Wilcox v. Taco Bell of America, Inc. et al

Filing 30

ORDER: Defendants' Motion to Strike Class Allegations of Plaintiff's Amended Complaint 24 is GRANTED. Signed by Judge Virginia M. Hernandez Covington on 8/8/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADRIAN WILCOX,
Plaintiff,
v.

Case No.:

8:10-cv-2383-T-33MAP

TACO BELL OF AMERICA, INC., and
YUM! BRANDS, INC.,
Defendants.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants’ Motion to Strike Class Action Allegations of
Plaintiff’s Amended Complaint (Doc. # 24), filed on May 6,
2011. Plaintiff filed his response to the Motion (Doc. # 29)
on May 31, 2011. For the reasons that follow, the Court grants
the Motion.
I.

Background
This

dispute

allegations

that

arises

from

Defendants

Plaintiff
engaged

in

Adrian

Wilcox’s

discriminatory

employment practices. Plaintiff filed suit in this Court on
October 22, 2010; his initial complaint did not assert any
class allegations. (Doc. # 1). Plaintiff filed an Amended
Complaint on February 2, 2011, asserting class allegations.
(Doc. # 3). Pursuant to Local Rule 4.04(b), a motion for class
certification was due on or before May 2, 2011.

Defendants filed their Motion to Strike on May 6, 2011,
noting that Plaintiff had not timely filed a motion for class
certification or a motion for extension of time in which to do
so. (Doc. # 24). On May 20, 2011, Plaintiff filed a motion for
extension of time to file a response to the Motion to Strike.
(Doc. # 25). The Court granted that motion, giving Plaintiff
up to and including May 30, 2011 to respond. (Doc. # 26).
Plaintiff filed his response on May 31, 2011, stating that a
motion for class certification was not timely filed due to
counsel’s failure to calendar the deadline. (Doc. # 29).
Plaintiff asks the Court to find such failure to be excusable
neglect and to further grant an additional sixty days to file
a motion for class certification. (Id. at 1-2). That sixty
days, had it been granted, expired August 1, 2011.
II.

Analysis
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-cv2

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)).
A court may grant a motion for extension of time made
after a deadline has expired “if the party failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b). The
Supreme Court has defined excusable neglect as including
“inadvertence, mistake, or carelessness.” Pioneer Inv. Svcs.
Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 388 (1993).
The Court enumerated four factors to be used in determining
excusable

neglect:

“the

danger

of

prejudice

to

the

[nonmovant], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant,
and whether the movant acted in good faith.” Id. at 395. It is
an equitable determination, “taking account of all relevant
circumstances surrounding the party’s omission.” Id.
These

factors

must

be

evaluated

in

light

of

the

procedural rules surrounding class certification. Federal Rule
of Civil Procedure 23 provides that “[a]t an early practicable
time after a person sues or is sued as a class representative,
the court must determine by order whether to certify the
action as a class action.” Therefore, “[a] timely motion for
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class

certification

is

premised

on

sound

practical

considerations. Delay by a representative plaintiff impedes
the court’s consideration of the issue and may prejudice the
rights of class members.” Jones v. Hartford Ins. Co. of
Midwest, 243 F.R.D. 694, 695 (N.D. Fla. 2006).
Plaintiff’s counsel states that he did not timely file a
motion for class certification due to a failure to calendar
the deadline. He asks this Court to find this failure to be
excusable neglect. However, he did not promptly file a motion
for extension of time to move for class certification, instead
including

a

request

for

extension

in

his

response

to

Defendants’ Motion to Strike. That request came nearly a month
after the deadline had passed, and more than three weeks after
Defendants’

Motion

put

him

on

notice

of

his

error.

Furthermore, Plaintiff requested an additional sixty days to
file the motion for class certification rather than promptly
remedying the delay.
Based upon the totality of the circumstances, the Court
finds that Plaintiff’s failure to timely file a motion for
class certification and failure thereafter to promptly remedy
the oversight is not excusable neglect. See Seyboth, 2008 WL
1994912 at *5. In addition, Plaintiff has not shown cause for
extending the deadline an additional sixty days from his
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response to the Motion to Strike – almost ninety days after
the original ninety-day deadline had expired. In any event,
more than sixty days has passed since Plaintiff requested the
additional sixty days, and the Court declines to grant a
further extension.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendants’

Motion

to

Strike

Class

Allegations

of

Plaintiff’s Amended Complaint (Doc. # 24) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of August 2011.

Copies:
All Counsel and Parties of Record

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