Robertson v. ADA Alliance Data Systems, Inc.

Filing 196

ORDER: Defendant ADS Alliance Data Systems, Inc.'s Motion to Strike Unauthorized Papers 145 is GRANTED. The Clerk is DIRECTED to STRIKE from the record the Notice to Correct Record 130 , the Amended Notice to Correct Record 131 , and the Not ice of Filing Amended Declaration of Jeremiah Hallback and the Amended Declaration of Jeremiah Hallback 132 . After conferring with opposing counsel, Plaintiffs may file a motion, on or before May 21, 2013, for leave to amend the Second Amended Class Action Complaint. If Plaintiffs file such motion, Plaintiffs are directed to attach the proposed amended complaint to the motion seeking leave to amend. Signed by Judge Virginia M. Hernandez Covington on 5/13/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DOUGLAS B. STALLEY, in his
capacity as Personal Representative
of the Estate of Gary Robertson
and JEREMIAH HALLBACK, individually,
and on behalf of all those similarly
situated,
Plaintiffs,
Case No. 8:11-cv-1652-T-33TBM
v.
ADS ALLIANCE DATA SYSTEMS, INC.,
Defendant.
_________________________________/
ORDER
Defendant ADS Alliance Data Systems, Inc.‟s Motion to
Strike Unauthorized Papers (Doc. # 145), filed January 16,
2013,
Douglas

brings

this

B.

cause

Stalley,

Representative

of

before

in

the

his

Estate

the

Court.

capacity
of

Gary

as

Plaintiffs
Personal

Robertson,

and

Jeremiah Hallback, responded in opposition to the Motion on
January

28,

2013.

(Doc.

#

151).

For

the

reasons

that

follow, the Court grants the Motion to Strike Unauthorized
Papers.

1

I.

Background and Procedural History
Gary Robertson initiated this putative class action in

state

court

on

June

22,

2011,

against

Defendant

ADS

Alliance Data Systems, Inc. for alleged violations of the
Florida Security of Communications Act, Section 934.01 et
seq.

(Doc.

#

2). The

FSCA

prohibits

a

party

to

conversation from recording the conversation

–

wire,

without

oral

consent

of

specific

or
all

electronic
parties

exceptions.

See

communications

to

the

§§

–

conversation,

934.01

et

seq.,

a

including

with
Fla.

the
some

Stat.

Plaintiffs allege, “ADS services all of the accounts issued
by WFNNB, WFNB, and WFCB, [who issue private label and cobrand

credit

card

accounts]

which

includes

placing

telephone calls to accountholders who meet certain of their
criteria

(including

having

a

past

due

account

and

no

pending bankruptcy on file). . . . At all times material,
ADS had and continues to have a policy to record all calls
placed by and to its call center representatives.” (Doc. #
103 at ¶¶ 19-21). Defendant removed the case to this Court
on July 25, 2011, pursuant to the federal Class Action
Fairness Act. (Doc. # 1).
On October 24, 2011, Robertson moved to certify the
putative class. (Doc. # 20). However, while that motion was
2

pending, Robertson passed away (Doc. # 82), and Douglas
Stalley, as personal representative of Robertson‟s estate,
was

eventually

(Doc.

#

87).

substituted
Plaintiff

as

Plaintiff

subsequently

in

this

requested

action.
and

was

granted leave to file a second amended complaint. (Doc. #
100). The second amended complaint, filed on July 30, 2012,
added

Jeremiah

Hallback

as

a

Plaintiff

and

included

an

amended class definition. (Doc. # 103).
On December 26, 2012, Plaintiffs filed a Notice to
Correct Record. (Doc. # 130). An Amended Notice to Correct
Record was filed on December 28, 2012 (Doc. # 131), and
footnote one of that Amended Notice indicates that the two
documents are identical except for the correction of a date
in paragraph seven of the original Notice (Id. at 1 n.1).
In

the

Amended

Notice,

Plaintiffs

make

the

following

statements:
6.
Plaintiff
Jeremiah
Hallback
(“Mr.
Hallback”) previously represented to this Court
the following: “I have never held any credit
accounts with either World Financial Network
National Bank or World Financial Capital Bank. I
have never been a debtor of any account serviced
by
Defendant.”
See
Declaration
of
Jeremiah
Hallback in Support of Class Certification, at ¶4
(Doc. 126-1).
7. On December 18, 2012, and again on
December 20, 2012, counsel for Defendant first
notified Plaintiff‟s counsel that Mr. Hallback
did have a credit account with the Home Shopping
3

Network (“HSN”), which is a World Financial
Capital Bank account.
* * *
9. However, . . . Mr. Hallback‟s HSN account
is [not] part of his claims against Defendant.
* * *
11. Essentially, the fact that Mr. Hallback
had a HSN account does not impact the claims in
this case. However, his representations that he
did not have a WFCB account or was a debtor of an
account serviced by Defendant were inadvertently
inaccurate.
12.
Accordingly,
Mr.
Hallback
hereby
provides this Notice to correct the record and
retract any representation by him or his counsel
that he did not have a WFCB account or that he
was not a debtor of an account serviced by
Defendant as appear in his Declaration in Support
of Class Certification at paragraph 4 (Doc. 1261), and in the Second Amended Complaint at
paragraph 26 (Doc. 103).
13. To the extent that Mr. Hallback‟s
inaccurate
representations
appear
elsewhere
within the record, Mr. Hallback and his counsel
hereby retract the same and do not rely on those
representations whatsoever.
(Doc. # 131 at ¶¶ 6-7, 9-13).
On January 3, 2013, Plaintiffs also filed a Notice of
Filing

Amended

Declaration

of

Jeremiah

Hallback

(Doc.

#

132) to support Plaintiffs Renewed and Amended Motion for
Class Certification (Doc. # 126). Together, the Notice to
Correct Record (Doc. # 130), the Amended Notice to Correct
Record

(Doc.

Declaration

#
of

131),

and

Jeremiah

the

Notice

Hallback

4

of

Filing

Amended

and

the

Amended

Declaration itself (Doc. # 132) will be referred to as “the
Notices.”
On

January

Notices

were

4,

2013,

filed,

a

day

Defendant

after

the

of

the

its

filed

last

response

in

opposition to the Amended Motion to Certify Class. (Doc. #
134). On January 16, 2013, Defendant moved the Court to
strike

the

Notices

pursuant

to

Federal

Rule

of

Civil

Procedure 12(f). (Doc. # 145). Plaintiffs responded to the
Motion to Strike Unauthorized Papers on January 28, 2013.
(Doc. # 151).
II.

Legal Standard
Federal Rule of Civil Procedure 12(f) provides, “The

court may strike from a pleading an insufficient defense or
any

redundant,

matter.”
drastic

immaterial,

Fed.R.Civ.P.
remedy,‟

impertinent,

12(f).

which

“„A

is

motion

disfavored

or
to

by

scandalous

strike
the

is

a

courts.”

Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d
1345, 1348 (M.D. Fla. 2002) (quoting Augustus v. Bd. of
Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868
(5th

Cir.

1962)).

“„A

court

will

not

exercise

its

discretion under the rule to strike . . . unless the matter
sought to be omitted has no possible relationship to the
controversy, may confuse the issues, or otherwise prejudice
5

a party.‟” Kahama VI, LLC v. HJH LLC, No. 8:11-cv-2029-T30TBM, 2013 WL 1760254, at *8 (M.D. Fla. Apr. 24, 2013)
(quoting Reyher v. Trans World Airlines, Inc., 881 F. Supp.
574, 576 (M.D. Fla. 1995)).
III. Analysis
Defendant seeks to strike “unauthorized papers” in the
form of Plaintiffs‟ Notice to Correct Record (Doc. # 130),
Amended Notice to Correct Record (Doc. # 131), and the
Amended

Declaration

of

Jeremiah

Hallback

(Doc.

#

132).

(Doc. # 145). Defendant argues that 1) Hallback‟s status as
an accountholder materially affects this litigation because
the Court has made orders and granted relief predicated on
that fact (and Defendant would have argued differently in
response to the Motion to Amend the Complaint if it had
known Plaintiff Hallback was an account holder); 2) the
Notices amount to improper amendments to the pleadings; and
3) the Notices confuse the record. (Id.). In their response
in

opposition

accountholder

to
status

the
is

Motion,
immaterial

Plaintiffs
to

the

argue

that

litigation

at

this point and, therefore, the Notices neither confuse the
record nor prejudice Defendant. (Doc. # 151).
The

Court

finds

that

allowing

Plaintiffs

to,

effectively, amend the pleadings – as well as subsequently
6

filed

motions

–

without

leave

of

Court

and

without

affording Defendant an opportunity to object to such an
amendment, would be prejudicial to Defendant.
The Court notes that Defendant filed its response in
opposition to the Amended Motion to Certify Class only one
day after Plaintiff filed the last of the Notices. (Doc. #
134). The Court is not persuaded that a single day provided
Defendant adequate time to thoroughly respond to the change
in Plaintiff Hallback‟s status as an accountholder.
Although

Plaintiffs

have

consistently

argued

that

holding an account with one of the banks Defendant serves
does not affect the issue of consent for the purposes of
this action (Doc. ## 103 at ¶ 38, 42(b)-(f), 43(c); 126 at
17-16; 151 at 4-5), Defendant has consistently disagreed
with Plaintiffs‟ argument (Doc. ## 143 at 6; 134 at 2; 145
at 5). Without reaching the merits of the argument, the
Court

declines

Notices

should

to

accountholder

accept

not
status

be
is

Plaintiffs‟

stricken

position

because

immaterial

for

“Mr.
the

that

the

Hallback‟s

purposes

of

ADS‟s motion.” (Doc. # 151 at 4). Defendant is entitled to
an adequate opportunity to be heard regarding the change in
Plaintiff Hallback‟s accountholder status and to make its

7

objections

to

Plaintiffs‟

claims

in

light

of

that

information.
Therefore,

the

Court

strikes

the

Notices.

(Doc.

##

130, 131, 132). If Plaintiffs wish to “correct the record,”
they

may

move

the

Court

for

leave

to

amend

the

Second

Amended Class Action Complaint on or before May 21, 2013.
Furthermore,

before

filing

such

motion,

Plaintiffs

are

directed to confer with opposing counsel in an effort to
reach an agreement concerning the amendment. If Plaintiffs
choose to move for leave to file a third amended complaint,
they are directed to attach the proposed amended complaint
to the motion seeking leave to amend.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant ADS Alliance Data Systems, Inc.‟s Motion to
Strike Unauthorized Papers (Doc. # 145) is GRANTED.

(2)

The Clerk is DIRECTED to STRIKE from the record the
Notice to Correct Record (Doc. # 130), the Amended
Notice to Correct Record (Doc. # 131), and the Notice
of Filing Amended Declaration of Jeremiah Hallback and
the Amended Declaration of Jeremiah Hallback (Doc. #
132).

8

(3) After conferring with opposing counsel, Plaintiffs may
file a motion, on or before May 21, 2013, for leave to
amend the Second Amended Class Action Complaint. If
Plaintiffs file such motion, Plaintiffs are directed
to attach the proposed amended complaint to the motion
seeking leave to amend.
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of May, 2013.

Copies: All Parties of Record

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