IN THE

COURT OF SPECIAL APPEALS OF MARYLAND

SEPTEMBER TERM, 2009 ________________________

No. 1423

________________________

THOMAS E. MAZERSKI

Appellant

vs.

MOBILEPRO CORP, et al.

Appellees

________________________________________________________________________

Appeal from the Circuit Court for Montgomery County, Maryland Honorable Joseph A. Dugan, Jr., Judge

________________________________________________________________________

BRIEF OF APPELLEES ________________________________________________________________________

Patrick R. Buckler Spence & Buckler, PC 100 West Pennsylvania Avenue Suite 301 Towson, Maryland 21204 Phone: (410) 823-0105 Fax: (443) 927-8905 Counsel for Appellees

TABLE OF CONTENTS Table of Authorities .................................................................................................. i I. STATEMENT OF THE CASE ..................................................................... 1 A. Nature Of The Case............................................................................ 1 B. Course Of The Proceedings And Disposition In The Lower Court............................................................................ 1 II. QUESTIONS PRESENTED ......................................................................... 2 III. STATEMENT OF FACTS............................................................................ 3 IV. ARGUMENT ................................................................................................ 4 A. Standard Of Review ........................................................................... 4 B. Granting Defendants’ Motion To Compel Arbitration Was Not Dispositive Of A Claim Or Defense .......................................... 5 C. Plaintiff Is Only Seeking Damages, And Thus Arbitration Is Mandated ..................................................................... 6 1. The Dispute Is Subject To Arbitration .................................... 6 2. Mazerski’s Interpretation Of The Arbitration Provision Would Render It Meaningless ................................ 8 3. Mazerski Is Not Seeking, And Cannot Seek, “Backpay” ..... 11 D. There Is Nothing In The Record To Suggest That The Agreement is Unconscionable ......................................................... 12 E. Defendants Did Not Waive Their Right To Compel Arbitration ........................................................................................ 14 V. CONCLUSION ........................................................................................... 16 Statement of Font and Font Size ............................................................................ 17

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TABLE OF AUTHORITIES

CASES: Abramson v. Wildman, 184 Md. App. 189, 964 A.2d 703 (2009) ............................................................15 Alternatives Unlimited, Inc. v. New Baltimore City Bd. of Sch. Comm’rs, 155 Md. App. 415, 843 A.2d 252 (2004) ..............................................................9 Anderson Adventures, LLC v. Sam & Murphy, Inc., 176 Md. App. 164, 932 A.2d 1186 (2007) ............................................................8 Brendesel v. Winchester Constr. Co., Inc., 162 Md. App. 558, 875 A.2d 789 (2005) ..............................................................5 Carlson v. General Motors Corp., 883 F.2d 287 (4th Cir. 1989) ................................................................................13 Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc., 294 Md. 443, 450 A.2d 1304 (1982) .....................................................................5 Commonwealth Equity Services, Inc. v. Messick, 152 Md. App 381, 831 A.2d 1144, cert. denied, 378 Md. 614, 837 A.2d 926 (2003) ........................................4, 5, 15 Crown Oil & Wax Co. of Del., Inc. v. Glen Const Co. of Va., Inc., 320 Md. 546, 578 A.2d 1184 (1990) .....................................................................4 Dashiell v. Meeks, 396 Md. 149, 913 A.2d 10 (2006) .........................................................................7 Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).......................................................................................7 DIRECTV, Inc. v. Mattingly, 376 Md. 302, 829 A.2d 626 (2003) .....................................................................11 Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996).............................................................................................12

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TABLE OF AUTHORITIES continued Doyle v. Finance America, LLC, 173 Md. App. 370, 918 A.2d 1266 (2007) ..........................................................13 Fowler v. Printers II, Inc., 89 Md. App. 448, 598 A.2d 794 (1991) ............................................................5, 6 Harris v. Bridgford, 153 Md. App. 193, 835 A.2d 253 (2003) ..............................................................5 Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P’ship, 346 Md. 122, 695 A.2d 153 (1997) .......................................................................4 Holloman v. Circuit City Stores, Inc., 391 Md. 580, 894 A.2d 547 ...............................................................................4, 8 Holmes v. Coverall North America, Inc., 98 Md. App. 519, 633 A.2d 932 (1993) aff’d 336 Md. 534, 649 A.2d 365 (1994) ..............................................................4 Hooters of America, Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999) ..................................................................................4 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)...........................................................................................4, 7 Moses H Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983) ...................................................................................6, 7 National Union Fire Ins. Co. of Pittsburgh v. David A. Bramble, Inc., 388 Md. 195, 879 A.2d 101 (2005) .....................................................................11 Nova Research, Inc. v. Penske Truck Leasing Co., L.P., 405 Md. 435, 952 A.2d 275 (2008) .................................................................8, 10 NRT Mid-Atlantic, Inc. v. Innovative Properties, Inc., 144 Md. App. 263, 797 A.2d 824 (2002) ..............................................................8 RTKL Assoc. Inc. v. Four Villages Ltd. Partnership, 95 Md. App. 135, 620 A.2d 351, cert. denied, 331 Md. 87, 626 A.2d 371 (1993) ..................................................15

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TABLE OF AUTHORITIES continued Sagner v. Glenangus Farms, Inc., 234 Md. 156, 198 A.2d 277 (1964) .....................................................................11 Shabazz v. Bob Evans Farms, Inc., 163 Md. App. 602, 881 A.2d 1212, cert. denied, 390 Md. 92, 887 A.2d 656 (2005) ..................................................11 Southland Corp. v. Keating, 465 U.S. 1 (1984)...................................................................................................7 Taylor v. State, 381 Md. 602, 851 A.2d 551 (2004) ...............................................................12, 14 The Redemptorists v. Coulthard Servs., Inc., 145 Md. App. 116, 801 A.2d 1104 (2002) ............................................................5 United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 899 A.2d 819 (2006) .........................................................................8 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960)...............................................................................................7 University Sys. of Md. v. Mooney, 407 Md. 390, 966 A.2d 418 (2009) ...............................................................12, 14 Walther v. Sovereign Bank, 386 Md. 412, 872 A.2d 735 (2005) .................................................................8, 13

STATUTES: 9 U.S.C. § 2............................................................................................................6 Md. Code Ann., Cts. & Jud. Proc. § 3-206(a) (2010)............................................7 SECONDARY AUTHORITY: 8 Richard A. Lord, Williston on Contracts § 18.10 (4th ed. 1998) ......................13 Black’s Law Dictionary (7th ed. 1999) .................................................................9

I. STATEMENT OF THE CASE

A. Nature Of The Case

Plaintiff Thomas E. Mazerski (“Plaintiff” or “Mazerski”) brought this action

alleging that Defendants MobilePro Corp. (“MobilePro”) and CloseCall America, Inc.

(“CloseCall”) (collectively, “Defendants”) failed to pay him certain wages and salary

bonuses pursuant to an Executive Employment Agreement (“Agreement”). By way of

his Complaint, Plaintiff claimed a violation of the Maryland Wage Payment and

Collection Law and sought damages of $801,564.99, plus attorneys’ fees and costs.

B. Course Of The Proceedings And Disposition In The Lower Court

On or about January 28, 2008, Plaintiff filed a complaint against CloseCall in the

District Court of Maryland for Queen Anne’s County, seeking reimbursement of

$5,358.68 spent in connection with the Agreement. (E-24). The matter went to trial on

April 18, 2008, during which CloseCall successfully argued that the complaint was

subject to a mandatory mediation provision set forth in the Agreement. (E-16). The

court stayed the matter pending mediation. (E-16). Plaintiff initiated mediation with the

American Arbitration Association. (E-16, 80). During a Pre-Mediation Conference Call

on December 15, 2008, CloseCall took the position that Plaintiff was putting the “cart

before the horse” by seeking attorneys’ fees for claims he had yet to bring successfully

against the Defendants. (E-48). CloseCall asserted that it made more sense for Plaintiff

to make all of his claims – for wages and attorneys’ fees – in a single action to be decided

by an arbitrator. (E-48). Mazerski stated that he did not want to proceed in that manner.

(E-48). He only wanted the attorneys’ fees issue to be resolved at that time. (E-48). It

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was at this point that the Mediator, Stanley Mazaroff, determined that the parties could

not reach a resolution through the mediation process. (E-16). Accordingly, the

mediation process was terminated. (E-79, 80). On April 29, 2009, the District Court

dismissed the complaint because there had been no activity in the matter for more than

one year. (E-25).

On May 28, 2009, Plaintiff filed a complaint in the Circuit Court for Montgomery

County. (E-3, 8-10). On July 1, 2009, Defendants filed a motion to dismiss and motion

to compel arbitration. (E-6, 11-38). Plaintiff filed his response in opposition on July 8,

2009. (E-6, 39-44). Defendants filed a reply memorandum on July 16, 2009. (E-6, 45-

50). Plaintiff submitted a reply to the reply memorandum on July 23, 2009. (E-6, 51-

71). On August 10, 2009, Defendants filed a sur-reply in support of their motion to

dismiss and motion to compel arbitration. (E-6, 72-76). On August 14, 2010, Judge

Dugan issued an order in which he denied Defendants’ motion to dismiss and granted

their motion to compel arbitration. (E-4, 6, 77). Thereafter, Plaintiff noticed his appeal.

(E-4, 78).

II. QUESTIONS PRESENTED

DID THE CIRCUIT COURT ERR IN GRANTING THE MOTION TO COMPEL ARBITRATION WITHOUT A HEARING? IS PLAINTIFF SEEKING DAMAGES SUCH THAT HIS ACTION IS SUBJECT TO MANDATORY ARBITRATION? IS THE AGREEMENT UNCONSCIONABLE? DID THE DEFENDANTS WAIVE THEIR RIGHT TO COMPEL ARBITRATION?

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III. STATEMENT OF FACTS

On or about October 18, 2004, Mazerski, MobilePro and CloseCall entered into

the Agreement. (E-28-38). The Agreement contains an arbitration provision governed

by the Federal Arbitration Act (“FAA”), which reads as follows:

Mr. Mazerski, the Company, and Mobilepro shall submit to mandatory and exclusive binding arbitration, any controversy or claim arising out of, or relating to, this Agreement or any breach thereof where the amount in dispute is greater than or equal to Fifty Thousand Dollars ($50,000), 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. In the event the amount of any controversy or claim arising out of, or relating to, this Agreement, or any breach thereof, is less than Fifty Thousand Dollars ($50,000), the parties hereby agree to submit such claim to mediation. Such arbitration shall be governed by the Federal Arbitration Act and conducted through the American Arbitration Association (“AAA”) in the state of Maryland, 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 the 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, which contains the essential findings and conclusions on which the decision is based. Mediation shall be governed by, and conducted through, the AAA. Judgment upon the determination or award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

(E-38).

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IV. ARGUMENT

A. Standard of Review

A circuit court’s decision to compel arbitration is a conclusion of law, which is

reviewed de novo to determine whether an agreement to arbitrate existed. Holloman v.

Circuit City Stores, Inc., 391 Md. 580, 588, 894 A.2d 547 (2006). When considering a

motion to compel arbitration, a court’s function is to determine whether there is an

enforceable agreement to arbitrate the subject matter of a particular dispute. Hooters of

America, Inc. v. Phillips, 173 F.3d 933, 937 (4th Cir. 1999). “Where the language of the

arbitration language is clear, and it is plain that the dispute sought to be arbitrated falls

within the scope of the arbitration clause, arbitration should be compelled.” Holmes v.

Coverall North America, Inc., 98 Md. App. 519, 525-26, 633 A.2d 932 (1993) (citation

omitted), aff’d 336 Md. 534, 649 A.2d 365 (1994). Where there is a broad arbitration

clause, calling for the arbitration of any disputes arising out of the contract, all issues are

arbitrable unless expressly and specifically excluded. Crown Oil & Wax Co. of Del., Inc.

v. Glen Const. Co. of Va., Inc, 320 Md. 546, 560, 578 A.2d 1184 (1990). Where there is

any doubt as to whether a claim is arbitrable, i.e., the scope of arbitrability, all such

doubts should be resolved “in favor of arbitration.” Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).

The right to arbitrate is a creature of contract and is governed by principles of

contract law. Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd.

Partnership, 346 Md. 122, 127, 695 A.2d 153 (1997). A party to a contract that confers a

right to arbitration may waive that right. Commonwealth Equity Services, Inc. v. Messick,

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152 Md. App 381, 393, 831 A.2d 1144, cert. denied, 378 Md. 614, 837 A.2d 926 (2003).

Waiver is “the intentional relinquishment of a known right, or such conduct as warrants

an inference of the relinquishment of such a right.” Charles J. Frank, Inc. v. Associated

Jewish Charities of Baltimore, Inc., 294 Md. 443, 449, 450 A.2d 1304 (1982). “[A]cts

relied upon as constituting waiver of the provisions of a contract must be inconsistent

with an intention to insist upon enforcing such provisions.” Id. (citation and internal

quotation marks omitted). The intent of a party to waive a right to arbitrate “must be

clearly established and will not be inferred from equivocal acts or language.” Id.

“[T]here is no ‘bright-line’ test for determining waiver, . . . the determination of what

conduct constitute[s] an ‘intentional relinquishment’ of one’s right to arbitrate is highly

factually dependent.” Harris v. Bridgford, 153 Md. App. 193, 206, 835 A.2d 253 (2003)

(quoting The Redemptorists v. Coulthard Servs., Inc., 145 Md. App. 116, 145, 801 A.2d

1104 (2002)). “A circuit court’s decision that a party has or has not waived [its] right to

arbitrate is a factual finding that will not be disturbed on appeal unless it is clearly

erroneous.” Brendesel v. Winchester Constr. Co., Inc., 162 Md. App. 558, 574, 875 A.2d

789 (2005) (citations omitted).

B. Granting Defendants’ Motion to Compel Arbitration Was Not Dispositive Of A Claim Or Defense A circuit court is only required to hold a hearing on a motion if its decision would

be dispositive of a claim or defense. Fowler v. Printers II, Inc., 89 Md. App. 448, 484,

598 A.2d 794 (1991). The terms “claim” and “defense” are to be narrowly construed and

are not to include “the arguments made in order to obtain or thwart collateral litigation

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matters, like those contained in motions for discovery sanctions, motions for protective

orders, or motions for sanctions . . . .” Id. at 485. Here, the Circuit Court did not dispose

of any claim or defense. Rather, it directed Mazerski to seek redress in a different venue

– before an arbitrator. Plaintiff may raise any applicable claim or defense he possesses in

arbitration.

C. Plaintiff Is Only Seeking Damages, And Thus Arbitration Is Mandated

1. This Dispute Is Subject To Arbitration

Section 2 of the FAA reads, in pertinent part, as follows:

A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. A strong federal policy favors arbitration of disputes and the United States

Supreme Court has urged a broad reading of arbitration provisions creating a presumption

in favor of arbitration. “As a matter of federal law, any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is

the construction of the contract language itself or an allegation of waiver, delay, or a like

defense to arbitrability.”1 Moses H Cone Memorial Hosp. v. Mercury Construction Corp.,

1 Similarly, under Maryland’s Uniform Arbitration Act, “a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and

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460 U.S. 1, 24-25 (1983). Consistent with this strong federal policy, state2 and federal

courts must “rigorously enforce” written arbitration agreements. Dean Witter Reynolds,

Inc. v. Byrd, 470 U.S. 213, 221 (1985). Courts should not deny requests to arbitrate an

issue “unless it may be said with positive assurance that the arbitration clause is not

susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of

America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960). Indeed, where

there is any doubt as to whether a claim is arbitrable, i.e., the scope of arbitrability, all

such doubts should be resolved “in favor of arbitration.” Mitsubishi Motors, 473 U.S. at

626.

In this case, the arbitration provision of the Agreement is broadly worded and

provides that “any controversy or claim arising out of, or relating to, this Agreement or

any breach thereof where the amount in dispute is greater than or equal to Fifty Thousand

Dollars ($50,000)” will be subject to arbitration. (E-38). By signing the Agreement,

Mazerski agreed that he read and understood the contents of the document. Dashiell v.

Meeks, 396 Md. 149, 167, 913 A.2d 10 (2006) (citations omitted) (observing that a party

who signs a contract is presumed to have read and understood its terms and as such will

be bound by its execution). In his Complaint, Mazerski alleges that MobilePro and

CloseCall failed to pay him certain wages and bonuses and reimburse him for attorneys’

fees in violation of the Agreement – the very same Agreement that contains an arbitration

enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.” Md. Code Ann., Cts. & Jud. Proc. § 3-206(a) (2010). 2 The FAA applies in state courts and preempts state law as to its subject matter. Southland Corp. v. Keating, 465 U.S. 1, 16 & n. 10 (1984).

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provision. (E-9). Clearly, Mazerski’s claim is covered by the arbitration provision of the

Agreement.

2. Mazerski’s Interpretation Of The Arbitration Provision Would Render It Meaningless Mazerski interprets the phrase “equitable relief from a court” in the Agreement’s

arbitration provision to mean that he “has a right to institute this action in lieu of

arbitration.” That interpretation is incorrect.

“The issue of whether an agreement to arbitrate exists is governed by contract

principles.” Holloman., 391 Md. at 590. Accord NRT Mid-Atlantic, Inc. v. Innovative

Properties, Inc., 144 Md. App. 263, 279, 797 A.2d 824 (2002) (“Whether there is an

agreement to arbitrate the parties’ dispute is a legal question of contract interpretation.”).

The interpretation of a written contract, including whether a dispute is subject to

arbitration, is a question of law. Walther v. Sovereign Bank, 386 Md. 412, 422, 872 A.2d

735 (2005). In construing a contract, “‘Maryland adheres to the principle of the objective

interpretation of contracts.’” Anderson Adventures, LLC v. Sam & Murphy, Inc., 176 Md.

App. 164, 178, 932 A.2d 1186 (2007) (quoting Cochran v. Norkunas, 398 Md. 1, 16, 919

A.2d 700 (2007)). “If a contract is unambiguous, the court must give effect to its plain

meaning and not contemplate what the parties may have subjectively intended by certain

terms at the time of formation.” Nova Research, Inc. v. Penske Truck Leasing Co., L.P.,

405 Md. 435, 448, 952 A.2d 275 (2008). “[T]he ‘court must presume that the parties

meant what they expressed.’” Anderson, 176 Md. App. at 178 (quoting United Servs.

Auto. Ass’n v. Riley, 393 Md. 55, 80, 899 A.2d 819 (2006)).

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An objective reading of the Agreement’s arbitration provision reveals that

damages claims equal to or exceeding $50,000 must be resolved by way of arbitration,

but that a party may still seek an equitable remedy, such as an injunction, from a court.

However, Mazerski would have this Court believe that “equitable relief” is synonymous

with money damages. That is not the case. “Equitable relief” or “equitable remedy” is a

“nonmonetary remedy, such as an injunction or specific performance, obtained when

monetary damages cannot adequately redress the injury.” Black’s Law Dictionary 1297

(7th ed. 1999). Put differently,

[t]he term equitable, when applied to a remedy, usually has a precise meaning. It means a remedy based on a personal order, commanding specified conduct of the defendant, such as an injunction, an order for specific performance, or a constructive trust or similar remedy coupled with an in personam order.

Alternatives Unlimited, Inc. v. New Baltimore City Bd. of Sch. Comm’rs, 155 Md. App.

415, 459, 843 A.2d 252 (2004) (citation omitted). Here, Mazerski asks “[t]hat this Court

enter a judgment in favor of the Plaintiff against the Defendants in the amount of

$801,564.99 plus attorneys’ fees and costs.” (E-9). Mazerski is only seeking money

damages in his Complaint. Pursuant to the Agreement, such money damages can only be

requested in an arbitration forum. Mazerski does not, and cannot seek any “equitable

relief,” and thus there is no remedy that the circuit court could provide to him.

The Agreement’s arbitration provision reads, in relevant part, as follows:

Mr. Mazerski, the Company, and Mobilepro shall submit to mandatory and exclusive binding arbitration, any controversy or claim arising out of, or relating to, this Agreement or any breach thereof where the amount in dispute is greater than or

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equal to Fifty Thousand Dollars ($50,000), 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.

(E-38). Plaintiff’s interprets the plain language of the Agreement to mean that he was not

required to go to arbitration but could bring an action in Court to enforce his rights.

However, Mazerski’s interpretation is of no moment because “[i]f a contract is

unambiguous, the court must give effect to its plain meaning and not contemplate what

the parties may have subjectively intended by certain terms at the time of formation.”

Nova Research, 405 Md. at 448. Here, the plain meaning of the Agreement is that

arbitration is mandatory, not elective, where the amount in dispute is greater than or equal

to $50,000 – note that the provision reads “shall submit to mandatory and exclusive

binding arbitration, . . .” (E-38) (emphasis supplied).

Mazerki’s strained interpretation would make the arbitration provision

meaningless as parties can always decide to arbitrate rather than litigate even in the

absence of an arbitration agreement or provision. However, in that regard, Maryland

courts have adhered to the principle that they will not unnecessarily read contractual

provisions as meaningless:

A recognized rule of construction in ascertaining the true meaning of a contract is that the contract must be construed in its entirety and, if reasonably possible, effect must be given to each clause so that a court will not find an interpretation which casts out or disregards a meaningful part of the language of the writing unless no other course can be sensibly and reasonably followed.

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National Union Fire Ins. Co. of Pittsburgh v. David A. Bramble, Inc., 388 Md. 195, 209,

879 A.2d 101 (2005), quoting DIRECTV, Inc. v. Mattingly, 376 Md. 302, 320, 829 A.2d

626 (2003), quoting in turn Sagner v. Glenangus Farms, Inc., 234 Md. 156, 167, 198

A.2d 277 (1964).

3. Mazerski Is Not Seeking, And Cannot Seek, “Backpay”

In a last-ditch attempt to avoid mandatory arbitration, Mazerski claims that he “is

an employee seeking to recover wages which can be described as ‘backpay’” and that

“backpay” is equitable in nature and is not an award of damages.” Plaintiff is correct that

“backpay” is an equitable remedy, but fails to recognize that it is only a remedy in civil

rights actions. Shabazz v. Bob Evans Farms, Inc., 163 Md. App. 602, 625-26, 881 A.2d

1212 (stating that “[i]n a Title VII civil rights action, the court has broad discretion to

grant equitable relief in order to make the injured person whole, that is, to place him in

the position he would have been in absent the discriminatory actions. . . . An award of

backpay is one such type of equitable relief.”), cert. denied, 390 Md. 92, 887 A.2d 656

(2005). “‘Backpay’ is the salary the complainant employee would have received but for

the unlawful discriminatory acts, minus his actual interim earnings or the amounts he

would have worked had he diligently sought other work.” Id. at 625 (citation omitted).

Mazerski is not claiming unlawful discriminatory acts, and thus cannot request an award

of “backpay.” Moreover, Plaintiff has failed to identify any statutory provision or case

that provides for an award of “backpay” in a Wage Payment and Collection Act case.

Mazerski is simply grasping at straws in an attempt to avoid mandatory arbitration.

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D. There Is Nothing In The Record To Suggest That The Agreement Is Unconscionable As a preliminary matter, it should be pointed out that, in the circuit court, Plaintiff

never argued that the Agreement was unconscionable. Maryland appellate courts have

consistently held that they will not review issues not raised or decided at the trial level.

Taylor v. State, 381 Md. 602, 612, 851 A.2d 551 (2004). As explained by the Court of

Appeals, “[t]he purpose of [Rule 8-131(a)] is to require counsel to bring the position of

their client to the attention of the lower court at the trial so that the trial court can pass

upon, and possibly correct any errors in the proceedings and to prevent the trial of cases

in a piecemeal fashion, thus accelerating the termination of litigation.” University Sys. of

Md. v. Mooney, 407 Md. 390, 401, 966 A.2d 418 (2009) (citations and quotations

omitted). Given that Plaintiff did not raise this issue below, this Court should not

consider his unconscionability argument.

Even if this Court did entertain his argument, there is nothing in the record to

suggest that the Agreement is unconscionable. “[G]enerally applicable defenses, such as

fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements . .

. .” Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996).

“The concept of unconscionability was meant to counteract two generic forms of abuses: the first of which relates to procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter the transaction; and the second of which relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining

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process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having nothing to do with price or other central aspects of the transaction.”

Walther, 386 Md. at 426-27 (quoting 8 Richard A. Lord, Williston on Contracts § 18.10

(4th ed. 1998)).

The concept of unconscionability can be further broken down into substantive

unconscionability and procedural unconscionability. “Substantive unconscionability

involves those one-sided terms of a contract from which a party seeks relief (for instance,

“I have the right to cut off one of your child’s fingers for each day you are in default”) . .

. .” Id. at 427 (quoting Carlson v. General Motors Corp., 883 F.2d 287, 296 (4th Cir.

1989)). “[P]rocedural unconscionability deals with the process of making a contract-

“bargaining naughtiness” (for instance, “Just sign here; the small print on the back is only

our standard form”). Id. “The prevailing view is that [procedural and substantive

unconscionability] must both be present in order for a court to exercise its discretion to

refuse to enforce a contract or clause under the doctrine of unconscionability.” Doyle v.

Finance America, LLC, 173 Md. App. 370, 918 A.2d 1266 (2007) (citation and internal

quotation marks omitted) (modification in original).

Here, there is nothing in the record to support a finding of unconscionability.

Plaintiff has failed to demonstrate that the arbitration provision at issue is one-sided or

otherwise substantively unconscionable. With respect to procedural unconscionability,

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Plaintiff alleges that the arbitration provision was prepared by MobilePro and CloseCall,

and was provided on a take-it-or-leave-it basis. (App. Br. at pp. 13 & 14). However,

there is nothing in the record to support these “factual” assertions – assertions made for

the first time in his brief. Also, it is interesting to note that Plaintiff signed the agreement

both individually and in his capacity as President and Chief Executive Officer of

CloseCall. (E-69, 70). This would seem to negate any presumption that could be drawn

against Defendants. (App. Br. at p. 15). Regardless, Plaintiff’s unconscionability

argument should be rejected.

E. Defendants Did Not Waive Their Right To Compel Arbitration

Again, preliminarily, it should be noted that, in the circuit court, Plaintiff never

argued that Defendants had waived their right to arbitration. So, ironically, it is Mazerski

who has effected a waiver. Mooney, 407 Md. at 401; Taylor, 381 Md. at 612. That said,

even if this Court looks past Plaintiff’s failure, there is no evidence that that Defendants

waived their right to compel arbitration.

Participation in a judicial proceeding that results in a final judgment may, in certain circumstances, waive the right to arbitrate. Some limited participation in judicial proceedings does not constitute a waiver. Whether an answer directed to the merits is filed is a factor. Participation in extensive discovery is a factor in determining waiver. However, also relevant is whether a party utilized discovery devices that would not have been available in arbitration. Delay in attempting to compel arbitration, by itself, may not be conclusive, although coupled with prejudice to the other party can support a finding of waiver. The filing of suit can be a significant act in a waiver calculus, and in some instances it perhaps could be dispositive. Nevertheless, if there is a legitimate reason for participating in litigation, it will not be deemed a waiver.

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Abramson v. Wildman, 184 Md. App. 189, 200-01, 964 A.2d 703 (2009) (internal

citations and quotation marks omitted). That is, Maryland case law makes clear that a

waiver of the right to arbitration arises where a party actively litigates the matter in the

circuit court. Messick, 152 Md. App. at 398-99 (finding that defendants waived

arbitration by filings answers, participating in discovery, and waiting until the even of

trial to petition for arbitration) and RTKL Assoc. Inc. v. Four Villages Ltd. Partnership,

95 Md. App. 135, 144-45, 620 A.2d 351, cert. denied, 331 Md. 87, 626 A.2d 371 (1993)

(affirming a finding of a waiver where the party seeking to compel arbitration had waited

five years after filing its claim to demand arbitration and in that five-year period had

actively participated in litigation including depositions, other discovery, and filing of a

motion for summary judgment).

Defendants did not seek to litigate this matter in the district court, nor did they

seek to do so in the circuit court. They invoked the mediation provision when Mazerski

sought to recover his attorneys’ fees and expenses in the district court action. (E-16).

During a Pre-Mediation Conference Call, CloseCall took the position that Mazerski was

putting the “cart before the horse” by seeking attorneys’ fees for claims he had yet to

bring. (E-48). Rather, CloseCall argued that made more sense for Mazerski to make all

of his claims – for wages and attorneys’ fee – in a single action to be decided by an

arbitrator. (E-48). Mazerski disagreed. (E-48). The mediation process was then

concluded. (E-79, 80). At that point Mazerski could have returned to district court to

litigate his claim for fees. He did not do so. Instead, he allowed the dismissal of the

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district court case and filed the circuit court action. (E-3, 8-10, 25). Defendants

immediately moved to compel arbitration because Plaintiff’s damages exceeded $50,000.

(E-6, 11-38). Defendants never took a full-course plunge into litigation and were not

dilatory in seeking to compel arbitration. Accordingly, MobilePro and CloseCall did not

waive their right to arbitration.

V. CONCLUSION

Defendants request that this Court affirm Judge Dugan’s Order enforcing the

Agreement’s arbitration provision, and request such other relief as is just and proper.

Respectfully submitted,

______________________________ Patrick R. Buckler Spence & Buckler, P.C. 100 W. Pennsylvania Avenue, Suite 301 Towson, Maryland 21204 (tel) (410) 823-0105 (fax) (443) 927-8905 Counsel for MobilePro Corp. and CloseCall America, Inc.

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STATEMENT OF FONT AND FONT SIZE

This Brief was prepared with Times New Roman font, in 13 point typeface for the

body, and 13 point typeface for the footnotes.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of April 2010, two copies of the

foregoing brief were served via first class mail, postage pre-paid, upon:

Stanley R. Jacobs 165 Log Canoe Circle, Suite I Stevensville, Maryland 21666 Counsel for Appellant

Patrick R. Buckler