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BENDER v. SMITH BARNEY

April 8, 1992

SANDRA BENDER, Plaintiff, v SMITH BARNEY, HARRIS UPHAM & CO. INC., RICHARD T. CARLIN, JR., and JOHN MAINE, Defendants.


The opinion of the court was delivered by: WILLIAM G. BASSLER

BASSLER, DISTRICT JUDGE:

 Defendants move to dismiss the complaint, or in the alternative to compel arbitration. For the following reasons defendants' motion shall be granted in part and denied in part.

 I. BACKGROUND.

 On June 18, 1990, the plaintiff, Sandra Bender filed an action in this Court against the defendants (civil action number 90-2347) alleging violations of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1985(3), breach of contract, tortious interference with advantageous relationships, defamation and intentional infliction of emotional distress.

 On August 10, 1990 defendants filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or to compel arbitration. On October 26, 1990 the Honorable John F. Gerry, U.S.D.J. signed a consent order which stated in pertinent part:

 IT IS FURTHER ORDERED THAT this action will be stayed pending referral of the matter to arbitration, subject to dismissal by the Court in the event that plaintiff fails to seek arbitration by January 18, 1991; . . .

 See, Exhibit C annexed to Certification of Arthur Havinghorst, II, Esq.

 Subsequently, plaintiff retained new counsel, Louis R. Moffa, Jr. *fn1" On January 8, 1991, plaintiff voluntarily dismissed Civil Action Number 90-2347 pursuant to Fed. R. Civ. P. 41(a)(1). See, Affidavit of Sandra Bender at para. 6 and Exhibit A.

 On July 28, 1991, upon returning to the United States, plaintiff picked up her mail from the United States Post office. Id. at paras. 7-8. Included in the mail was an Equal Employment Opportunity Commission ("EEOC") Determination, or "right to sue" letter, dated and mailed on July 15, 1991, which gave plaintiff the right to bring the Title VII claims in this case. Id. at para. 9 and Exhibit B; see also Exhibit B annexed to Havinghorst Affidavit. *fn2"

 On October 15, 1991, plaintiff filed this case in the New Jersey Superior Court, Camden County. On December 19, 1991, defendants removed the matter to this Court.

 On February 14, 1992, defendants filed this motion to dismiss the complaint or in the alternative to compel arbitration. Plaintiff opposes the motion and demands a jury trial, pursuant to 9 U.S.C. § 4, on the issue of whether an agreement was made to arbitrate claims such as those in this case.

 II. STATEMENT OF FACTS

 On August 16, 1989, in connection with beginning employment with defendant, Smith Barney, Harris Upham & Co., Inc. ("Smith Barney"), plaintiff signed a Form U-4 to effect the transfer of her registration with certain securities exchanges and organizations. *fn3" ...


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