United States District Court, M.D. Florida, Fort Myers Division
VERONICA DEL PILAR RUIZ and SAGAR DALIYA, individually and on behalf of all others similarly situated who consent to their inclusion Plaintiffs,
CIRCLE K STORES INC., MAC'S CONVENIENCE STORES, LLC, ALIMENTATION COUCHE-TARD INC. and MID-ATLANTIC CONVENIENCE STORES, LLC, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiffs Veronica Del Pilar Ruiz and
Sagar Daliya's Memorandum of Law in Response to the
Court's Order (Doc. 93) and Defendants Circle K Stores,
Inc. and Mac's Convenience Stores, LLC's Memorandum
of Law in Support of Dismissal of Case (Doc.
The Court held a telephonic hearing to discuss the
parties' briefs and the status of this case on January 9,
2018. (Doc. 99).
Court has discussed the background of this case in its
previous Order (Doc. 92), and thus need not detail it at
length here. In brief, Circle K store managers brought this
collective action in July 2014 for unpaid overtime wages
under the Fair Labor Standards Act. Nearly three years ago,
the Court stayed this case under the first-to-file rule
because an identical wage and hour suit was initiated in the
United States District Court for the District of Nevada.
(Doc. 83 at 2). The Court's stay hinged on the District
of Nevada Court deciding whether to consolidate the two cases
and whether to grant a nationwide certification. (Doc. 83 at
5). Since then, the District of Nevada has conditionally
certified a nationwide class but it has not decided
recently, this case has remained dormant. In fact, it was not
until the Court ordered the parties to file a joint status
report in October 2017 that the silence was broken. (Doc.
90). Because the parties' joint response presented
opposing positions on how this case should proceed (Doc. 91),
the Court asked for additional briefing (Doc. 92). The
parties' responses are now before the Court. (Doc. 93;
want the Court to dismiss this case because Plaintiffs have
failed to prosecute their claims for the last few years.
(Doc. 94). They argue that Plaintiffs, back in 2015, only
objected to the Court dismissing this suit because the
District of Nevada had not yet decided nationwide
certification. Once the District of Nevada granted the
conditional certification, Defendants state that
Plaintiffs' basis for objecting to the dismissal vanished
and they have since taken no action to preserve and prosecute
any claims. (Doc. 94 at 2-3). Defendants thus argue,
“[t]hose Plaintiffs who abandoned or sat on their
rights for over two years should not now be permitted to
claim prejudice by dismissal of their claims.” (Doc. 94
oppose dismissal and argue for the status quo until the
District of Nevada decides whether to consolidate the cases.
(Doc. 93). Plaintiffs also claim that Circle K mistakenly
notified some opt-in Plaintiffs of their rights to join the
Nevada suit and of the consequences if they did not join. The
notice, according to Plaintiffs, confused them to opt-in to
the Nevada suit even though this case was protecting their
rights. Plaintiffs thus have expressed concern that
dismissing this suit will cause them irreparable harm if the
District of Nevada finds that they improperly entered the
Court finds itself in a difficult position, and neither party
is blameless for the procedural conundrum. The Court stayed
this case pending the District of Nevada's decision on
certification and consolidation. Only one has
happened, and it yet remains tenuous. The District of Nevada
granted a conditional nationwide certification with the
deadline for Defendants to move for decertification looming
next month. Thus, the issue of certification is still in the
air. To complicate matters, the District of Nevada has never
addressed the issue of consolidating its suit with this one.
That is because neither party raised the issue. While
Plaintiffs may have sat on this case for nearly three years,
so did Defendants. The Court must now decide what to do with
this three-year-old case in its current procedural state.
the Court stands by its finding that the Nevada suit is the
first-filed case (Doc. 83), continuing to apply the
first-to-file doctrine is no longer viable. Having the
District of Nevada to decide the issue of consolidation -
something that should have happened three years ago -
certainly will not conserve judicial resources. See
Allstate Ins. Co. v. Clohessy, 9 F.Supp.2d 1314, 1316
(M.D. Fla. 1998). The Nevada suit has been pending longer
than this case. Litigation has advanced with the opt-in
period ending eight months ago, discovery closing this month,
and the deadline for decertification being next month.
See Rudolph and Me, Inc. v. Ornament Central, LLC,
No. 8:11-cv-670-T-33EAJ, 2011 WL 3919711, at *2 (M.D. Fla.
Sept. 7, 2011) (stating a transfer under the first-to-file
rule is within the district court's discretion). Thus,
dropping this case into the District of Nevada's lap
would not secure the just, speedy, and inexpensive
determination of the issues. See Fed. R. Civ. P. 1.
As much as this Court dislikes having matters filed in 2014
on its civil docket, it finds no good reason to exercise its
discretion and dismiss this case for failure to prosecute.
Since there appears to be viable plaintiffs who wish to
pursue relief against Defendants, the Court finds it prudent
to forge ahead.
leads the Court to the next hurdle - which Plaintiffs can
proceed with this case. For sure, any Plaintiff who received
notice in the Nevada case but did not opt in may continue
with this suit. Same result for any Plaintiff who did not
receive notice. But any Plaintiff who withdrew from this case
and/or never worked for Defendants cannot proceed. Also, any
Plaintiff who opted into the Nevada suit cannot also proceed
in this case. As such, the Court will allow this case to
proceed without them.
it is now
(1) Defendants Circle K Stores, Inc. and Mac's
Convenience Stores request to dismiss this case for failure
to prosecute is DENIED.
(2) The Clerk is DIRECTED to issue an
Amended FLSA Scheduling Order with which the parties are
ordered to comply.