Mey v. Enterprise Financial Group, Inc. et al

Filing 85

ORDER denying 66 Motion to Strike Class Action Allegations. Signed by Judge John E. Steele on 12/19/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DIANA MEY, individually and
on behalf of all others
similarly situated,
Plaintiff,
v.

Case No: 2:15-cv-463-FtM-99MRM

ENTERPRISE FINANCIAL GROUP,
INC., a Texas corporation,
NATIONAL REPAIR PROTECTION,
LLC,
a
Florida
limited
liability company,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant Enterprise
Financial

Group’s

Motion

to

Strike

Plaintiff’s

Allegations (Doc. #66) filed on October 20, 2016.

Class

Action

Plaintiff Diana

Mey filed her opposition (Doc. #68) on November 3, 2016.

For the

reasons stated below, the motion is denied.
I.
Plaintiff Diana Mey first initiated this action by filing a
Class Action Complaint against Enterprise Financial Group, Inc.
(“Enterprise”) and National Repair Protection, LLC (“NRP”) for
violations of the Telephone Consumer Protection Act (Doc. #1) on
August 3, 2015.

On August 4, 2015, plaintiff filed a Motion for

Class Certification seeking to certify a class pursuant to Federal
Rule

of

Civil

Procedure

23(b)(2)

and

(b)(3)

and

seeking

an

extension of time to move or class certification pursuant to Local
Rule 4.04(c) 1 until the parties had the opportunity to engage in
class-wide discovery, at which time plaintiff would file an updated
Motion for Class Certification for the Court’s consideration.
(Doc. #3.)

On November 6, 2015, the Court granted the motion and

directed plaintiff to file a renewed Motion for Class Certification
within thirty days of the last-filed Answer.

(Doc. #23, ¶ 2.)

that time, only defendant Enterprise had filed an Answer.

At

(Docs.

##21, 22.)
After

the

entry

of

the

Court’s

November

6,

2015

Order,

plaintiff filed an Amended Class Action Complaint on August 3,
2016, adding Todd Beikmann as a defendant.

(Doc. #37.)

Because

defendant NRP failed to respond to the Complaint, a clerk’s default
was entered against NRP on November 8, 2016.

(Doc. #70.)

Rather

than file an Answer, on September 12, 2016, defendant Beikmann
moved

to

dismiss

jurisdiction.

the

Amended

Complaint

for

lack

of

personal

(Doc. #52.)

1

Local Rule 4.04(c) provides: “In ruling upon a motion [for
class certification] the Court may allow the class action, may
disallow and strike the class action allegations, or may order
postponement of the determination pending additional discovery or
such other preliminary procedures as may appear appropriate in the
circumstances.”

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II.
Defendant

Enterprise

moves

to

strike

plaintiff’s

class

allegations because plaintiff failed to diligently pursue class
certification.

Enterprise

argues

that

because

plaintiff

has

failed to file a renewed Motion for Class Certification for over
one year after the Court entered its Order, the Court should employ
its inherent powers and its discretion under Federal Rule of Civil
Procedure 16(f) and strike Plaintiff’s class action allegations.
Enterprise also points to the fact that plaintiff made no effort
to prosecute her claims against NRP and move for default until
well

into

the

proceedings,

evidencing

plaintiff’s

lack

of

diligence.
In response, plaintiff states that immediately following the
Court’s Order she engaged in months-long discovery with both
Enterprise
information

and

various

relevant

non-parties,
to

her

in

an

certification

effort

to

obtain

efforts,

which

ultimately culminated in plaintiff adding Beikmann has a partydefendant.

Plaintiff submits a Declaration from her counsel

attesting to the discovery efforts that have taken place which
were often hindered by third-parties’ non-responsiveness.
#68-1.)

(Doc.

Plaintiff believes that the triggering event for the 30-

day time period has yet to occur as not all defendants have filed

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an Answer and therefore plaintiff’s time to file her renewed motion
has not yet expired.
Local

Rule

4.04(b)

requires

that

motions

for

class

certification be filed within ninety days following the filing of
the complaint “unless the time is extended by the Court for cause
shown.”

“The

Eleventh

Circuit

has

expressly

recognized

the

authority of the district courts to apply local rules prescribing
a deadline for the filing of a motion for class certification, or
to sanction plaintiffs for noncompliance.”

Seyboth v. Gen. Motors

Corp., No. 8:07–cv–2292–T–27TBM, 2008 WL 1994912, at *2 (M.D. Fla.
2008) (citing Martinez–Mendoza v. Champion Int’l Corp., 340 F.3d
1200, 1216 n.38 (11th Cir. 2003)).
The Court agrees that the deadline to file a renewed Motion
for Class Certification has not yet passed and there is otherwise
no schedule entered as of this date.
strike will be denied.
case

should

certification.

proceed

Therefore, the motion to

However, the Court also finds that this
so

that

the

Court

may

consider

class

The issue of scheduling was previously referred

to the Magistrate Judge (Doc. #45), and the Court understands that
the parties have been directed to submit an Amended Joint Case
Management Report to include deadlines for class certification
briefing (Doc. #82).
Accordingly, it is hereby

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ORDERED AND ADJUDGED:
Defendant

Enterprise

Financial

Group’s

Motion

to

Strike

Plaintiff’s Class Action Allegations (Doc. #66) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.

Copies:
Hon. Mac R. McCoy
Counsel of Record

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19th

day