BLUEFIELD – Lawyers for Long John Silver's restaurants claim former general manager Angela Dyson broke the law by suing in Mercer County after the company removed an earlier suit from Mercer County to federal court.
Long John Silver's wants U.S. District Judge David Faber to take jurisdiction over both suits, dismiss them, and compel arbitration of Dyson's sexual harassment claim.
On Feb. 3, Susan Snowden of Martinsburg asked Faber to deny a motion to stay the first suit while deciding whether to remand the second one to Mercer County.
Snowden accused Dyson of avoiding arbitration through "procedural obfuscations."
She wrote, "As the court can clearly see, the grand papering of the file and the courts started by plaintiff only after the motion to compel arbitration was filed in October."
She wrote, "Apparently fearing a ruling sending the matter to arbitration, the plaintiff not only filed the second action in state court, a violation of federal law, but she also filed two motions to stay and a motion to remand."
Dyson's first suit sought compensatory and punitive damages from Long John Silver's and district manager Ray West.
Dyson's lawyer, Kathryn Reed Bayless of Princeton, alleged assault, discrimination, negligent supervision, infliction of distress, and retaliation.
She wrote that West showed Dyson his underwear and said he would rock her world. He said he wanted "a pretty little blonde with big boobs." She also wrote that in a car on a business trip, he said she gave him a "hard-on."
She wrote that he punched a floor, broke a hand and smoked crack to ease the pain. She wrote that he asked for oral sex, and Dyson refused.
She wrote that while she pulled fish from a vat, West stuck his hand down her pants.
"Plaintiff responded that if he ever touched her again she would put his ass in the fryer vat," Bayless wrote.
Long John Silver's removed the suit to federal court and sought arbitration.
Snowden wrote that Dyson signed an agreement to arbitrate any disputes.
In November, Dyson sued again in Mercer County. She sought declaratory judgment of rights under the arbitration agreement but claimed no damages.
In the first suit, she moved for a stay pending resolution of the second suit.
In December, Long John Silver's removed the second suit to federal court.
In January, Dyson moved to remand it to Mercer County.
"Whether an alleged arbitration agreement is a valid, enforceable agreement presents a question of state law," Bayless wrote.
"Plaintiff filed the declaratory action in state court because the state law issues here, involving questions arising under the state Constitution, seem best considered by the state courts of West Virginia," she wrote.
She wrote that Long John Silver's sought to require arbitration of claims against West even though he was not a party to the agreement.
Snowden replied, "The remand motion should be denied, as the second action violates federal law and is subject to injunction, as the second action is merely a response in disguise to the motion to compel arbitration."