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Elwell v. Google


June 15, 2007


The opinion of the court was delivered by: Denise Cote, District Judge


The defendants' motion to compel arbitration was granted in this Title VII case on January 30, 2006, and this litigation was stayed pending completion of the arbitration. On April 19, 2007, plaintiff Christina Elwell ("Elwell") moved to lift the litigation stay. For the following reasons, the motion to lift the stay is denied.


Elwell sued the defendants for discrimination and retaliation associated with her demotion and reduction in pay during a high-risk pregnancy. When she joined the company in 2000 she signed an "Employment, Confidential Information and Invention Assignment Agreement" ("the Agreement") which contained an arbitration clause. The defendants moved to compel arbitration, and Elwell resisted. In response to defendants' motion to enforce the arbitration clause, Elwell argued that her claims do not arise under the Agreement or fall within the scope of its arbitration clause. She did not question the validity of the Agreement. This Court rejected her arguments and ordered her to submit to arbitration. Elwell v. Google, Inc., No. 05 Civ. 6487 (DLC), 2006 WL 217978 (S.D.N.Y. Jan. 30, 2006).

On February 14, 2006, Elwell filed a demand for arbitration.

Discovery in the arbitration proceeding began in August 2006.

Between October 13 and November 3, defendants produced an executed offer letter of September 2000 ("Offer Letter") and a draft reassignment letter of June 2004 ("Draft Letter").

Depositions were delayed until November 2006, to accommodate Elwell. Between November and February 1, 2007, the parties took twenty-six depostions. A summary judgment motion is currently pending before the arbitrator.

On April 19, Elwell filed the instant motion. She argues principally that the Offer Letter sheds light on the Agreement and supports her argument that this employment dispute does not arise out of the Agreement and is not encompassed by the Agreement's arbitration clause. She asserts that the inclusion of an arbitration provision in the Draft Letter is an acknowledgement by the defendants that the Agreement's arbitration clause does not cover this employment dispute.

Elwell makes two additional arguments. She contends that the Agreement is governed by and unenforceable under California law. Finally, Elwell argues that the defendants have waived their right to arbitrate these claims through their misuse of the arbitral forum.


This motion can be swiftly rejected. Elwell has no adequate explanation for her delay in bringing this motion and her continued participation in the arbitration after the production of the Offer Letter to her in October 2006. While it appears that the defendants improperly withheld that document from Elwell during the litigation of their motion to compel arbitration, it was incumbant upon Elwell to act promptly if she wished to have this Court revisit its order compelling arbitration in light of the Offer Letter.

Elwell's other two arguments are even less compelling. To the extent she wished to argue that the Agreement is unenforceable under California law, she was required to present that argument in opposition to the 2006 motion to compel arbitration. She did not. As it now stands, this prong of her motion is an untimely and ill-conceived motion for reconsideration. Finally, any request for relief from arbitration due to alleged abuse of the arbitral forum must at the very least be presented in the first instance to the arbitrator. Because Elwell did not do so it is unnecessary to reach the issue of whether this Court has jurisdiction over this claim.


The motion to lift the stay pending arbitration is denied.



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