ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

This cause comes before the Court pursuant to the April 26, 2012, Report and Recommendation of Anthony E. Porcelli, United States Magistrate Judge (Doc. # 83), in which Judge Porcelli recommends that Defendants Michael Lytos, David Duff, and Yandy Ramirez's Motion in the alternative to Compel Arbitration (Doc. # 18) be granted; Motion of Defendant John Lotze for Entry of Order Compelling Arbitration of All Claims Alleged Against Him (Doc. # 24) be granted; Defendant Presidio's Motion to Compel Arbitration (Doc. # 23) be granted to the extent that the arbitrator should decide whether Presidio may participate in the arbitration between the individual defendants and FusionStorm; Defendant Presidio's Motion to Dismiss Plaintiff's Complaint (Doc. # 22) be denied without prejudice; Plaintiff's Motion to Compel Discovery (Doc. # 51) be denied without prejudice; and John Lotze's Motion for Protective Order (Doc. # 63) be denied without prejudice. Judge Porcelli also recommends FusionStorm be permitted to seek injunctive relief in this forum but the case be stayed as to all other claims against Defendants and recommends Defendant Gina King be dismissed from this action. (Doc. # 83).

As of this date, there are no objections to the report and recommendation, and the time for the parties to file such objections has elapsed.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.1994); Castro Bobadilla v. Reno, 826 F.Supp. 1428, 1431-32 (S.D.Fla.1993), aff'd, 28 F.3d 116 (11th Cir.1994).

After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepts the factual findings and legal conclusions of the magistrate judge and the recommendation of the magistrate judge.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

REPORT AND RECOMMENDATION

ANTHONY E. PORCELLI, United States Magistrate Judge.

Plaintiff FusionStorm, Inc. ("FusionStorm") brought this action against Defendants for violations of the Computer Fraud and Abuse Act and for breach of contract, tortious interference with business and contractual relations, and misappropriation of trade secrets (Dkt. No. 1). Defendants currently seek to compel FusionStorm to participate in arbitration or, alternatively, seek to dismiss this action (Dkt. Nos. 18, 22, 23, 24). Although it has agreed to proceed in arbitration with Defendants Michael Lytos ("Lytos"), David Duff ("Duff"), John Lotze ("Lotze"), Gina King ("King"), and Yandy Ramirez ("Ramirez") (collectively, the "Individual Defendants"), FusionStorm objects to arbitrating its claims against Presidio Networked Solutions, Inc. ("Presidio"). In addition, FusionStorm seeks to compel expedited discovery and to obtain other relief in this forum. For the reasons that follow, I recommend that the Individual Defendants' motions to compel arbitration be granted, Presidio's motion to compel arbitration be granted to the extent that the assigned arbitrator determine whether Presidio may participate in the pending arbitration between FusionStorm and the Individual Defendants, FusionStorm be permitted to seek only injunctive relief in this forum as to all Defendants except King, the case be stayed as to all other claims, King be dismissed from this action, and the motions related to discovery be denied without prejudice.

I. Background

FusionStorm operates as an information technology delivery company providing high-end and complex computer servers, storage area networking, and security hardware and software service and support (Dkt. No. 1 at 5). Presidio operates a competing information technology delivery company (id. at 6). The Individual Defendants formerly worked for FusionStorm and currently work for Presidio. As part of their employment with FusionStorm, the Individual Defendants executed various agreements detailing the terms of their employment (collectively, "Employment Agreements") (id., Exhs. C-G). The Employment Agreements contained restrictive covenants, including, among other things, provisions prohibiting the disclosure of proprietary or confidential information as well as provisions regarding non-competition and non-solicitation (id.). FusionStorm contends the Individual Defendants breached those provisions at the behest of or with the assistance of Presidio thereby causing FusionStorm to institute the instant action to redress the harm caused by the alleged breaches. Essentially, FusionStorm contends Presidio engaged in an unlawful scheme using unfair methods of competition to expand its Tampa office by targeting FusionStorm's employees, including the Individual Defendants, and taking FusionStorm's business. According to FusionStorm, Presidio directed, aided, or abetted the conduct of the Individual Defendants in obtaining information from FusionStorm's computer system, misappropriating trade secrets, and targeting FusionStorm's employees and usurping FusionStorm's business.

As a result, FusionStorm asserts claims against Defendants for violations of the Computer Fraud and Abuse Act and for breach of contract, tortious interference with business and contractual relations, and misappropriation of trade secrets (Dkt. No. 1). Prior to seeking redress in this forum against the Individual Defendants, however, FusionStorm did not engage in good-faith negotiations and failed to adhere to the arbitration provisions set forth in the Individual Defendants' Employment Agreements. Indeed, each Individual Defendant's Employment Agreement provides that any controversies, disputes, or claims arising out of the Employment Agreements must first be settled through good-faith negotiation and then, if left unresolved, by arbitration (id.). Specifically, the Non-Disclosure, Non-Competition, Non-Solicitation and Developments Agreement incorporated into the Offers of Employment for Lytos, Duff and Lotze, mandate:

Dkt. No. 1, Exh. C at 24; Exh. D at 7; Exh. E at 9.1 Ramirez's Non-Disclosure, Non-Competition, Non-Solicitation and Developments Agreement contains a slightly different arbitration provision, which states:

Dkt. No. 1, Exh. G at 7.2 The choice-of-law provisions in Lytos, Duff, Lotze, and Ramirez's Employment Agreements dictate that the agreements shall be construed under and enforced in accordance with the laws of the Commonwealth of Massachusetts (Dkt. No. 1, Exh. C. at 25; Exh. D at 7; Exh. E at 9; Exh. G at 7). King did not execute a Non-Disclosure, Non-Competition, Non-Solicitation and Developments Agreement, but her offer of employment contains the following arbitration provision:

Dkt. No. 1, Exh. F at 4-5.

By the instant motions, the Individual Defendants seek to compel arbitration pursuant to the terms of their Employment Agreements (Dkt. Nos. 18, 23, 24).3 Presidio also seeks to compel arbitration with FusionStorm pursuant to arbitration provisions in the Individual Defendants' Employment Agreements (Dkt. No. 23) or, alternatively, to dismiss this action arguing that FusionStorm has failed to state a claim against it (Dkt. No. 22). Finally, FusionStorm seeks to compel expedited discovery from Defendants (Dkt. No. 51), which Defendants oppose and for which Lotze seeks a protective order to prevent (Dkt. Nos. 54, 56, 63).

Given the various forms of relief sought by the parties, the Court held a hearing at which all the parties appeared and presented oral argument. During the hearing, the Court requested that the parties provide supplemental briefing regarding what effect Rule 6(f) of the JAMS Employment Arbitration Rules ("JAMS Rules")4 had upon Presidio's participation in arbitration between the Individual Defendants and FusionStorm. The parties timely filed their supplemental briefs (Dkt. Nos. 73-76).

II. Discussion

A. Arbitration

The Federal Arbitration Act ("FAA") governs the arbitrability of disputes, Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and provides that a written agreement to arbitrate in any contract involving commerce "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."5 9 U.S.C. § 2. Enacted in response to widespread judicial hostility to arbitration agreements, the FAA expresses a "a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary." Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927; AT & T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011). In construing arbitration agreements within the scope of the FAA, courts apply general state-law principles of contract interpretation but also afford due regard to the federal policy favoring arbitration. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (internal citation omitted). Given this liberal policy in favor of arbitration, a party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written arbitration agreement may petition a federal district court to compel arbitration in accordance with such agreement. 9 U.S.C. § 4. The FAA does not, however, confer a right to compel arbitration of any dispute at any time; rather, it confers only the right to obtain an order directing that arbitration proceed in the manner provided for in the arbitration agreement. Volt, 489 U.S. at 474-75, 109 S.Ct. 1248 (citing 9 U.S.C. § 4).

Indeed, arbitration is a matter of contract. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ("[A]rbitration is simply a matter of contract between the parties; it is a way to resolve those disputes-but only those disputes-that the parties have agreed to submit to arbitration."). Though state law generally governs interpretation of arbitration provisions, the FAA imposes certain fundamental rules, including the principle that arbitration remains a matter of consent rather than coercion. Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. ___, 130 S.Ct. 1758, 1773, 176 L.Ed.2d 605 (2010). Under the FAA, courts must therefore enforce arbitration provisions according to their terms. Rent-A-Center, 130 S.Ct. at 2776. Absent some ambiguity in the arbitration provision, the language of the provision defines the scope of the disputes subject to arbitration. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). If any doubts arise about the scope of arbitrable issues, whether from the construction of the contract language itself or an allegation of waiver, delay, or other defense to arbitrability, courts should resolve those doubts in favor of arbitration. Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927.

i. Individual Defendants

As to the Individual Defendants' motions to compel arbitration, FusionStorm has agreed to and in fact begun a single consolidated arbitration with Lotze, Lytos, Duff, King and Ramirez under the JAMS Rules in Boston, Massachusetts (Dkt. No. 60, Exh. B). Accordingly, the Individual Defendants' motions to compel arbitration (Dkt. Nos. 18, 24) should be granted.

ii. Presidio

By its motion to compel arbitration, Presidio seeks to join the arbitration currently pending between FusionStorm and the Individual Defendants. As Presidio argues, the causes of action FusionStorm seeks to assert against Presidio relate to the causes of action alleged against the Individual Defendants, derive from the contractual obligations the Individual Defendants owed to FusionStorm, and pertain to the allegations that the Individual Defendants acted in concert with or at the behest of Presidio. See Dkt. No. 23 at 3-4. Presidio therefore moves to compel FusionStorm to arbitrate its claims against Presidio in the same forum as the Individual Defendants, i.e. an arbitral forum. FusionStorm adamantly opposes Presidio's participation in the pending arbitration asserting that Presidio, as a non-signatory to the Employment Agreements, does not have any rights under those agreements and should not be permitted to prevent FusionStorm from asserting its rights against Presidio in this forum.

A non-party to an arbitration agreement may compel a party to arbitration if the relevant state contract law allows the non-party to enforce the arbitration agreement. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). Here, the Individual Defendants' Employment Agreements6 dictate that the law of the Commonwealth of Massachusetts governs the agreements (Dkt. No. 1, Exh. C. at 25; Exh. D at 7; Exh. E at 9; Exh. G at 7).7 Massachusetts has adopted the Uniform Arbitration Act, which closely resembles the FAA. Mass. Gen. Laws ch. 251 § 1 et seq.; see Brennan v. King, 139 F.3d 258, 266-67 (1st Cir.1998) (discussing the Massachusetts Arbitration Act). Similar to the FAA, in Massachusetts, "[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." Mass. Gen. Laws ch. 251 § 1. When the parties agree to submit a dispute to arbitration, Massachusetts courts will generally enforce that agreement and decline to interfere with the arbitration process. Sheriff of Middlesex County v. Int'l Brotherhood of Correctional Officers, Local R1-193, 62 Mass.App.Ct. 830, 821 N.E.2d 512, 513 (Mass. App.Ct.2005). Furthermore, where, as here, the arbitration provisions are extremely broad and written in the most general terms to encompass all disputes, controversies, or claims, the agreement to arbitrate should be construed as broadly as intended. Barletta v. French, 34 Mass.App.Ct. 87, 607 N.E.2d 410, 414 (Mass. App.Ct.1993) ("We note, preliminarily, that the arbitration clause in all the joint venture agreements was in the most general terms (`All controversies ... arising out of or relating to this Agreement ...'), and we have previously said ... that a broad agreement to arbitrate `should be construed as broadly as it was intended'") (internal citation and footnote omitted); see generally, Superadio Ltd. Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330, 844 N.E.2d 246, 252 (Mass. 2006) (noting that an arbitration provision which provided that "[a]ny dispute arising under the [a]greement, including but not limited to any dispute concerning payments due, shall be arbitrated under the rules of the [AAA]" was "all-encompassing"). Further, where a contract contains an arbitration provision, there is a presumption of arbitrability such that an order to arbitrate a particular grievance should not be denied unless a court could find with positive assurance that the arbitration provision is not susceptible of an interpretation which covers the asserted dispute. Drywall Systems, Inc. v. ZVI Const. Co., Inc., 435 Mass. 664, 761 N.E.2d 482, 484 (Mass.2002). Any doubts should be resolved in favor of coverage, especially where the clause is broad. Id. at 484-85.

Presidio and FusionStorm argue for and against application of the theory of equitable estoppel to allow or prevent Presidio from joining the arbitration. Under the explicit terms of the arbitration provisions, however, the decision as to whether Presidio should join the arbitration between the Individual Defendants and FusionStorm is a question for the arbitrator to decide. See Dkt. No. 1, Exhs. C-E, G. Since the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that particular dispute, the decision as to who has the primary power to decide arbitrability depends upon what the parties agreed about that particular matter. First Options, 514 U.S. at 943, 115 S.Ct. 1920. If the parties agreed to submit the arbitrability question to the arbitrator, the court should afford considerable leeway to the arbitrator. Id. Conversely, if the parties did not agree to submit the arbitrability question to the arbitrator, the court should decide the question independently. Id. To determine whether the parties agreed to arbitrate a certain matter, including arbitrability in general, courts should apply ordinary state-law principles governing the formation of contracts. Id. at 944, 115 S.Ct. 1920. In making that determination, courts should not assume that the parties agreed to arbitrate arbitrability unless clear and unmistakable evidence exists evincing that the parties so agreed. Id.

In Massachusetts, courts interpreting a contract must give effect to the parties' intentions and construe the language in the contract to afford it a reasonable meaning wherever possible. Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597, 601 (Mass.1981). Where the wording of a contract is unambiguous, a court must enforce the contract according to its terms. Freelander v. G. & K. Realty Corp., 357 Mass. 512, 258 N.E.2d 786, 788 (Mass.1970). In this instance, FusionStorm drafted the Employment Agreements, included binding arbitration provisions in the Employment Agreements, and required the Individual Defendants to execute the Employment Agreements. Within those binding arbitration provisions, FusionStorm explicitly incorporated the JAMS Rules. Indeed, parties may agree to limit the issues subject to arbitration, to arbitrate pursuant to specific rules, and to limit with whom a party will arbitrate its dispute. Concepcion, 131 S.Ct. at 1748-49. As a result, both FusionStorm and the Individual Defendants agreed to be bound by the procedures set forth in the JAMS Rules.

JAMS Rule 6(f) states:

Each of the situations delineated in JAMS Rule 6(f) are present in this case; namely, Presidio seeks to participate in the arbitration, and the Individual Defendants seek to compel Presidio to participate in the arbitration. To that end, in December, Lytos, Duff, King, and Ramirez submitted a request to the assigned JAMS ADR seeking to compel Presidio to participate in their arbitration pursuant to JAMS Rule 6(f). See Dkt. No. 60 at 2-3. Presidio similarly requested to participate in the arbitration pursuant to JAMS Rule 6(f). See id.; see also Dkt. No. 80 at 3. Notwithstanding the incorporation of the JAMS Rules into its arbitration agreements, FusionStorm objected to Presidio participating in the arbitration and, instead, seeks to present its claims against Presidio in this forum.

By incorporating the JAMS Rules, which necessarily includes JAMS Rule 6(f), however, the Individual Defendants and FusionStorm clearly and unmistakably agreed to allow the arbitrator to decide whether a third party should be permitted to join in the arbitration. See Terminix Intern. Co., LP v. Palmer Ranch Ltd. Partnership, 432 F.3d 1327, 1332-33 (11th Cir.2005) ("By incorporating the AAA Rules, including Rule 8, into their agreement, the parties clearly and unmistakably agreed that the arbitrator should decide whether the arbitration clause is valid."). Where "clear and unmistakable" evidence exists of the parties intent to allow an arbitrator to determine such a question, courts will enforce the delegation by the parties to the arbitrator of "gateway" questions. See In re Checking Account Overdraft Litigation, 674 F.3d 1252, 1255 (11th Cir.2012).

Here, the plain language of the arbitration agreements indicates that the Individual Defendants and FusionStorm have agreed that the arbitrator should decide whether Presidio may participate in the arbitration upon either Presidio's request or any of the Individual Defendants' or FusionStorm's request. The terms of the arbitration agreements are not ambiguous; they definitively state that FusionStorm and the Individual Defendants will arbitrate their disputes in accordance with the JAMS Rules. JAMS Rule 6(f) controls how a non-party may join an arbitration and who decides whether the non-party may join the arbitration. In accordance with the terms of the Employment Agreements, therefore, an arbitrator, not this Court, should decide whether Presidio may join the arbitration under JAMS Rule 6(f).8 Rent-A-Center, 130 S.Ct. at 2776 (stating that courts must enforce arbitration provisions according to their terms). In fact, in conformity with JAMS Rule 6(f), JAMS has already tasked the assigned arbitrator with determining the arbitrability issue of Presidio's potential participation in the arbitration (Dkt. No. 75, Ex. A). This is not to say that the arbitrator will decide that Presidio should join the arbitration, just that the arbitrator should be the one to make that decision, not the Court. Accordingly, I recommend that Presidio's motion to compel arbitration (Dkt. No. 23) be granted to the extent that the arbitrator should decide whether Presidio may participate in the arbitration between FusionStorm and the Individual Defendants.9

B. Stay

If the Court compels the parties to arbitrate, Defendants request the Court stay these proceedings as to all claims asserted by FusionStorm. As to Lotze, Lytos, Duff, Ramirez, and Presidio, however, FusionStorm contends that it should still be permitted to seek injunctive relief in this forum during the pendency of the arbitration because the arbitration provisions provide for provisional remedies in aid of arbitration in a court of appropriate jurisdiction.10 In Massachusetts, parties may obtain preliminary injunctive relief in aid of arbitration. See Scott-Jones v. Lu, 447 Mass. 1006, 849 N.E.2d 809 (Mass. 2006) (noting that a preliminary injunction in aid of arbitration was entered by the trial court). The remaining question, therefore, is whether and to what extent FusionStorm should be allowed to seek injunctive relief in this forum.11

When a court finds that parties have agreed to arbitrate a dispute, Section 3 of the FAA provides for a mandatory stay of the trial of an action until arbitration has been had in accordance with the terms of the arbitration agreement. 9 U.S.C. § 3. Where litigants advance both arbitrable and non-arbitrable claims, courts have discretion to stay the non-arbitrable claims but generally refuse to stay proceedings of non-arbitrable claims when it is feasible to proceed with the litigation. Klay v. All Defendants, 389 F.3d 1191, 1204 (11th Cir.2004). The crucial inquiry, however, is whether the arbitrable claims predominate or whether the outcome of the non-arbitrable claims will depend upon the arbitrator's decision. Id. In this instance, with the exception of the claims for injunctive relief, the arbitrable claims predominate over any non-arbitrable claims and the non-arbitrable claims depend upon the decisions the arbitrator makes as to the arbitrable claims. As the arbitration provisions indicate, the provisional relief sought by FusionStorm is explicitly provided for and is available only "in aid of arbitration" against the Individual Defendants rather than as a separate, independent cause of action.12 In accordance with the FAA and Massachusetts law, the arbitration provisions should be construed according to their terms. Rent-A-Center, 130 S.Ct. at 2776; Freelander, 258 N.E.2d at 788. Construing the arbitration provisions according to their terms means that FusionStorm should be permitted to seek injunctive relief in aid of arbitration against Lotze, Lytos, Duff, and Ramirez to prevent any potential irreparable harm which may occur during pendency of the arbitration. Furthermore, although the JAMS Rules, as incorporated in the arbitration provisions, provide for the proper mechanism for determining whether Presidio should join the arbitration, the Rules do not speak to whether injunctive relief should be available for or against such a non-party in this scenario. As such, nothing prevents FusionStorm from seeking injunctive relief against Presidio, be it in aid of arbitration or otherwise. Accordingly, I recommend that the case be stayed as to all claims except FusionStorm's request for injunctive relief in aid of arbitration against Lotze, Lytos, Duff, and Ramirez and FusionStorm's request for injunctive relief against Presidio.13

C. Discovery

FusionStorm additionally seeks expedited discovery in this matter, which Defendants oppose (Dkt. Nos. 51, 54, 56, 63). More specifically, FusionStorm requests Presidio submit to a computer examination and requests all Defendants serve their initial disclosures, provide dates for depositions, and respond to any written discovery propounded by FusionStorm (Dkt. No. 51 at 8-9). In response, Defendants argue that discovery in this action is inappropriate until the Court rules upon the pending motions to compel arbitration (Dkt. Nos. 54, 56, 63). In addition, Lotze moves for a protective order preventing FusionStorm from engaging in any discovery (Dkt. No. 63).14 Given the foregoing recommendations that the motions to compel arbitration be granted and FusionStorm be allowed to seek injunctive relief in this forum, the motion to compel discovery (Dkt. No. 51) and the motion for protective order (Dkt. No. 63) should be denied without prejudice. If FusionStorm proceeds to seek injunctive relief in this forum, the undersigned will hold a status conference at which time the parties can discuss the necessity and parameters of any discovery permissible in this action.15

III. Conclusion

Accordingly, and for the foregoing reasons, it is hereby

RECOMMENDED:

1. Lytos, Duff, King, Ramirez, and Lotze's motions to compel arbitration (Dkt. Nos. 18, 24) be granted.

2. Presidio's motion to compel arbitration (Dkt. No. 23) be granted to the extent that the arbitrator should decide whether Presidio may participate in the arbitration between the Individual Defendants and FusionStorm.

3. Presidio's motion to dismiss the complaint (Dkt. No. 22) be denied without prejudice.

4. FusionStorm be permitted to seek injunctive relief in this forum but the case be stayed as to all other claims against Defendants.

5. King be dismissed from this action.

6. The motion to compel discovery (Dkt. No. 51) be denied without prejudice.

7. The motion for protective order (Dkt. No. 63) be denied without prejudice. April 26, 2012.