Rosales v. Lexington Law Firm

Filing 61

ORDER - The above-captioned action is stayed pending rulings on Rosales' motion to stay, and the Florida parties' motion for approval of a class action settlement in Pena v. John C. Heath, Attorney At Law, PLLC, 1:18- cv-24407-UU ( S.D. FL). The clerk shall mail a courtesy copy of this order to District Judge Ursula Ungaro and Magistrate Judge John J. O'Sullivan, both of whom are judges for the United States District Court for the Southern District of Florida. Ordered by Magistrate Judge Cheryl R. Zwart. (Copies mailed as directed) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EUGENE ROSALES, on behalf of
himself and all others similarly situated;
8:17CV87
Plaintiff,
ORDER

vs.
JOHN C. HEATH, Attorney at Law;
Defendant.

The parties have engaged in ongoing battles over whether Plaintiff
Rosales can represent a class in this forum in light of Rosales’ background as a
client of Defendant,1 and the settlement reached in Pena v. John C. Heath,
Attorney At Law, PLLC, 1:18-cv-24407-UU (S.D. FL). The settlement in Pena is
subject to court approval, with a motion requesting approval filed on May 3, 2019,
and now pending in the Florida forum. (See Pena, Filing No. 24).

Plaintiff Rosales filed a motion in the Florida forum, asking that court to
stay any approval of the Florida settlement pending a resolution the abovecaptioned Nebraska case. (See, Pena, Filing No. 23). In this Nebraska lawsuit,
Defendant opposes entry of a case progression order, asking this court to stay
the Nebraska litigation pending rulings on the motions pending in the Florida
forum. Rosales requests a case progression schedule and class discovery in this
Nebraska case.

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Defendant moved for summary judgment on the issue of whether
Rosales consented to receiving text messages from Defendant, and was
therefore unable to serve as a class representative. Judge Rossiter entered a
ruling in Rosales’ favor on June 27, 2019. (Filing No. 56)

After reviewing the Florida filings on PACER, the arguments briefed in the
Florida forum are the same as those orally argued to the undersigned magistrate
judge. In the Florida case, Rosales has fully briefed his request that the Florida
lawsuit be stayed in favor of proceeding as a class representative in the abovecaptioned Nebraska litigation. Rulings from the briefed and pending motions in
the Florida litigation may resolve the class action issues in this forum, thus
limiting Rosales’ claims to, at most, that of an opt-out Plaintiff.

This court certainly has no better ability than the Florida court to decide the
stay issues raised by Rosales, and if a stay is denied, whether the settlement
presented to the Florida court should be approved. Any decision on the stay
issue in this forum would undermine the goal of avoiding duplicative work by the
court and perhaps inconsistent rulings. And any motion practice and/or case
progression herein may subject the parties to wholly unnecessary litigation work
and expense.

Accordingly,
IT IS ORDERED:
1)
The above-captioned action is stayed pending rulings on Rosales’
motion to stay, and the Florida parties’ motion for approval of a class action
settlement in Pena v. John C. Heath, Attorney At Law, PLLC, 1:18-cv-24407-UU
(S.D. FL).
2)
The clerk shall mail a courtesy copy of this order to District Judge
Ursula Ungaro and Magistrate Judge John J. O'Sullivan, both of whom are
judges for the United States District Court for the Southern District of Florida.
August 6, 2019.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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