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Mercadante v. Xe Services, LLC

United States District Court, District of Columbia

August 19, 2016

C.J. MERCADANTE, et al., Plaintiffs
XE SERVICES, LLC, et al., Defendant


          COLLEEN KOLLAR-KOTELLY United States District Judge

         Before the Court is Defendants’ [71] Motion to Dismiss. Defendants seek dismissal under Federal Rule of Civil Procedure 41(b) on the basis that Plaintiffs have “fail[ed] to prosecute or to comply with … a court order.” Specifically, Defendants seek dismissal because Plaintiffs failed to proceed to arbitration regarding the claims brought in this case after the Court ordered them to do so. Having carefully considered Defendants’ [71] Motion, Plaintiffs’ [73] Response and Opposition, and Defendants’ [74] Reply, as well as the parties’ [72] Joint Report, the Court concludes that it is proper to HOLD IN ABEYANCE the motion while providing Plaintiffs one final opportunity to perfect their arbitration demands and to proceed to arbitration before the American Arbitration Association.

         I. BACKGROUND

         The Court presented the factual background underlying this case previously. See Mercadante v. XE Servs., LLC, 78 F.Supp.3d 131, 134 (D.D.C. 2015). Therefore, the Court limits its presentation of the background to the events that form the basis for Defendants’ motion to dismiss for want of prosecution. The Court describes the relevant sequence of events here.

         On January 15, 2015, the Court ordered the parties to “proceed to arbitration in order for an arbitrator to determine, in the first instance, whether the claims in this action are arbitrable.” Order, ECF No. 63. Subsequently, after the parties’ exchanged e-mails regarding future proceedings, Plaintiffs filed a Motion for Reconsideration or in the Alternative for Certification of Interlocutory Appeal, regarding this Court’s January 15, 2015, Order, which Defendants opposed. The Court denied that motion in its entirety. The Court explained that, if Plaintiffs continued to seek relief on the claims they brought in this case, they were required to proceed to arbitration as previously ordered by the Court. See Mem. Op. and Order, ECF No. 69, dated Aug. 13, 2015.

         In the aftermath of the Court’s decision on the motion for reconsideration, Plaintiffs asked Defendants whether they would consent to arbitration in Washington, D.C. Defendants responded that they insisted on arbitration in the locations within North Carolina specified in the underlying agreements with Plaintiffs. See Thorne Decl., ECF No.71-2, ¶¶ 9-10. For six months, there was no further correspondence between the parties in the time between September 2015 and March 2016.

         On March 25, 2016, Plaintiffs submitted a Demand for Arbitration to the American Arbitration Association (“AAA”), under its rules for employment cases. Def.’s Mot., Ex. F, at 31. The demand encompassed class claims, as well as the individual claims of the four individual Plaintiffs in this case. See Id. at 1 (“Individual and class action on behalf of all similarly situated employees”); id. ¶¶ 34-43 (setting out basis for class claims). The AAA acknowledged receipt of Plaintiffs’ demand, including a payment of $200. Id., Ex. G, at 1. The letter explained that “[t]he preliminary filing fee under the Supplementary Rules for Class Arbitration is $3, 350, of which claimants have paid $200.” Id. The letter further stated that “to proceed with administration, we request the $3, 150 balance of the filing fee be submitted at this time.” Id. The AAA informed Plaintiffs that this payment was due on April 7, 2016. Id. On April 21, 2016, the AAA sent a follow-up letter to Plaintiffs indicating that the payment required by the March 29, 2016, letter had not been received. Id., Ex. H, at 1. Pursuant to the follow-up letter, payment was due on April 30, 2016. Id. at 2. Subsequently, the AAA sent additional follow-up correspondence on June 10, 2016, by e-mail, indicating that no payment had yet been made. Id., Ex. I. The e-mail further stated that Plaintiffs were required to submit the balance of the fee by June 17, 2016, and that “[a]bsent receipt of the filing fee by June 17, we will administratively close our file.” Id. Plaintiffs’ counsel responded to that e-mail with a one-line e-mail stating only the following: “Please proceed on the individual claims. That’s what we were filing under.”[1] Id., Ex. K. Representatives from the AAA’s Employment Filing Team responded as follows on June 13, 2016:

Good Evening, Should claimants desire to proceed, we request that each claimant submit an individual demand for arbitration, along with a copy of the applicable arbitration agreement, and the appropriate filing fee.
If we do not receive individual demands and the filing fee by June 20, 2016, we will close our file.
If you have any questions, please email, and we will be happy to assist you. Kindly copy the opposing party’s representative on any response to this e-mail.

Id. Plaintiffs did not respond to that communication. On June 22, 2016, the AAA’s Employment Filing Team sent the parties a letter stating the following:

On March 29, 2016, April 21, 2016, and June 13, 2016, claimant was notified that the filing requirements for the above matter have not been met. The filing deficiency has not been cured. Accordingly, we have administratively closed our file without prejudice.

Id., Ex. L. The letter further stated that “[i]n the future should you decide to resubmit this matter, please provide all the requisite information along with the appropriate filing fee.” Id.

         Defendants subsequently filed the pending Motion to Dismiss for want of ...

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