Romero et al v. CenturyLink, Inc. et al

Filing 48

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1. Plaintiffs' Motion for Leave to File a Sur-Reply to Defendant and Proposed Intervenors' Motion to Compel Arbitration and Enforce Class-Action Waivers 312 is GRANTED. 2. Plaint iffs shall file a sur-reply not exceeding 8,000 words by January 18, 2019. 3. Plaintiffs' sur-reply shall address the argument that Defendant has withdrawn its motion to compel arbitration under § 4 of the Federal Arbitration Act ("F AA"); that Defendant has requested to stay these actions pursuant to § 3 of the FAA; and any arguments or supporting documents that rely on discovery obtained or produced after August 23, 2018. Plaintiffs may submit conformed declarations in light of discovery that occurred after August 23, 2018; however, the admissibility and significance of these declarations will be decided after Defendant has had the opportunity to respond to the sur-reply. 4. Defendant shall be permitted to file a response to the sur-reply. The response shall be filed by February 22, 2019, and shall not exceed 8,000 words. 5. The oral argument currently set for March 6, 2019, is CANCELLED, and the parties shall contact the Court to reschedule oral argument at a later date. (Written Opinion) Signed by Judge Michael J. Davis on 1/8/2019. Associated Cases: 0:17-md-02795-MJD-KMM et al.(GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE: CENTURYLINK SALES
PRACTICES AND SECURITIES
LITIGATION

MDL No. 17-2795 (MJD/KMM)

This Document Relates to
Civil File Nos. 17-2832, 17-4613,
17-4614, 17-4615, 17-4616, 17-4617,
17-4618, 17-4619, 17-4622, 17-4943,
17-4944, 17-4945, 17-4947, 17-5046,
18-1562, 18-1565, 18-1572, 18-1573,

MEMORANDUM OF LAW & ORDER

I.

INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion for Leave to File a Sur-

Reply to Defendant and Proposed Intervenors’ Motion to Compel Arbitration
and Enforce Class-Action Waivers. [Docket No. 312] Oral argument on the
underlying motion to compel arbitration has been set for March 6, 2019.
II.

BACKGROUND
Plaintiffs filed their Opposition to the motion to compel arbitration on

August 23, 2018. [Docket No. 253] Defendant filed its Reply in support of the
motion to compel arbitration on November 21. [Docket No. 295] On December
13, Plaintiffs filed the current motion for leave to file a sur-reply.
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III.

DISCUSSION
Plaintiffs assert that, in the Reply, Defendant changed the basis for its

motion seeking to compel arbitration from seeking relief under § 4 of the Federal
Arbitration Act (“FAA”) to seeking relief under § 3 of the FAA. Defendant
agrees that Plaintiffs should be entitled to file a sur-reply addressing this issue.
Plaintiffs assert that Defendant’s Reply includes new declarations,
testimony, and documents that were not in the record when Plaintiffs submitted
their Opposition. Specifically, after Plaintiffs submitted their Opposition,
Defendant produced new documents and took the depositions of 28 Plaintiffs.
CenturyLink cites to this deposition testimony to prove that these Plaintiffs
agreed to mandatory arbitration clauses. Plaintiffs seek to file new declarations
by these same Plaintiffs to clarify their testimony and to make their original
declarations accurate and complete.
Defendant agrees that Plaintiffs should be permitted to address certain
new declarations that it filed in conjunction with its Reply. It further agrees that
Plaintiffs should be allowed to supplement their declarations regarding facts that
they could not address in their depositions. However, it objects to Plaintiffs
attempting to file “sham” declarations to undo their deposition testimony.

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The Court grants Plaintiffs’ motion. The parties agree that Defendant has
submitted a new legal theory and certain new evidence that Plaintiffs should be
permitted to address. Additionally, the question of whether Plaintiffs agreed to
arbitration clauses is the key question in this hotly contested motion. A party
cannot rely on a sham declaration created after damaging deposition testimony
to create a fact issue. However, the Court cannot judge the propriety of
Plaintiffs’ proposed new declarations without reviewing the declarations and
comparing them to the deposition testimony, none of which are currently before
the Court. Thus, at this point, the Court will grant Plaintiffs’ request to file the
sur-reply and declarations. By permitting Plaintiffs to file the declarations, the
Court is not yet ruling on the admissibility or evidentiary significance of these
declarations. Defendants will be permitted ample time to respond, and the
Court will rule on the parties’ arguments when a full record is before it.
Because the parties seek to add significant additional briefing and
evidence and to substantially extend the briefing schedule, the Court cancels the
oral argument currently set for March 6, 2019. The parties shall contact the Court
to obtain a new hearing date that will permit the parties to fully address these
new issues and allow the Court sufficient time to prepare for oral argument.

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Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1.

Plaintiffs’ Motion for Leave to File a Sur-Reply to Defendant
and Proposed Intervenors’ Motion to Compel Arbitration and
Enforce Class-Action Waivers [Docket No. 312] is GRANTED.

2.

Plaintiffs shall file a sur-reply not exceeding 8,000 words by
January 18, 2019.

3.

Plaintiffs’ sur-reply shall address the argument that
Defendant has withdrawn its motion to compel arbitration
under § 4 of the Federal Arbitration Act (“FAA”); that
Defendant has requested to stay these actions pursuant to § 3
of the FAA; and any arguments or supporting documents that
rely on discovery obtained or produced after August 23, 2018.
Plaintiffs may submit conformed declarations in light of
discovery that occurred after August 23, 2018; however, the
admissibility and significance of these declarations will be
decided after Defendant has had the opportunity to respond
to the sur-reply.

4.

Defendant shall be permitted to file a response to the surreply. The response shall be filed by February 22, 2019, and
shall not exceed 8,000 words.

5.

The oral argument currently set for March 6, 2019, is
CANCELLED, and the parties shall contact the Court to
reschedule oral argument at a later date.

Dated: January 8, 2019

s/ Michael J. Davis
Michael J. Davis
United States District Court
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