Ruiz et al v. Circle K Stores Inc. et al

Filing 92

ORDER re 91 Notice (Other) filed by Circle K Stores Inc., Alimentation Couche-Tard Inc., Mac's Convenience Stores, LLC, Mid-Atlantic Convenience Stores, LLC. Plaintiffs must file, on or before November 2, 2017, a memorandum of la w addressing, at a minimum, the Court's questions set forth in this Order. The brief may not exceed ten (10) pages in length. Defendants may file a response to Plaintiffs' memorandum on or before November 16, 2017. The response may not exceed ten (10) pages in length. Signed by Judge Sheri Polster Chappell on 10/19/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF 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,
v.

Case No: 2:14-cv-404-FtM-38CM

CIRCLE K STORES INC., MAC’S
CONVENIENCE STORES, LLC,
ALIMENTATION COUCHE-TARD
INC. and MID-ATLANTIC
CONVENIENCE STORES, LLC,
Defendants.
/
ORDER1
This matter comes before the Court on the parties’ Joint Notice of Status. (Doc.
91). The Court stayed this wage and hour suit pending the United States District Court
for the District of Nevada’s decision on consolidation and nationwide certification. (Doc.
83). Since then, the District of Nevada conditionally certified a collective action that
includes persons employed as Circle K Store Managers anywhere in the United States.
Although the opt-in period ended in May 2016, the deadline for a motion for decertification
is not until next year.

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Defendants advised the Court about the conditional certification but never
requested any affirmative relief like lifting the stay or reconsidering dismissal. (Doc. 89).
This case thus remained dormant for two years. In fact, the parties were silent until the
Court recently ordered them to file a joint status report. (Doc. 90).
In the parties’ report, they take opposite positions on whether this case should
proceed. Defendants argue for dismissal because Plaintiffs have failed to prosecute this
case for two years. (Doc. 91 at 3). They maintain the named and opt-in Plaintiffs received
notice about the conditional certification and that several of them joined the Nevada suit.2
(Id.). They also argue, because the Nevada case was filed first, this case should be
dismissed. (Id.).
Plaintiffs oppose dismissal, advocating for the Court to transfer and consolidate
this case with the Nevada suit. (Id. at 4). They also assert that a transfer will not prejudice
Defendants because discovery is ongoing in the Nevada suit.

(Id.). What is more,

Plaintiffs claim that Circle K mistakenly notified Ruiz and other opt-in plaintiffs of their
rights to join the Nevada suit and of the consequences if they did not join. (Id. at 5). The
notice, according to Plaintiffs, confused Ruiz and the others to opt-in to the Nevada suit
even this suit was protecting their rights.

(Id.).

Plaintiffs thus are concerned that

dismissing this suit will cause Ruiz and the others irreparable harm if they are found to
have improperly entered the Nevada case. (Id.).
Based on the Court’s review of the file and the parties’ arguments, it will not dismiss
this case for failure to prosecute at this time. The Court needs further information from

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One named plaintiff and three opt-in plaintiffs have joined the Nevada suit: Veronica Del
Pilar Ruiz, Rose Bautista, Theresa Vonruden, Eric Giroux, and George Box. (Doc. 91 at
2).

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the parties including, but not limited to, (1) identifying the named and opt-in plaintiffs who
still wish to proceed in this case; (2) why this case should not be dismissed under the
first-to-file rule; and (3) why a transfer and consolidation to the District of Nevada is a
viable option at this time.
Accordingly, it is now
ORDERED:
(1) Plaintiffs must file, on or before November 2, 2017, a memorandum of law
addressing, at a minimum, the Court’s questions set forth in this Order. The
brief may not exceed ten (10) pages in length.
(2) Defendants may file a response to Plaintiffs’ memorandum on or before
November 16, 2017. The response may not exceed ten (10) pages in length.
DONE and ORDERED in Fort Myers, Florida this 19th day of October 2017.

Copies: All Parties of Record

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