WKRT21, LLC. et al v. Dickey's Barbecue Restaurants, Inc.

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WKRT21, LLC; JEFFERSON
WPSPP22, LLC; WILL TOMMEY
and KELLI TOMMEY 	PLAINTIFFS
v. 	Case No. 5:25-cv-05003
DICKEY’S BARBEQUE
RESTAURANTS, INC. 	DEFENDANT
ORDER
Before the Court is a Report and Recommendation (“R&R”) issued by the Honorable
Christy D. Comstock, United States Magistrate Judge for the Western District of Arkansas. ECF
No. 13. Judge Comstock recommended that the Court grant Defendant’s Motion to Stay in favor
of mediation and, if necessary, arbitration. 	ECF No. 8. 	Judge Comstock concluded that the
mediation and arbitration provisions in Article 27 of the parties’ Franchise Agreements0F
1 (ECF No.
9, at 75–77) are enforceable, that the parties’ disputes fall within the scope of those provisions,
and that a stay is appropriate pending mediation and, if necessary, arbitration. 	ECF No. 13.
Additionally, Judge Comstock advised that such proceedings must occur within Arkansas and
under Arkansas law. Plaintiffs have objected to the R&R. ECF No. 14.
Plaintiffs argue that, under the Arkansas Franchise Practices Act (“AFPA”) and the
Procedural Fairness for Restaurant Franchisees Act (“PFRFA”), the mediation and arbitration
provisions located in Article 27 of the Franchise Agreements, which include unenforceable venue
and choice of law clauses, should void not only these conditions, but also the requirement of
1 Attached to Plaintiff’s Complaint is Exhibit “A” which is apparently 1 of 2 Franchise Agreements (i.e., contracts)
between the parties. ECF No. 2.
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mediation and arbitration altogether. ECF No. 14, at 2–3. The Court disagrees.
While the AFPA and PFRFA protects franchisees from being forced to litigate or arbitrate
in an outside forum and under foreign law, it does not prohibit the enforcement of arbitration itself.
See, e.g., Rob & Bud’s Pizza, LLC v. Papa Murphy’s Int’l, Inc., No. 5:15-CV-5090, 2015 WL
3901611, at *2–4 (W.D. Ark. June 24, 2015) (applying Arkansas franchise statutes to modify
forum and choice-of-law provisions while maintaining the enforceable underlying contract
obligations). 	Plaintiffs themselves admit that “the Restaurant Act explicitly acknowledges the
possibility of arbitration- in Arkansas.” ECF No. 10, at 8; see Ark. Code § 4-72-602(a); see also
Ark. Code § 4-72-206(b). 	Additionally, Article 26.1 of the Franchise Agreement specifically
provides for severability of “each portion, article, part, term and provision of this Agreement”.
ECF No. 9, at 74. 	Further, Article 26.1 provides that the invalidity of any article, part, term or
provision does not impair the operation of the remaining agreement. ECF No. 9, at 74.
Judge Comstock properly imposed the severability provision, giving full effect to the
AFPA and PFRFA’s protective purpose while enforcing the parties’ contractual agreement
requiring them to resolve disputes through alternative dispute resolution. 	See Great Earth
Companies, Inc. v. Simons, 288 F.3d 878, 891 (6th Cir. 2002) (finding that “the terms of the
Agreement itself make it clear that the parties intended the agreement to arbitrate to survive, even
if certain parts of Article 15 (the arbitration and venue section) were found to be unenforceable.”);
Yates v. Royal Consumer Prods., LLC, No. 3:22-CV-075-CHB, 2022 WL 3365075, at *6 (W.D.
Ky. Aug. 15, 2022) (stating that, “[p]ut simply, the provisions are severable because the benefits
conveyed by the arbitration agreement continue to be conveyed even if the venue and choice of
law provisions have been excised.”); Dumitru v. Princess Cruise Lines, Ltd., 732 F. Supp. 2d 328,
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346 (S.D.N.Y. 2010) (holding that “[s]ince both the choice-of-law and choice-of-venue clauses
may be severed without rewriting any contractual language, the core agreement to arbitrate should
be enforced and the offending provisions should be stricken.”). Additionally, the Court recognizes
that federal policy strongly favors arbitration. AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
339 (2011) (noting that the Federal Arbitration Act (“FAA”) reflects a “liberal federal policy
favoring arbitration.”). Therefore, the Court does not find this objection persuasive and determines
that the contract requirement compelling mediation and arbitration remain enforceable.
Furthermore, Plaintiffs have not put forth specific objections to Judge Comstock’s
reasoning. 	Instead, Plaintiffs restate arguments previously made which received a lengthy
evaluation on their merits within Judge Comstock’s R&R. 	ECF No. 13, at 3–7. 	Within these
objections, Plaintiffs do not specifically address any of the substantial justification presented by
Judge Comstock, nor do they provide any support in either law or fact to justify their assertions.
Plaintiffs have asserted that Judge Comstock’s reasoning is flawed but fail to tell the Court why.
In addition, neither party has objected to Judge Comstock’s subsequent findings that Arkansas is
the proper venue for mediation/arbitration and that Arkansas law shall apply. ECF No. 13. Lastly,
all parties agree with Judge Comstock that if mediation and arbitration are compulsory, it is
appropriate to stay the instant action rather than to dismiss it. ECF No. 13.
Thus, the Court need only review the remaining recommendations of the R&R for clear
error. See Thompson v. Nix, 897 F.2d 356, 358–59 (8th Cir. 1990) (noting that an objection to a
magistrate’s R&R must be timely and specific to require a de novo review of the R&R). Upon
review, the Court finds no clear error on the face of the record and that Judge Comstock’s reasoning
is sound.
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Accordingly, the Court adopts the R&R (ECF No. 13) in its entirety. Defendant’s Motion
to Stay (ECF No. 8) is hereby GRANTED. The clerk of the Court is directed to stay the action
pending mediation and, if necessary, arbitration.
IT IS SO ORDERED, this 7th day of October, 2026.
/s/ John Thomas Shepherd
John Thomas Shepherd
United States District Judge
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