CATERPILLAR INC. C13 AND C15 ENGINE PRODUCTS LIABILITY LITIGATION

Filing 271

OPINION. Signed by Judge Jerome B. Simandle on 6/30/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE
In Re: CATERPILLAR, INC., C13
AND C15 ENGINE PRODUCTS
LIABILITY LITIGATION

MDL No. 2540
Master Docket No.
1:14-cv-3722 (JBS-JS)
OPINION

APPEARANCES:
James E. Cecchi, Esq.
Zach S. Bower, Esq.
Lindsey H. Taylor, Esq.
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
-andNatalie Finkelman Bennett, Esq.
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
475 White Horse Pike
Collingswood, NJ 08107
-andLeslie Kroeger, Esq.
Theodore Jon Leopold, Esq.
Douglas J. McNamara, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
-andRichard J. Burke, Esq.
Zachary A. Jacobs, Esq.
QUANTUM LEGAL LLC
513 Central Avenue, Suite 300
Highland Park, IL 60035
Attorneys for Class Plaintiffs

Joseph F. Falgiani, Esq.
James Holsey Keale, Esq.
SEDGWICK LLP
One Newark Center
1085 Raymond Boulevard, 16th Floor
Newark, NJ 07102
-andRobert G. Abrams, Esq.
Darin R. Bartram, Esq.
Robert J. Brookhiser, Jr., Esq.
Gilbert S. Keteltas, Esq.
Jonathan L. Lewis, Esq.
Elliot Morrison, Esq.
BAKER & HOSTETLER LLP
1050 Connecticut Avenue, N.W., Suite 1110
Washington, D.C. 20036
Attorneys for Defendant, Caterpillar, Inc.
Brad K. Howell, Esq. [Pro Hac Vice]
BAKER & HOSTETLER LLP
811 Main Street, Suite 1100
Houston, TX 77002
Attorney for Defendant, Caterpillar, Inc. in Texas Actions
Ryan S. Henry, Esq. [Pro Hac Vice]
THE LAW OFFICES OF RYAN HENRY, PLLC
1380 Pantheon Way
Suite 110
San Antonio, TX 78232
Attorney for Plaintiff Janie A. Aguiar
Paige Nicole Boldt, Esq.
Shalimar Wallis, Esq. [Pro Hac Vice]
WATTS GUERRA LLP
5726 W. Hausman Road
Suite 119
San Antonio, TX 78249
Attorney for Plaintiffs Armatura LLC, Petrochem Transport,
LLC, Chris Wright, and PTI Logistics, Inc., d/b/a Rio
Logistics

2

SIMANDLE, District Judge:
INTRODUCTION
In this consolidated multi-district litigation (“MDL”),
Plaintiffs are initial or subsequent purchasers or lessees of
vehicles with an EPA 2007 Compliant Caterpillar on-highway C13
or C15 engine manufactured in 2006, 2007, 2008, or 2009 (“MY
2007 CAT Engines” or “Subject Engines”) by Defendant
Caterpillar, Inc. (“Caterpillar” or “CAT”). Caterpillar and the
Class reached a class-wide settlement of Plaintiffs’ breach of
express warranty claims and “any claims for relief . . . that
are based on or in any way related” to the allegations that the
Subject Engines are defective, which was approved by this Court
on September 20, 2016. [Docket Item 220.]

Shortly after

entering judgment and closing the case, the Court received
belated motions to opt-out of the class action settlement from
Janie A. Aguiar [Docket Item 223] and Armatura, LLC [Docket Item
225] and a motion by Caterpillar to enforce the Final Approval
Order and Judgment against Armatura. [Docket Item 224.]1 Both Ms.
Aguiar and Armatura are actively litigating cases against
Caterpillar related to the Subject Engines in the Texas state

1

Following oral argument on these and related motions on January
27, 2017, both Ms. Aguiar and Armatura filed emergency motions
for an extension of time to file a claim form. [Docket Items 268
& 269.] Both motions will be dismissed as moot in light of the
current disposition.
3

courts, and both assert in their respective motions that they
never received notice of this action and the opportunity to optout of the settlement until after the deadline by which to optout had passed. For the reasons discussed below, the Court will
not bind these class members to the Settlement Agreement and
will permit both to file late opt-out notices.
BACKGROUND
The Court need not repeat the factual allegations of this
case, which are detailed at length in this Court’s July 29, 2015
Opinion and Order on Caterpillar’s motions to dismiss. See In re
Caterpillar, Inc., C13 and C15 Prods. Liab. Litig., 2015 WL
4591236, at *2-*7 (D.N.J. July 29, 2014). [Docket Items 178 &
179.] For the purposes of these motions, it suffices to note the
following.
The United States Judicial Panel on Multidistrict
Litigation transferred this MDL litigation to the undersigned on
June 11, 2014. [Docket Item 1.] Ultimately, Plaintiffs in the
consolidated actions asserted claims against Caterpillar for
breach of express warranty based on alleged defects in C13 and
C15 engines manufactured by Caterpillar which resulted in
repeated fault warnings, engine failures, and costly repairs.
(See Second Amended Consolidated Class Action Complaint [Docket
Item 212].) After substantial motion practice, discovery, and
extensive negotiations with a mediator, the parties moved for
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certification of a settlement class and preliminary approval of
the class action settlement (“the Settlement”) [Docket Item 211,
Docket Item 211-3], which was preliminarily approved by this
Court on April 11, 2016 with a final approval hearing set for
September 20, 2016. [Docket Item 217.] As is relevant to these
motions, the Court approved the form and content of the parties’
proposed Class Notice, and the designation of Epiq Systems Class
Action and Claims Solutions to serve as the Court-appointed
Settlement Administrator to supervise the notice procedure, the
processing of claims, and other administrative functions. (Id.
at 6.) Notice was to be disseminated by direct mail,
publication, internet publication and radio spots. (Id. at 7;
see also Settlement [Docket Item 311-3] at 20-21.) Class members
were given until August 6, 2016, or 45 days before the final
approval hearing, to send a signed request to the Settlement
Administrator for exclusion from the Settlement. (Preliminary
Approval Order at 7-8.)
By the time this Court held the final approval hearing on
September 20, 2016, no objections to the proposed Settlement,
the award of attorney’s fees and expenses, and incentive awards
for the named Plaintiffs had been received, and only two class
members had filed notice to opt out of the Settlement. (Final
Approval Order and Judgment at 2 [Docket Item 220]; Order
Regarding Opt-Outs [Docket Item 221].) The Court approved the
5

Settlement and found that the proposed reimbursement plan was
fair, reasonable and adequate and that the notice provided to
class members was “the best notice practicable under the
circumstances” and satisfied the requirements of Rule 23 and due
process. (Final Approval Order and Judgment at 3-4.) In
particular, at the final approval hearing, the undersigned noted
that “this is a very strong settlement” offering class members
“meaningful financial relief,” and that “the notice to class
members was extremely thoroughgoing. As I sit here today, I
can’t think of anything else that could have or should have been
done to raise the figure to 100 percent of the class, that’s
about as near as it can ever get.” (Transcript of September 20,
2016 Hearing at 47:9-23 [Exhibit D to Certification of James
Keale, Docket Item 235-5].) The Final Approval Order and
Judgment, signed that same day, incorporated in its entirety the
Settlement, including a provision explicitly enjoining any class
member “from prosecution of any and all claims . . . that have
been, could have been, or in the future can or might be asserted
in any court, tribunal or proceeding . . . in connection with
the acts, events, facts, matters, transactions, occurrences,
statements, representations, misrepresentations, omissions, or
any other matter whatsoever set forth or otherwise related to
the claims asserted or those that could have been asserted in

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this Action regarding the Subject Engines . . . .” (Settlement
at 27-29.)
At the final approval hearing, class counsel brought to the
Court’s attention a letter they had received from a class member
in Texas, Janie A. Aguiar, who claimed not to have received
notice of this MDL until after the deadline to opt-out of the
settlement and who wished to continue prosecuting her own,
trial-ready, case against Caterpillar over two Subject Engines
in the Texas state courts. The Court noted on the record that
decision on a motion for relief from the Judgment would be
reserved unless and until Ms. Aguiar herself requested relief
from the Court. (See Transcript at 4-11.) Ms. Aguiar’s motion to
opt out of the class action settlement [Docket Item 223]
followed a month later on October 21, 2016. Regarding a second
party, the Court also received cross-motions for leave to optout of and to enforce the final approval order by Armatura, LLC,
another Texas class member pursuing its own case over Subject
Engines, and Caterpillar, respectively. [Docket Items 224 &
225.]2 These motions are now fully briefed. The Court heard oral

2

Shortly thereafter, Caterpillar also filed a motion to enforce
the final approval order and judgment and for a permanent
injunction against Red Watson Logging, Inc. [Docket Item 226],
another Texas class member, and two motions to intervene were
filed by Rush Truck Centers of Texas, L.P., and T.W. Hedfelt,
for the purposes of joining Caterpillar’s motion to enforce the
final approval order against Armatura. [Docket Items 228 & 232.]
The Court granted those motions after the January 27 argument
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argument on these and related motions on January 27, 2017,
including participation by Texas counsel for Ms. Aguiar,
Armatura and Caterpillar, respectively, and now finds as
follows.
STANDARD OF REVIEW
Rule 60(b), Fed. R. Civ. P., provides, in pertinent part,
that “the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise or excusable neglect.” “The general
purpose of Rule 60(b) . . . is to strike a proper balance
between the conflicting principles that litigation must be
brought to an end and that justice must be done.” Boughner v.
Sec’y of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir.
1978) (quoted in Coltec Indus., Inc. v. Hobgood, 280 F.3d 262,
271 (3d Cir. 2002)). Relief under 60(b) is available only under
such circumstances that the “overriding interest in the finality
and repose of judgments may properly be overcome . . . The
remedy provided is extraordinary, and [only] special
circumstances may justify granting relief under it.” Tischio v.
Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998). The
application of this rule to the present motions by class members

and reserved decision on the motions regarding Ms. Aguiar and
Armatura. [Docket Item 266.]
8

to be relieved from the final approved settlement and judgment
is discussed below.
DISCUSSION
The primary argument advanced by both Ms. Aguiar and
Armatura is that neither the parties nor their counsel received
individual notice of this suit until after the deadline to opt
out of the Settlement had passed, despite the fact that both
were engaged in active litigation with Caterpillar in the Texas
state courts. (See Aguiar Motion [Docket Item 223] at 2-3,
Armatura Motion [Docket Item 225] at 9.) In both cases,
Plaintiffs argue that they should be permitted to opt out of the
Settlement after the deadline because Caterpillar was reasonably
aware of their claims, identity, and contact information, yet
failed to assure that they received notice even while defending
their lawsuits. Caterpillar takes the position that neither
constitutional due process nor Rule 23 require that class
members receive actual notice of a class settlement, and that
neither Ms. Aguiar nor Armatura can show excusable neglect.
The principal questions to be decided are (1) whether the
court-approved notice to the class complied with the demands of
the Constitution and Rule 23, and (2) whether under the
circumstances of class members in active litigation, the class
members have demonstrated excusable neglect entitling them to
file a late opt-out notice. For the following reasons, the Court
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finds that the class notice was adequate under the Constitution,
but that these parties have demonstrated good cause to recognize
their continuation of litigation during the opt-out period as a
de facto opting out for which fairness requires permitting the
filing of a formal opt-out notice.
Because a class action certified under Rule 23(b)(3), like
the settlement class here, binds the rights of all members
unless they expressly opt out, Rule 23 requires that “the court
must direct to class members the best notice that is practicable
under the circumstances, including individual notice to all
members who can be identified through reasonable effort.” Fed.
R. Civ. P. 23(c)(3). This does not mean that actual, individual
notice to class members is always necessary. Rather, all that
due process requires is that notice “must be such as is
reasonably calculated to reach interested parties” and “apprise
[them] of the pendency of the action.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314, 318 (1950). The
adequacy of notice hinges on whether the class as a whole
received constitutionally-sufficient notice, not whether every
class member received actual notice of the action and proposed
settlement. See United States v. One Toshiba Color Television,
213 F.3d 147, 150 (3d Cir. 2000) (en banc) (“Moreover, the
Supreme Court has never required the demonstration of actual
notice. At all events, the jurisprudence of constitutional
10

notice appropriately focuses not on what actually occurred, but
rather on the procedures that were in place when notice was
attempted.”); In re Diet Drugs
(Phentermine/Fenfluramine/Dexfenfluramine) Products Liability
Litig., 89 Fed. Appx. 314, 316 (3d Cir. 2003) (“The Supreme
Court has made clear that it has not ‘required actual notice,’
and stated that the appropriate inquiry involves the
‘reasonableness and hence the constitutional validity of any
chosen method.’”); In re Prudential Ins. Co. of America Sales
Practices Litig., 177 F.R.D. 216, 233 (D.N.J. 1997) (noting that
Supreme Court holdings on notice in class actions require “that
the method of dissemination of class notice must include
individual notice rather that require receipt of individual
notice.”) (emphasis in original); In re Prudential Securities
Inc. Ltd. Partnerships Litig., 164 F.R.D. 362, 368 (S.D.N.Y.
1996), aff’d, 107 F.3d 3 (2d Cir. 1996) (“It is widely
recognized that for the due process standard to be met it is not
necessary that every class member receive actual notice, so long
as class counsel acted reasonably in selecting means likely to
inform persons affected.”); In re VMS Ltd. Partnership
Securities Litig., Case No. 90-C-2412, 1995 WL 355722, at *2
(N.D. Ill. June 12, 1995) (“The proper inquiry in cases
challenging notice is whether the party providing notice acted

11

reasonably in selecting the means likely to inform persons
affected, not whether each person actually received notice.”).
The fact that two class members apparently did not receive
individual notice packets from the Settlement Administrator in
this case does not change this Court’s determination that the
notice program on the whole constituted the best notice
practicable under the circumstances, and satisfied the
requirements of Rule 23 and due process. As set forth in the
Declaration of Cameron R. Azari in support of the parties’
motion for final approval of the class settlement [Docket Item
218-3], the Settlement Administrator prepared individual notice
to mail to class members based on data provided by the parties,
derived from the warranties on the Subject Engines. This notice
was supplemented with notices placed in trucking and motor coach
publications, spots aired during a radio program targeted to
professional truck drivers, sponsored search listings on three
internet search engines, a press release, a neutral settlement
website, an automatic toll-free telephone system, and postal
mailing and e-mail addresses. (See Azari Decl. at 4-8.) Such a
plan was “within the limits of practicability,” Mullane, 339
U.S. at 314, using the warranty database as the source for
individual notice. There is authority that due process and Rule
23 do not require “that counsel of class members pursuing
individual actions are entitled to notice of the opt out
12

deadline.” In re Prudential Sales Practices Litig., 177 F.R.D.
at 240, aff’d on other grounds, 148 F.3d 283 (3d Cir. 1998).
Thus, lack of individual notice of the proposed class settlement
to counsel for potential class members who are already in
individual litigation does not preclude a finding that the
overall notice scheme was reasonable and comported with due
process. But such lack of individual notice may be a factor to
consider when determining whether that potential class member
shows excusable neglect in a motion to belatedly opt out of the
settlement class and final judgment, as now discussed.
A class member may still be relieved of a binding class
settlement under certain circumstances. “The District Court
retains the ‘ultimate responsibility’ for the protection of
class members” even after a class settlement is finalized, and
exercises equitable power over the disposition of the settlement
– including extending deadlines by which a class member must opt
in or out of a settlement - in order to implement the settlement
fairly. In re Cendant Corp. Prides Litig., 233 F.3d 188, 194-95
(3d Cir. 2000). Courts in the Third Circuit analyze “late claims
in class actions under the rubric of whether the claimant has
shown excusable neglect,” and look to four factors in that
equitable inquiry: “(1) the danger of prejudice to the
nonmovant; (2) the length of the delay and its potential effect
on judicial proceedings; (3) the reason for the delay, including
13

whether it was within the reasonable control of the movant; and
(4) whether the movant acted in good faith.” In re Orthopedic
Bone Screw Prods. Liab. Litig., 246 F.3d 315, 321-323 (3d Cir.
2001). The Court applies this four-pronged equitable test to
each of these movants, Janie A. Aguiar and the Armatura Parties.
A. Janie A. Aguiar
It is undisputed that Ms. Aguiar is a member of the
settlement class, and that the products liability claims in her
state court action are covered under the terms of the
Settlement. Ms. Aguiar contends principally that she never
received notice of the Settlement because her business, Nevada
Trucking, has closed, and because the mailing address at which
she receives personal and business mail has changed. Ms. Aguiar
also urges this Court to find that Caterpillar acted inequitably
because it continued to litigate the Texas action, encaptioned
Janie A. Aguiar d/b/a Nevada Trucking v. Caterpillar, Inc., Rush
Truck Centers of Texas, Inc., and PACCAR, Inc. d/b/a Peterbilt
Motor Company, Cause No. 2012-CI-11367 (45th Judicial District
Court of Bexar County, Texas), after the deadline to opt-out had
passed, and Caterpillar’s counsel in Texas never mentioned the
pendency of the proposed class action settlement that would end
their case if she did not opt out.
Ms. Aguiar’s argument about her mailing address is
unavailing: despite the fact that the city of San Antonio
14

changed the name of her street from Old Highway 90 West to West
Enrique M. Barrera Parkway, her physical address – where she
both resides and used to conduct Nevada Trucking’s business
affairs – has remained the same since she purchased Subject
Engines, and she receives mail sent to the attention of both
addresses at that location. (See Plaintiff’s Supplement to
Motion for Leave to Opt Out of Class Action Settlement at ¶¶ 25.) In any event, it is undisputed that the claims packet in
this case was sent to the current Enrique M. Barrera Parkway
address. (Claim Form [Exhibit B to Certification of James Keale,
Docket Item 235-3].) Caterpillar did not, as Ms. Aguiar
contends, “have actual information about the reliability of
information for a specific class member at a specific address
and choose to ignore it.” (Pl. Supp. at ¶ 9.) Moreover, Ms.
Aguiar’s counsel conceded at the January 27 argument that his
client “knew of” this class action, but thought that she had
already opted out. Thus, her attorney mistakenly assumed Ms.
Aguiar had opted out of the settlement when she had not. On the
whole, Ms. Aguiar is unable to substantiate her claim that she
should be relieved of the opt-out deadline because she was
wholly unaware of this case.
On the other hand, Ms. Aguiar’s counsel learned of the
miscommunication and wrote to class counsel promptly, prior to
the final approval hearing in September, 2016. As noted, Ms.
15

Aguiar’s desire to opt out late was known at that time and her
rights to present a motion were preserved as the Court approved
the class settlement.
Moreover, Ms. Aguiar was prosecuting litigation in Texas of
several years’ duration which was approaching trial. (Aguiar
Motion at ¶ 2.) Caterpillar continued to defend in Texas
throughout the opt-out period, making the assumption that Ms.
Aguiar must have opted out of this class settlement. Thus,
Caterpillar’s legal team suspected that Ms. Aguiar was opting
out and that her case would survive the class settlement. It was
clear that Ms. Aguiar and her attorney also wished to opt out,
but her attorney incorrectly assumed she was filing the opt-out
form. Caterpillar’s counsel clarified at the oral argument that
Caterpillar did not learn which specific class members, if any,
had opted out until the Settlement Administrator advised all
counsel after the opt-out deadline passed. Of course,
Caterpillar’s counsel in Texas could have clarified the
situation by simply timely asking the question of opposing
counsel in the contested litigation: “Is your client accepting
the class settlement?”
On balance, Ms. Aguiar has shown excusable neglect under
the Orthopedic Bone Screw factors, supra. The danger of
prejudice to Caterpillar is slight; Caterpillar thought it would
still have to defend Ms. Aguiar’s case and now it shall. Ms.
16

Aguiar acted promptly on realizing her confusion or mistake in
not filing the opt-out notice. The reason is understandable as
Ms. Aguiar focused on prosecuting her case and Caterpillar’s
counsel was silent about the settlement process. Ms. Aguiar
acted in good faith in the sense that she did not willfully miss
the opt-out deadline and her attorney pursued litigation against
Caterpillar in conformity with opting out. Further, this
extension was brought to the Court’s attention before final
class certification and settlement approval were granted, and
Ms. Aguiar’s motion followed shortly thereafter.
The Court, in summary, is persuaded that Ms. Aguiar made a
legitimate mistake, intending to opt-out while pursuing her
individual case instead, and she has met her burden of showing
excusable neglect. Her motion for leave to file a late opt-out
statement will be granted.3
B. Armatura
Armatura LLC, Petrochem Transport, LLC, Chris Wright, and
PTI Logistics, Inc., d/b/a Rio Logistics (collectively,
“Armatura”)’s Texas suit against Caterpillar and Rush Truck
Centers of Texas, L.P. d/b/a Rush Truck Center-Pharr and T.W.
Hedfelt (collectively, “Rush”) sounds generally in consumer and

3

Accordingly, Ms. Aguiar’s emergency motion for an extension of
time to file a claim form [Docket Item 269] will be dismissed as
moot.
17

common law fraud, arising from alleged misrepresentations made
by Rush and its employees made about Subject Engines known to be
defective. The Texas suit is encaptioned Armatura, LLC Petrochem
Transport LLC, Chris Wright, and PTI Logistics, Inc. d/b/a Rio
Logistics v. Rush Truck Centers of Texas, L.P. d/b/a Rush Truck
Center – Pharr, T.W. Hedfelt, and Caterpillar, Inc., Cause No.
2014-DCL-06908 (404th Judicial District Court of Cameron County,
Texas). Armatura claims that it did not learn of this class
action until September 7, 2016, shortly after the deadline by
which to opt out of the Settlement had passed. Armatura raises
three arguments in support of its motion for leave to opt out of
the class action settlement: first, that it would be a violation
of its right to due process to bind it to a class action
settlement without adequate notice; second, that the claims in
the Texas action are not covered by the Settlement here; and
third, that it can demonstrate excusable neglect.
As discussed above, Armatura’s position that it was
entitled to actual notice because it was engaged in a separate
litigation with Caterpillar is without merit. Caterpillar
discharged its duty under Rule 23 and the Constitution to
disseminate individual notice to “class members whose names and
addresses may be ascertained through reasonable effort,” Eisen
v. Carlisle and Jacqueline, 417 U.S. 156, 173 (1974), by
providing the Settlement Administrator with contact information
18

from Subject Engine warranties. The Third Circuit instructs this
court to “focus[] not on what actually occurred, but rather on
the procedures that were in place when notice was attempted.”
One Toshiba Color Television, 213 F.3d at 150. That some class
members, like Armatura, chose not to purchase warranties for
their Subject Engines and missed out on direct-mailed notices
does not change that this was a reasonable effort, under the
circumstances, to locate and notify all class members. In fact,
as Armatura notes in its papers, the original owners of their
Subject Engines held warranties for their trucks and received
notice in this action, further bolstering the notion that the
notice program attempted to reach all class members within the
bounds of the program agreed to by class counsel and approved by
this Court.
While the notice protocol exceeded the constitutional and
Rule 23 minima, there are good grounds for finding excusable
neglect. First, Armatura’s counsel, while aware of the potential
class action litigation at its early stage in 2013, was unaware
of the proposed class settlement until September 7, 2016, a few
weeks after the opt-out deadline passed. Armatura continued to
pursue its case in Texas throughout the opt-out period unaware
and uninformed by Caterpillar’s counsel of the approaching
deadline where failure to opt out would end that case. Even if
Caterpillar counsel had no duty to inform Armatura of the class
19

settlement deadline, it is not fair to foreclose a party with no
actual notice of the settlement process, who continued to
litigate and learns of the opt-out deadline too late, to have no
relief. By litigating throughout the opt-out period, Armatura
essentially opted out, as was its intent when belatedly informed
of the opportunity.
Although the notice protocol approved by this Court did not
require specific notice to plaintiffs pursuing individual cases,
that does not foreclose Armatura from proving excusable neglect.
The equities again balance in favor of granting this relief
under the Orthopedic Bone Screw test. The prejudice to
Caterpillar, that it must defend litigation that it was
defending anyway, is not undue; its own counsel in Texas could
have asked for clarification since he knew of the opt-out
deadline. Likewise, there is no prejudice to Intervenors Rush
and T.W. Hedfelt, who expected until Armatura’s motion that they
would have to defend Armatura’s Texas suit and who contributed
nothing to the settlement fund in this case. The delay was short
before Armatura filed this motion, as the claims process was
just getting underway and permitting this opt-out does not
interfere with that process. The actual reason for the delay was
lack of notice of the settlement, since Armatura was not an
original owner and had no warranty. Lastly, Armatura has
displayed good faith and the intention to individually litigate
20

its trial-ready claims against Caterpillar, Rush, and T.W.
Hedfelt, with no indication of inequitable conduct on its part.
Therefore, its motion will be granted, and Caterpillar’s
motion to enforce judgment against Armatura will be denied.4
CONCLUSION
In light of the foregoing, the Court concludes that both
Texas Plaintiffs shall be permitted to file late opt-out notices
and will not be bound by the Settlement Agreement because they
have shown excusable neglect in missing the existing deadline.
An accompanying Order will be entered.

June 30, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

4

And, accordingly, Armatura’s emergency motion for an extension
of time to file a claim form [Docket Item 268] will be dismissed
as moot.
21