The opinion of the court was delivered by: Bernard Zimmerman United States Magistrate Judge
ORDER WITH RESPECT TO ROE 7
Before the court is a motion to dismiss three defendants on grounds of res judicata and abstention, and in the alternative, to compel Roe 7 to arbitrate her claims.
As I understand the motion to dismiss or abstain, its essence is that as part of a settlement reached in Seifred v. Centerfolds, and other consolidated cases, pending in San Francisco Superior Court, all dancers employed at Centerfolds, Roaring 20's, and Garden of Eden agreed that for a three year period commencing with the effective date of the settlement, which appears to be February 21, 2004, the defendants would treat the dancers as independent contractors. Since in this lawsuit plaintiffs are claiming that defendants are not treating them as independent contractors but as employees while not providing them with an employee's federal and state labor code rights, defendants argue those claims are either barred by the settlement agreement or should be resolved by the state court which retained jurisdiction to enforce the settlement. Roe 7 is the only named plaintiff who is a member of the Seifred settlement class.
During argument, the moving defendants agreed that the better procedure would be for the court to first consider the motion to arbitrate, since if their dispute with Roe 7 is arbitrable, the other issues should be resolved in that forum. Counsel for plaintiff advised that Roe 7 had no interest in the court abstaining so she could raise her claims before the state court with jurisdiction to enforce the settlement. Accordingly, I will first consider the motion to compel arbitration.
The arbitration provision in the Performer Contracts entered into by Roe 7 and Déjà Vu San Francisco, LLC is identical to the arbitration provision in the Performer Contracts at issue in my June 30, 2005 Order on the motions of defendants' Chowder House, Inc. and SAW Entertainment, Ltd. to compel arbitration. The other provisions are, in pertinent part, substantively similar, with the exception that Roe 7's Performer Contracts contain no class action ban. For the reasons stated in my June 30, 2005 Order, IT IS ORDERED that the motion to compel Roe 7 to arbitrate her claims is GRANTED, with the exception that the provision shortening the statute of limitations is severed. The motion to dismiss on grounds of res judicata and abstention is DENIED without prejudice to being renewed in arbitration.
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