Pierce et al v. Wyndham Vacation Resorts, Inc. et al

Filing 110

MEMORANDUM AND ORDER: Motion to Ascertain Status on the Court's Ruling Related to Court-Supervised Notice and Opt-In Plaintiff Consent Form 109 is GRANTED. The Motion for Leave to File Surreply 99 is GRANTED and the Motion to Strike Defendants' Supplemental Brief 102 is DENIED. Signed by Magistrate Judge C Clifford Shirley, Jr on 12/4/14. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JESSE PIERCE and MICHAEL PIERCE,
on behalf of themselves and all others
similarly situated,
Plaintiff,
v.
WYNDHAM VACATION RESORTS, INC., and
WYNDHAM VACATION OWNERSHIP, INC.,
Defendants.

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No. 3:13-CV-641-PLR-CCS

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiffs’ Motion to Ascertain Status on the Court’s Ruling
Related to Court-Supervised Notice and Opt-In Plaintiff Consent Form [Doc. 109]. The Court is
mindful of the procedural posture of this case and the chronology of filings is documented in the
record. The entire procedural posture does not bear repeating here. However, as noted by the
Plaintiffs in their motion, the parties filed competing opt-in notices and opt-in forms for this case
in late August 2014. Plaintiffs now state that the Court has allowed three and a half months to
expire without deciding which of the two competing opt-in notices and opt-in forms should be
used.

In their motion, Plaintiffs neglect to state that the briefing on this issue extended until
November 14, 2014, and included:
1. Plaintiffs’ Notice of Filing of Proposed Opt-In Form [Doc. 85], filed August 21,
2014;
2. Defendants’ Notice of Filing of Proposed Opt-In Form [Doc. 89], filed August 26,
2014;
3. Defendants’ Motion to Adopt Defendants’ Version of Notice to the Class and to
Include Opt-In Survey with Court-Supervised Notice to Opt-In Plaintiffs [Doc.
90] and Memorandum in Support [Doc. 91], filed August 26, 2014;
4. Plaintiffs’ Response in Opposition to Defendants’ Motion to Adopt Defendant
Defendants’ Version of Notice to the Class and to Include Opt-In Survey with
Court-Supervised Notice to Opt-In Plaintiffs [Doc. 95], filed September 9, 2014;
5. Defendants’ Reply to Response in Opposition to Defendants’ Motion to Adopt
Defendant Defendants’ Version of Notice to the Class and to Include Opt-In
Survey with Court-Supervised Notice to Opt-In Plaintiffs [Doc. 97], filed
September 16, 2014;
6. Plaintiffs’ Motion for Leave to File Sur-Reply in Opposition to Defendants’
Motion to Adopt Defendants’ Version of the Notice to the Class and to Include
Opt-In Survey with the Court-Supervised Notice to Opt-In Plaintiffs [Doc. 99],
filed September 23, 2014;
7. Defendants’ Response to Motion for Leave to File Sur-Reply in Opposition to
Defendants’ Motion to Adopt Defendants’ Version of the Notice to the Class and

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to Include Opt-In Survey with the Court-Supervised Notice to Opt-In Plaintiffs
[Doc. 100], filed September 24, 2014;
8. Defendants’ Supplemental Brief to Briefing to Support of Defendants’ Notice to
the Putative Class and Questionnaire Pursuant to Local Rule 7.1(d) [Doc. 101],
filed October 14, 2014;
9. Plaintiffs’ Motion to Strike Defendants’ Supplemental Brief to Briefing in
Support of Defendants’ Notice to the Putative Class and Questionnaire Pursuant
to Local Rule 7.1(d) [Doc. 102] and Memorandum in Support [Doc. 103], filed
October 21, 2014;
10. Defendants’ Response to Motion to Strike Defendants’ Supplemental Brief to
Briefing in Support of Defendants’ Notice to the Putative Class and Questionnaire
Pursuant to Local Rule 7.1(d) [Doc. 107], filed November 7, 2014; and
11. Plaintiffs’ Reply Brief in Support of Motion to Strike Defendants’ Supplemental
Brief to Briefing in Support of Defendants’ Notice to the Putative Class and
Questionnaire Pursuant to Local Rule 7.1(d) [Doc. 108], filed November 14,
2014.
All these filings purport to relate to the opt-in form issue that is before the Court. With exhibits,
the parties’ filings on this issue total three-hundred and fifty (350) pages.
Plaintiffs appear to be under the impression that the Court has simply delayed
adjudicating this issue for months. To the contrary, the Court has been waiting for the parties to
conclude their barrage of briefing. Rather than permitting the briefing in this matter to conclude
with a simple motion/memorandum – response – reply sequence, the parties have presented the
Court with sur-replies and what are essentially sur-sur replies. The Plaintiffs, for their part, filed

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not only a sur-reply but also a Motion to Strike Defendants’ Supplement on October 21, 2014,
which extended the briefing well into November. The Court presumes that the parties’ filings
present important information to the Court and that the documents would not be filed if the
request presented – for example, to strike the Defendants’ supplemental briefing – was not
worthy of full briefing and examination by the Court prior to the Court issuing a ruling on the
underlying substantive issue. Moreover, it is worth noting that only ten (10) working days have
elapsed since this briefing concluded.
The Plaintiffs note, and the Court is well-aware, that the statute of limitations period may
be running on some putative plaintiffs’ claims. However, the Plaintiffs themselves state, “At this
time, the parties do not have a tolling agreement in place and Plaintiffs have not moved for, and
the Court has not yet equitably tolled, the limitations period.” [Doc. 109 at 3]. The Court cannot
be expected to render a decision on three hundred and fifty pages of briefing in less than ten
working days, because the Plaintiffs themselves have not moved for relief that may resolve their
perceived conundrum.
Accordingly, and based upon the foregoing, the Court FINDS and ORDERS as follows:
1. Motion to Ascertain Status on the Court’s Ruling Related to Court-Supervised Notice
and Opt-In Plaintiff Consent Form [Doc. 109] is GRANTED. The Court states that the
status of this case is: it appears that the parties (hopefully) concluded their briefing on
the opt-in notices, opt-in forms, and ancillary issues on November 14, 2014, and this
matter is now ripe for adjudication in due course, see E.D. Tenn. L.R. 7.2.
2. The Court finds that both the Plaintiffs and the Defendants far exceeded the parameters
of briefing generally endorsed by the case law of this Circuit, see Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 553 (6th Cir. 2008), and the Local Rules of this District, see E.D.

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Tenn. L.R. 7.1. However, at this juncture the Court finds that the best course is for the
Court to review the parties’ filings and to afford them the weight it deems appropriate in
deciding which opt-in notices and opt-in forms will be used. Accordingly, the Motion
for Leave to File Surreply [Doc. 99] is GRANTED and the Motion to Strike
Defendants’ Supplemental Brief [Doc. 102] is DENIED.
3. If oral arguments will aid the Court in its decision, the Clerk of Court will send notice
setting a hearing. Otherwise, the Court will render a decision on the parties’ filings as
soon as practicable, see E.D. Tenn. L.R. 7.2.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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