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`class members under the reasoning of In re Currency Conversion. The motion to compel
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`arbitration is DENIED.”). Furthermore, courts have awarded, and Plaintiff intends to request,
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`appropriate sanctions for improper communications with represented parties. See, e.g., Lewis v.
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`Tel. Emp. Credit Union, 87 F.3d 1537, 1558 (9th Cir. 1996) (“Violators of the rule [prohibiting
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`improper communications with represented party] are subject to sanctions by courts, such as
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`disqualification as counsel); U.S. v. Sierra Pac. Indus., 857 F. Supp. 2d 975, 984 (E.D. Cal.
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`2011) (excluding evidence obtained through improper communications with represented party)
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`(“The proper remedy for [violation of ethical rule prohibiting improper communication with
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`represented party] must rectify ‘whatever improper effect the attorney’s misconduct may have
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`had in the case before it.’ ” (quoting McMillan v. Shadow Ridge at Oak Park Homeowner’s
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`Ass’n, 165 Cal. App. 4th 960, 968 (Cal. Ct. App. 2008))).
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`Defendant may argue that its counsel would be overburdened in attempting to ascertain
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`each person represented by counsel in communicating regarding the CPR roll-out, but that is a
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`red herring. Defense counsel need only have informed Plaintiff’s counsel of the roll-out once,
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`when it occurred on or about November 9, 2019. Defense counsel never did so, and consequently
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`recklessly used its client to engage in a pattern of improper communications for which Defense
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`counsel should be subject to sanctions.
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`2.
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`Courts Reject Defendants’ Efforts to Obtain Arbitration Agreements or to
`Alter Arbitration Agreements After Litigation Has Commenced.
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`Putting aside the ethical issues raised by Defendant’s inappropriate communications with
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`legally represented Opt-In Plaintiffs for the sole purpose of obtaining agreements to arbitrate
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`with class waivers, Defendant’s roll-out of the CPR arbitration agreement mid-litigation is a
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`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 7 of 13
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`tactic routinely rejected by courts throughout the country (including this one) as an improper
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`party communication with class members.4
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`Plaintiff’s Objection has merit because invalidating an arbitration agreement is an
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`appropriate remedy when the agreement operates to abridge the Court’s responsibility to manage
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`a collective action. See, e.g., Abdul-Rasheed v. KableLink Commc’ns, LLC, No. Civ. A. 8:13-cv-
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`879T24 MAP, 2013 WL 6182321 (M.D. Fla. Nov. 25, 2013); Billingsley v. Citi Trends, Inc., 948
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`F. Supp. 2d 1287, 1290 (N.D. Ala. 2013).
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`DoorDash is not the first to try to abridge rights of a class soon after a lawsuit is filed. For
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`example, the court in In re Currency Conversion Fee Antitrust Litigation held that an arbitration
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`agreement that was instituted after the lawsuit had been filed was invalid because it constituted
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`an improper communication with putative class members. In re Currency Conversion Fee
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`Antitrust Litigation, 361 F. Supp. 2d 237 (S.D. N.Y. 2005) (amended on other grounds). The
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`plaintiffs in that case were Visa and MasterCard cardholders who sued various banks for alleged
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`illegal charges based on foreign currency exchanges. Id. at 243. Several of the banks mailed
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`letters to their cardholders purporting to add an arbitration clause to the cardholder agreements
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`after the litigation had begun, but did not inform the cardholders about the litigation in the
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`notices. Id. at 244. The court first noted that trial courts have authority over defendants’
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`communications with class members under Fed. R. Civ. P. 23(d) and emphasized that a court
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`must protect the interest of putative class members by preventing misleading communications,
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`perhaps even disallowing communications if they attempt to “undermine Rule 23 by encouraging
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`class members not to join the suit.” Id. at 252 (citation omitted). The court found that because
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`this type of communication had the potential for coercion, given that the cardholders had no
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`other source of information concerning the litigation and they depended on defendants for their
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`4 Defendant rolled out its arbitration agreement with CPR on November 9, 2019 (see
`ECF No. 116 at p. 4). This lawsuit was initiated on August 23, 2019 (ECF No. 1), with Opt-In
`Plaintiffs joining as early as August 2019. (see ECF No. 5).
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`Case No. 3:19-cv-05279-EMC
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`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 8 of 13
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`credit needs, the actions were improper. Id. at 254. In short, the court held “that [the arbitration
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`clauses in question] may not be enforced because Chase and Citibank added them, without
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`notice, after this litigation commenced.” Id.
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`DoorDash has attempted the same in this case. However, Defendant’s conduct is even
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`more concerning. That is, if a consumer is unhappy with the arbitration agreement in a credit
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`card agreement, he can simply stop using his credit card. An employee is faced with a far more
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`ominous prospect; to accept the arbitration agreement or loss his source of income. Indeed,
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`DoorDash argues that a Dasher is unable to perform any deliveries through its app without first
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`reviewing its arbitration agreement. (see ECF No. 116 at p. 2).
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`Similarly, in Balasanyan v. Nordstrom, a California federal district court followed the
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`holding of In re Currency to determine that a post-suit arbitration agreement roll out was invalid.
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`No. Civ. A. 11-cv-2609-JM-WMC, 2012 WL 760566 (S.D. Cal. Mar. 8, 2012). Balasanyan
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`concerned a dispute under the FLSA and California state law brought on behalf of a nationwide
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`class of Nordstrom sales staff. Id. at *1. After the lawsuit was filed, Nordstrom instituted an
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`arbitration agreement with a class action waiver. Id. The plaintiffs argued that the arbitration
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`agreement was invalid under the reasoning of In re Currency. Id. at *3. In particular, the
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`plaintiffs argued that because notice of the pending lawsuit was not provided to the putative class
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`members when the arbitration agreement was instituted, the communication was improper. Id.
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`The court agreed and determined that Nordstrom’s conduct was “inappropriate.” Id. at *4.
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`Specifically, the Court stated as follows:
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`In sum, because Nordstrom’s communication constituted an improper
`attempt to alter the pre-existing arbitration agreement with putative class
`members during litigation, this court invalidates the “rolled out” 2011
`agreement as to putative class members under the reasoning of In re
`Currency Conversion. The motion to compel arbitration is DENIED.
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`Id. at *4.
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 9 of 13
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`The same conclusion was reached in Abdul-Rasheed v. KableLink Communications. No.
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`Civ. A. 8:13-cv-879T24 MAP, 2013 WL 6182321 (M.D. Fla. Nov. 25, 2013). This case
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`concerned an FLSA dispute involving a class of cable installers who alleged they were
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`misclassified as independent contractors. Id. at *1. In Abdul-Rasheed, the defendant initiated an
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`arbitration agreement with a class waiver one week after the plaintiff filed his motion for
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`conditional certification. Id. at *1. The court refused to enforce the arbitration agreement,
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`holding as follows:
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`To the extent that Defendants attempt to again revise their [agreement]
`and make such [agreement] applicable to all claims that any cable installer
`has, or may have in the future, other than FLSA claims at issue in this
`case in which they are potential opt-in plaintiffs, Defendants are free to
`do so. However, this Court will not condone Defendants' disguised
`attempt to force their cable installers to waive their right to opt into
`this currently pending collective action by threatening their income.
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`Id. at *5 (emphasis in original).
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`Other courts have followed suit. In Billingsley v. Citi Trends, Inc., the court held that an
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`arbitration agreement instituted after the filing of a collective action lawsuit was unenforceable.
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`Billingsley v. Citi Trends, Inc., 948 F. Supp. 2d 1287, 1290 (N.D. Ala. 2013). Billingsley
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`involved a class of store manager who brought a collective action under the FLSA alleging that
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`they were misclassified as exempt. Id. at 1290. The employer instituted an arbitration agreement
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`with a class waiver soon after being sued. Id. at 1293. The Billingsley Court declared that the
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`agreement was ineffective. Id. at 1299-1300. The court observed that enforcing the agreement
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`would amount to a surrender by the court of its responsibility to manage collective actions and
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`monitor communication to the putative class members. Id. In fact, the court stated that Citi’s
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`conduct “reeks of both procedural and substantive unconscionability.” Id. at 1300. The court
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`further stated:
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`The court truly believes it would be a derogation of the court’s
`responsibility if it were to approve employer conduct like that in this case
`that specifically undercuts the Congressional intent behind creating the
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`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 10 of 13
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`FLSA collective action process for aggrieved employees, and the court
`does not take such action lightly.
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`Id. On appeal, the Eleventh Circuit upheld the decision of the district court. The Eleventh Circuit
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`held that Citi’s efforts were “clearly designed to thwart unfairly the rights of its store managers
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`to make an informed choice as to whether to participate in this FLSA collective action.” See
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`Billingsley v. Citi Trends, Inc., 560 Fed. App’x. 914, 922 (11th Cir. 2014).
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`The same result was reached in Tomkins v. Amedisys, Inc., No. Civ. A. 3:12-cv-01082-
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`WWE, 2014 WL 129401 (D. Conn. Jan. 13, 2014). Tomkins concerned an FLSA collective
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`action on behalf of various home health care providers. Id. at *1. The employer emailed an
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`arbitration agreement to all of its employees after the lawsuit was filed. Id. The plaintiff moved
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`for an order invalidating the arbitration agreement and the issuance of a corrective notice
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`informing the putative class members that the arbitration was invalid and would not affect their
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`right to join the lawsuit. Id. The court granted the plaintiff’s request. Id. The court held that “[the
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`employer’s] conduct has undermined the integrity of the judicial process and potentially
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`confused and misled putative class members.” Id. at *2.
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`Likewise, this Court has rejected an employer’s tactic of implementing for the first time
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`or modifying preexisting arbitration agreements during class action litigation. See O’Connor v.
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`Uber Techs., Inc., No. C-13-3826-EMC, 2013 WL 6407583, at *7 (N.D. Cal. Dec. 6, 2013)
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`(Chen, J.). In that case, drivers for Uber entered into a licensing agreement that included an
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`arbitration agreement with an onerous opt-out procedure, like the one found in DoorDash’s
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`arbitration agreement. 2013 WL 6407583, at *1. This Court held that the promulgation of the
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`arbitration provision ran a substantial risk of interfering with the rights of the drivers, and
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`ordered that the drivers be given clear notice of the arbitration provision, its effect on their
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`participation in the pending lawsuit, and reasonable means of opting out. Id. at *7.
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`Here, Defendant’s new arbitration agreement with CPR was presented in nearly identical
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`fashion as that in In re Currency, Balasanyan, Abdul-Rasheed, Billingsley, Tomkins, and
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`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 11 of 13
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`O’Connor. It was tailor-made by and for DoorDash and was forced upon the Opt-In Plaintiffs
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`and Class Members in defense to class and collective action litigation, like this lawsuit.
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`Defendant knew that the Opt-In Plaintiffs intended to pursue their claims collectively, and had
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`retained legal counsel for that purpose (Defendant was served by the Opt-Ins’ consents forms),
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`but failed to tell them that by failing to opt out of its CPR arbitration agreement, they would
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`waive their right to pursue their preexisting claims in this case. At minimum, Defendant’s
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`counsel had an ethical duty to notify Opt-In Plaintiffs’ counsel of the arbitration roll out (as it
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`applies to their clients). This Court should conclude that the arbitration agreement rolled out
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`through CPR is not valid, consistent with the holdings of In re Currency, Balasanyan, Abdul-
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`Rasheed, Billingsley, Tomkins, and this Court’s holding in O’Connor. For that reason, the Court
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`erred when it did not consider Plaintiff’s Objection to Defendant’s late filed evidence.
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`The Court’s Order Erroneously Compels Individuals to Arbitrate Their Claims
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`B.
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`Who Defendant Did Not Seek to Compel to Arbitration.
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`Arbitration under the FAA is a matter of consent, not coercion. See Stolt-Nielsen S.A. v.
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`AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010). In ruling on a motion to compel arbitration,
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`a court must first determine whether the parties agreed to arbitrate the dispute at issue. Volt Info.
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`Scis. v. Bd. of Trs., 489 U.S. 468, 479 (1989). Answering this question requires a court to
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`consider first whether there is a validly formed agreement to arbitrate between the parties, and
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`second whether the dispute in question falls within the scope of that agreement. Wilson v.
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`Huuuge, Inc., 944 F.3d 1212, 1219 (9th Cir. 2019) (quoting Chiron Corp. v. Ortho Diagnostic
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`Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).
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`Here, the Court held that “Ms. Smiley and the remaining plaintiffs are all compelled to
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`arbitration” (ECF No. 199 at p. 18), despite DoorDash only asking the Court to compel 2,662
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`individuals out of the current total of approximately 3,256 Opt-In Plaintiffs. Furthermore,
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`Defendant’s Motion to Compel Arbitration was filed before hundreds of individuals (if not
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`thousands) had opted into this case. Defendant cannot simply rope-in later-filed Opt-In Plaintiffs
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`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 12 of 13
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`after the fact, depriving them of the opportunity to respond to DoorDash’s Motion. For example,
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`as the Order currently reads, individuals like Mr. Anthony Steele, who opted into this case just
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`days before the hearing on Defendant’s Motion to Compel Arbitration (see ECF No. 194), are
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`now being compelled to arbitration. Mr. Steele and others are entitled to due process and the
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`right to respond to a motion to compel them to arbitration.
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`III. CONCLUSION AND PRAYER
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`For the reasons above, Plaintiff respectfully requests that the Court grant him leave to file
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`a Motion for Reconsideration. Plaintiff is currently reviewing Defendant’s late filed declaration
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`(ECF No. 187-1) to determine: (1) which Opt-In Plaintiffs have been affected by the arbitration
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`roll out and/or (2) which Opt-In Plaintiffs Defendant had knowledge of their legal representation
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`but nonetheless presented them with a class action waiver without consulting with their
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`Respectfully submitted,
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`By:
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`/s/Ricardo J. Prieto
`Ricardo J. Prieto
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`
`SHELLIST | LAZARZ | SLOBIN LLP
`
`Ricardo J. Prieto (Admitted PHV)
`rprieto@eeoc.net
`11 Greenway Plaza, Suite 1515
`Houston, Texas 77046
`Telephone: (713) 621-2277
`Facsimile: (713) 621-0993
`
`Melinda Arbuckle (Cal. Bar No. 302723)
`marbuckle@eeoc.net
`402 West Broadway, Suite 400
`San Diego, California 92101
`Telephone: (713) 621-2277
`Facsimile: (713) 621-0993
`
`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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`undersigned counsel.
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`Dated: November 11, 2020
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`Case 3:19-cv-05279-EMC Document 200 Filed 11/11/20 Page 13 of 13
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`DEBES LAW FIRM
`
`Robert R. Debes, Jr. (Admitted PHV)
`bdebes@debeslaw.com
`5909 West Loop South, Suite 510
`Bellaire, Texas 77401
`Telephone: (713) 623-0900
`Facsimile: (713) 623-0951
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`Counsel for Plaintiff, Jacob McGrath, and
`Proposed Collective Action Members
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`CERTIFICATE OF SERVICE
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`The undersigned attorney certifies that, on November 11, 2020, a true and correct copy of
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`this instrument was served on all counsel of record via the Court’s ECF system.
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`/s/Ricardo J. Prieto
`Ricardo J. Prieto
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`Case No. 3:19-cv-05279-EMC
`Plaintiff’s Motion for Leave to File
`Motion for Reconsideration
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