NILI 2011, LLC et al v. Warren, City of

Filing 79

OPINION and ORDER granting Plaintiff Class Member's 78 Motion to Opt Out After Deadline. Signed by District Judge Gershwin A. Drain. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NILI 2011, LLC, ET AL.,
Case No. 15-cv-13392

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF WARREN,

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant.
/

OPINION AND ORDER GRANTING PLAINTIFF CLASS MEMBER’S
MOTION TO OPT OUT AFTER DEADLINE [#78]
I. INTRODUCTION
Plaintiff NILI 2011, LLC, on behalf of all others similarly situated, initiated
this class-action suit on September 28, 2015 based on Defendant City of Warren’s
alleged violations of the Fourth and Fourteenth Amendments. See Dkt. No. 1.
On October 18, 2017, the Court entered a Stipulated Order Authorizing
Notice of Class Certification. Dkt. No. 62. There, the Court Ordered that notice of
the class certification be mailed to the last known address of potential class
members within twenty-one days, that notice be placed in the Macomb Daily
newspaper, and that notice be posted on class counsel’s website. Id. at p. 2 (Pg. ID
1698). Further, the Court Ordered that any class member who wished to opt out of

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the class had to do so within ninety days of the notice being mailed. Id. at p. 3 (Pg.
ID 1699).1
The Court entered an Order Preliminarily Approving Class Action
Settlement on June 26, 2018, and scheduled a Fairness Hearing for October 22,
2018. See Dkt. No. 77.
On August 9, 2018, Albert Thrower (“Member Thrower”), on behalf of
Plaintiff Class Member Saint Anthony the Great Romanian Orthodox Monastery,
filed a Motion for Leave to Opt Out After Deadline. See Dkt. No. 78. Member
Thrower asserts Saint Anthony the Great Romanian Orthodox Monastery did not
receive notice of the class-action suit before the opt-out deadline expired. See id.
at p. 1 (Pg. ID 1861). Defendant has not filed a response in opposition to Member
Thrower’s Motion.
Present before the Court is Member Thrower’s Motion for Leave to Opt Out
After Deadline [#78]. For the reasons set forth below, the Court will GRANT the
Motion.
II. DISCUSSION
Federal Rules of Civil Procedure 6(b)(1) and 60(b)(1) give a district court
the discretion to grant relief to a party who misses a class opt-out deadline. In re

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On November 7, 2017, the Court entered a Stipulated Order Extending Dates to
Provide Class Notice, requiring that notice be sent within twenty-one days of the
Order. Dkt. No. 63, p. 2 (Pg. ID 1707).
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MI Windows & Doors, Inc., Prods. Liab. Litig., 860 F.3d 218, 226 (4th Cir. 2017);
Shumsker v. Citigroup Glob. Mkts. Inc., 569 Fed. Appx. 16, 18 (2d Cir. 2014);
Valley Drug Co. v. Geneva Pharm., Inc., 262 Fed. Appx. 215, 218 (11th Cir.
2008). Indeed, Rule 6(b)(1)(B) provides, “When 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.” Fed. R. Civ. P. 6(b)(1)(B). Rule 60(b)(1) further provides, “On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for . . . excusable neglect.” Fed. R. Civ. P.
60(b)(1).
In defining excusable neglect, the Supreme Court has specified four factors
for courts to consider: (1) the danger of the prejudice to the debtor, (2) the length
of the delay and its potential impact on judicial proceedings, (3) the reason for
delay, including whether it was within the reasonable control of the movant, and
(4) whether the movant acted within good faith. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
Here, the Court will find good cause for allowing Member Thrower to opt
out of the class-action suit despite missing the opt-out deadline. First, by not filing
a response opposing Member Thrower’s Motion, Defendant has indicated no

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objection to allowing the untimely opt out. This suggests Defendant has no
concern about the late opt out causing any prejudice.
Second, though the opt-out deadline expired months ago, permitting
Member Thrower to opt out the class-action suit will have little to no impact on
these judicial proceedings. The Court has not yet held the Fairness Hearing on the
class-action settlement or entered a final judgment. Hence, granting Member
Thrower’s Motion should not interrupt the litigation schedule in this case.
Third, Member Thrower asserts Saint Anthony the Great Romanian
Orthodox Monastery never received notice of the class-action suit. See Dkt. No.
78, p. 1 (Pg. ID 1861). Unlike simply overlooking a notification, failing to receive
notice altogether was something completely outside the control of the movant.
Finally, there is nothing to suggest Member Thrower has acted in bad faith.
By all indications, Member Thrower filed this Motion soon after becoming aware
of the pending class-action suit and served notice on all parties. See id. at pp. 1, 3
(Pg. ID 1861, 63).
Accordingly, Member Thrower’s failure to opt out of the class-action suit in
a timely manner can be attributed to excusable neglect.
III. CONCLUSION
For the reasons discussed herein, the Court will GRANT Member Thrower’s
Motion [#78].

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IT IS SO ORDERED.

Dated:

September 24, 2018

s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, September 24, 2018, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager

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