Lesti et al v. Wells Fargo Bank NA
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
Case No: 2:11-cv-695-FtM-29DNF
WELLS FARGO BANK NA,
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.
Plaintiffs Franz Lesti and Petra Richter, along with the
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
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
On December 6, 2013, plaintiffs filed their
Amended Motion for Class Certification (Doc. #128).
On January 24, 2014, the Magistrate Judge issued an Order
- 2 -
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
(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.
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
(Doc. #167, p. 3.)(emphasis added).
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).
“The judge may also receive further
- 3 -
evidence or recommit the matter to the magistrate judge with
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.)
assert that this case is “akin” to securities litigation and
therefore counsel’s qualifications as class counsel should be the
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.
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
Defendant objects to the withdrawal of Mr. Lesti.
Defendant argues that it should be provided an opportunity to show
- 4 -
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.”).
Plaintiff is clearly
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
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
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
- 5 -
Co., 781 F.2d 855, 857 (11th Cir. 1986).
Dismissal on the motion
of plaintiff is at the discretion of the court.
Plaintiff relies on the unpublished decision In re Currency
Conversion Fee Antitrust Litig., 2004 U.S. Dist. LEXIS 22132
2004) 1 for
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
The Court is not inclined to allow the voluntary dismissal of
Lesti without prejudice.
Accordingly, it is now
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).
- 6 -
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
Representative (Doc. #170) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
Hon. Douglas N. Frazier
Counsel of Record
- 7 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?