Blunt v. Financial Business and Consumer Solutions, Inc.

Filing 26

ORDER: Plaintiff's Second Motion for Extension of Time to File Motion for Class Certification 23 is DENIED. The Court STRIKES from the Complaint any class action allegations because Plaintiff failed to timely move for class certification. Signed by Judge James S. Moody, Jr. on 6/9/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

PRISCILLA BLUNT, on behalf of herself and
all others similarly situated,
Plaintiff,
v.

CASE NO: 8:16-CV-2430-T-30MAP

FINANCIAL BUSINESS AND CONSUMER
SOLUTIONS, INC.,
Defendant.
____________________________________/

ORDER
THIS CAUSE comes before Plaintiff’s Second Motion for Extension of Time to File
Motion for Class Certification (Dkt. 23) and Defendant’s Response in Opposition (Dkt. 25).
Upon review of the motion, response, and being otherwise advised in the premises, the Court
denies Plaintiff’s request for an extension.
BACKGROUND
On August 24, 2016, Plaintiff Priscilla Blunt, on behalf of herself and all others
similarly situated, brought this putative class action against Defendant Financial Business
and Consumer Solutions, Inc. for alleged violations of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692, et seq. (“FDCPA”) predicated on Defendant’s collection letter.
Specifically, Plaintiff alleges that Defendant’s collection letter offered to resolve Plaintiff’s
time-barred debt without disclosing that the obligation was beyond the applicable statute of
limitations. Plaintiff also contends that the collection letter neglected to inform Plaintiff that

if she made a partial payment on the debt, “the applicable statute of limitations could reset
or begin anew.” (Dkt. 1).
On November 21, 2016, Plaintiff filed her first motion to extend Local Rule 4.04(b)’s
ninety-day deadline1 to file a Rule 23 class certification motion and for leave to conduct class
discovery. (Dkt. 4). On November 22, 2016, the Court denied the motion without prejudice
because Defendant had not yet appeared in the case. The Order stated that “Plaintiff may
refile her motion after Defendant has appeared and after Plaintiff’s counsel has adequately
conferred with Defendant’s counsel on the issues contained in the motion. The deadline to
file any motion for class certification is stayed during this time.” (Dkt. 5) (emphasis added).
On November 30, 2016, Defendant filed its answer, which was its first appearance in
this case. (Dkt. 6). On December 15, 2016, Plaintiff filed a “Notice of Compliance,” which
indicated that Defendant did not agree with Plaintiff’s request to seek an extension of time
to file a motion for class certification. (Dkt. 10). However, contrary to the Court’s
November 22, 2016 Order, Plaintiff did not “refile her motion” to extend the deadline to file
a motion for class certification, despite the fact that the stay to file the motion had expired.
Nor did Plaintiff file a motion to conduct class discovery prior to the case management
meeting. Instead, this litigation proceeded for over five months. During this time, there were
several filings.

1

Local Rule 4.04(b) requires a plaintiff to move for a determination under Rule 23 “as to
whether the case is to be maintained as a class action” within ninety days following the filing of
the initial complaint.
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In December, Defendant moved to stay this action pending the resolution of appeals
before the Eleventh Circuit that Defendant believed involved substantially similar allegations
to the facts of this case. (Dkt. 9). The Court denied Defendant’s motion on January 13,
2017. (Dkt. 18).
On February 24, 2017, the parties filed their joint Case Management Report (the
“CMR”). (Dkt. 20). The CMR was silent as to any issues related to class discovery, or the
deadline to file a motion for class certification. The CMR also informed the Court that the
parties did not have “any disagreement or unresolved issues concerning discovery at this
time.”2 Id. (emphasis added).
On February 28, 2017, the Court entered the Case Management and Scheduling Order
(the “Scheduling Order”). (Dkt. 21). The Scheduling Order set forth the following
deadlines: Third-Party Joinder Cut-Off - March 24, 2017; Plaintiff’s Expert Disclosure - June
23, 2017; Defendant’s Expert Disclosure - July 24, 2017; Discovery Deadline - August 25,
2017; and Dispositive Motion Deadline - September 25, 2017. Id.
On April 20, 2017, Defendant provided discovery responses to Plaintiff. Notably,
Defendant objected to any class-related discovery based on Plaintiff’s failure to timely move,
under Rule 23, for class certification.
On May 31, 2017, Plaintiff filed the instant motion, requesting an extension of time
to file a motion for class certification. (Dkt. 23). Acknowledging that her motion is

2

Notably, the CMR has a section titled “Discovery Plan - Plaintiff,” that requests
Plaintiff to describe “every discovery effort Plaintiff plans to pursue . . .” Plaintiff did not
reference class discovery in this section or anywhere else in the CMR. (Dkt. 20).
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untimely, Plaintiff argues “excusable neglect,” stating that Defendant never moved to strike
Plaintiff’s class allegations; Defendant cannot establish prejudice; and that any delay was
made in good faith. (Dkt. 23). Based on the facts of this case, the Court concludes that
Plaintiff has not met her burden to establish excusable neglect.
DISCUSSION
Plaintiff’s request for an extension of time is governed by Fed. R. Civ. P. 6(b) because
the deadline to move for class certification has expired. Rule 6(b) provides, “[w]hen an act
may or must be done within a specified time, the court may, for good cause, extend the time
. . . on motion made after the time has expired if the party failed to act because of excusable
neglect.” Determining excusable neglect requires consideration of the following four factors:
(1) the danger of prejudice to the nonmovant; (2) the length of delay and its potential impact
on judicial proceedings; (3) the reason for the delay, including whether it was within the
reasonable control of the movant; and (4) whether the movant acted in good faith. See Adv.
Estimating System, Inc. v. Riney, 130 F.3d 996, 997-98 (11th Cir. 1997).
A consideration of the four factors shows a lack of excusable neglect. Plaintiff failed
to timely refile her motion despite the Court’s specific instruction to do so after Plaintiff’s
counsel and Defendant’s counsel conferred on the matter. Plaintiff knew, as early as
December 15, 2016, that Defendant opposed her request—yet, curiously, Plaintiff waited
until May 31, 2017, to file the instant motion.
Even more curious, the parties jointly filed the CMR and Plaintiff made no reference
to any class-related discovery. Also, the CMR did not reference any deadline for filing a

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motion for class certification. And the CMR informed the Court that there were no
unresolved issues concerning discovery.
The length of Plaintiff’s delay is significant because the expert deadlines are rapidly
approaching and the discovery deadline is August 25, 2017. If the Court were to grant
Plaintiff’s motion, all of the deadlines contained within the Scheduling Order would have to
be extended in order to accommodate Plaintiff’s request to conduct class discovery. Plaintiff
acknowledges that she cannot file a motion to certify the class until class discovery occurs.
The delay would clearly prejudice Defendant and this judicial proceeding.
Even of more consequence, Plaintiff’s reason for the delay is unclear. Plaintiff was
clearly aware of her obligations under Rule 23 and Local Rule 4.04 to move for class
certification, yet she waited over five months after the deadline had expired to seek an
extension of time. And, to the extent that she was somehow unaware of the deadline,
Plaintiff does not explain why she waited approximately forty-one days after receiving
Defendant’s discovery responses containing objections based on Plaintiff’s failure to timely
seek class certification to file the instant motion.
Finally, it is important to note that Plaintiff’s focus on Defendant’s inaction to move
to strike the class allegations and Defendant’s failure to pursue discovery from Plaintiff is
irrelevant. Defendant does not have an affirmative duty to move to strike Plaintiff’s class
action allegations. Also, Defendant’s failure to seek discovery from Plaintiff has nothing to
do with Plaintiff’s failure to timely move for class certification.

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In sum, Plaintiff has not established excusable neglect in order to receive an extension
of time to file a motion for class certification.
It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff’s Second Motion for Extension of Time to File Motion for Class
Certification (Dkt. 23) is DENIED.

2.

The Court STRIKES from the Complaint any class action allegations because
Plaintiff failed to timely move for class certification.

DONE and ORDERED in Tampa, Florida on June 9, 2017.

Copies furnished to:
Counsel/Parties of Record

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