Darlene Stinger; Sharon Bush; Tia Newton v. Fort Lincoln Cemetery, LLC; Service Corporation International

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1460
DARLENE STINGER; SHARON BUSH; TIA NEWTON,
Plaintiffs - Appellants,
v.
FORT LINCOLN CEMETERY, LLC; SERVICE CORPORATION
INTERNATIONAL,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:20-cv-01052-TDC)
Submitted: June 27, 2022 Decided: July 12, 2022
Before MOTZ and KING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jack Jarrett, ALAN LESCHT AND ASSOCIATES, PC, Washington, D.C.,
for Appellants. Lonnie J. Williams, Jr., STINSON LLP, Phoenix, Arizona; Brandon R.
Nagy, STINSON LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darlene Stinger, Sharon Bush, and Tia Newton (collectively, “Plaintiffs”) brought
this action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 to 219, against
their employer, Fort Lincoln Cemetery, LLC (“Fort Lincoln”), and a related holding
company, Service Corporation International (“SCI”). Invoking the arbitration agreement
that each Plaintiff had signed, Fort Lincoln and SCI (collectively, “Defendants”) moved to
dismiss for improper venue. In response, Plaintiffs argued, among other things, that the
arbitration agreement was substantively unconscionable. The district court disagreed and
granted Defendants’ motion. Plaintiffs appeal, and we affirm.
We review de novo a decision granting a Fed. R. Civ. P. 12(b)(3) motion to dismiss
for improper venue. Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550
(4th Cir. 2006). Likewise, we “review a district court’s determination regarding the
arbitrability of a dispute de novo.” Lyons v. PNC Bank, Nat’l Ass’n, 26 F.4th 180, 185 (4th
Cir. 2022). We consider the validity of an arbitration agreement by reference to the
governing state law. Coady v. Nationwide Motor Sales Corp., 32 F.4th 288 (4th Cir. 2022).
Here, the parties agree that Maryland law controls.
In Maryland, “an arbitration agreement may be challenged on grounds of
unconscionability.” Walther v. Sovereign Bank, 872 A.2d 735, 743 (Md. 2005). To prevail
in this defense, a party must show that the agreement is “extreme[ly] unfair[], which is
made evident by (1) one party’s lack of meaningful choice, and (2) contractual terms that
unreasonably favor the other party.” Id. (internal quotation marks omitted). The latter
concerns the element of substantive unconscionability, which might manifest in “terms that

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attempt to alter in an impermissible manner fundamental duties otherwise imposed by the
law, provisions that seek to negate the reasonable expectations of the nondrafting party,
and terms unreasonably and unexpectedly harsh having nothing to do with central aspects
of the transaction.” Stewart v. Stewart, 76 A.3d 1221, 1232 (Md. Ct. Spec. App. 2013)
(cleaned up) (citing Walther, 872 A.2d at 744).
As to the rules governing arbitration, the parties’ arbitration agreement adopted the
Employment and Arbitration Rules and Procedure of JAMS (“JAMS Rules”), with one
notable deletion. Specifically, the agreement omitted JAMS Rule 21, which allows a party
to request, without need for a subpoena, another party to produce all witnesses in its employ
or under its control for the arbitration hearing. JAMS Rule 21 also authorizes the arbitrator
to issue subpoenas to facilitate document discovery and the attendance of witnesses at the
hearing.
In Plaintiffs’ view, the removal of JAMS Rule 21 renders the arbitration agreement
substantively unconscionable. Specifically, Plaintiffs worry that, without live testimony
or third-party document discovery, they will be unable to show the number of hours they
worked or the willfulness of the FLSA violations they allege.
As we have recognized, “[b]ecause limited discovery is a consequence of perhaps
every agreement to arbitrate, it cannot, standing alone, be a reason to invalidate an
arbitration agreement.” In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 286 (4th Cir.
2007). Rather, Plaintiffs must “show[] that the terms of the arbitration agreement would
preclude them from effectively vindicating their statutory rights.” Id. Critically, “[t]his
burden is a substantial one and cannot be satisfied by a mere listing of ways that the

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arbitration proceeding will differ from a court proceeding, or by speculation about
difficulties that might arise in arbitration.” Id. at 286-87.
Here, we conclude that Plaintiffs have failed to discharge their substantial burden
of demonstrating that the omission of JAMS Rule 21 precludes them from vindicating their
statutory rights. JAMS Rule 17(a), for example, requires that parties to the arbitration
engage in good faith, voluntary exchange of relevant, nonprivileged evidence, which
presumably would include payroll records indicating how many hours Plaintiffs worked.
And JAMS Rule 17(b) allows Plaintiffs to depose at least one opposing witness, thus
providing them an opportunity to probe the willfulness of the alleged FLSA violations. At
bottom, we find that Plaintiffs have failed to establish that the arbitration agreement is
substantively unconscionable. *
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
* Plaintiffs also contend that, at a hearing before the district court, Defendants “blue-
penciled” the arbitration agreement by making certain concessions that, in effect, softened
the effect of JAMS Rule 21’s removal. Not only is Plaintiffs’ argument severely
undeveloped, but also Plaintiffs have failed to include the hearing transcript in the record
on appeal. Thus, we consider this argument waived. See Grayson O Co. v. Agadir Int’l
LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present
it in its opening brief or by failing to develop its argument—even if its brief takes a passing
shot at the issue.” (cleaned up)).

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