HUGHES v. KORE OF INDIANA ENTERPRISE, INC.

Filing 113

ORDER To File Joint Report - The parties' recent pretrial filings have caused the Court to question the propriety of proceeding with the scheduled jury trial in this action on June 24, 2013. Accordingly, the Court ORDERS the parties to file a joint report by May 21, 2013, addressing the following issues. If they cannot agree on the contents of a joint report, competing reports must be filed by that date. ***SEE ORDER***. Signed by Judge Jane Magnus-Stinson on 5/16/2013. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID HUGHES, individually and on behalf of
all other similarly situated,
Plaintiff,
vs.
KORE OF INDIANA ENTERPRISE, INC., et al.,
Defendants.

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1:11-cv-1329-JMS-MJD

ORDER TO FILE A JOINT REPORT
The parties’ recent pretrial filings have caused the Court to question the propriety of proceeding with the scheduled jury trial in this action on June 24, 2013. Accordingly, the Court
ORDERS the parties to file a joint report by May 21, 2013, addressing the following issues. If
they cannot agree on the contents of a joint report, competing reports must be filed by that date.
1) This matter was certified as a class action under Federal Rule of Civil Procedure
23(b)(3) in August 2012. [Dkt. 65 at 2.] Rule 26(c)(2)(B) provides that “the court must direct to
class members the best notice that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable means.” The notice must inform
the class members of various things, including that they may opt out of the approved class and
that they are bound by any judgment if they do not opt out. Fed. R. Civ. Pro. 26(c)(2)(B)(v).
The Plaintiff has not presented the Court with a proposed notice to the members of the approved
class. Therefore, it is unclear how this class action could proceed to trial as scheduled when
court-approved notice has not been given to the class members.
2) Both parties demanded a jury trial. [Dkts. 52 at 1; 55 at 9.] The EFTA indicates that
a court, not a jury, is responsible for determining any award of damages. See 15 U.S.C. §
1693m(b) (“In determining the amount of liability in any action under subsection (a) of this sec-1-

tion, the court shall consider . . . .”) (emphasis added). At least one district court has observed
that with respect to the issue of liability, “whether the EFTA actually provides a litigant with a
right to a jury trial is not entirely clear.” Anderson v. Expressmart, 2013 U.S. Dist. LEXIS 1365
(N.D. Ala. 2013). It is also unclear to this Court whether the EFTA provides a litigant with a
right to a jury trial on issues concerning liability, particularly since the statute expressly states
that damages are to be determined by the Court. If the parties intend to proceed with trying issues of liability to a jury, as opposed to the Court, they must provide authority supporting the
jury demand in their report.
05/16/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Eric G. Calhoun
TRAVIS, CALHOUN & CONLON PC
[e-mail]
Ryan R. Frasher
RYAN FRASHER P.C.
[e-mail]
Kevin G. Kerr
HOEPPNER, WAGNER & EVANS LLP--Merrillville
[e-mail]
Thomas Edward Rosta
METZGER ROSTA LLP
[e-mail]
Michael Eugene Tolbert
HOEPPNER, WAGNER & EVANS LLP--Merrillville
[e-mail]

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