Holton v. Cajun Operating Company

Filing 21

ORDER: Plaintiff Lilian Holton's Motion for Class Certification 3 is DENIED WITHOUT PREJUDICE. Holton has until and including March 30, 2015, to file an amended motion for class certification. Signed by Judge Virginia M. Hernandez Covington on 12/22/2014. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LILIAN HOLTON, on behalf of
herself and all similarly situated individuals,
Plaintiff,
v.

Case No. 8:14-cv-2703-T-33AEP

CAJUN OPERATING COMPANY,
d/b/a CHURCH’S FRIED CHICKEN,
Defendant.
________________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Lilian Holton’s Motion for Class Certification (Doc. # 3),
filed on October 27, 2014. For the following reasons, the
Motion is denied without prejudice.
I.

Background
On October 27, 2014, Holton filed her class action

Complaint alleging that Defendant Cajun Operating Company
d/b/a Church’s Fried Chicken violated the terms of the Fair
Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681(B)(2)(A)(i)(ii). (See Doc. # 1). Holton explains that Defendant procured
consumer reports on Holton and other putative class members
for

employment

purposes,

without

first

making

proper

disclosures in the format required by the statute. (Id. at
2).

Holton alleges that:
[U]nder this subsection of the FCRA, Defendant is
required to disclose to its employees – in a
document that consists solely of the disclosure –
that it may obtain a consumer report on them for
employment purposes, prior to obtaining a copy of
their consumer report. Defendant willfully violated
this requirement by failing to provide [Holton]
with a copy of the document that consists solely of
the disclosure that it may obtain a consumer report
on them for employment purposes, prior to obtaining
a copy of their consumer report. This practice
violates longstanding regulatory guidance from the
Federal Trade Commission (FTC).

(Id.).
In the Complaint, Holton proposes that this case should
proceed as a class action, pursuant to Fed. R. Civ. P. 23,
with the “Background Check Class” consisting of all employees
or prospective employees of Defendant in the United States
who were the subject of a consumer report that was procured
by Defendant (or that Defendant caused to be procured) on or
after October 20, 2009. (Id. at 3).
Holton filed the present Motion on October 27, 2014.
(See Doc. # 3). Defendant first appeared in this action on
November 17, 2014. (See Doc. # 6). Defendant filed a Motion
to Dismiss on December 4, 2014. (Doc. # 12). On the same day,
Defendant filed an Unopposed Motion to Stay Deadline to

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Respond to Plaintiff’s Motion for Class Certification. (Doc.
# 13). This Court granted that Motion and stated that “once
the Court enters an Order on the Motion to Dismiss, Defendant
shall then have seven days from the date of the Order to file
an

appropriate

response

to

the

Motion

for

Class

Certification.” (Doc. # 14).
The

Court

conducted

a

case

management

hearing

on

December 16, 2014, where Holton’s counsel represented to the
Court that an Amended Complaint was forthcoming. (See Doc. #
15). On December 18, 2014, Holton filed her Amended Complaint
(Doc. # 17), and this Court denied as moot the Motion to
Dismiss (Doc. # 18).
II. Discussion
Pursuant to Local Rule 4.04 (b):
(b) Within ninety (90) days following the filing of
the initial complaint in such an action, unless the
time is extended by the Court for cause shown, the
named plaintiff or plaintiffs shall move for a
determination under Rule 23(c)(1) as to whether the
case is to be maintained as a class action. The
motion shall be supported by a memorandum as
required by Rule 3.01(a) of these rules; and, in
addition to a showing of the prerequisites as
required by subsection (a) of this rule, the motion
shall contain a detailed description or definition
of the class (and sub-classes, if any), and the
number of persons in the class. If a determination
is sought that the action shall be maintained under

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Rule 23(b)(3), the motion shall also suggest a
means of providing, and defraying the cost of, the
notice required by Rule 23(c)(2), Fed. R. Civ. P.
If discovery relating to class action issues is
needed, the parties may move the Court for leave to
take such discovery prior to the case management
meeting.
Local

Rule

4.04(b),

M.D.

Fla.

(emphasis

added).

Holton

initiated this action on October 27, 2014 (Doc. # 1), and
simultaneously filed the present Motion (Doc. # 3). Upon
review of the Motion, the Court finds that it satisfies the
requirements set forth in Local Rule 4.04(b), as it, among
other things, discusses the appropriateness of this action
proceeding as a class action pursuant to Fed. R. Civ. P. 23.
Without addressing the merits of the Motion, the Court finds
that Holton has satisfied her burden of complying with Local
Rule 4.04(b) and has insulated herself from a “pick off” offer
of judgment from Defendant.
This case is in its infancy. Holton has just filed an
Amended Complaint and the parties have just been permitted to
begin discovery in accordance with the case management and
scheduling order filed on December 16, 2014. (Doc. # 16). As
the parties have been unable to conduct discovery in this
action and based upon the representations of Holton’s counsel
at the case management hearing regarding discovery affecting

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the Motion to Certify Class, the Motion is denied without
prejudice. This Court finds that addressing the merits of the
Motion at this juncture would be superfluous as the parties
have not had the opportunity to develop the factual and legal
issues of this case. However, this does not allow Holton an
unlimited amount of time to refile this Motion. The Court
grants Holton until and including March 30, 2015, to file an
amended motion for class certification.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Lilian Holton’s Motion for Class Certification
(Doc. # 3) is DENIED WITHOUT PREJUDICE.

(2)

Holton has until and including March 30, 2015, to file
an amended motion for class certification.
DONE and ORDERED in Chambers, in Tampa, Florida, this

22nd day of December, 2014.

Copies to:

All Counsel of Record

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