Rose v. Bank of America Corporation
Filing
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ORDER granting 92 Motion for Extension of Time to File. Signed by Judge Edward J. Davila on 7/14/2014. (ejdlc2, COURT STAFF) (Filed on 7/14/2014)
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UNITED STATES DISTRICT COURT
United States District Court
For the Northern District of California
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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STEPHANIE ROSE, on behalf of herself and
others similarly situated,
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Plaintiff,
v.
BANK OF AMERICA CORPORATION; FIA
CARD SERVICES, N.A.
Defendants.
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Case No.: 5:11-CV-02390-EJD
ORDER GRANTING MOTION FOR
EXTENSION OF TIME
[Re: Docket No. 92]
Presently before the Court is Thomas Thomas’ motion for an extension of time within
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which to opt out of the class settlement reached by the parties in the above-captioned cases. The
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Court finds this matter suitable for decision without oral argument pursuant to Civil Local Rule 7-
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1(b) and vacates the hearing scheduled for July 25, 2014. Having fully reviewed the parties’
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briefings, and for the following reasons, the Court GRANTS Mr. Thomas’ motion.
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I. BACKGROUND
The instant motion concerns two separate actions: the above-captioned class action lawsuit
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currently awaiting final approval of settlement (“the Class Action”), and an individual lawsuit
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currently pending in the Circuit Court in and for Broward County, Florida (“the Florida Action”)
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Case No.: 5:11-CV-02390-EJD
ORDER GRANTING MOTION FOR EXTENSION OF TIME
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brought by Mr. Thomas against Bank of America, N.A. Both actions allege, inter alia, that Bank of
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America violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
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Mr. Thomas filed the Florida Action on March 5, 2013. Bank of America filed its Answer
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and Affirmative Defenses on June 13, 2013. Mr. Thomas later agreed to allow Bank of America to
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amend its Affirmative Defenses on October 25, 2013. The parties have each propounded discovery
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and Mr. Thomas had an opportunity to depose Bank of America’s corporate representative on
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March 4, 2014.
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A second deposition of Bank of America’s corporate representative specifically regarding
the telephone and computer systems used to place the calls to Mr. Thomas’ cellular telephone was
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United States District Court
For the Northern District of California
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scheduled with counsel for Bank of America for May 28, 2014, to take place in Bank of America’s
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counsel’s office. Bank of America’s outstanding responses to Mr. Thomas’ discovery were due on
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May 27, 2014.
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On May 27, 2014, counsel for Bank of America filed a motion to stay proceedings in the
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Florida Action alleging that Mr. Thomas had failed to timely opt-out of the Class Action, thus
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barring his TCPA claims in the Florida Action. Mr. Thomas’ attorney, Yechezkel Rodal, claims
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that this was when he was first made aware that Mr. Thomas’ opt-out letter had not been timely
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received. Mr. Thomas filed this motion thereafter.
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II. LEGAL STANDARD
Under Rule 6(b) of the Federal Rules of Civil Procedure, where the specified period for the
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performance of an act has elapsed, a district court may enlarge the period and permit the tardy act
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where the omission is the “result of excusable neglect.”
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To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,”
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courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the
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opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the
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reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v.
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Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). Because Congress has not provided
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guidance to determine what sorts of actions constitute excusable neglect, the Court’s
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Case No.: 5:11-CV-02390-EJD
ORDER GRANTING MOTION FOR EXTENSION OF TIME
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“determination is at bottom an equitable one, taking account of all relevant circumstances
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surrounding the party’s omission.” Id.
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III. DISCUSSION
“Factors one, two and four will almost always cut one way: Delays are seldom long, so
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prejudice is typically minimal. Bad-faith delay is rare, given that we’re only dealing with
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‘neglect,’ not deliberate flouting of the rules-though flouting does happen on occasion. Most of the
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work, then, is done by factor three, the most important one.” Pincay v. Andrews, 389 F.3d 853,
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861 (9th Cir. 2004) (dissent).
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For the most part, the same is true of the instant motion. With respect to the second factor,
United States District Court
For the Northern District of California
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the parties agree that Mr. Thomas’ motion should have “zero impact” on the class settlement, and
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therefore a delay of slightly over two months does not appear excessive.
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As to the fourth factor, Bank of America contends that Mr. Thomas fails to demonstrate
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good faith. Mr. Thomas’ motion is primarily based on the claim that his attorney, Mr. Rodal,
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assigned the task of mailing Mr. Thomas’ opt-out letter to a paralegal, who apparently failed to
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mail the letter. Bank of America suggests a possible lack of good faith due to the fact that Mr.
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Thomas did not identify the paralegal in the moving papers, did not include testimony from the
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paralegal to support the motion, and did not provide Bank of America with the paralegal’s contact
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information until shortly before the filing of Bank of America’s response brief. However, the late
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disclosure of the paralegal’s contact information does not obviously appear to have been in bad
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faith: Bank of America requested the paralegal’s information on June 13, 2014 and received it on
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June 16, 2014, while Mr. Thomas’ motion was filed on June 2, 2014. Although Mr. Rodal waited
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until the day Bank of America’s response was due (June 16) before providing the paralegal’s
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information, the Court is reluctant to infer bad faith given that Bank of America waited until June
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13 to make the request, and Mr. Rodal claims he spent the time attempting (but failing) to elicit an
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affidavit from the paralegal.
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As to the first factor, Bank of America asserts that it would be prejudiced if Mr. Thomas
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were permitted to opt out after the deadline because Bank of America would be forced to litigate a
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claim that it has already agreed to settle. Bank of America notes two cases in which courts have
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Case No.: 5:11-CV-02390-EJD
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found that granting a late class settlement opt-out request would cause prejudice to the opposing
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party: In re Charles Schwab Corp. Sec. Litig., 2010 WL 2178937 (N.D. Cal. May 27, 2010) and
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Bowman v. UBS Fin. Servs., Inc., 2007 WL 1456037 (N.D. Cal. May 17, 2007). The cases
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support a finding that Bank of America would suffer at least some amount of prejudice if the Court
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grants Mr. Thomas’ motion. Both courts found that the defendants would suffer prejudice by the
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late opt-out requests, reaching the same conclusion in both cases despite the fact that the requests
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were made at different stages in the settlement process: the request in In re Charles Schwab was
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made “on the eve of preliminary approval” of the settlement, while the request in Bowman was
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made after final approval.
United States District Court
For the Northern District of California
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However, any prejudice suffered by Bank of America is not likely to be severe. Bank of
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America’s only claim of prejudice is that it will have to continue defending the Florida Action.
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Bank of America does not indicate that it changed its litigation strategy in the Florida Action
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because it relied on its belief that Mr. Thomas had opted out, nor does Bank of America claim that
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its decision to settle the Class Action (or its negotiating position) was affected by Mr. Thomas’
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participation or non-participation in the class. The fact that Bank of America will need to continue
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defending the Florida Action should the Court grant Mr. Thomas’ motion, by itself, is not
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significant to an “excusable neglect” analysis. See Pincay, 389 F.3d 853 (upholding a district
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court’s finding of “no prejudice” despite the fact that granting extension of time would mean that
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the non-movant would need to defend an appeal that it would otherwise escape).
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The Court also recognizes that none of the movants in In re Charles Schwab and Bowman
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had a particularly compelling explanation as to the third factor- the reason for the delay. The
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movants in In re Charles Schwab failed to read the class action notice because it had been relegated
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to a pile of “junk mail.” In Bowman, the movants do not appear to have provided any explanation
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at all.
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Mr. Thomas attributes his failure to timely opt out of the Class Action to his attorney Mr.
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Rodal. On March 5, 2014, Mr. Thomas informed Mr. Rodal that he had received a postcard
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regarding the Class Action. The opt-out request was required to be postmarked no later than the
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March 21, 2014 deadline. Following the conversation, Mr. Rodal prepared an opt-out letter and
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Case No.: 5:11-CV-02390-EJD
ORDER GRANTING MOTION FOR EXTENSION OF TIME
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mailed it to Mr. Thomas for signature. Mr. Rodal then assigned the task to a paralegal that was
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working for him at that time. Mr. Thomas returned the opt-out letter, and Mr. Rodal claims that, to
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the best of his knowledge, the opt-out letter was to be mailed out on March 13, 2014 by the
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paralegal. The paralegal, however, did not make any notes as to when she mailed the letter, if at
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all. The paralegal’s employment was terminated on or about March 18, 2014, and the letter was
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not found on her desk, in her drawers, or anywhere within her workspace.
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After considering all the factors that underlie the determination of excusable neglect and the
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relevant case law, the Court finds that excusable neglect is adequately shown. The Court’s
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decision takes into consideration the following: First, Mr. Thomas acted quickly to opt out of the
United States District Court
For the Northern District of California
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Class Action; unlike in the other cases, he at least made an attempt to opt out, and the record
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suggests that he believed he had done everything required to opt out. Second, Mr. Rodal’s excuse
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is arguably stronger than the excuse accepted by the district court in Pincay. In Pincay, the
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attorney’s reason for missing the deadline was that he relied on his paralegal’s incorrect reading of
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the Federal Rules of Appellate Procedure. 389 F.3d at 858. It seems more excusable for an
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attorney to rely on his paralegal for a purely administrative task (mailing a letter) than to rely on a
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paralegal’s reading of the law. Third, the prejudice to Bank of America is minor; more akin to a
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denial of a windfall than prejudice. Had the failure to timely opt out resulted in greater prejudice to
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Bank of America, the result would be different. And finally, the fact that Mr. Rodal attributes his
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neglect to a recently-fired paralegal, who Bank of America can contact, lends credibility to the
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story.
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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Mr. Thomas’ motion. Mr. Thomas is
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deemed excluded from the class action settlement.
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IT IS SO ORDERED
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Dated: July 14, 2014
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_________________________________
EDWARD J. DAVILA
United States District Judge
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Case No.: 5:11-CV-02390-EJD
ORDER GRANTING MOTION FOR EXTENSION OF TIME
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