March 17, 2025- Jace Bankert v. 10 Roads Express, LLC, No. A-1-CA-41783

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IN'THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
. Court of Appeals of New Mexico
Opinion Number: Filed 3 7/2025 8:41 AM
CT v
Filing Date: March 17, 2025 & 7
Stephanie Latimer Davis
No. A-1-CA-41783 Acting Chief Clerk
JACE BANKERT, on behalf of himself
and other persons similarly situated,
known and unknown,
Plaintiff-A ppellee,
V.
10 ROADS EXPRESS, LLC,
Defendant- Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francs J. Mathew, District Court Judge

Durham, Pittard & Spalding LLP
Caren I. Fnedman

Justin R. Kaufman

Philip M. Kovnat

Santa Fe, NM

Werman Salas P.C.
Douglas M. Werman
John J. Frawley
Chicago, IL

for Appellee
Scopelitis, Garvin, Light, Hanson & Feary, P.C.

Charles Andrewscavage
Chicago, IL

—

4

YLAW, P.C.
Andrea K. Robeda
Albuquerque, NM

for Appellant

OPINION	1
WRAY, Judge.	2
{1} Plaintiff is a former employee of Defendant 10 Roads Express, LLC	3
(Company or the Company). This appeal primarily involves the applicability of	4
9 U.S.C. § 1 of the Federal Arbitration Act (the FAA) to an arbitration agreement	5
(the Agreement) that Company sent to Plaintiff during the hiring process and that	6
Plaintiff signed. The FAA “requires courts to enforce private arbitration	7
agreements.” New Prime Inc. v. Oliveira, 586 U.S. 105, 108 (2019); see 9 U.S.C. § 2.	8
The FAA, however, exempts certain contracts from mandatory enforcement,	9
including the “contracts of employment of seamen, railroad employees, or any other	10
class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; see	11
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001) (limiting “any other	12
class of workers” to transportation workers).1 Company appeals the district court’s	13
determination that the Agreement could not be enforced because it either lacked	14
consideration or the transportation workers exemption applied. In the alternative,	15
Company argues that the district court incorrectly determined that another term of	16
the Agreement, a class action waiver, did not apply to the present circumstances. We	17
hold that the promise to arbitrate in the Agreement was supported by consideration	18
1In this opinion, we generally refer to this provision of 9 U.S.C. § 1 as the “§ 1
exemption.”

2
but is otherwise unenforceable based on the § 1 exemption, which applied because	1
(1) the parties intended for the Agreement to be part of the contract for employment;	2
and (2) the evidence sufficiently established that Plaintiff belonged to a class of	3
transportation workers that was engaged in interstate commerce by participating in	4
the transportation of goods in and out of New Mexico. As to the class action waiver,	5
we conclude that we are without jurisdiction to review that matter in the present	6
appeal. We therefore affirm.	7
BACKGROUND	8
{2} Company employed Plaintiff as a commercial truck driver from November	9
2021 until December 2022. Plaintiff “operated exclusively intrastate, hauling loads	10
on a dedicated route in New Mexico.” On November 29, 2021, Plaintiff signed the	11
Agreement, which included an introductory clause that stated, “In consideration of	12
my employment with . . . Company . . . , and my receipt of compensation now and	13
hereafter paid to me by Company, I, the Company Employee/Applicant, who signs	14
this . . . Agreement . . . below (referred to as ‘I’ or ‘me’), agree to the following”	15
terms. Those terms include the promise to arbitrate “[c]laims for wages, benefits or	16
other compensation due.” Excluded from “[c]laims [c]overed by [t]his Agreement”	17
were three specific categories of claims as well as “any other claim that is not subject	18
to arbitration under state or federal law.” Plaintiff was permitted to “opt-out of this	19

3
Agreement by providing a written request to rescind to the Company within thirty	1
(30) days of signing.” The Agreement states that	2
[t]his Agreement is not, and does not create, any contract of	3
employment, express or implied. I acknowledge that, if I am employed	4
by Company, my employment shall be “at-will,” that is, Company or I	5
may terminate my employment at any time, for any reason, either with,	6
or without, cause, and that my “at-will” status may be modified only in	7
a writing signed by the [p]resident of the Company.	8
The Agreement additionally required the parties to waive the right to bring a class	9
action.	10
{3} Nevertheless, Plaintiff filed a class-action complaint in the district court	11
against Company for violations of the New Mexico Minimum Wage Act, NMSA	12
1978, §§ 50-4-19 to -30 (1955, as amended through 2021). Company filed a motion	13
to dismiss or stay and compel arbitration or to enforce the class action waiver. The	14
district court denied Company’s motion and found that (1) the Agreement lacked	15
sufficient consideration; (2) the district court could not compel arbitration under the	16
FAA because the § 1 exemption applied; and (3) the Agreement’s class action	17
waiver was unenforceable. Company appeals.	18
DISCUSSION	19
{4} As our Supreme Court succinctly stated in a similar context, “all issues before	20
us are subject to a de novo standard of review.” Cordova v. World Fin. Corp. of	21
N.M., 2009-NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901; see id. (considering the	22
denial of a motion to compel arbitration, whether the parties agreed to arbitrate, and	23

4
the applicability and construction of an arbitration provision); see also Strausberg v.	1
Laurel Healthcare Providers, LLC, 2013-NMSC-032, ¶ 25, 304 P.3d 409	2
(interpreting the FAA de novo). We briefly address the district court’s determination	3
that the arbitration provision of the Agreement was not enforceable for lack of	4
consideration. The district court viewed the consideration for the promise to arbitrate	5
to be Plaintiff’s performance of work in return for Company’s payment of wages.	6
Mutual obligations to arbitrate, however, are sufficient to support an agreement to	7
arbitrate. See Juarez v. THI of N.M. at Sunset Villa, LLC, 2022-NMCA-056, ¶ 15,	8
517 P.3d 918. Thus, to the extent that the promise to arbitrate was supported by	9
consideration, the Agreement was enforceable. We next take up the § 1 exemption.	10
I. The Transportation Worker Exemption	11
{5} The party seeking to compel arbitration bears the burden to demonstrate a	12
valid agreement to arbitrate exists, Strausberg, 2013-NMSC-032, ¶ 42, but if the	13
moving party is successful, the burden shifts to the party resisting arbitration to prove	14
any defenses, including the applicability of the transportation worker exemption, see	15
id. ¶ 43 (establishing the shifted burden for affirmative defenses once the initial	16
burden to prove the formation of a valid contract has been satisfied); see also Green	17
Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000) (“We have held that	18
the party seeking to avoid arbitration bears the burden of establishing that Congress	19
intended to preclude arbitration of the statutory claims at issue.”). To determine	20

5
whether Plaintiff met the burden to demonstrate that the § 1 exemption applies, we	1
must analyze the terms of the § 1 exemption in the factual context of the present	2
case.	3
{6} Specifically, we focus on the meaning of the statutory terms “contracts of	4
employment” and “any other class of workers engaged in foreign or interstate	5
commerce.” See 9 U.S.C. § 1. The Supreme Court of the United States has explored	6
to some extent what these terms mean. See, e.g., New Prime, 586 U.S. at 113	7
(construing “contracts of employment”); Circuit City Stores, Inc., 532 U.S. at 109	8
(construing “any other class of workers” to mean only transportation workers	9
(internal quotation marks and citation omitted)); Sw. Airlines Co. v. Saxon, 596 U.S.	10
450, 457-59 (2022) (determining whether the plaintiff with a particular job fell	11
within the class of transportation workers engaged in interstate commerce).	12
Company contends that Plaintiff did not establish that either term applies under the	13
present circumstances, and we first consider whether the Agreement is a “contract	14
of employment.”	15
A. A Contract of Employment	16
{7} The parties’ first dispute on this topic is about what evidence this Court should	17
use to evaluate the Agreement to determine whether it is a “contract of employment.”	18
Relying on certain terms of the Agreement alone, Company notes that the	19
Agreement contains no terms of work, states that it is not an employment contract,	20

6
and was not mandatory. Company disputes that the Agreement can be construed with	1
other documents to be a “comprehensive employment contract,” which the district	2
court appears to have done as demonstrated by its reference to Neims v. Neovia	3
Logistics Distribution, LP, No. EDCV 23-716 PA, 2023 WL 6369780 (C.D. Cal.	4
Aug. 10, 2023) (order). Instead, Company maintains that Gilmer v.	5
Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) and New Prime foreclose	6
evaluating the transaction as a “comprehensive employment contract” and that	7
Neims was wrongly decided. Plaintiff disputes Company’s assessment of Gilmer,	8
Neims, and New Prime and directs us to the introductory clause of the Agreement as	9
well as “extrinsic evidence” that the Agreement is part of a contract of employment.	10
To understand the parties’ arguments, we examine Gilmer, Neims, and New Prime,	11
as well as other authorities that consider the statutory term, “contracts of	12
employment.” See 9 U.S.C. § 1.	13
1. The Backdrop of Federal Case Law	14
{8} In Gilmer, the Supreme Court of the United States briefly addressed the § 1	15
exemption. See 500 U.S. at 25 n.2. An employment agreement required a newly	16
hired employee to register with the New York Stock Exchange, and the registration	17
application included an arbitration provision. Id. at 23. The employee was eventually	18
fired and filed a lawsuit that alleged age discrimination. Id. In a footnote, the Gilmer	19
Court concluded that the § 1 exemption did not apply because the record did not	20

7
show and the parties did not argue that the employment agreement “contained a	1
written arbitration clause.” Id. at 25 n.2. Instead, the arbitration clause was in the	2
securities registration application, “which [wa]s a contract with the securities	3
exchanges, not with [the employer].” Id.	4
{9} According to Company, “lower courts have construed Gilmer to mean that, to	5
be a ‘contract of employment,’ an arbitration provision must be contained in a	6
broader employment agreement” and cites American Airlines, Inc. v. Mawhinney,	7
904 F.3d 1114 (9th Cir. 2018), Harrington v. Atlantic Sounding Co., 602 F.3d 113	8
(2d Cir. 2010), and Garza Nunez v. Weeks Marine, Inc., Civ. Action No. 06-3777,	9
2007 WL 496855 (E.D. La. Feb. 13, 2007) (order). In each of those cases, however,	10
the arbitration agreement was signed significantly after the employee was hired and	11
after another event occurred that caused the employer to seek an agreement to	12
arbitrate. See Am. Airlines, Inc., 904 F.3d at 1116-17, 1122 (holding that it was	13
“doubtful” that the § 1 exemption applied because the arbitration agreement was	14
contained in a settlement agreement resulting from a post-termination retaliation	15
complaint, was not “the contract under which [the employee] was hired,” and did	16
not set the terms and conditions of employment); Harrington, 602 F.3d at 115-16,	17
121 (concluding that the arbitration agreement, which was signed two years after	18
hiring and after a workplace injury, was “not contained in a broader employment	19
agreement between the parties” and was an “independent arbitration agreement”	20

8
(internal quotation marks and citation omitted)); Garza Nunez, 2007 WL 496855, at	1
*1, *3, *4 (concluding that an employee agreed to arbitrate tort claims after he was	2
injured and rejecting the employee’s argument that the post-injury arbitration	3
agreement was a contract of employment because the arbitration agreement would	4
not exist “but for” employment (internal quotation marks omitted)). Other courts	5
have factually distinguished Gilmer’s footnote. See Abram v. C.R. England, Inc.,	6
No. 20-cv-CV-20-00764, 2020 WL 5077365, at *3 (C.D. Cal. Apr. 15, 2020) (order)	7
(noting that “the arbitration clause in Gilmer was part of a completely separate	8
contract with a separate entity”); In re Oil Spill by the Oil Rig “Deepwater Horizon”	9
in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, 2010 WL 4365478, at *3	10
(E.D. La. Oct. 25, 2010) (order) (distinguishing Gilmer and other cases because the	11
agreement at issue “was signed well before [the p]laintiff’s injury and was not an	12
agreement between [the p]laintiff and a third party”). Despite disparate outcomes,	13
these cases have in common the manner of analysis—in each, the court looks to the	14
terms and circumstances of the agreement.	15
{10} In Neims, the district court used that analysis. The Neims court looked to the	16
terms and circumstances of the parties’ agreements, which included a letter offering	17
employment. 2023 WL 6369780 at *4. The letter provided the terms of employment,	18
established the at-will nature of the employment, and made the signing of a separate	19
arbitration agreement “a condition” of employment. Id. “Moreover,” quoting an	20

9
earlier decision by the same court, the Neims court declined to interpret the § 1	1
exemption “‘in a manner that completely eviscerates its purpose.’” Id. (quoting	2
Abram, 2020 WL 5077365 at *4). The Neims court rejected the notion that Congress	3
intended for “[a]n otherwise covered employer” to be able to circumvent the § 1	4
exemption “by simply presenting employees with a contract outlining all terms and	5
conditions of employment, followed by a separate arbitration agreement, even if that	6
agreement compels arbitration of employment disputes.” 2023 WL 6369780, at *4	7
(internal quotation marks and citation omitted). Company contends that Neims	8
“cannot be squared” with Gilmer and New Prime, and so we consider New Prime.	9
{11} In New Prime, the question was whether Congress intended for the § 1	10
exemption to exclude independent contractor agreements and apply only to the	11
employment contracts of employees. 586 U.S. at 113. At the outset, the Court	12
explained that the § 1 exemption qualified the application of the FAA, because “[b]y	13
the time it adopted the [FAA] in 1925, Congress had already prescribed alternative	14
employment dispute resolution regimes for many transportation workers.” New	15
Prime, 586 U.S. at 110. As a policy matter, then, the Court observed that “it seems	16
Congress ‘did not wish to unsettle’ those arrangements in favor of whatever	17
arbitration procedures the parties’ private contracts might happen to contemplate.”	18
Id. (quoting Circuit City Stores, Inc., 532 U.S. at 121). The Court reviewed historical	19
dictionaries, legal distinctions between employees and independent contractors, the	20

10
statute’s use of the term “worker,” and public policy. Id. at 114-16. Ultimately, the	1
Court could see in this authority “no evidence that a ‘contract of employment’	2
necessarily signaled a formal employer-employee or master-servant relationship.”	3
Id. at 116. The Court determined that “[w]hen Congress enacted the [FAA] in 1925,	4
the term ‘contracts of employment’ referred to agreements to perform work.” Id. at	5
121. This holding served to “respect the limits up to which Congress was prepared	6
to go when adopting the [FAA].” Id. at 121 (internal quotation marks and citation	7
omitted).	8
{12} With this understanding of Gilmer, Neims, and New Prime in hand, we return	9
to Company’s argument. In Company’s view, (1) if the Neims case were correctly	10
decided, Gilmer “would have concluded that the separate arbitration agreement	11
between the employer and employee was somehow part of a ‘comprehensive’	12
contract of employment and therefore exempt”; and (2) the Neims decision	13
misinterpreted the purpose of the § 1 exemption and disregarded the historical policy	14
explanation for 9 U.S.C. § 1 that was set forth in New Prime. We disagree with both	15
arguments. First, the Gilmer Court determined that the arbitration agreement was not	16
a contract of employment based on the circumstances of the transaction—the	17
identity of the parties and the type of agreement that contained the arbitration	18
provision. See 500 U.S. at 25 n.2. Similarly, in the present case, the relevant inquiry	19

11
is whether the circumstances of the transaction establish that the arbitration	1
agreement is part of an agreement to perform work. New Prime, 586 U.S. at 121.	2
{13} Company’s second argument fares no better. Relying on the New Prime	3
Court’s articulation of the likely historical purpose for the § 1 exemption, Company	4
argues that Congress intended only to exempt the contracts of employment of	5
workers who “were already subject to preexisting federally-regulated dispute	6
resolution regimes.” To the contrary, the New Prime Court, in its analysis, did not	7
tie the meaning of the statutory terms to the likely historical purpose of the § 1	8
exemption. The holding was not that the § 1 exemption applied only to contracts of	9
employment that were subject to existing federal dispute resolution procedures.	10
Instead, the Court considered the semantic meaning of the “contracts of	11
employment” language and the historical meaning of the word “employment” to	12
determine that the § 1 exemption applies broadly to agreements to perform work.	13
New Prime, 586 U.S. at 113-14, 121. Thus, to determine whether the § 1 exemption	14
applies, we consider not whether the contract would have been subject to a	15
“preexisting federally-regulated dispute resolution regime[],” as Company argues,	16
but whether the contract is an agreement to perform work.	17
2. The Application of State Contract Law	18
{14} As of we have set forth, that the contract must be an agreement to perform	19
work involved the application of federal law, but it is well established that contracts	20

12
are construed according to state law. Federal law may identify the types of contract	1
terms and the circumstances of the transaction that are relevant to whether an	2
arbitration agreement is a contract of employment. For example, federal law directs	3
that we consider the identity of the parties, the timing, and the mandatory nature of	4
the provision. See, e.g., Gilmer, 500 U.S. at 25 n.2 (considering the parties to the	5
contract and the type of agreement); see also Shanks v. Swift Transp. Co., Civ.	6
Action No. L-07-55, 2008 WL 2513056, at *3 (S.D. Tex. June 19, 2008)	7
(considering as a factor that the arbitration agreement was “mandatory company	8
policy” and therefore a “component” of the “contract of employment” (internal	9
quotation marks omitted)). State contract law, however, instructs where to look for	10
those relevant considerations, how to construe the contract language, and how to	11
discern the intent of the parties to the contract. See Rivera v. Am. Gen. Fin. Servs.,	12
Inc., 2011-NMSC-033, ¶ 15, 150 N.M. 398, 259 P.3d 803 (considering “general	13
principles of New Mexico contract law” in addition to the underlying substantive	14
federal law).	15
{15} In the construction of a contract under New Mexico law, “the touchstone . . . is	16
to ascertain and apply the intent of the parties.” Levenson v. Haynes, 1997-NMCA-	17
020, ¶ 13, 123 N.M. 106, 934 P.2d 300. Our analysis begins with the plain language	18
of the contract. We further may consider “evidence of the circumstances surrounding	19
the making of the contract and of any relevant usage of trade, course of dealing, and	20

13
course of performance, in order to decide whether the meaning of a term or	1
expression contained in the agreement is actually unclear.” Mark V, Inc. v. Mellakas,	2
1993-NMSC-001, ¶ 11, 114 N.M. 778, 845 P.2d 1232 (internal quotation marks and	3
citation omitted). “While Company suggests that “all inferences must be drawn in	4
favor of arbitration,” the Supreme Court of the United States has clarified that “the	5
FAA’s ‘policy favoring arbitration’ does not authorize federal courts to invent	6
special, arbitration-preferring procedural rules.” See Morgan v. Sundance, Inc., 596	7
U.S. 411, 418 (2022) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.	8
Corp., 460 U.S. 1, 24 (1983)). Instead, “[t]he federal policy is about treating	9
arbitration contracts like all others, not about fostering arbitration.” Id. A general	10
rule that applies to all contracts under New Mexico law is “that in the absence of	11
anything to indicate a contrary intention, instruments executed at the same time, by	12
the same parties, for the same purpose, and in [the] course of the same transaction,	13
are, in the eye of the law, one instrument, and will be read and construed together.”	14
City of Clovis v. Sw. Pub. Serv. Co., 1945-NMSC-030, ¶ 33, 49 N.M. 270,	15
161 P.2d 878 (internal quotation marks and citation omitted); see Juarez, 2022-	16
NMCA-056, ¶ 18. Based on the Agreement and its surrounding circumstances, we	17
conclude that the parties intended for the Agreement to be part of the contract of	18
employment.	19

14
{16} The timing of the Agreement, the identity of the parties, and the purpose of	1
the Agreement establish a single transaction. A letter dated November 23, 2021,	2
included the terms of employment (the offer letter).2 The offer letter provides	3
information about wages, taxes, benefits, and hours and informs Plaintiff that “[t]his	4
offer is contingent upon the satisfactory outcome of your background checks,	5
verification of right to work in the United States, reference checks, and execution of	6
agreements.” The offer letter warns that “[u]nsuccessful outcomes of any may result	7
in your offer being revoked.” According to the exhibits, Plaintiff received an initial	8
set of documents as early as October 27, 2021, and the Agreement in another group	9
of electronic documents provided by Company at least by November 29, 2021. The	10
November 29, 2021 communication shows a grid listing the documents provided	11
electronically to Plaintiff by Company.	12
2 Company challenges the admissibility of the declaration submitted by
Plaintiff in response to the motion to compel arbitration because the declaration was
unsworn and broadly states that the other exhibits are also inadmissible because they
were “not already in evidence and are not self-authenticating.” As we explain in the
next section, the district court did not abuse its discretion under the circumstances to
consider these exhibits. We therefore consider that evidence in our analysis.

15
Plaintiff signed the Agreement on November 29, 2021. The introductory paragraph	1
of the Agreement indicates that Plaintiff agreed to the terms “[i]n consideration of	2
my employment with . . . Company . . . , and my receipt of compensation now and	3
hereafter paid to me by Company.” As of November 29, 2021, when Plaintiff signed	4
the Agreement, he had not yet been scheduled to work. This evidence together	5
demonstrates that the multiple communications “are, in the eye the law, one	6
instrument” that should “be read and construed together.” See City of Clovis, 1945-	7
NMSC-030, ¶ 33 (internal quotation marks and citation omitted).	8
{17} Company first argues that the extrinsic evidence supports a conclusion that	9
the Agreement was a separate and standalone document. We disagree. Company	10
points to an apparent six-day gap between date on the offer letter and the date the	11
Agreement was signed and argues that the introductory paragraph of the Agreement	12
is “entitled to no weight” and “merely acknowledges the parties’ pre-existing	13
employment relationship.” Company’s argument requires us to disregard the	14
introductory statement, the contingency language in the offer letter, and the period	15
of time during which Plaintiff’s employment remained dependent on further action.	16
Reading the documents together as a contract of employment accounts for this	17
evidence.	18
{18} The Company points to three additional facts to demonstrate that the parties	19
did not intend for the Agreement to be a contract of employment. See id. ¶ 33	20

16
(conditioning the holistic view of the contract on any indication of a “contrary	1
intention” (internal quotation marks and citation omitted)). Specifically, Company	2
relies on the Agreement’s opt-out provision, other limiting language, and absence of	3
certain terms. We consider each point raised by Company.	4
{19} First, Company argues that the Agreement was not part of the contract of	5
employment because it contained an opt-out provision and was not mandatory. The	6
Agreement’s opt-out provision, however, did not allow Plaintiff to opt out of	7
arbitration at the time the Agreement was presented. Instead, the Agreement only	8
permitted Plaintiff to opt out within thirty days of signing the Agreement by	9
submitting a written request to rescind the agreement. Plaintiff was told that the	10
employment offer was contingent on signing agreements, informed that the failure	11
to do so may result in a withdrawn offer, and required to sign the Agreement before	12
exercising the contractual right to rescind. Company presented evidence that no	13
employee had ever suffered adverse action for choosing not to sign. But no evidence	14
indicated that any employee had chosen not to sign the Agreement, and as Plaintiff	15
pointed out at the hearing, the Agreement, by its terms, does not state that the	16
employment offer is not contingent on acceptance. Under these circumstances,	17
signing the Agreement in the first instance, at the start of employment, was	18
mandatory, which supports a conclusion that the Agreement was part of the contract	19
of employment.	20

17
{20} Second, Company cites the Agreement provision that states, “This Agreement	1
is not, and does not create, any contract of employment, express or implied.” In its	2
entirety, the provision states,	3
This Agreement is not, and does not create, any contract of	4
employment, express or implied. I acknowledge that, if I am employed	5
by Company, my employment shall be “at-will,” that is, Company or I	6
may terminate my employment at any time, for any reason, either with,	7
or without, cause, and that my “at-will” status may be modified only in	8
a writing signed by the President of the Company.	9
Read as a whole, this provision (1) relates to the distinction between “at-will” and	10
contract employment; and (2) does not preclude the Agreement from being part of	11
the contract of employment for the purposes of the § 1 exemption, even if it does not	12
alone itself create a contract of employment.	13
{21} Third, Company contends that the Agreement, standing alone, lacks the	14
“hallmarks of a traditional employment contract,” because it contains no terms of	15
employment and Plaintiff’s “terms and conditions of employment would be	16
identical” in the absence of the Agreement. For support, Company cites cases	17
involving factually distinguishable agreements. See Amos v. Amazon Logistics, Inc.,	18
74 F.4th 591, 596 (4th Cir. 2023) (relating not to individual employment but to	19
business services provided to another business); In re Weeks Marine, Inc.,	20
242 S.W.3d 849, 852, 855 (Tex. App. 2007) (considering the intent of the parties	21
and the language used in a post-injury arbitration agreement; noting that the	22
agreement neither addressed, defined, nor modified terms of employment; and	23

18
concluding that the parties intended the agreement to settle claims for nonwage	1
compensation); see also Awe v. I & M Rail Link, L.L.C., No. C04-3011-PAZ, 2007	2
WL 2572405, at *1, *4 (N.D. Iowa Sept. 4, 2007) (order) (involving arbitration	3
agreements that were presented to fifteen existing employees to encourage those	4
employees to stay with the company in the face of “a possible change in control or	5
ownership” and that set forth rights and obligations should the plaintiffs continue	6
their employment but did not establish or change terms or conditions of the existing	7
employment). These cases consider the circumstances of the agreements and the	8
parties’ intentions, as we have already determined is appropriate. Considering all of	9
the circumstances—including documents executed before Plaintiff started work that	10
set forth the terms of employment as well as the parties’ intentions manifested	11
through the evidence presented—we conclude that the absence of employment terms	12
in the Agreement itself is not determinative.	13
{22} Company cites multiple cases to establish that courts have declined to apply	14
the § 1 exemption because the arbitration agreement was not a contract of	15
employment. These cases are each distinguishable either factually or as a matter of	16
New Mexico law. See Terrebonne v. K-Sea Transp. Corp., 477 F.3d 271, 274, 278	17
(5th Cir. 2007) (considering a post-injury settlement agreement); Williams v. Cigna	18
Fin. Advisors, Inc., 56 F.3d 656, 658-60 (5th Cir. 1995) (relying only on the fact of	19
separate documents to reject an employee’s argument that the § 1 exemption applied	20

19
rather than considering the circumstances to determine whether the parties intended	1
for the agreements to be read and construed together); Cuneo v. Nat’l Delivery Sys.,	2
Inc., No. 20-P-1408, 2021 WL 5238716, at *3 (Mass. App. Ct. Nov. 5, 2021)	3
(unpublished table decision) (concluding that no record evidence established that the	4
employees were required to sign the arbitration agreements as a condition of	5
employment and the employees provided no authority under 9 U.S.C. § 1 to support	6
what the court viewed as an impermissibly “broad” construction of the term	7
“contract of employment”); Davila v. Roadway Moving & Storage, Inc., No.	8
22226/2019E, 2020 WL 3507495, at *1, *6 (N.Y. Sup. Ct. May 13, 2020) (mem.	9
and order) (reviewing the applicability of the § 1 exemption to an optional arbitration	10
agreement presented to an employee seven years into the employment relationship);	11
In re Mission Petroleum Carriers, Inc., No. 13-04-00550-CV, 2005 WL 326848, at	12
*2 (Tex. App. Feb. 11, 2005) (unpublished decision) (involving an arbitration	13
agreement that was part of an optional “health and safety plan” that allowed an	14
employee to accept or reject plan benefits without changing the employee’s status).	15
The record in the present case includes evidence that the parties intended for multiple	16
documents, including the Agreement, to form the contract of employment.	17
Company’s counterevidence does not “indicate a contrary intention.” See City of	18
Clovis, 1945-NMSC-030, ¶ 33 (internal quotation marks and citation omitted). As a	19

20
result, we conclude that the Agreement should “be read and construed together” with	1
other communications as the contract of employment. Id.	2
B. A Class of Transportation Workers Engaged in Interstate Commerce	3
{23} Company next argues that Plaintiff did not meet the burden to establish that	4
he belonged to a class of transportation workers engaged in interstate commerce (the	5
transportation worker requirement). At the outset, Plaintiff contends that Company	6
did not preserve the issue. See Rule 12-321(A) NMRA (“To preserve an issue for	7
review, it must appear that a ruling or decision by the trial court was fairly	8
invoked.”). In the motion to compel arbitration, Company asserted as a fact that	9
Plaintiff “operated exclusively intrastate, hauling loads on a dedicated route in New	10
Mexico” but did not argue that for this reason, the § 1 exemption was inapplicable.	11
In response, Plaintiff did not dispute that he worked a dedicated New Mexico route	12
but also set forth that while driving in New Mexico, he picked up and dropped off	13
loads that were in transit between Phoenix, Arizona and Kansas City, Kansas.	14
Though Company—apart from a footnote in the reply supporting the motion to	15
compel arbitration—did not articulate the precise argument raised on appeal, we	16
agree with Company that the factual argument in the district court preserved the	17
overall issue. See Soon v. Kammann, 2024-NMSC-018, ¶ 13, 557 P.3d 104 (“[O]ur	18
rules do not require the preservation of arguments, only issues.”). We therefore	19

21
consider Company’s arguments regarding the admissibility of the evidence	1
submitted and its sufficiency to establish the transportation worker requirement.	2
1. The Admissibility of Plaintiff’s Evidence	3
{24} Company takes the position that Plaintiff submitted no admissible evidence	4
on this issue. Plaintiff attached to the motion response an unsworn declaration as	5
well as a number of other exhibits (the nondeclaration exhibits), including emails	6
containing the forms, the offer letter, an email regarding route selection, and routes	7
and schedules related to Plaintiff’s contract. In the brief in chief, Company addresses	8
only the unsworn declaration, but in reply to Plaintiff’s reliance on the	9
nondeclaration exhibits, Company contends the nondeclaration exhibits contain	10
hearsay and are not self-authenticating. Because the parties agree that a motion to	11
compel arbitration is a species of summary judgment motion, we resolve this	12
evidentiary dispute under the rule governing summary judgment, Rule 1-056	13
NMRA.	14
{25} Rule 1-056 allows district courts to rely on documents attached to a summary	15
judgment motion that were produced in discovery if the opposing party “did not	16
object to their use in the motion for summary judgment and d[id] not argue the	17
factual validity of the documents.” Alliance Health of Santa Teresa, Inc. v. Nat’l	18
Presto Indus., Inc., 2007-NMCA-157, ¶ 16, 143 N.M. 133, 173 P.3d 55. It is also	19
long-established that “[a] party must move to strike an affidavit that violates Rule	20

22
[1-056(E)].” Chavez v. Ronquillo, 1980-NMCA-069, ¶ 20, 94 N.M. 442, 612 P.2d	1
234. In the present case, Company does not dispute the truth of the nondeclaration	2
exhibits and did not object to the district court considering those exhibits. Further,	3
Company did not move to strike the declaration and instead focused on its	4
inadequacies. In the absence of objection or a motion to strike, the district court did	5
not abuse its discretion to consider Plaintiff’s evidence in order to determine whether	6
the § 1 exemption applied. See id. ¶¶ 18-19 (explaining that Rule 1-056(E) “is	7
mandatory in nature” but the rule does not require that the district court ignore	8
“inadequate or defective affidavits . . . if no objection is made nor any motion is	9
made to strike the testimony”).	10
2. Plaintiff’s Evidence to Meet the Transportation Workers Requirement	11
{26} Company contends that Plaintiff did not establish that he belongs to a class of	12
transportation workers that is engaged in interstate commerce. Whether a class of	13
workers is “engaged in interstate commerce,” as required by the § 1 exemption,	14
depends on whether the class of workers is “directly involved in transporting goods	15
across state or international borders.” Saxon, 596 U.S. at 457. A worker is “a member	16
of a ‘class of workers’ based on what” the class of workers does for the employer,	17
and not what the employer does generally. Id. at 456. In Saxon, the plaintiff worked	18
for an airline loading and unloading goods that were transported across state and	19
international borders. Id. The Court concluded that it was “plain that airline	20

23
employees who physically load and unload cargo on and off planes traveling in	1
interstate commerce are, as a practical matter, part of the interstate transportation of	2
goods.” Id. at 457. Workers who “handle goods traveling in interstate . . .	3
commerce,” like those who load cargo on an airplane, “plainly do perform activities	4
within the flow of interstate commerce.” Id. at 463 (internal quotation marks	5
omitted).	6
{27} Plaintiff’s evidence established that he was a member of a class of	7
transportation workers engaged in interstate commerce. Plaintiff demonstrated that	8
he was part of a class of truck drivers who worked a “Kansas City” contract and	9
picked up loads at a travel center in Jamestown, New Mexico, drove to a truck stop	10
in Santa Rosa, New Mexico, and “swap[ped]” the truck’s trailer. The schedules show	11
that when the drivers took the loads from Jamestown to Santa Rosa, the trucks had	12
been “loaded” in Phoenix, Arizona. When the drivers took the loads from Santa Rosa	13
to Jamestown, the “swap[ped]” trailer had come from at least as far away as Kansas	14
City. Plaintiff’s declaration also indicates the route stretched from Phoenix to Kansas	15
City in both directions, and Company does not dispute this fact. Like the airline	16
cargo loaders in Saxon, the truck drivers perform work entirely in one state but were	17
nevertheless workers engaged in the flow of commerce between states. Cf. id. at 457.	18
Even though the truck drivers did not load and unload vehicles—as the Saxon class	19
did—by driving the goods across the state, the truck drivers were part of the transport	20

24
of goods that traveled in interstate commerce and they performed activities that were	1
within the flow of interstate commerce. See id. at 462-63.	2
{28} Company maintains that Plaintiff’s evidence shows only his personal	3
experience, which is irrelevant to the “class of workers” analysis, and that other	4
courts have found that the § 1 exemption “does not apply to purely intrastate delivery	5
work.” For the first argument, Company focuses on Plaintiff’s declaration and not	6
the driver schedules that show that Plaintiff belonged to a larger class of workers	7
who participated in moving goods in and out of New Mexico. While the declaration	8
may focus on Plaintiff’s experience, the schedules show the experience of the	9
broader class of workers to which Plaintiff belonged.	10
{29} For the second argument, Company cites cases that involved plaintiffs who	11
were delivery drivers or dispatchers and did not move goods through the channels	12
of interstate commerce. See Lopez v. Cintas Corp., 47 F.4th 428, 432 (5th Cir. 2022)	13
(concluding that a plaintiff who belonged to a class of workers that “picks up items	14
from a local warehouse and delivers those items to local customers” is “not so	15
engaged in interstate commerce as § 1 contemplates” (internal quotation marks and	16
citation omitted)); Hamrick v. Partsfleet, LLC, 1 F.4th 1337, 1340 (11th Cir. 2021)	17
(remanding for the district court to apply the proper test to determine whether the	18
§ 1 exemption applied to “drivers who make local deliveries of goods and materials	19
that have been shipped from out-of-state to a local warehouse”); Wallace v. Grubhub	20

25
Holdings, Inc., 970 F.3d 798, 799, 802-03 (7th Cir. 2020) (rejecting the argument	1
that because some of the goods delivered originated out of state, last-mile food	2
delivery drivers were “engaged in the channels of . . . interstate commerce” (internal	3
quotation marks and citation omitted)); Nunes v. LaserShip, Inc., No. 22-cv-02953,	4
2023 WL 6326615, at *3 (N.D. Ga. Sept. 28, 2023) (op. and order) (rejecting the	5
plaintiff’s argument that “last-mile delivery drivers are engaged in interstate	6
commerce because the goods they transport have traveled interstate and remain in	7
the stream of commerce until delivered”); Teamsters Loc. Union No. 107 v. Madison	8
Concrete Constr., Civ. Action No. 22-3721, 2023 WL 9052005, slip op. at *3 (E.D.	9
Pa. Dec. 29, 2023) (determining that a shop manager who dispatched other drivers	10
to projects out of state and occasionally performed his own job out of state did not	11
belong to a class of workers that engaged in interstate commerce); O’Bryant v.	12
Flowers Foods, Inc., 629 F. Supp. 3d 377, 387-88 (D.S.C. 2022) (concluding that	13
the § 1 exemption did not apply to a plaintiff who delivered baked goods intrastate	14
based on the “delivery of goods that were produced out of state and previously	15
moved across state lines”); Bean v. ES Partners, Inc., 533 F. Supp. 3d 1226, 1230,	16
1236 (S.D. Fla. 2021) (declining to hold that the § 1 exemption applied to a plaintiff	17
who made in-state deliveries of medications that were “manufactured all over the	18
country”); Bonner v. Mich. Logistics, Inc., 250 F. Supp. 3d 388, 391, 396-97 (D.	19
Ariz. 2017) (deciding that the § 1 exemption did not apply to individuals who	20

26
“performed deliveries on behalf of . . . a chain of automotive parts shops in Arizona”	1
because the § 1 exemption “is meant to exclude the contracts of workers who are	2
literally engaged in the process of moving goods across state and national	3
boundaries—workers like seamen and railroad employees”). The cases cited by	4
Company and Saxon instruct that the analysis depends not on the movement of the	5
goods across borders, but rather on whether the plaintiff was a member of a class of	6
workers “engaged in the channels of . . . interstate commerce.” See Wallace, 970	7
F.3d at 802 (internal quotation marks and citation omitted); Lopez, 47 F.4th at 433	8
(explaining that local delivery drivers are not “actively engaged in transportation of	9
those goods across borders” (internal quotation marks and citation omitted)); Bean,	10
533 F. Supp. 3d at 1234 (noting that other cases “relied on the continuity of the	11
goods’ travel—viz., on their having not yet come to rest—rather than on their	12
(interstate) provenance”).	13
{30} The evidence in the present case demonstrated just that. Plaintiff was not a	14
member of a class of workers that picks up goods that have arrived from out of state	15
and delivers them to their final destination in New Mexico. At a truck stop or travel	16
center, Plaintiff picked up loads that originated outside of New Mexico and took	17
those loads to another truck stop or travel center in New Mexico, where the load	18
would be transported to another state. As a result, Plaintiff was a member of a class	19

27
of workers that transports goods through New Mexico, to and from other states. See	1
9 U.S.C. § 1.	2
C. The Application of the FAA	3
{31} Under the circumstances described, the Agreement is part of the contract of	4
employment and Plaintiff belonged to a class of transportation workers engaged in	5
interstate commerce. The § 1 exemption therefore applies to the Agreement. As a	6
result, the arbitration provision in the Agreement cannot be enforced under the FAA.	7
II. The Class Action Waiver and Jurisdiction	8
{32} In the alternative, Company contends that the district court should have	9
enforced the class action waiver and required Plaintiff to litigate the claims	10
individually. Company’s argument implicates our limited jurisdiction in this matter.	11
See N.M. Dep’t of Health v. Maestas, 2023-NMCA-075, ¶ 10, 536 P.3d 506	12
(“Jurisdictional questions are questions of law which appellate courts review de	13
novo. A jurisdictional defect may not be waived and may be raised at any stage of	14
the proceedings, even sua sponte by the appellate court.” (alterations, internal	15
quotation marks, and citation omitted)).	16
{33} This Court’s jurisdiction is generally limited to final orders. See id. ¶ 13	17
(“[T]his Court lacks jurisdiction to entertain an appeal from a nonfinal order.”	18
(alteration, internal quotation marks, and citation omitted)). The New Mexico	19
Uniform Arbitration Act (NM UAA), NMSA 1978, §§ 44-7A-1 to -32 (2001),	20

28
includes a provision for appeals. See § 44-7A-29. In relevant part, Section 44-7A-29	1
permits an appeal to be taken from “an order denying a motion to compel arbitration	2
. . . as from an order or a judgment in a civil action.” This Court has interpreted this	3
provision, together with the statutory grant of jurisdiction over final orders found in	4
NMSA 1978, Section 39-3-2 (1966), to mean that the Legislature intended for orders	5
entered under the NM UAA to “be no more or less appealable than any other orders	6
in civil actions.” Collier v. Pennington, 2003-NMCA-064, ¶ 12, 133 N.M. 728,	7
69 P.3d 238. Thus, “when an order concerning arbitration is not one of the orders	8
listed in [Section 44-7A-29] and does not fully resolve all the claims as to any one	9
party, the question of whether it is immediately appealable as of right depends on	10
whether the order is final.” Collier, 2003-NMCA-064, ¶ 15. Whether an order is	11
final, in turn, depends on whether “all issues of law and fact have been determined	12
and the case disposed of by the district court to the fullest extent possible.” Maestas,	13
2023-NMCA-075, ¶ 15 (alteration, internal quotation marks, and citation omitted);	14
see Rule 1-054(B) NMRA.	15
{34} The order in the present case includes both a denial of Company’s motion to	16
compel arbitration and a determination that a portion of the Agreement, the class	17
action waiver, is otherwise unenforceable and without consideration. The Company	18
does not explain, and it is not apparent, how we have appellate jurisdiction over the	19
district court’s seemingly nonfinal determination that the class action waiver is	20

29
unenforceable and without consideration. See Ferebee v. Hume, 2021-NMCA-012,	1
¶¶ 5, 15, 27, 485 P.3d 778 (involving a district court’s decision on an issue that was	2
immediately appealable by statute and also a related nonfinal decision). We therefore	3
decline to review at this time the enforceability of the class action waiver or the	4
consideration supporting that term of the Agreement. See id. ¶ 27.	5
CONCLUSION	6
{35} We affirm the district court.	7
{36} IT IS SO ORDERED.	8
______________________________	9
KATHERINE A. WRAY, Judge	10
WE CONCUR:	11
________________________________	12
JACQUELINE R. MEDINA, Judge	13
________________________________	14
ZACHARY A. IVES, Judge	15