Jenkins v. Pech et al

Filing 21

ORDER - The plaintiff's Motion for Class Certification and Stay of Briefing (Filing No. 15 ) is granted in part. The portion of the plaintiff's motion seeking class certification is held in abeyance pending further order of the court. T he portion of the plaintiffs motion seeking to stay briefing is granted. The court will set a briefing schedule after resolution of the defendants' motion to dismiss or during the parties' planning conference, whichever is later. The defendants shall have to on or before May 8, 2014, to file a motion to dismiss. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LEE A. JENKINS,
Plaintiff,

8:14CV41

vs.
ORDER
CHRISTOPHER E. PECH, and
PECH, HUGHES, & McDONALD,
P.C., d/b/a Litow & Pech, P.C., a
fictitious name,
Defendants.
This matter is before the court on the plaintiff’s Motion for Class Certification and
Stay of Briefing (Filing No. 15). The plaintiff requests the parties be allowed to delay
complete briefing on the motion for class certification until discovery may be conducted.
See Filing No. 15. Specifically, the plaintiff states the motion for class certification has
been protectively filed early in this matter, shortly after the defendants filed an answer,
to prevent the defendants from offering the named plaintiff full individual relief, thus
rendering his claims moot. See Filing No. 16 - Brief p. 2-6. Nevertheless, the plaintiff
also seeks to delay briefing the issue of class certification to allow the parties sufficient
time to create a meaningful factual record through discovery. Id. at 6.
The defendants oppose the plaintiff’s motion for class certification on the merits
and oppose the briefing stay as untimely. See Filing No. 17 - Response. Specifically,
the defendants note the plaintiff failed to file a brief and evidence in support of class
certification on the merits. The plaintiff’s brief merely argues for an extension of the
briefing schedule. Moreover, the defendants argue they had already served an offer of
judgment on the named plaintiff, at which time his claims became moot.

The

defendants state they intend to file a motion to dismiss the named plaintiff based on the
offer of judgment. For these reasons, the defendants contend the plaintiff fails to show
any justification for allowing delayed briefing since the reason for filing a protective
motion for class certification is inapplicable to this plaintiff.
The plaintiff contends the defendants’ offer of judgment was inadequate to pick
off the plaintiff in this case. See Filing No. 18 - Reply. While the offer prompted the

plaintiff’s filing the protective motion for class certification, the plaintiff argues any
motion to dismiss based on the offer will be insufficient to dispose of the plaintiff or the
case.

Thus, the plaintiff persists in seeking time to conduct discovery prior to

completing briefing on the merits for the motion for class certification.
The court finds good cause exists to extend time for the parties to complete
briefing on the plaintiff’s motion for class certification. The defendants state they intend
to file a motion to dismiss the plaintiff, but the defendants have yet to file such motion.
The defendants state a motion to dismiss may obviate the need for discovery and
resolution of the class issues.

The court has determined a stay of discovery is

unnecessary at this time. See Filing No. 19 - 26(f) Report; Filing No. 20 - Progression
Order. If the defendants elect to file a motion to dismiss, the court may reevaluate the
parties’ discovery needs.

The court will have an opportunity to resolve the issues

related the sufficiency of the defendants’ offer of judgment at that time. Absent the
defendants’ moving to dismiss, the parties may complete discovery and fully brief the
class certification issues. Accordingly,

IT IS ORDERED:
1.

The plaintiff’s Motion for Class Certification and Stay of Briefing (Filing No.

15) is granted in part. The portion of the plaintiff’s motion seeking class certification is
held in abeyance pending further order of the court. The portion of the plaintiff’s motion
seeking to stay briefing is granted. The court will set a briefing schedule after resolution
of the defendants’ motion to dismiss or during the parties’ planning conference,
whichever is later.
2.

The defendants shall have to on or before May 8, 2014, to file a motion to

dismiss.

Dated this 24th day of April, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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