Finerman v. Marriott Vacations Worldwide Corporation et al

Filing 116

ORDER granting 72 Motion for Leave to File Second Amended Complaint (Second Amended Complaint due 1/19/2017; response due 2/10/2017); denying 73 Motion for Partial Summary Judgment; finding as moot 97 Motion to defer consideration and 102 motion to stay; granting 112 Motion to Compel answers to plaintiffs' request for admissions (answers to be served by 2/13/2017); terminating 113 Motion to Compel, directing parties to confer, directing MORI to produce documents by 1/23/2017; giving plaintiffs leave to refile motion by 2/6/2017, with response due 2/21/2017; resetting remaining case deadlines as follows: disclosure of expert reports, 2/15/2017; responses to expert reports, 3/15/2017; close of discovery, 4/28/2017; partie s to advise re: interest in re-engaging with mediator, 4/28/2017; filing of dispositive, Daubert and class certification motions, 5/31/2017; responses, 6/21/2017; replies (12 pages each) 7/10/2017; oral argument on pending motions set 10/17/2017, 2:00 p.m., Courtroom 10D (remaining schedule to be set as necessary). Signed by Judge Timothy J. Corrigan on 1/11/2017. (SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DANIEL FINERMAN, etc., et al.,
Plaintiffs,
vs.

Case No. 3:14-cv-1154-J-32MCR

MARRIOTT OWNERSHIP RESORTS, INC.,
etc., et al.,
Defendants.

ORDER
This case is before the Court on pending motions.
First, plaintiffs’ motion for leave to file a Second Amended Class Action Complaint
(Doc. 72), to which defendants filed a response in opposition (Doc. 74) and plaintiffs filed a
reply (Doc. 94) and additional supporting exhibits (Docs. 107 & S-108), is granted. The
Court finds plaintiffs have demonstrated good cause for seeking to amend after the agreed
upon deadline because the parties’ efforts were focused on mediation. Further, the Court
does not find the proposed amendments to be futile, given that the standard for such a
determination is akin to that of a 12(b)(6) motion. See, e.g., Chang v. JPMorgan Chase
Bank, N.A., ___ F.3d ___, 2017 WL 65371, at *3 (11th Cir. Jan. 6, 2017) (reviewing whether
proposed amendment was futile by considering Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). On a Rule 56 motion for
summary judgment the Court would be permitted to consider the evidence upon which
defendants rely in arguing the futility of the amendments (and of course would consider

evidence put forward by plaintiffs in opposing any such motion). In light of the Court’s
decision to permit the filing of a second amended complaint, plaintiffs’ motion to compel
answers to plaintiffs’ requests for admissions (Doc. 112) is granted, (notwithstanding that
defendant Marriott Ownership Resorts, Inc. (“MORI”) has not yet had an opportunity to
respond), as the basis for MORI’s objections were that (in its view) the requests were related
to allegations of the as yet unfiled second amended complaint.
Second, defendants’ motion for partial summary judgment or, in the alternative, to
disqualify class representative Daniel Finerman, and motion to dismiss unjust enrichment
claim of Donna Devino (Doc. 73), to which plaintiffs responded in opposition (Doc. 96) and
defendants filed a reply (Doc. 109) is denied in all respects (and plaintiffs’ motion to defer
consideration of this motion (Doc. 97), which defendants opposed (Doc. 101) is therefore
moot).
In their motion for partial summary judgment, defendants argue that Finerman could
have avoided any damages by cancelling his cruise. However, even if the avoidable
consequences doctrine applies to Finerman’s FDUTPA and unjust enrichment claims (which
the Court need not decide for purposes of deciding this motion), Finerman has presented
evidence that his other vacation options (including not taking one at all) would not have
served to mitigate his damages, thus creating at least a genuine issue of disputed fact on
this point. The Court also rejects the argument that Finerman’s alleged knowledge of any
overcharge vitiates his claims, especially where he has presented evidence that his other
options left him in a worse position. Defendants also contend that neither Finerman nor
Donna Devino can prevail on a claim for unjust enrichment because they do not have
2

evidence to show that either defendant kept any portion of the disputed fee. But discovery
is not yet over and, in any event, if plaintiffs paid an amount the defendants should have paid
instead, then the defendants might have been unjustly enriched even if they did not
themselves retain the sums plaintiffs paid. See, e.g., Aceto Corp. v. TherapeuticsMD, Inc.,
953 F. Supp. 2d 1269, 1288-89 (S.D. Fla. 2013). N.G.L. Travel Associates v. Celebrity
Cruises, Inc., 764 So. 2d 672 (Fla. 3d DCA 2000) does not hold otherwise. Finally, whether
Finerman is an appropriate class representative should await a determination on plaintiffs’
forthcoming motion for class certification.1
Two final points. First, the Court disapproves of plaintiffs’ practice of using footnotes
for citations to legal authorities that should be in the text. The small font is too hard to read
and it results in evading the Court’s page limitations. See, for example, Doc. 96. Future
filings that follow this practice will be stricken. Last, the Court is concerned about the sniping
going on in the parties’ papers. It is not helpful to the Court and reflects poorly on counsel.
Accordingly, it is hereby
ORDERED:
1.

Plaintiffs’ Motion for Leave to File a Second Amended Class Action Complaint

(Doc. 72) is GRANTED. No later than January 19, 2017 plaintiffs shall file their Second
Amended Class Action Complaint. Defendants shall respond no later than February 10,
2017.

1

The Court emphasizes it is not assessing the strength or ultimate merit of plaintiffs’
claims.
3

2.

Defendants’ Motion for Partial Summary Judgment or, in the alternative, to

Disqualify Daniel Finerman as Class Representative, and Motion to Dismiss Unjust
Enrichment Claim of Plaintiff Donna Devino (Doc. 73) is DENIED.
3.

Plaintiffs’ Motion to Defer Consideration of Defendants’ Motion for Partial

Summary Judgment, etc. (Doc. 97) is MOOT.
4.

Plaintiffs’ Motion to Compel Answers to Plaintiffs’ Request for Admissions (Doc.

112) is GRANTED. MORI shall serve answers to Plaintiffs’ Requests for Admission no later
than February 13, 2017.
5.

Although MORI has not yet had an opportunity to respond to Plaintiffs’ Motion

to Compel Document Discovery (Doc. 113), the Court will TERMINATE the motion and direct
the parties to confer one more time to try to resolve the outstanding discovery. Documents
that MORI has agreed to produce should be produced no later than January 23, 2017; by
that same date MORI shall state whether it is withholding any responsive materials. If the
parties cannot work this out, plaintiffs may renew their motion by February 6, 2017 and
MORI shall respond by February 21, 2017.
6.

In light of the new deadlines set forth above, and to put this case on a realistic

schedule, the Court sets the remaining case deadlines and settings as follows:
Disclosure of expert reports

February 15, 2017

Responses to expert reports

March 15, 2017

Close of discovery

April 28, 2017

Parties to file joint notice advising whether
they wish to re-engage with their Mediator

April 28, 2017

4

Filing of dispositive, Daubert and motions
for class certification

May 31, 2017

Responses to dispositive, Daubert, and
class certification motions

June 21, 2017

Replies on dispositive, Daubert, and
July 10, 2017
class certification motions (limited to 12 pages each)
Argument on dispositive, Daubert, and
class certification motions

October 17, 2017
2:00 p.m.
(Courtroom 10D)

The Court will set the final pretrial and trial settings as necessary once it rules on the
pending motions. In all other respects the parties shall continue to be governed by the May
5, 2016 Case Management and Scheduling Order (Doc. 69). Plaintiffs’ Motion to Stay
Unexpired Deadlines (Doc. 102) is MOOT.
DONE AND ORDERED at Jacksonville, Florida this 11th day of January, 2017.

s.
Copies:
counsel of record
Rodney A. Max, Esquire (Mediator)

5