Hrdina v. World Savings Bank, FSB et al

Filing 21

ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO WITHDRAW AND RE-FILE MOTION TO DISMISS by Hon. William Alsup granting 16 Motion for Administrative Motion to withdraw Motion to Dismiss and Re-File Amended Motion.(whalc1, COURT STAFF) (Filed on 11/23/2011) (Additional attachment(s) added on 11/23/2011: # 1 Certificate of Service) (dt, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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GEORGE HRDINA,

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For the Northern District of California

United States District Court

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No. C 11-05173 WHA

Plaintiff,
v.

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WORLD SAVINGS BANK, FSB;
WORLD SAVINGS, INC.; WACHOVIA
MORTGAGE CORPORATION; and
DOES 1 through 6, inclusive,

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ORDER GRANTING
ADMINISTRATIVE MOTION
FOR LEAVE TO WITHDRAW
AND RE-FILE MOTION TO
DISMISS

Defendants.

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/

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On November 18, 2011, defendants filed an administrative motion for leave to withdraw

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their pending motion to dismiss and re-file an amended motion to dismiss (Dkt. No. 16). Plaintiff

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did not filed an opposition. Defendants’ pending motion to dismiss was filed on

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October 28, 2011 (Dkt. No. 4). Plaintiff’s opposition to the motion to dismiss was filed on

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November 9, 2011 (Dkt. No. 14). Under Local Rule 7-7(e), this Court has discretion to grant

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defendants’ administrative motion if an opposition was filed more than seven days earlier. For

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the following reasons, defendants’ administrative motion to withdraw and re-file their motion to

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dismiss is GRANTED.

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Defendants have shown good cause to withdraw their motion to dismiss. Despite

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reasonable investigation efforts, defendants were unaware that plaintiff George Hrdina opted out

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of a prior class action settlement. Defendants’ motion to dismiss is largely based on their
reasonable belief that Mr. Hrdina was included in the prior settlement. Mr. Hrdina’s name did not

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appear in the finalized opt-out list because he did not opt out by the original deadline. Instead,

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Mr. Hrdina’s request to opt out was later granted at the settlement approval hearing. But

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Mr. Hrdina’s name does not appear on the order granting settlement approval. The only public

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record of Mr. Hrdina opting out was in the trial transcript. And even in the transcript,

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Mr. Hrdina’s first name was spelled incorrectly as “Joel.” Therefore, record of Mr. Hrdina’s

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decision to opt out of the prior settlement would not have been discovered despite a reasonably

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diligent search of the settlement record.

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Mr. Hrdina will not be prejudiced by defendants’ administrative motion to withdraw and

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re-file their motion to dismiss. Defendants’ proposed amendments to the motion to dismiss does
not raise new arguments (Holt Decl. Exh. C). Moreover, defendants informed Mr. Hrdina on

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For the Northern District of California

United States District Court

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November 7 that they were going to file a motion to withdraw and re-file their motion to dismiss.

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Mr. Hrdina initially agreed (Holt Decl. 2–3).

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IT IS SO ORDERED.

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Dated: November 23, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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