Opinion
No. 16-50674
10-19-2016
BRIAN DISMUKE, Individually and on behalf of all others similarly situated, Plaintiff - Appellant v. TONY MCCLINTON, Individually and as Officer and Director of McClinton and SWECO, Defendant - Appellee
Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 7:16-CV-23 Before REAVLEY, OWEN, and ELROD, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Brian Dismuke sued Tony McClinton ("McClinton"), McClinton Energy Group, L.L.C., and SWECO ("Defendant Companies") for unpaid overtime wages under the Fair Labor Standards Act. Dismuke appeals the district court's order dismissing his claims, compelling arbitration, and denying class certification. He contends that McClinton, who signed the arbitration agreement on behalf of Defendant Companies, could not enforce the arbitration agreement because he was an independent liable employer. This argument is unpersuasive. The district court correctly reasoned that Dismuke's claims arose from his employment relationship with the Defendant Companies. Moreover, his claims against McClinton were claims against the companies. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex. 2007) (holding that because claims against a Merrill Lynch broker "are in substance claims against Merrill Lynch, they must abide by their agreement to arbitrate those claims.").
Dismuke subsequently amended his complaint removing Defendant Companies and leaving only Tony McClinton, Individually and as Officer and Director of these companies, in the lawsuit. --------
Also, the arbitration agreement at issue contained a waiver prohibiting class actions. This court is not compelled to reverse its holding that class action waivers in arbitration agreements are enforceable. D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013).
AFFIRMED.