Hardy v. SOS Security LLC

Filing 32

ORDER denying 30 --motion for reconsideration. Signed by Judge Steven D. Merryday on 5/22/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TREY HARDY,
Plaintiff,
v.

CASE NO. 8:16-cv-3178-T-23MAP

SOS SECURITY, LLC,
Defendant.
____________________________________/

ORDER
On November 14, 2016, Trey Hardy sued SOS Security for providing
extraneous information in a credit-check disclosure form, a disclosure that allegedly
violates the Fair Credit Reporting Act. On December 28, 2016, the defendant moved
to dismiss the action and argued that the absence of a compensable injury requires
dismissal under Rule 12(b)(1), Federal Rules of Civil Procedure. (Doc. 9, citing
Spokeo v. Robins, 136 S. Ct. 1540 (2016))
The plaintiff moved (Docs. 12, 18, and 22) three times to extend the response
deadline. A March 10, 2017 order (Doc. 24) grants the final extension and permits
the plaintiff to respond no later than March 31. The March 10 order states that “[n]o
further extension[]” is available “absent extraordinary circumstances.” (Doc. 24
at 1–2) Five months after the filing of the Rule 12(b)(1) motion and a month after the
expiration of the response deadline, no response appears.

Also, the complaint included a class-action allegation, and Local Rule 4.04(b)
required the plaintiff to move for class certification no later than February 13, 2017.
The plaintiff failed to comply with the Local Rule and failed to request an extension
before the expiration of the deadline. Three weeks after the deadline expired and
without proffering any explanation for missing the deadline, the plaintiff moved
(Doc. 22) to extend the deadline to March 31, 2017, and the March 10 order grants
the motion. Again, the order states that “[n]o further extension” is available “absent
extraordinary circumstances.” (Doc. 24 at 1–2) March 31 passed, and the plaintiff
neither moved for class certification nor moved to extend the time within which to
move for class certification.
On April 4, 2017, the mediator announced the settlement of this action, and an
April 6, 2017 order (Doc. 26) dismisses the action without prejudice “subject to the
right of any party . . . to move to vacate the dismissal for good cause.” On April 26,
2017, the plaintiff moved (Doc. 28) to vacate the dismissal and to refer a purported
“class-action settlement” to the magistrate judge for a fairness hearing. An April 27,
2017 order (Doc. 29) denies the motion because the time within which to move for
class certification expired and because the parties failed to show excusable neglect for
the failure to timely move for an extension of the class-certification deadline. For the
second time, the plaintiff moves (Doc. 30) to vacate the dismissal and argues that the
presence of “excusable neglect” requires vacating the dismissal and opening the case.

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The plaintiff admittedly “neglected to move . . . for class certification.”
(Doc. 30 at 4) Despite the plaintiff’s failure to comply not once but twice with a
class-certification deadline, the plaintiff baldly asserts that “it was evident even at this
early juncture the parties were both aware and respectful of the Court’s deadlines in
the case.” (Doc. 30 at 2) On the contrary, the repeated failure of plaintiff’s counsel
to heed a deadline evinces an unmistakable disdain for the rules, a disdain for which
the Middle District of Florida regularly reprimands or sanctions plaintiff’s counsel
Morgan & Morgan. In a thorough 2009 order, Judge Presnell identifies more than
sixty orders that require a Morgan & Morgan attorney to show cause for failing to
comply with a deadline or failing to expeditiously prosecute an action. In re FLSA
Cases, 2009 WL 129599 (M.D. Fla. 2009). In that case, Judge Presnell sanctioned a
Morgan & Morgan attorney “given [the firm’s] extensive history of noncompliance”
with the Federal Rules of Civil Procedure, with the Local Rules, and with court
orders. In re FLSA Cases, 2009 WL 129599 at *7. Even after Judge Presnell’s order,
Morgan & Morgan attorneys persist in violating the Federal Rules of Civil
Procedure, the Local Rules, and court orders. See, e.g., Wate v. Tactuk, case no. 8:14cv-1196-VMC-TBM at Doc. 79 (imposing on a Morgan & Morgan attorney a $5,000
sanction and requiring the attorney to attend a case-management CLE because of the
attorney’s repeated “untimely filings”); Libreros v. Texas de Brazil (Tampa) Corp., case
no. 8:12-cv-1283-SCB-TGW at Doc. 70 (sanctioning a Morgan & Morgan attorney
for failing to attend a court-ordered mediation).

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The plaintiff suggests that Cheney v. Anchor Glass Container Corp., 71 F.3d 848
(11th Cir. 1996), requires a finding of excusable neglect. In Cheney, a “clerical error”
resulted in an attorney’s submitting a paper six days late. In contrast to the six-day
delay in Cheney, the plaintiff’s motion to excuse compliance with the March 31
deadlines arrived thirty-five days late. Also, an untimely motion to extend a deadline
must “state the specific reasons for the request and must include facts to support the
assertion of excusable neglect.” Moore’s Federal Practice, Vol. 1, § 6.06(3)(b)
(3d ed. 2016). In this action, the plaintiff proffers no explanation for the failure to
comply with two class-certification deadlines and the Rule 12(b)(1)-response
deadline. The plaintiff’s counsel proffers no explanation of how counsel will remedy
the cause of the repeated failures. And, although the plaintiff’s repeated failure
results in the expenditure of scarce judicial resources, the plaintiff demonstrates not a
hint of contrition for wasting the court’s and the adversary’s time and resources.
Even if the plaintiff argues that plaintiff’s counsel negligently failed to heed the
unambiguous March 10 order or negligently failed to calendar the March 31
deadline, Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd P’ship, 507 U.S. 380 (1993),
explains that “inadvertence, ignorance of the rules, or mistakes construing the rules
do not usually constitute excusable neglect.” 507 U.S. at 392. And an attorney’s
failure to grasp the relevant procedural law” cannot constitute excusable neglect.
Advanced Estimating Sys v. Riney, 130 F.3d 996, 998 (11th Cir. 1997). Because the

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plaintiff fails to show excusable neglect, the motion (Doc. 30) to vacate the dismissal
and to excuse the plaintiff’s neglect in moving for class certification is DENIED.
ORDERED in Tampa, Florida, on May 22, 2017.

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