Jenkins v. Pech et al

Filing 58

ORDER - The plaintiff's Motion to Extend Deadline for Reply to Motion for Class Certification (Filing No. 49 ) is granted. The plaintiff shall have until December 12, 2014, to file a reply in support of the Amended Motion for Class Certification (Filing No. 41 ). Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LEE A. JENKINS, on behalf of
himself and all others similarly
situated,

8:14CV41

Plaintiff,
ORDER
vs.
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, Lee A. Jenkins, Motion to Extend
Deadline for Reply to Motion for Class Certification (Filing No. 49). The plaintiff filed an
index of evidence (Filing No. 50) in support of the motion. The defendants, Christopher
E. Pech (Pech) and Pech, Hughes, & McDonald, P.C. d/b/a Litow & Pech, P.C., a
fictitious name (collectively the defendants), filed a brief (Filing No. 51) with an index of
evidence (Filing No. 51-1) in opposition to class certification. The plaintiff filed a brief
(Filing No. 54) in reply and index of evidence (Filing No. 55) in support of the reply.
The plaintiff seeks an extension until December 12, 2014, to file a reply in
support of the plaintiff’s class certification motion. See Filing No. 49 - Motion. The
plaintiff’s reply is due October 27, 2014. On September 30, 2014, a day before filing his
class certification motion, the plaintiff requested to depose Tyler Grimm (Grimm), who,
according to the plaintiff, is a former employee of the defendants and key witness. Id. at
1-2.1

On October 7, 2014, counsel for the defendants responded and the parties

agreed to hold Grimm’s deposition on October 17, 2014, which was before the plaintiff’s
reply deadline for the class certification motion. Id. On October 14, 2014, defense
counsel informed plaintiff’s counsel a conflict arose and Grimm’s deposition would have
to be rescheduled. Id. The parties rescheduled Grimm’s deposition for November 14,
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The plaintiff argues September 30, 2014, the day after receiving the transcript of the Pech deposition,
was the first possible time for the plaintiff to know the defendants no longer employed Grimm and Pech
could not respond to questions concerning class certification, claiming Grimm alone possesses the
required information. See Filing No. 49 - Brief.

2014. Id. at 2-3. The plaintiff argues the defendants have not provided good cause for
the cancellation of Grimm’s deposition.

Id.

The plaintiff contends the defendants’

opposition to class certification can only be resolved after Grimm’s deposition. Id. The
plaintiff also argues he learned after Pech’s deposition of five additional witnesses with
knowledge of numerosity and information concerning class certification who the plaintiff
must depose before filing a reply in support of the class certification motion. Id. at 3-4.
In response, the defendants argue the plaintiff has not provided good cause to
amend the pretrial schedule of this case. See Filing No. 51 - Response at 2. The
defendants contend the plaintiff has not explained why he suddenly requires the
depositions of several additional witnesses, including Grimm, before replying to the
defendants’ opposition to class certification. Id.

The defendants assert they did not

rely on evidence from Grimm or the other witnesses in their opposition to the class
certification motion, thus there is no basis for arguing the defendants’ arguments now
make Grimm’s deposition a necessity. Id. at 4-6. The defendants also argue when the
plaintiff sought to depose Grimm, the plaintiff did not take the position Grimm’s
deposition was required for the class certification motion. Id. at 5.
In reply, the plaintiff argues Grimm is an important witness because he was the
only attorney who reviewed the plaintiff’s case, as well as other class members’ cases.
See Filing No. 54 - Reply p. 2, 8-10. The plaintiff also argues the other individuals
identified during Pech’s Rule 30(b)(6) deposition may have information relevant to
numerosity of the second class the plaintiff seeks to certify. Id. at 4, 12-15. The plaintiff
reiterates he has been diligent in obtaining discovery. Id. at 6-15.
While the court recognizes a court’s progression order “may be modified only for
good cause and with the judge’s consent,”2 the plaintiff is not seeking a modification of
the court’s progression order. The plaintiff complied with the court’s Order for Initial
Progression of Case by filing the class certification motion on October 1, 2014. A
planning conference is set for November 5, 2014, at which time the court will enter a
final progression order setting case deadlines and this case for trial.

Therefore,

extending the plaintiff’s reply deadline will not delay this case or require an amendment
to a progression order. Instead, the plaintiff is simply seeking an extension to reply to
2

Fed. R. Civ. P. 16(b)(4).
2

the defendants’ opposition to class certification due to discovery issues. The plaintiff
has shown the individuals scheduled to be deposed may have relevant information to
the class certification issue, specifically information on commonality, typicality, and
numerosity. Requiring the plaintiff to reply without adequate discovery would unfairly
prejudice the plaintiff and potentially result in a waste of judicial resources.

The

defendants fail to show they will suffer any unfair prejudice from an extension.
Additionally, the plaintiff has shown he has been diligent in progressing this case and
there is no indication of a dilatory motive. Accordingly,

IT IS ORDERED:
The

plaintiff’s Motion to Extend Deadline for Reply to Motion for Class

Certification (Filing No. 49) is granted. The plaintiff shall have until December 12, 2014,
to file a reply in support of the Amended Motion for Class Certification (Filing No. 41).

Dated this 28th day of October, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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