Case 1:17-cv-06947-NGG-CLP Document 22 Filed 03/29/19 Page 1 of 19 PageID #: <pageID> D/p UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -X TETYANA MOSKALENKO,on her own behalf and on behalf of all other Seafarers similarly situated, Plaintiff, MEMORANDUM & ORDER -against- 17-CV-6947(NGG) (CLP) CARNIVAL PLC and FLEET MARITIME SERVICES INTERNATIONAL,LTD., Defendants. X NICHOLAS G. GARAUFIS, United States District Judge. Plaintiff Tetyana Moskalenko brings this putative class action under the Seaman's Wage Act, 46 U.S.C. § 10313, New York Labor Law, Article 6, §§ 193 and 196-d, and the Declaratory Judgment Act, 28 U.S.C. § 2201 (Compl.(Dkt. 1).) Before the court is Defendants' motion to compel arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the "Convention"), and its implementing legislation. Chapter Two of the Federal Arbitration Act("FAA"), 9 U.S.C. §§ 202-208, and Federal Rule of Civil Procedure 12(b)(3)(the "Motion"). (Mot. to Dismiss (Dkt. 18);^ Mem. in Supp. of Mot. to Dismiss("Mem.") (Dkt. 18-1).) For the reasons that follow. Defendants' Motion is GRANTED. I. BACKGROUND A. Facts Plaintiff Tetyana Moskalenko is a citizen of Ukraine. (Compl.^ 6.) Defendant Carnival PLC is a corporation organized imder the laws of England and Wales, with its principal place of business in Southampton, England. (Id.f 8.) Defendant Fleet Maritime Services, Ltd. is a subsidiary of Defendant Carnival PLC. (Id ^ 9.) 1 Case 1:17-cv-06947-NGG-CLP Document 22 Filed 03/29/19 Page 2 of 19 PageID #: <pageID> Between 2007 and 2018, Defendant Fleet Maritime Services employed Plaintiff to serve as a Bedroom Stewardess on the ocean liner, Queen Marv 2. (Id. 6-7.) Queen Mary 2 operates a route between New York and Southampton, England, and calls on ports in New York, Massachusetts, Rhode Island, and Maine. (Id H 10-11.) Red Hook, Brooklyn is considered one of the ship's home ports. (Id H 11•) Plaintiff asserts claims based on Defendants' alleged failures to:(1) properly compute her share of the gratuities/service charges collected from passengers;(2) appropriately staff the ship such that Plaintiff was forced to hire and personally pay for helpers to complete her assigned tasks; and(3) timely pay Plaintiff's wages. (See id. 20-55.) Plaintiff alleges that over the course of her employment, she entered into nine "similarly- worded Seafarer's Employment Agreements with Defendant Fleet Maritime Services," each of which covered a period of eight-to-ten months. (Id 17,19.) Plaintiff and another seafarer, who "wishes to join this action," signed nearly identical boilerplate declarations stating that these contracts were never explained to them, that they were not permitted to negotiate the terms, and that their principal reason for signing the contracts was to ensure that they could provide for their families. (See Decl. of Tetyana Moskalenko (Dkt. 19-1) 3-6; Ex. 3, Decl. of Vlasova Victoria (Dkt. 19-2) KK 3-6.) Defendants aver that crewmembers signed Part A of the agreements and that Part B, which contained the standard terms and conditions of their employment, was retained by crewmembers. (Reply (Dkt. 20) at 3 n.2.) Because these contracts are central to the Defendants' Motion, the court explains in detail the allegations related to the contracts' material provisions and the examples of these agreements submitted by the Defendants. Plaintiff alleges that the nine contracts she signed were "similarly-worded." (Compl. 19.) The court infers from her filings, in which she quotes language from Part A and Part B Case 1:17-cv-06947-NGG-CLP Document 22 Filed 03/29/19 Page 3 of 19 PageID #: <pageID> without indicating that this language varied in any way from one agreement to the next, that the relevant passages in those documents did not differ in material respects at any point during her employment. Plaintiff alleges that her Seafarer Agreements referenced a Part B, which sets out the standard terms and conditions of her employment("Part B"). (Id ^ 108.) Part 15.1 of Part B provides that any grievance "must be referred to arbitration to the exclusion of any other legal or court proceeding." (Id K 109.) Part 15.2 of Part B provides that: In the absence of a controlling CBA or government-mandated contract containing a dispute resolution provision or procedure, every conceivable dispute (including but not limited to wage and benefit members, xxx) between you and the Company or others ... shall be resolved by binding arbitration. The parties agree that any and all claims between them of any kind or nature whatsoever are international commercial disputes and shall be referred to and resolved exclusively by binding arbitration in Bermuda (in English), to the exclusion of any other fora ... (Id ^110.) Part B also specifies that the "Agreement shall be governed by the law of Bermuda." 0411111.)' Defendants submitted several exhibits to the court along with their motion to compel. These included three Part A's bearing Plaintiffs signature covering the following periods: August 27, 2015 through February 17, 2016 (Seafarer's Employment Agreement Part A 2015 ("2015 Part A")(Dkt 18-3)); September 1,2016 through March 2,2017 (Seafarer's Employment Agreement Part A 2016("2016 Part A")(Dkt 18-4)); and July 9,2017 through October 3,2018 (Seafarer's Employment Agreement Part A 2017("2017 Part A")(Dkt 18-5)). Defendants also submitted a copy of Part B,the Standard Terms and Conditions of Employment,"in effect for Plaintiff's contracts at issue." (Decl. in Support of Defs. Mot. to Compel(Dkt. 18-2)^ 5.) This 'Plaintiff includes this discussion of the arbitration clause in her complaint in order to preempt Defendants' "expect[ed]... move to compel the arbitration of their claims in Bermuda using Bermuda law, pursuant to Part B of the Seafarer Agreement." (Compl.^ 112.) Plaintiff seeks a declaration by the court that the "arbitration provisions contained in Part B of Plaintiff s Seafarer Agreement clearly operate ... as a prospective waiver of her rights to pursue U.S. statutory remedies." (Compl.^ 128.) Case 1:17-cv-06947-NGG-CLP Document 22 Filed 03/29/19 Page 4 of 19 PageID #: <pageID> Part B was current as of April 1,2015. (Part B3 - Standard Terms and Conditions("2015 Part B")(Dkt. 18-6).) Plaintiff does not dispute the validity of any of the exhibits submitted by Defendants (except to contend, as discussed below, that the lack of a signature on Part B is fatal to Defendants' motion) nor does she argue that the other Part A's that she allegedly signed differed in any material way from those submitted by Defendants. (See PI. Opp'n (Dkt. 19).) Indeed, the language she quotes and cites in the complaint and in her brief is entirely consistent with the language in the Part A's and Part B submitted by the Defendants. (See Compl. 107-16; PI. Opp'n at 3-7.)^ Part A is a single-page contract divided into six sections. (See 2015 Part A;2016 Part A; and 2017 Part A.) Section 6 is entitled "Terms and Conditions," and is further divided into three subsections: Section 6.1—^"Collective Bargaining Agreement;" Section 6.2—^"Standard Terms & Conditions of Employment;" and Section 6.3—^"Protected Terms & Conditions of Employment- Part C." (Id.) With respect to Section 6.1, the contract states "There is no Collective Bargaining Agreement governing your employment." (Id.) Similarly, Section 6.3 in the 2015 and 2016 agreements says "Not applicable"(2015 Part A; 2016 Part A), and Section 6.3 in the 2017 agreement says "There are no Protected Terms and Conditions governing your employment" (2017 Part A). Section 6.2 in each of these agreements reads: "Part B of your Employment ^ While PlatQtiff points out that "Defendants failed to produce a Part B or 'B3' ofthe Seafarers Employment Agreement that was signed or executed by the Plaintiff'(PI. Opp'n at 5), she does not contest that die Part B submitted along with Defendants' motion to compel was in fact the Part B in effect at the time Plaintiff signed Part A. Instead, she simply surmises that because Plaintiff did not sign Part B,"there is no certainty that the unsigned document submitted herein by Defendants as Part B 'B3' is exactly the same as the one being referred to in the Part A that was signed by Plaintiff." (PI. Opp'n at 5.) However, because Part B does not have a signature block, the lack of a signature on this document does not raise concerns. The court does note that the Part B submitted by Defendants states that it was current as of April 1,2015, meaning that it was not the operative document for the first eight years of her employment. Plaintiffs allegations, however, are not so limited, and because the court finds that Plaintiffs allegations alone are sufficient to support a finding that an arbitration clause was incorporated into each Part A signed by Plaintiff over the course of her employment, the court does not concern itself with this issue. Case 1:17-cv-06947-NGG-CLP Document 22 Filed 03/29/19 Page 5 of 19 PageID #: <pageID> Agreement is attached setting out all the standard terms and conditions of employment relating to your rank and position, referenced as B3." (2015 Part A; 2016 Part A; 2017 Part A.) This language is consistent with the language quoted in Plaintiffs filings. (See PL Opp'n at 3 (quoting identical language from "Section 6.2 of Part A ofthe Seafarers Employment Agreement"); Compl.f 108 (noting that "Plaintiffs Seafarer Agreement references a Part B which sets out the standard terms and conditions of her employment.").) Above the signature block on Part A is a section titled "Acceptance of Employment (Please read carefully before signing)P (2015 Part A; 2016 Part A; and 2017 Part A.) This section begins: By signing all ofthe terms and conditions set out and referred to in Parts A,B, and, where applicable.