Robertson v. ADA Alliance Data Systems, Inc.
Filing
206
ORDER: Plaintiffs' Motion for Leave of Court to File Third Amended Complaint 197 is GRANTED. Plaintiffs shall file the Third Amended Complaint [197-1], on or before June 6, 2013. Defendant shall respond to the Third Amended Complaint on or bef ore June 24, 2013. The Clerk is DIRECTED to enter a Second Amended Case Management and Scheduling Order reflecting the scheduling modifications as stated herein. The following Motions are DENIED AS MOOT: Plaintiffs' Renewed and Amended Motion fo r Class Certification 126 ; Plaintiffs' Motion for Partial Summary Judgment 161 ; Defendant's Motion for Summary Judgment 165 ; Defendant's Motion to Strike Affidavit of Andrew Krueger 166 ; Defendant's Motion for Leave to Fil e Under Seal 177 ; Defendant's Motion to Strike or Exclude Expert Declarations 190 ; Defendant's Motion for Leave to File Under Seal 198 ; Defendant's Motion to Strike Amended Motion to Certify Class 200 . Signed by Judge Virginia M. Hernandez Covington on 6/4/2013. (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
Plaintiffs Douglas B. Stalley and Jeremiah Hallback‘s
Motion
for
Leave
Action
Complaint
of
Court
(Doc.
#
to
File
197),
Third
filed
on
Amended
May
17,
Class
2013,
brings this cause before the Court. Defendant ADS Alliance
Data Systems, Inc. responded in opposition to the Motion on
May 31, 2013. (Doc. # 205). For the reasons below, the
Court grants the Motion.
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).
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
pending, Robertson passed away (Doc. # 82), and Douglas
Stalley, as personal representative of Robertson‘s estate,
was
eventually
substituted
as
Plaintiff
in
this
action.
(Doc. # 87). Plaintiff was subsequently granted leave to
amend the Amended Complaint (Doc. # 100), and the Second
Amended Complaint, filed on July 30, 2012, added Jeremiah
Hallback
as
Plaintiff
and
included
an
amended
class
definition (Doc. # 103).
Plaintiffs
filed
a
Notice
to
Correct
Record
on
December 26, 2012 (Doc. # 130), and an Amended Notice to
Correct Record on December 28, 2012 (Doc. # 131).1 In the
Amended
Notice,
Plaintiffs
state
that
―Hallback
.
.
.
previously represented to this Court [that he had] never
held
any
credit
accounts
with
either
World
Financial
Network National Bank or World Financial Capital Bank [and
1
Together, the Notice to Correct Record (Doc. # 130), the
2
had]
never
been
a
debtor
of
any
account
serviced
by
Defendant.‖ (Doc. # 131 at ¶ 6). However, Plaintiffs claim
that unbeknownst to Hallback, ―Hallback did have a credit
account with the Home Shopping Network . . ., which is a
World
Financial
Plaintiffs
Capital
represent
Bank
the
account.‖
at
¶
discrepancy
factual
(Id.
7).
as
having
little importance, stating, ―Essentially, the fact that Mr.
Hallback had a HSN account does not impact the claims in
this case.‖ (Id. at ¶ 11).
On
strike
January
the
16,
Notices.
2013,
Defendant
(Doc.
#
moved
145).
the
Court
Plaintiffs
to
timely
responded in opposition (Doc. # 151), and on May 13, 2013,
the Court granted Defendant‘s Motion to Strike Unauthorized
Papers.
(Doc.
#
196).
The
Court
found
that
―allowing
Plaintiffs to, effectively, amend the pleadings – as well
as subsequently filed motions – without leave of Court and
without
affording
Defendant
an
opportunity
to
object
to
such an amendment, would be prejudicial to Defendant.‖ (Id.
at 6-7). The Court further stated, ―If Plaintiffs wish to
‗correct the record,‘ they may move the Court for leave to
amend
the
Second
Amended
Class
before May 21, 2013.‖ (Id. at 8).
3
Action
Complaint
on
or
Plaintiffs filed the instant Motion for Leave of Court
to File Third Amended Class Action Complaint on May 17,
2013.
(Doc.
#
197).
Defendant
filed
its
response
in
opposition on May 31, 2013. (Doc. # 205).
II.
Legal Standard
―The grant or denial of an opportunity to amend is
within
the
discretion
of
the
district
court.‖
Foman
v.
Davis, 371 U.S. 178, 182 (1962); Hargett v. Valley Fed.
Sav.
Bank,
60
F.3d
754,
761
(11th
Cir.
1995).
―In
the
absence of any apparent or declared reason -- such as undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party
by
virtue
of
allowance
of
the
amendment,
futility
of
amendment, etc. -- the leave sought should, as the rules
require,
be
‗freely
given.‘‖
Foman,
371
U.S.
at
182
(quoting Fed. R. Civ. P. 15(a)).
While leave to amend is ―freely given‖ under Federal
Rule of Civil Procedure
15(a), a motion to amend filed
after the deadline established by the Case Management and
Scheduling Order will only be granted upon a showing of
good cause under Rule 16(b)(4). Sosa v. Airport Sys., Inc.,
133 F.3d 1417, 1419 (11th Cir. 1998).
4
III. Analysis
A.
Motion for Leave of Court to File Third Amended
Class Action Complaint
This
Court
entered
the
first
Case
Management
and
Scheduling Order in this case on November 11, 2011. (Doc. #
23). In that Scheduling Order, the Court stated, ―Parties
shall have until
Claims,
Motions
December 2, 2011, to file Third Party
to
Join
Parties,
and
Motions
to
Amend
Pleadings.‖ (Id. at 1) (emphasis in original). The instant
Motion
for
Leave
Action
Complaint
of
was
Court
to
filed
File
on
May
Third
17,
Amended
2013,
Class
and
is,
therefore, untimely. Accordingly, the Court must evaluate
the Motion to Amend under Rule 16(b)(4) before delving in a
Rule 15 analysis.
1. Rule 16(b)(4) “Good Cause”
Rule 16(b)(4), Fed. R. Civ. P. states: ―Modifying a
Schedule. A schedule may be modified only for good cause
and with the judge's consent.‖ Fed. R. Civ. P. 16(b)(4).
The Court
recognizes
that it invited the Motion
in
its
Order striking the Notices (Doc. # 196 at 9), and the Court
will consider Rule 16(b)(4) in light of its invitation.
Defendant
contends
that
ignorance
does
not
equal
diligence for the purposes of Rule 16(b)(4). (Doc. # 205 at
5
12). The Court agrees and in no way condones any lack of
attentiveness
Plaintiffs.
that
See
may
have
Jackson
v.
occurred
on
Winn-Dixie,
the
part
No.
Inc.,
of
08-
0014WSC, 2008 WL 4183399, at *1 (S.D. Ala. Sept. 11, 2008)
(―These
statements
longstanding
actual
after-acquired
may
establish
ignorance
evidence
defense
of
.
the
grounds
.
.
but
defendant's
to
assert
they
do
an
not
reflect the exercise of diligence in identifying such a
defense.‖).
Defendant further claims that Hallback and Plaintiffs‘
counsel may have known as early as July 2012 that Hallback
was an accountholder. (Doc. # 205 at 3-5). In his February
2013 deposition, Hallback makes the following statements:
A. My understanding is that I didn't -- I -- I
don't know what WFCB is. . . . I just found that
out after I talked to Mark [Tischhauser, counsel
for Plaintiffs] and them. . . .I just found that
out after I talked to Mark and them that -- about
the WFCB. I -- I -- I didn't know what that was.
* * *
Q. All right. When did you have a conversation
with Mr. Tischhauser?
A. Oh, I guess eight months ago or something.
Q. So was it eight months ago that you learned
the difference between -- what WFCB was?
A. Yes.
* * *
Q. And when did you learn that [the statement
that ―I have never held any credit accounts with
either World Financial Network National Bank or
World Financial Capital Bank‖] wasn't accurate?
6
A. When I talked to Mark and them, they told me
what that was.
Q. And when was that?
A. I didn't write it down, but probably three
months ago or whatever.
* * *
Q. And how long before you signed this [Amended]
Declaration [Hallback Dep. previous Doc. # 132-1]
did you find out that HSN was connected to WFCB,
in your words? Was it when you went to the
meeting?
A. Well, I had met with Mark first. I don't know.
Maybe a month before he told me about it.
Q. Okay. So you spoke with Mr. Tischhauser about
a month before you signed this Declaration?
A. Yes.
(Hallback Dep. Doc. # 197-2 at 3, 7, 8).
The Court acknowledges that it is possible to read
these
comments
as
contradictory—-one
suggesting
that
Hallback became aware of his WFCB account in July 2012, and
the
others
suggesting
that
he
learned
of
the
account
sometime near December 2012. However, the Court also notes
the
uncertainty
concerning
the
Hallback
dates
demonstrates
involved.
that
―until
December
18,
the
(Id.).
Plaintiffs‘ counsel has consistently
Court
in
deposition
Furthermore,
represented to this
2012,
Plaintiffs
were
unaware of Mr. Hallback‘s status as an accountholder with
one of the banks Defendant services in the course of its
business.‖ (Doc. # 197 at 2). The Court considers counsels‘
statements as presentations made by officers of the Court
7
in
signed
filings,
with
responsibility
of
Federal
them.2
As
such,
behind
statements
as
all
Rule
this
Hallback‘s
of
of
Civil
Court
claim
the
that
weight
Procedure
interprets
he
the
learned
and
11(b)
above
sometime
around July 2012 ―what WFCB was‖ –- in other words, he
learned
then
that
World
Financial
Capital
Bank
(WFCB)
existed -– but that he learned sometime around December
2012 that he held an account with WFCB. Plaintiffs filed
their Notices with the Court in December
2012, and, in
light of the representations made by officers of the Court
that Plaintiffs‘ were unaware of Hallback‘s accountholder
status until December 18, 2012, the Court declines to find
that Plaintiffs were not prompt or diligent in informing
the Court of the change in Hallback‘s status.
2
Rule 11, Fed. R. Civ. P states:
(b) Representations to the Court. By presenting to the
court a pleading, written motion, or other paper--whether
by signing, filing, submitting, or later advocating it--an
attorney or unrepresented party certifies that to the best
of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; . . .
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support
after
a
reasonable
opportunity
for
further
investigation or discovery; . . . .
8
Allowing Plaintiffs to file a Third Amended Complaint
will promote factual accuracy in the pleadings, encourage
clarity of the record, and ensure that Defendant is not
prejudiced
by
Plaintiffs‘
unsanctioned
amendment
of
the
Complaint. As such, the Court finds that there is good
cause to allow the Amended Case Management and Scheduling
Order to be modified under Federal Rule of Civil Procedure
16(b)(4).
2. Rule 15(b) Leave to Amend
―Once
good
cause
is
shown,
the
court
may
consider
whether leave should be granted under Rule 15.‖ Thorn v.
Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308,
309-10 (M.D. Fla. 2000). Federal Rule of Civil Procedure
15(a) instructs that leave to amend should be freely given
when justice so requires.
Fed.
R.
Civ.
P.
15(a).
Here,
there is no ―apparent or declared reason . . . such as
undue delay, bad faith or dilatory motive on the part of
the movant‖ for which leave to amend should be denied. See
Foman,
371
because
generally
the
an
U.S.
mere
at
182
passage
insufficient
(emphasis
of
added).
time,
reason
to
Furthermore,
without
find
that
more,
is
allowing
amendment of a complaint is prejudicial to the non-moving
party, Smith v. Duff & Phelps, Inc., 5 F.3d 488, 493 (11th
9
Cir.
1993),
allowing
the
amendment
will
not
unduly
prejudice Defendant here. See Foman, 371 U.S. at 182.
While the Court has found that Defendant is entitled
to an adequate opportunity to be heard regarding the change
in Hallback‘s accountholder status, the Court knows of no
undue prejudice that will befall Defendant by allowing the
Second
Amended
Complaint
to
be
amended.
Indeed,
any
prejudice that may have resulted from allowing Plaintiffs
to file a Notice to Correct Record rather than a Third
Amended Complaint will now be cured in that Defendant will
have
an
ample
and
procedurally-proper
opportunity
to
respond to the change in Hallback‘s accountholder status.
Therefore, the Court grants Plaintiffs‘ Motion for Leave of
Court to File Third Amended Class Action Complaint.
B.
Amended Scheduling Order
This action is currently set for the Court‘s July 2013
trial
term.
(Doc.
#
102).
As
such,
granting
Plaintiffs
leave to file a Third Amended Complaint at this point in
the proceedings necessarily requires that the Court amend
the
Amended
Case
Management
and
Scheduling
Order
beyond
simply allowing an untimely amendment to the pleadings.
In
the
interests
of
fairness
and
sound
judicial
administration, the Court will deny as moot all pending
10
motions and establish a new and expedited schedule for the
disposition of the remainder of this action as follows.
Plaintiffs
shall
file
the
Third
Amended
Complaint
(Doc. # 197-1) on or before June 6, 2013. Defendant shall
respond to the Third Amended Complaint on or before June
24, 2013. Any motion to certify class shall be filed on or
before June 28, 2013, and any response to such motion shall
be filed on or before July 15, 2013. The parties shall file
any motions for summary judgment on or before September 3,
2013; responses to any motions for summary judgment shall
be filed on or before September 20, 2013. Furthermore, the
final pretrial conference will be conducted in this case on
January 9, 2014, at 9:00 a.m., and this case will be placed
on
the
directed
Court‘s
to
February
issue
a
2014
Second
trial
Amended
term.
Case
The
Clerk
Management
is
and
Scheduling Order reflecting these changes.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiffs‘ Motion for Leave of Court to File Third
Amended Complaint (Doc. # 197) is GRANTED.
(2)
Plaintiffs
shall
file
the
Third
Amended
Complaint
(Doc. # 197-1), on or before June 6, 2013. Defendant
11
shall respond to the Third Amended Complaint on or
before June 24, 2013.
(3)
The Clerk is DIRECTED to enter a Second Amended Case
Management
and
Scheduling
Order
reflecting
the
scheduling modifications as stated herein.
(4)
The following Motions are DENIED AS MOOT: Plaintiffs‘
Renewed
and
Amended
Motion
for
Class
Certification
(Doc. # 126); Plaintiffs‘ Motion for Partial Summary
Judgment (Doc. # 161); Defendant‘s Motion for Summary
Judgment (Doc. # 165); Defendant‘s Motion to Strike
Affidavit of Andrew Krueger (Doc. # 166); Defendant‘s
Motion for Leave to File Under Seal (Doc. # 177);
Defendant‘s
Motion
Declarations
(Doc.
to
#
Strike
190);
or
Exclude
Defendant‘s
Expert
Motion
for
Leave to File Under Seal (Doc. # 198); Defendant‘s
Motion to Strike Amended Motion to Certify Class (Doc.
# 200).
DONE and ORDERED in Chambers in Tampa, Florida, this
4th day of June, 2013.
12
Copies: All Counsel of Record
13
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