United States District Court, District of Columbia
C.J. MERCADANTE, et al., Plaintiffs
XE SERVICES, LLC, et al., Defendants
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
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
before the Court are Defendants'  Motion to Dismiss
and  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
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
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:
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 ...