ORDER RE MOTION TO COMPEL ARBITRATION [Dkt. No. 8]

DEAN D. PREGERSON, District Judge.

Presently before the Court is Defendant's Motion to Dismiss or in the Alternative to Stay Civil Action and Compel Arbitration. (Dkt. No. 8.) Because procedural irregularities prevent the Court from fully considering Plaintiff's claims and Defendant's arguments, the Court adopts the following order vacating the Motion to Dismiss.

Plaintiff is Defendant's former employee. (Dkt. No. 1, Ex. A ("Complaint"), ¶ 6; Opp'n at 2:7.) Defendant alleges that the two parties entered into a valid arbitration agreement with a choice of law clause selecting Tennessee law, although both the existence of an agreement and the validity of the choice of law provision are in dispute. (Def.'s Mem. P.&.A and exhibits thereto; Opp'n at 2-3.)

Plaintiff filed a complaint in state court alleging that Defendant has violated certain provisions of California labor law by denying employees rest and meal breaks, failing to pay wages on termination, and failing to provide and maintain accurate records. Plaintiff sues under California's wage-and-hour statutes and, additionally, sues under California's Unfair Competition Law. (Compl. generally.) Defendant removed to federal court on December 19, 2014. (Dkt. No. 1.)

Plaintiff also alleges in his Opposition, and Defendant agrees, that after the case was removed he filed a First Amended Complaint in state court adding a claim on behalf of the state pursuant to California's Private Attorneys General Act ("PAGA"), Cal. Lab. Code § 2698 et seq. (Opp'n at 2:8-10; Reply at 3 n.2.) However, neither party has put the first amended complaint on the record in this federal action, either by direct filing or as an exhibit to a motion.

Plaintiff argues that his PAGA claims, at least, are not subject to arbitration, because California law prevents it. (Opp'n at 4.) Defendant argues that (1) Tennessee rather than California law applies, and (2) as a matter of federal law, Plaintiff's PAGA claims do not defeat or limit the arbitration agreement, and therefore dismissal or an order compelling arbitration is appropriate on this record. (Reply at 3-5.)

The Court declines to resolve these complex questions on an incomplete record. To do so would be to render an advisory opinion. "[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

The Court therefore orders Plaintiff to file the correct operative complaint with this Court, either by stipulation or, if the parties are unable to agree, by motion. Any such stipulation or motion for leave to file a first amended complaint shall be filed no later than ten days after the date of this order. Failure to file either a stipulation or a motion for leave to file a first amended complaint within ten days may be deemed a waiver of Plaintiff's PAGA claim or claims.

Because ruling on the issues of law surrounding the PAGA claim appears to be critical to the resolution of this motion to dismiss, the Court finds that it cannot proceed with the motion until the appropriate operative complaint is filed in this federal action. The Motion to Dismiss is VACATED, but Defendant is free to bring the same or a similar motion if Plaintiff either files a first amended complaint or allows the ten day deadline to pass without filing a stipulation or motion.

Nothing in this order acts as a decision on the merits of any claim or defense in this case.

IT IS SO ORDERED.