COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2017-2731-BLS 2
KANIKA MISRA, CRAIG LEVINE, individually
And on behalf of all others similarly situated ,
Plaintiffs
vs.
CREDICO (USA) LLC, DFW CONSULTANTS, INC., and
JASON WARD
Defendants
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT CREDICO (USA) LLC’S MOTION
TO DISMISS OR IN THE ALTERNATIVE TO STAY
This putative class action alleges a failure to pay minimum wage and overtime in violation of G.L.c. 149 § 148 and G.L.c. 151 § 1B and a misclassification of plaintiffs as independent contractors in violation of G.L.c. 149 § 148B. The defendant, Credico (USA) LLC (Credico) is also a named defendant in two federal court actions filed in the Southern District of New York. Martin v. Sprint/United Management Co., Civ. A. No. 15-05237 (Martin) and Vasto v. Credico (USA) LLC, Civ. A. No. 15-09298 (Vasto). Both actions make fact allegations against Credico similar to the instant case, and the plaintiffs in this action, Kanika Misra and Craig Levine, affirmatively opted in to the Vasto action so as to be bound by its resolution. Both Vasto and Martin, however, are brought under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq.., which differs in important respects from Massachusetts wage and hours laws.
This action was originally filed in Norfolk Superior Court under docket number 1683-0951. On December 7, 2016, Credico moved to dismiss or in the alternative sought a stay on the grounds that the two earlier filed actions (handled by the same federal judge in New York) should proceed to resolution first. Defendant also sought a transfer to the Business Litigation Session, which plaintiffs opposed. Ultimately, the case was transferred on August 28, 2017, and the defendant’s motion was scheduled for hearing October 26, 2017. Before that hearing took place, the federal court in the Martin action had granted Credico’s motion for summary judgment. On October 27, 2017 (a day after the hearing before this Court on the instant motion), the federal court granted Credico’s motion for summary judgment in the Vasto action. Because Credico’s motion to dismiss or stay was premised on its position that this case should not go forward because these other actions were pending, the motion is now moot.
When plaintiffs notified this Court of the Vasto decision, Credico responded that it intended to seek dismissal of this case based on a different argument – namely, that plaintiffs are barred from pursuing their Massachusetts claims on the grounds of collateral estoppel. Plaintiffs already raised this issue — and presented strong arguments as to why collateral estoppel does not bar this action – when they opposed Credico’s original motion for a stay. The Court did not have the benefit of the Vasto decision at that time, however. Moreover, in its most recent submission, Credico has made it clear that it wishes to file a new motion to dismiss that more directly addresses the impact of the Vasto decision and its preclusive effect. Thus, rather than attempt to resolve the collateral estoppel issues based on arguments made after a hearing on a motion that
is now Moot, this Court hereby ORDERS that Credico serve this new motion on the plaintiffs (if it has not already done so), on or before December 15, 2017, with hearing on such motion scheduled for January ____ 2018 at 2:00 p.m.
__________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: December 7, 2018