United States District Court, District of Columbia
C.J. MERCADANTE, et al., Plaintiffs
XE SERVICES, LLC, et al., Defendant
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY United States District Judge
the Court is Defendants’  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’ 
Motion, Plaintiffs’  Response and Opposition, and
Defendants’  Reply, as well as the parties’
 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
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
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.
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.
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.” 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
firstname.lastname@example.org, 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.
subsequently filed the pending Motion to Dismiss for want of