Holick et al v. Cellular Sales of New York, LLC et al

Filing 49

ORDER that this case reopened in accordance with the Second Circuits Mandate vacating the Judgment entered on March 29, 2013 (Dkt. No. 39); in the interest of economy and avoidance of unnecessary duplication of effort and litigation expense, this ac tion 1:12-CV-0584 (NAM/CFH) is hereby consolidated with 1:13-CV-0738 (NAM/RFT). This action, 1:12-CV-0584 (NAM/CFH), is now designated as the lead case and the action subsequently commenced by the pltfs, 1:13-CV-0738 (NAM/RFT), is designated as the m ember case, pursuant to Rule 42(a) of the Fed. R. Civ. P., solely for purposes of pretrial proceedings, without prejudice to the right of one or both parties to later apply to the assigned trial judge for an order consolidated cases for trial. ALL FU TURE FILINGS MUST BE FILED ONLY IN THE LEAD CASE, 1:12-CV-0584 (NAM/CFH). NO FURTHER FILINGS SHALL BE DOCKETED IN THE MEMBER CASE, 1:13-CV-0738 (NAM/RFT); and that in view of the substantial involvement of U.S. Magistrate Judge Randolph Treece in handling discovery matters in the member case, 1:13-CV-0738 the Clerk of the Court is directed to assign lead case, 1:12-CV-0584 (NAM/CFH) to U. S. Magistrate Judge Treece. Signed by Senior Judge Norman A. Mordue on 10/21/2014. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
JAN P. HOLICK, JR., STEVEN MOFFITT,
JUSTIN MOFFITT, GURWINDER SINGH,
JASON MACK, WILLIAM BURRELL
and TIMOTHY M. PRATT,
Plaintiff,
v.

1:12-CV-00584 (NAM/CFH)

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CELLULAR SALES OF NEW YORK, LLC, and
CELLULAR SALES OF KNOXVILLE, INC.,
Defendant.
_________________________________________
APPEARANCES:
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Gleason, Dunn, Walsh & O’Shea
Daniel A. Jacobs, Esq.
40 Beaver Street
Albany, New York 12207
For Plaintiffs

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Chamberlain, Hrdlicka, White,
Williams & Aughtry, P.C.
C. Larry Carbo, III, Esq.
Julie R. Offerman, Esq.
1200 Smith Street, Suite 1400
Houston, Texas 77002
For Defendants
Hinman Straub, P.C.
Joseph M. Dougherty, Esq.
121 State Street
Albany, New York 12207
For Defendants
Hon. Norman A. Mordue, Senior United States District Judge:

ORDER
In a order entered on March 29, 2013, the Court compelled mediation and, rather than stay
proceedings pending completion of mediation, dismissed without prejudice plaintiffs’ claims for
compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., New York
Labor Law (“NYLL”) N.Y. Labor Law Art. 6, § 190 et seq., and New York Common Law. Dkt.
No. 38. Plaintiffs appealed. Dkt. No. 40.
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Because the parties completed mediation while the appeal was pending, the Second
Circuit dismissed as moot “that part of the appeal challenging the district court’s order
compelling mediation.” Holick v. Cellular Sales of New York, LLC, 559 F. App’x 40, 42 (2d Cir.
2014). The Second Circuit, however, vacated the order of dismissal and remanded the case for
further proceedings because of the potential statute of limitations bar to refiling the complaint:

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While plaintiffs, in opposing 12(b)(1) dismissal, alerted the district court to possible
statute of limitations concerns, we cannot confidently conclude on the record before
us that plaintiff had notice and opportunity to alert the district court that these
concerns also pertained to dismissal without prejudice pending mediation. See
Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000) (stating that court generally “may
not dismiss an action without providing the adversely affected party with notice and
an opportunity to be heard”); accord Mojias v. Johnson, 351 F.3d 606, 610–11 (2d
Cir. 2003). Nor can we conclude that the district court ever considered any
limitations bar in ordering dismissal. Accordingly, we vacate the order of dismissal
without prejudice and remand to the district court for further proceedings consistent
with this order.

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Id. at 43.
In a Text Order entered on April 17, 2014, the Court directed the parties to submit briefs
addressing the impact of the Second Circuit’s mandate. Dkt. No. 43. Defendants maintain that
“the Court properly exercised its discretion in dismissing Plaintiffs’ claims without prejudice”
because “Plaintiffs could have avoided the alleged time-barring issues had [they] simply

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submitted their claims to mediation before filing this lawsuit as they agreed under their contracts
with Cellular Sales.” Dkt. No. 44. Plaintiffs assert that the Court should “dismiss Cellular
Sales’[s] motion to compel mediation as moot” and “proceed with Plaintiffs’ claims under the
[FLSA]”, which “should be deemed to relate-back to the date of this action’s commencement on
April 4, 2012.” Dkt. No. 46.
As stated, the Second Circuit dismissed as moot plaintiffs’ appeal of the Court’s order
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compelling mediation. Thus, that order remains intact. The Second Circuit only vacated the
judgment to the extent it dismissed the complaint. Defendants urge the Court to reconsider
dismissing this action based on plaintiffs failure to submit to mediation prior to filing this lawsuit.
The Court declines to do so, however, in view of the statute of limitations that may bar plaintiffs
from refiling their claims even if they are dismissed without prejudice. Mediation is complete,

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thus there is no impediment to the progression of this case.
Because this case and Holick v. Cellular Sales of New York, LLC, 1:13-cv-00738, share a
“common question of law or fact”, the Court consolidates them pursuant to Rule 42(a) of the
Federal Rules of Civil Procedure and assigns United States Magistrate Judge Christian F.
Hummel as the Magistrate Judge for both cases.
Accordingly, it is

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ORDERED that this case be reopened in accordance with the Second Circuit’s Mandate
vacating the Judgment entered on March 29, 2013 (Dkt. No. 39); and it is further
ORDERED in the interests of economy and avoidance of unnecessary duplication of
effort and litigation expense, this action 1:12-CV-00584(NAM/CFH) is hereby consolidated with
1:13-CV-00738(NAM/RFT). This action, 1:12-CV-00584(NAM/CFH), is now designated as the

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lead case and the action subsequently commenced by the plaintiffs, 1:13-CV-00738(NAM/RFT),
is designated as the member case, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure,
solely for purposes of pretrial proceedings, without prejudice to the right of one or both parties to
later apply to the assigned trial judge for an order consolidating the cases for trial. ALL
FUTURE FILINGS MUST BE FILED ONLY IN THE LEAD CASE,1:12-CV00584(NAM/CFH). NO FURTHER FILINGS SHALL BE DOCKETED IN THE MEMBER
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CASE, 1:13-CV-00738(NAM/RFT), and it is further
ORDERED that in view of the substantial involvement of United States Magistrate Judge
Randolph Treece in handling discovery matters in the member case, 1:13-CV-00738, the Clerk of
the Court is directed to assign lead case, 1:12-CV-00584(NAM/CFH) to United States Magistrate
Judge Treece.

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IT IS SO ORDERED.
Date: October 21, 2014

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