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Bulkenstein v. Taptu, Inc.

United States District Court, S.D. New York

October 9, 2014

DANA LOREN BULKENSTEIN, Plaintiff,
v.
TAPTU, INC., d/b/a or f/k/a MEDIAFED and/or MEDIAFED, LTD., ASHLEY HARRISON, DAVID WIGHTMAN, ERIC ROSENBERG, and BEN NICHOLS, Defendants.

Matthew A. Pek, Esq., CARTER PEK, P.C., New York, NY, Attorneys for Plaintiff.

Douglas T. Schwarz, Esq., Yasmin Fernandez-Acuna, Esq., BINGHAM McCUTCHEN LLP, New York, NY, Attorneys for Defendants.

OPINION

ROBERT W. SWEET, District Judge.

Defendants Taptu, Inc., d/b/a or f/k/a Mediafed and/or Mediafed, Ltd. ("Taptu"), Ashley Harrison ("Harrison"), David Wightman ("Wightman"), Eric Rosenberg ("Rosenberg") and Ben Nichols ("Nichols") (collectively, the "Defendants") have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) and 9 U.S.C. § 3 & 4 to compel plaintiff Dana Loren Bulkenstein ("Bulkenstein" or "Plaintiff") to proceed to arbitration and to dismiss or stay this action. Based on the conclusions set forth below, the Defendants' motion is granted, the Plaintiff is directed to arbitrate, and this action is stayed.

Prior Proceedings

Taptu and Bulkenstein entered into a letter employment agreement dated September 4, 2013 (the "Agreement") containing the following arbitration clause:

You and the Company shall submit to mandatory and exclusive binding arbitration of any controversy or claim arising out of, or relating to, this Agreement or any breach hereof, provided, however, that the parties retain their right to, and shall not be prohibited, limited or in any other way restricted from, seeking or obtaining equitable relief from a court having jurisdiction over the parties. Such arbitration shall be governed by the Federal Arbitration Act and conducted through the American Arbitration Association in the State of California, San Francisco County, before a single neutral arbitrator, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association in effect at that time. The parties may conduct only essential discovery prior to the hearing, as defined by the AAA arbitrator. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based. You shall bear only those costs of arbitration you would otherwise bear had you brought a claim covered by this Agreement in court. Judgment upon the determination or award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

(Schwarz Decl. Ex. 1-A ¶ 6.)

On March 14, 2014, Plaintiff filed a complaint in this action alleging several federal and state anti-discrimination law violations arising out of her employment with Taptu, Inc. On May 27, 2014, Defendants filed a Motion to Compel Arbitration and Dismiss or Stay Proceedings. On or about June 13, 2014, Plaintiff submitted an Amended Complaint ("AC") alleging seven additional causes of action.

The AC alleges eleven counts: (1) violations of the Americans with Disabilities Act of 1990 (the "ADA") for failure to accommodate; (2) violations of the ADA for unlawful disparate treatment; (3) violations of the New York State Human Rights Law for disability discrimination; (4) violations of the New York City Human Rights Law for disability discrimination; (5) conversion; (6) tortious interference with existing and prospective economic relations; (7) misappropriation of confidential and protected trade secret information; (8) fraudulent inducement and fraudulent solicitation; (9) unfair and deceptive trade practices; (10) unjust enrichment; and (11) prima facie tort.

The instant motion was marked fully submitted on August 22, 2014.

The Applicable Standard

On a motion to dismiss pursuant to Rule 12(b)(6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp. , 12 F.3d 1170, 1174 (2d Cir. 1993). However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (quoting Twombly , 550 U.S. at 570).

A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 663 (quoting Twombly , 550 U.S. at 556). In other words, the factual allegations must "possess enough heft to show that the ...


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