Lesti et al v. Wells Fargo Bank NA

Filing 176

OPINION AND ORDER overruling 170 Objection to and Motion to Overturn Magistrate Judge's Order, denying Alternative Motion for Leave to Withdraw as Named Plaintiff and Proposed Class Representative. Signed by Judge John E. Steele on 3/4/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

FRANZ LESTI, individually
and on behalf of all others
similarly situated, PETRA
RICHTER, individually and on
behalf
of
all
others
similarly situated,
Plaintiffs,
v.

Case No: 2:11-cv-695-FtM-29DNF

WELLS FARGO BANK NA,
Defendant.

OPINION AND ORDER
This matter comes before the Court on plaintiffs' Objection
to and Motion to Overturn Magistrate Judge’s Order on Defendant
Wells Fargo Bank, N.A.’s Motion to Compel Plaintiffs’ Appearance
in This District for Depositions and Mediation as to Plaintiff
Franz Lesti, Alternative Motion for Leave By Plaintiff Lesti To
Withdraw as Named Plaintiff and Proposed Class Representative
(Doc. #170) filed on February 26, 2014.

Defendant filed a Response

(Doc. #173) on February 27, 2014.
Background
Plaintiffs Franz Lesti and Petra Richter, along with the
Trustee

for

the

debtors

Ulrich

Felix

Anton

Engler,

Private

Commercial Office, Inc. and PCO Client Management, Inc., initiated
this lawsuit by filing the original Class Action Complaint (Doc.
#1) on December 15, 2011.

Defendant appeared and plaintiffs filed

an Amended Class Action Complaint (Doc. #24) on March 30, 2012,
adding plaintiffs and thereby mooting defendant’s previous motion
to

dismiss.

Defendant

appeared

in

response

to

the

amended

pleading by way of motion to dismiss, and on March 19, 2013, the
Court issued an Opinion and Order (Doc. #72) dismissing Counts I
through V with prejudice relating to all the added plaintiffs,
dismissing Counts VIII and X without prejudice and dismissing the
Trustee, and directing plaintiffs to comply with the Magistrate
Judge’s August 2, 2012, Order (Doc. #65) directing the filing of
a Case Management Report upon ruling.

On April 4, 2013, defendant

sought summary judgment, and on April 9, 2013, defendant filed an
Answer and Affirmative Defenses (Doc. #81).

The parties conducted

discovery during the pendency of the motion, and on November 20,
2013, the Court issued an Opinion and Order (Doc. #116) denying
summary judgment.

On December 6, 2013, plaintiffs filed their

Amended Motion for Class Certification (Doc. #128).

Defendant’s

response

plaintiffs’

is

depositions.

due

fourteen

days

from

the

date

of

(Doc. #168.)

On January 24, 2014, the Magistrate Judge issued an Order
(Doc.

#150)

granting

plaintiffs’

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Time

Sensitive

Motion

for

Protective Order Regarding Defendant’s Unilateral Notice of Taking
Depositions of Franz Lesti and Petra Richter Set for January 29
and 30, 2014 (Doc. #149) without the benefit of a response because
it was time sensitive and defendant did not give enough notice.
The parties were directed to confer and schedule “the Plaintiffs’
depositions in a manner (such as live or by video), in a location,
and for a date and time that is convenient for counsel and for the
deponents.”

(Doc. #150, p. 2.)

On February 20, 2014, the

Magistrate Judge issued an Order (Doc. #167) granting defendant’s
Motion to Compel Plaintiffs’ Appearance in This District for
Depositions and Mediation as to plaintiff Franz Lesti.

Plaintiff

Franz Lesti was directed to appear in-person for a mediation
scheduled for March 7, 2014, in Miami, Florida, and to appear in
person in the Middle District of Florida in the month of March at
a date and time convenient to “Mr. Lesti and to counsel for all
parties.”

(Doc. #167, p. 3.)(emphasis added).

Plaintiffs’ object

to this Order, and otherwise seek alternative relief.
Objection to Order (Doc. #167)
Pursuant to 28 U.S.C. § 636(b)(1)(A), the Court may reconsider
or review the Magistrate Judge’s Order on a pretrial matter if
shown that it was clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a).

See also

“The judge may also receive further

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evidence or recommit the matter to the magistrate judge with
instructions.”

Id.

Plaintiffs

acknowledge

that

“ordinarily,

plaintiffs

must

appear for deposition in the district where they sued”, and further
acknowledge that they have “special obligations” when seeking to
act as a class representative.

(Doc. #170, p. 4.)

Plaintiffs

assert that this case is “akin” to securities litigation and
therefore counsel’s qualifications as class counsel should be the
focus.

This

case

is

not

presented

under

securities

law.

Plaintiff Lesti’s difficulties with travel because he is selfemployed and his brief absence may put his business and livelihood
at risk do not provide a basis for extenuating circumstances such
that the Magistrate Judge’s Order was clearly erroneous.

The

objection is overruled.
Alternative Motion to Withdraw as Class Representative
Plaintiff seeks to withdraw himself from litigation as a named
plaintiff and proposed class representative, leaving Petra Richter
to proceed as the sole named plaintiff and class representative.
Plaintiff asserts that Fed. R. Civ. P. 41(a) and Fed. R. Civ. P.
23(e) do not apply, but rather, Fed. R. Civ. P. 21 should be
applied.

Defendant objects to the withdrawal of Mr. Lesti.

Defendant argues that it should be provided an opportunity to show
that

Lesti’s

claims

are

substantially

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different

than

Petra

Richter’s

claims

in

opposing

class

certification.

Defendant

further argues that Lesti should not be insulated from further
discovery because it would be materially prejudiced.
The Court agrees that Rule 23(e) does not apply to this
situation as no class has been certified requiring Court approval.
Contrary to plaintiff’s argument, the Court finds that Rule 21
also does not apply as no misjoinder occurred in this case.
“Misjoinder of parties is not a ground for dismissing an action.”
Fed. R. Civ. P. 21.

See also Sabolsky v. Budzanoski, 457 F.2d

1245, 1249 (3d Cir. 1972)(“The proper remedy in case of misjoinder
is to grant severance or dismissal to the improper party if it
will not prejudice any substantial right.”).
seeking

a

voluntary

dismissal,

and

Plaintiff is clearly

therefore

the

Court

will

consider the request pursuant to Fed. R. Civ. P. 41(a)(2).
Rule 41(a)(2) allows the dismissal of an action at plaintiff’s
request “only by court order, on terms that the court considers
proper.”

Fed. R. Civ. P. 41.

Voluntary dismissals “sought in

good faith are generally granted ‘unless the defendant would suffer
prejudice other than the prospect of a second lawsuit or some
tactical advantage.’”

In re: Vitamins Antitrust Litig., 198

F.R.D. 296, 304 (D.D.C. 2000) (quoting Conafay v. Wyeth Labs., 793
F.2d 350, 353 (D.C. Cir. 1986)).

See also McCants v. Ford Motor

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Co., 781 F.2d 855, 857 (11th Cir. 1986).

Dismissal on the motion

of plaintiff is at the discretion of the court.

Id.

Plaintiff relies on the unpublished decision In re Currency
Conversion Fee Antitrust Litig., 2004 U.S. Dist. LEXIS 22132
(S.D.N.Y.

Nov.

3,

2004) 1 for

the

proposition

that

Lesti

be

permitted to withdraw because he should not be compelled to
litigate his claim.

Plaintiff also relies on Eckert v. Equitable

Life Assurance Soc’y of the U.S., 227 F.R.D. 60, 64 (E.D.N.Y.
2005), wherein the request to withdraw due to a settlement was
filed prior to defendant’s answer and prior to the filing of a
motion for class certification. In this case, an Answer and Motion
for Summary Judgment were filed and litigation has been ongoing
for several years.

See, e.g., In re Vitamins Antitrust Litig.,

198 F.R.D. at 305 (“Most denials of voluntary dismissals are
justified by the fact that defendants had already filed motions
for summary judgment or that the parties were on the eve of
trial.”).
The Court is not inclined to allow the voluntary dismissal of
Lesti without prejudice.
Accordingly, it is now

1

The court subsequently denied a request to name a new
representative and therefore declined to certify a subclass
without a class representative.
In re Currency Fee Antitrust
Litig., 361 F. Supp. 2d 237, 248 (S.D.N.Y. 2005).

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ORDERED:
1. Plaintiffs' Objection to and Motion to Overturn Magistrate
Judge’s Order on Defendant Wells Fargo Bank, N.A.’s Motion
to Compel Plaintiffs’ Appearance in This District for
Depositions and Mediation as to Plaintiff Franz Lesti,
Alternative Motion for Leave By Plaintiff Lesti To Withdraw
as Named Plaintiff and Proposed Class Representative (Doc.
#170) is OVERRULED.
2. Plaintiffs' Alternative Motion for Leave By Plaintiff Lesti
To

Withdraw

as

Named

Plaintiff

and

Proposed

Class

Representative (Doc. #170) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
March, 2014.

Copies:
Hon. Douglas N. Frazier
Counsel of Record

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4th

day of