WENDY W. BERGER, UNITED STATES DISTRICT JUDGE

Kimberly De Arcangelis, C. Ryan Morgan, Morgan & Morgan, PA, Orlando, FL, for Plaintiff.

Amanda A. Simpson, Jackson Lewis, PC, Orlando, FL, Eric R. Magnus, Jackson Lewis, PC, Atlanta, GA, for Defendants.

ORDER

WENDY W. BERGER, UNITED STATES DISTRICT JUDGE This cause is before the Court on Defendants' Motion to Compel Individual Arbitration and Stay this Action (Doc. 28) and Defendants' Supplemental Motion to Compel Individual Arbitration (Doc. 63). For the reasons set forth below, the Motions are denied.

Defendants provide local package delivery and logistics services. (Doc. 1, ¶ 13–14). Plaintiffs entered Independent Contractor Agreements with Defendants to provide delivery services on behalf of Defendants. (Id. ¶¶ 15, 27–28; see also Doc. Nos. 28-1–28-15; 63-1–63-2). Plaintiffs' deliveries were predominately local in nature and Plaintiffs infrequently crossed state lines when making deliveries. (Doc. 28 at 6). Plaintiffs were only involved in the "final mile" delivery service and delivered packages to their final destination. (Id. ).

Each Plaintiff's Agreement contains the following arbitration provision, which provides in relevant part:

A. ARBITRATION OF CLAIMS: In the event of a dispute between the parties, the parties agree to resolve the dispute as described in this Section (hereafter "the Arbitration Provision). This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and applies to any dispute brought by either CONTRACTOR or PARTSFLEET arising out of or related to this Agreement, CONTRACTOR'S relationship with PARTSFLEET (including termination of the relationship), or the service arrangement contemplated by this Agreement, including cargo claims and payment disputes ... BY AGREEING TO ARBITRATE ALL SUCH DISPUTES, THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.

i. Claims Covered By Arbitration Provision : Unless carved out below, claims involving the following disputes shall be subject to arbitration under this Arbitration Provision regardless of whether brought by CONTRACTOR, PARTSFLEET or any agent acting on behalf of either: ... (3) disputes arising out of or relating to the interpretation or application of this Arbitration Provision, but not as to the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, ... and claims arising under the ... Fair Labor Standards Act, ... and state statutes, if any, addressing the same or similar subject....

....

iii. Class Action Waiver. CONTRACTOR AND PARTSFLEET AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL REPRESENTATIVE ACTION BASIS.

(Doc. 28-1 at 8). The Agreements also contain the following choice of law provisions: "[t]his Agreement shall be governed by and construed in accordance with the laws of the state in which CONTRACTOR performs the majority of the services covered by this Agreement." (Id. at 12). Plaintiffs filed the Complaint (Doc. 1) on January 22, 2019, alleging violations of the Fair Labor Standards Act ("FLSA"). Defendants now move to enforce the Arbitration Provisions in the parties' Agreements and compel individual arbitrations with each Plaintiff.

In general, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. , governs the enforceability of arbitration provisions in contracts involving transactions in interstate commerce. Hill v. Rent-A-Center, Inc. , 398 F.3d 1286, 1288 (11th Cir. 2005). "A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "The FAA embodies a ‘liberal federal policy favoring arbitration agreements.’ " Hill , 398 F.3d at 1288 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ). However, it is well-settled that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Commc'ns Workers of Am. , 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotation omitted).

"A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. In determining whether to compel arbitration, courts do not weigh the merits of the parties' claims. AT & T Techs. , 475 U.S. at 649, 106 S.Ct. 1415. Rather, courts must limit their review to three factors: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived." Senti v. Sanger Works Factory, Inc. , No. 6:06-cv-1903-Orl-22DAB, 2007 WL 1174076, at *2 (M.D. Fla. Apr. 18, 2007)

Plaintiffs argue that arbitration cannot be compelled because they fall within the "transportation workers" exemption within Section 1 of the FAA, which states as follows: "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." In the Eleventh Circuit, "a ‘transportation worker’ is an individual (1) employed in the transportation industry who (2) is actually engaged in the transportation of goods in interstate commerce." Machado v. Labor Ready Se., Inc. , No. 14-24234-CIV-LENARD/GOODMAN, 2015 WL 6829061, at *5 (S.D. Fla. Nov. 6, 2015) (citing Hill , 398 F.3d at 1290 ). Defendants argue that Plaintiffs do not meet either criteria of the definition of "transportation worker" and therefore, are not exempt.

It is undisputed that Plaintiffs act as delivery agents on behalf of Defendants and deliver packages that have traveled in the stream of interstate commerce. It is also undisputed that Plaintiffs predominately make local deliveries and rarely cross state lines in the ordinary course of their employment. The Eleventh Circuit has cautioned that the emphasis in determining if an individual is a "transportation worker" should be on whether or not the transportation of goods interstate was incidental to a job that would not otherwise involve the transportation of goods interstate, such as a pizza delivery driver. Hill , 398 F.3d at 1289–90. Here, the transportation of goods in interstate commerce is not incidental to Plaintiffs' employment. To the contrary, the transportation of goods that are and have been traveling in interstate commerce is the totality of Plaintiffs' jobs. Unlike a food delivery driver, the goods at issue in this case originate in interstate commerce and are delivered, untransformed, to their destination by Plaintiffs. See Rittmann v. Amazon.com, Inc. , 383 F. Supp. 3d 1196, 1200 (W.D. Wash. 2019) (stating that courts have found delivery drivers to be "transportation workers" where the goods delivered originate out of state). Moreover, contrary to the drivers discussed in Lee v. Postmates, Inc. , there is no evidence that the deliveries being made by Plaintiffs are from local merchants. No. 18-cv-03421-JCS, 2018 WL 4961802, at *8 (N.D. Cal. Oct. 15, 2018). Rather, the deliveries are presumably from out of state merchants delivering to customers in the local area that Plaintiffs service. Thus, unlike the pizza drivers contemplated by Hill , Plaintiffs' deliveries are not incidental to their employment and do not involve the transportation of goods from local merchants to local customers. Accordingly, the "transportation worker" exemption applies, and arbitration cannot be compelled pursuant to the FAA.

Because the FAA does not permit this Court to compel arbitration, the Court must next determine if it may look to state law to compel arbitration. The parties' Agreements provide, generally, that the Agreement will be subject to state law. However, the Arbitration Provision specifies that, "[t]his Arbitration Provision is governed by the Federal Arbitration Act." (Doc. 28-1 at 8 (emphasis added)). In interpreting contracts, "[w]hen two contract terms conflict, the specific term controls over the general one." United States v. Pielago , 135 F.3d 703, 710 (11th Cir. 1998). Here, the election of governing law generally applies to the Agreements, but the Arbitration Provision itself specifically elects to apply the FAA. Because the more specific provision controls, the Arbitration Provision cannot be interpreted pursuant to applicable state law and must rise or fall on the application of the FAA. As "transportation workers," Plaintiffs are exempt from arbitration under the FAA. Accordingly, this Court cannot compel arbitration pursuant to the parties' Agreements.

Therefore, it is hereby ORDERED and ADJUDGED as follows:

1. Defendants' Motion to Compel Individual Arbitration and Stay this Action (Doc. 28) is DENIED .

2. Defendants' Supplemental Motion to Compel Individual Arbitration (Doc. 63) is DENIED .

DONE AND ORDERED in Orlando, Florida on August 15, 2019.