Pinero v. Jackson Hewitt Tax Service Inc. et al

Filing 121

MOTION for Appeal of Magistrate Judge Decision to District Court re 117 Order on Motion for Leave to File Amended Class Action Complaint by Vicki L. Pinero. Motion Hearing set for 5/27/2009 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 Notice of Hearing, # 2 Memorandum in Support)(Shartle, Bryan) Modified on 5/1/2009 to modify text (rll, ).

Pinero v. Jackson Hewitt Tax Service Inc. et al

Doc. 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VICKI L. PINERO, individually and on ) behalf of all others similarly situated, ) ) Plaintiffs, ) ) v. ) ) JACKSON HEWITT TAX SERVICE ) INC.; JACKSON HEWITT INC.; and, ) CRESCENT CITY TAX SERVICE, ) INC. d/b/a JACKSON HEWITT TAX ) SERVICE, ) ) Defendants. ) Civil Action No. 08-03535 Sec. R JUDGE SARAH S. VANCE Mag. 3 MAGISTRATE KNOWLES, III J UD GE DANI E L E.

MOTION FOR DE NOVO REVIEW OF APRIL 21, 2009 DISPOSITIVE MAGISTRATE RULING NOW INTO COURT, through undersigned counsel, comes plaintiff, Vicki L. Pinero, who, pursuant to Fed. R. Civ. P. 72(b) and L.R. 74.1, objects to and seeks de novo review of the April 21, 2009 dispositive ruling issued by Magistrate Judge Daniel E. Knowles, III (Docket No. 117), denying plaintiff leave to file an amended complaint to include a claim under La. Rev. Stat. § 9:3572.1, et seq. (the "LA Loan Broker Statute"). On February 26, 2009, plaintiff filed a Motion for Leave to File Third Amended

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Dockets.Justia.com

Class Action Complaint against the defendants, Jackson Hewitt Tax Service Inc. ("JHTSI); Jackson Hewitt Inc. ("JHI"); and, Crescent City Tax Service, Inc. d/b/a Jackson Hewitt Tax Service (jointly referred to as "Defendants"). As noted, plaintiff sought to include a claim under the LA Loan Broker Statute. See Docket No. 77. Defendants opposed the leave motion. See Docket Nos. 81 & 86. Plaintiff filed a reply to Defendants' opposition. See Docket No. 96. On April 1, 2009, Judge Knowles heard argument on plaintiff's leave motion. See Docket No. 98. The Court permitted further briefing on the statute of limitations. Id. On April 6, 2009, plaintiff filed her supplemental memorandum in support of her leave motion, addressing the prescription issue. See Docket No. 101. On April 8, 2009, JHTSI and JHI filed their supplemental opposition memorandum. See Docket No. 105. On April 13, 2009, plaintiff filed her reply to JHTSI and JHI's supplemental opposition memorandum. See Docket No. 112. On April 21, 2009, Judge Knowles denied plaintiff's leave motion. See Docket No. 117. As more fully explained in the supporting memorandum filed concurrently herewith, Judge Knowles incorrectly concluded the proposed amendment is "futile" because Judge Knowles believed plaintiff's proposed claim under the LA Loan Broker Statute is "barred by the applicable statute of limitations[.]" Id. at p. 1. Pursuant to Fed. R. Civ. P. 72, any party may object to a Magistrate Judge's dispositive ruling within 10 days after being served with a copy of such ruling. Plaintiff was served via ECF with a copy of Judge Knowles' ruling on April 21, 2009. Accordingly, this motion and objection is timely filed. 2

WHEREFORE, plaintiff prays the Court grant de novo review of Judge Knowles' April 21, 2009 ruling (Docket No. 117), set aside said ruling, and grant plaintiff leave to amend her complaint to include a claim under the LA Loan Broker Statute. Respectfully Submitted, /s/ Bryan C. Shartle David Israel (LSBA No. 7174) (T.A.) Bryan C. Shartle (LSBA No. 27640) Justin H. Homes (LSBA No. 24460)
SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P.

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been forwarded to all counsel of record by ECF; __ by email; __ by hand; __ by fax; __ by FedEx; __ by placing a copy of same in the U.S. Mail, postage prepaid this 30th day of April 2009. /s/ Bryan C. Shartle Bryan C. Shartle

3850 N. Causeway Blvd. Lakeway II, Suite 200 Metairie, Louisiana 70002 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff, Vicki L. Pinero

N:\1 -DI-No n-Collector-Misconduct\Pinero, Vicki-Class Action\Plead in gs\LA Lawsu it\Third Amended Complaint\Mo tion to Review Magistrate Ruling.04.30 .09.doc

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