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Mercadante v. XE Services, LLC

United States District Court, District of Columbia

November 29, 2017

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



         Nearly three years ago, the Court ordered Plaintiffs to pursue arbitration on the threshold issue of whether their claims are arbitrable. Since that time, Plaintiffs have made only anemic attempts to initiate arbitral proceedings, and in their most recent communications with the Court, have admitted that “they will not pursue arbitration any further . . . .” Notice Concerning Arbitration, ECF No. 83, at 1-2. Although Plaintiffs continue to represent that they “oppose dismissal, ” id., there is no question that Plaintiffs have made the strategic decision to not pursue arbitration in order to compel dismissal of this lawsuit, so that they may pursue an appeal to the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”).

         Presently before the Court are Defendants' [71] Motion to Dismiss and [77] Motion to Reinstate the Motion to Dismiss. Defendants seek dismissal of this lawsuit pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiffs' failure to prosecute this action in accordance with the Orders of this Court. In a prior Memorandum Opinion, the Court held the Motion to Dismiss in abeyance, providing Plaintiffs with “one final opportunity to move forward with the arbitration proceedings, ” despite concluding that Plaintiffs had failed to pursue their case with the requisite diligence. Aug. 19, 2016 Mem. Op. and Order, ECF No. 75 (“Aug. 2016 Op.”), at 8 (emphasis in original). Plaintiffs have intentionally squandered that opportunity. The Court has provided Plaintiffs with every reasonable accommodation to comply with the Orders of this Court. Plaintiffs have not done so, and by their own admission, will not do so. Accordingly, the Court has no choice but to GRANT Defendants' Motion to Reinstate and Motion to Dismiss. This matter is DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         The Court has presented much of the factual and procedural background relevant to the pending motions in its August 19, 2016 Memorandum Opinion and Order and its February 13, 2017 Order, ECF No. 82 (“Feb. 2017 Order”). Nevertheless, to facilitate a complete record of this matter, the Court memorializes in full the sequence of events that has led to the dismissal of this lawsuit for want of prosecution.

         The August 2016 Opinion relays the procedural history of this action following the Court's ruling on Defendants' Motion to Compel Arbitration:

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.” 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 ...

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