Huang v. EZCORP, Inc. et al

Filing 102

ORDER GRANTING Plaintiff's Motion for Leave to File Third Amended Class Action Complaint 84 ; ORDER that Defendants shall have until August 3, 2018 to file an amended answer, if necessary. ORDER DISMISSING 77 Motion to Certify Class without prejudice; ORDER that Plaintiff shall have until August 31, 2018 to file an amended motion for class certification. ORDER GRANTING Plaintiff's Motions for Leave to File Under Seal 91 , 98 and Defendant's Motion to file under seal 88 . Signed by Judge Sam Sparks. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JOHN ROONEY, Individually and on
Behalf of All Others Similarly Situated,

2818 JUL.

2

p/kI

4:

28

CAUSE NO.:
A-15-CA-00608-SS

Plaintiff,1

-vs-

EZCORP, INC. and MARK E.
KUCHENRITHER,
Defendants.
[I) 1 p ai i

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Plaintiff John Rooney's Motion to File Third Amended Class Action Complaint
[#84], Defendants EZCORP, Inc. (EZCORP) and Mark Kuchenrither (collectively, Defendants)'

Response [#88-1] in opposition, and Plaintiffs Reply [#91-1] in

support.2

Having reviewed the

documents, the arguments of the parties at the hearing, the governing law, and the file as a
whole, the Court now enters the following opinion and orders.
Background3

This is a securities fraud class action brought on behalf of all persons who purchased
Class A common

stock4

of Defendant EZCORPa company which provides "instant cash"

Wu Winfred Huang has been removed from the case caption as he is no longer a plaintiff in this case.
Order of Dec. 21, 2017 [#75].

The Court GRANTS Plaintiff's motions to file under seal [#91, #98] as well as Defendants' motion to file
under seal [#88].
2

The following is taken from the allegations in Plaintiff's Second Amended Complaint [#47] except as
otherwise indicated.

"EZCORP has two classes of conwnon stock, Class A Non-Voting Common Stock, which is publicly
traded on the NASDAQ, and Class B Voting Stock, all of which is beneficially owned by Phillip E. Cohen. Second
Am. Compl. [#47] ¶ 33.
1

I

services like payday loans and pawn

loansbetween November 7, 2013 and October 20, 2015

(the Class Period). Lead Plaintiff John Rooney, on behalf of the plaintiff class, alleges that

during the Class Period, Defendant Mark Kuchenrither, EZCORP's CFO, CEO, and the only

individual defendant,5 made material misrepresentations to shareholders in violation of § § 10(b)
and 20(a) of the Securities Exchange Act of 1934 and SEC Rule lOb-S. Though this order

assumes familiarity with Plaintiffs allegations,

see

Order of May 8, 2017 [#54], the Court

briefly recounts the facts pertinent to this motion.
I.

Alleged Accounting Failures
Between January 2012 and June 2014, EZCORP acquired a 94 percent ownership interest

in Grupo Finmart. Grupo Finrnart is a Mexican company which issues small consumer loans to

Mexican governmental employees. The loans issued by Grupo Finmart are backed by payroll
withholding agreements ("convenios") with Mexican employers, and under these agreements,

interest and principal payments are collected by the employers through payroll deductions and
then remitted to Grupo Finmart. Plaintiff alleges that throughout the Class Period, EZCORP's

lack of internal controls over financial reporting gave rise to two primary accounting errors in
connection with Grupo Finmart's loans.
First, Plaintiff alleges EZCORP failed to properly account for Grupo Finmart' s non-

performing payroll loans (Non-Performing Loans). Non-Performing Loans are "loans that were
being carried as active loans but with respect to which Grupo Finmart was not currently
receiving payments." Second Am. Compl. [#47] ¶ 99. Further, there are two types of NonKuchenrither has served in several executive positions for EZCORP from the time he was hired as Senior
Vice President, Strategic Development in March 2010. Second. Am. Compl. [#47] ¶ 34. In October 2012,
Kuchenrither assumed the role of CFO, and served as EZCORP's CFO until May 26, 2015. Id. ¶T 34, 149.
Kuchenrither also served as EZCORP's CEO from July 18, 2014, to February 1, 2015, and as a director from August
12, 2014, to February 3, 2015. Id. ¶ 34. Moreover, Kuchenrither was appointed as a member of both EZCORP's and
Grupo Finmart's Board of Directors during the Class Period. Id. ¶ 5.

Performing Loans: in-payroll loans and out-of-payroll loans. Out-of-payroll loans are
outstanding loans from customers who are no longer employed. "Under Grupo Finmart's historic
accounting policy," "[i]f one payment of an out-of-payroll loan is delinquent, that one payment is
considered in default; if two or more payments are delinquent at any time, the entire loan is
considered in default." Id. Upon default of an out-of-payroll loan, EZCORP ceased accruing
future interest revenue. Id. However, "[d]ue to the likelihood of ultimately receiving payment if

the customer remains employed, [Grupo Finmart] continue[d] to accrue interest on all in-payroll
loans, even though Grupo Finmart may not be currently receiving payments." Id. In its corrective
disclosures, EZCORP determined Grupo Finmart's Non-Performing Loans included a number of

out-of-payroll loans that had not been properly classified as such, and some in-payroll loans that
had been in non-performing status for some time. Id. By failing to properly account for the Non-

Performing Loans, Plaintiff argues, EZCORP was able "to artificially maintain its ratio of bad

debt expense to consumer loan fees and interest

a measure of health of the underlying loan

portfolio." Id. ¶ 108.
Second, Plaintiff contends EZCORP failed to properly account for the sale of Grupo

Finmart loans (Loan Sales). Between 2014 and

2015,

EZCORP executed five separate sales of

Grupo Finmart loans. Under the terms of the Loan Sales, third-party purchasers retained a right
to return non-performing loans to EZCORP. And because the loan sales were conditional on the

performance of the loans, generally accepted accounting principles (GAAP) prohibited EZCORP
from recognizing any revenue from these loan sales. EZCORP disregarded this prohibition and

recognized tens of millions of dollars in gains on the sales. Plaintiff claims the improper
accounting for the sale of the loans had the effect of artificially boosting EZCORP's reported

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income in the 2014 fiscal year by 45% and its reported income during the first quarter of 2015 by
32%.

IL

Alleged False and Misleading Misstatements
The statements Plaintiff identifies as misleading are taken from EZCORP's press

releases, conference calls, and SEC forms disclosing EZCORP's financial results during the
Class Period. These statements deal with EZCORP's financial results during the fourth quarter of
2013 (4Q13), the 2014 fiscal year (FY2014), and the first quarter of 2015 (1Q15). In general, the

statements fall into two categories (1) statements relating to the overstatement of EZCORP's
financial results, as a result of EZCORP's failure to properly account for the Loan Sales and
Non-Performing Loans, and (2) statements relating to the nature of the Loan Sales. According to
Plaintiff, Kuchenrither knew all of the statements described above were materially false and
misleading at the time they were made.
Eventually, Defendants issued a series of corrective disclosures between April 2015 and

November 2015. For example, on April 30, 2015, EZCORP announced the release of its 2Q15
financial results would be delayed "due to an ongoing review of certain elements of its Grupo

Finmart loan portfolio, which is not yet completed." Id. ¶ 96. In that same press release,
EZCORP further stated it "did not undertake any asset sales in Grupo Finmart this quarter" and
"noted some differences in the performance of parts of our Grupo Finmart loan portfolio that
prompted a more thorough review and analysis of our loan reserves[.]"Jd. ¶ 96. Following this
announcement, EZCORP's stock fell $0.79 per share to close at $8.41 per share on May 1, 2015.
Id. ¶ 97. Further corrective disclosures also coincided with declines in the value of EZCORP's

stock.

ru

On November 9, 2015, EZCORP filed its restated financials from 2Q12 through 1Q15.

The Restatement revealed, among other things, EZCORP' s operating income was overstated by
$90.7 million, or 27.3%, during the restated periods, and its earnings per share were overstated

by $0.78, or 36.8%, during the restated periods. Following the filing of its restated financial
results, EZCORP's stock declined $0.29 per share to close at $6.51 per share on November 9,
2015.

III.

Procedural History
Plaintiff filed this lawsuit on July 20, 2015, alleging Defendants false and misleading

statements caused EZCORP 's stock to trade at artificially inflated prices and Plaintiff suffered
financial losses as a result of EZCORP's restated financial reports.

See

Compl. [#1]. The Court

granted Defendants' first motion to dismiss, concluding Plaintiff failed to plead facts

demonstrating a strong inference that Kuchenrither possessed the requisite scienter when the
statements were made. Order of Oct. 18, 2016 [#44] at 1, 14-24. The Court's dismissal was
without prejudice, and Plaintiff filed his second amended complaint on November 4, 2016.

See

Second Am. Compl. [#47].
In the second amended complaint, Plaintiff again alleged Defendants violated federal

securities law by making false and misleading statements designed to artificially inflate the price

of EZCORP's stock. Id. ¶ 157. And again, Defendants moved to dismiss. Second Mot. Dismiss
[#50]. This time, the Court found Plaintiff had adequately pled facts giving rise to a strong

inference of scienter as to the Loan Sale statements, but not as to the Non-Performing Loan
statements. Order of May 8, 2017 [#54] at 25.

Discovery proceeded on Plaintiffs surviving claims. During the course of discovery,

Plaintiff uncovered documents allegedly bolstering Plaintiffs allegations of scienter as to

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misstatements made about the Non-Performing Loans. Plaintiff now seeks to file a third
amended complaint containing new allegations based on these documents. Motion Leave [#84-1]
at 5-6. Because the deadline for the filing of amended pleadings has passed, Plaintiff also seeks

leave to amend the scheduling order. Id. at 8-9.

Analysis
Defendants argue the Court should deny Plaintiffs motion because the Private Securities

Litigation Reform Act (PSLRA) bars the use of discovery materials to revive previously
dismissed claims. Resp. [#88-1] at 10-12. Defendants also argue the Court should deny

Plaintiff's motion because Plaintiff cannot demonstrate good cause to amend the scheduling
order under Rule 16(b) and because there is substantial reason to deny leave to amend under
Rule 1 5(a)(2). Id. at 18-21. The Court addresses each argument in turn.

I.

PSLRA
Defendants first argue the PSLRA bars Plaintiff from using information uncovered

during discovery to revive previously dismissed claims. Resp. [#88-1] at 10-11.
This argument fails. Defendants have not pointed to any provision of the PSLRA barring
the amendment sought by Plaintiff. Instead, Defendants allude to a single provision of the
PSLRA providing discovery must be stayed during the pendency of any motion to dismiss. That

provision, 15 U.S.C.

§

78u-4(b)(3)(B), provides that "all discovery and other proceedings shall

be stayed during the pendency of any motion to dismiss." Yet no discovery stay is at issue here,
and neither party disputes Plaintiff was entitled to discovery on his claims surviving Defendants'

previous motion to dismiss. Because there is no discovery stay, the discovery stay provision is
inapplicable. And Defendants have not identified any other statutory basis for concluding the

PSLRA bars the amendment.

In lieu of statutory support, Defendants argue allowing amendment here will frustrate the

purposes of the discovery stay provision. Resp. [#88-1] at 10-11. The Court disagrees. The

purpose of the PSLRA is "to prevent unnecessary imposition of discovery costs on defendants,'
not to preclude parties from using legitimately obtained discovery to refine their case." In re
Silver Wheaton Corp. Sec. Litig., Nos. 2:15cv-5146, 2:15cv-5173, 2018 WL 1517130, at *5
(C.D. Cal. Mar. 26, 2018) (quoting Petrie

2014));

cf

v.

Elec. Game Card, Inc., 761 F.3d 959, 970 (9th Cir.

WPP Luxembourg Gamma Three Sari

v.

Spot Runner, Inc., 655 F.3d 1039, 1059 (9th

Cir. 2011) (suggesting courts' ability to revive previously dismissed claims on the basis of newly

discovered information should "temper{] the heightened pleading standards of the PSLRA"); In

re Allstate Life Ins. Co. Litig., Nos. CV-09-8162, CV-09-8174, 2012 WL 176497, at *6 (D.
Ariz. Jan. 23, 2012) ("[N]o court within the Ninth Circuit has held that amendments in PSLRA
cases are necessarily barred once discovery commences."). In any event, Defendants' appeal to

the purposes of the PSLRA is futile because Defendants have failed to identify any ambiguity or

inconsistency in the statutory scheme. Thus, the Court's inquiry begins and ends with the
statutory text of the discovery stay provision. See Robinson

v.

Shell Oil Co., 519 U.S. 337, 340

(1997) ("Our inquiry must cease if the statutory language is unambiguous and the statutory

scheme is coherent and consistent." (internal quotation marks and citations omitted)).

II.

Scheduling Order Modification
Defendants next argue Plaintiff cannot amend his complaint because the deadline for

amended pleadings has passed and Plaintiff cannot show good cause to modify the scheduling
order. Resp. [#88-1] at 18-20.

"Rule 16(b) governs amendment of pleadings after a scheduling order deadline has

expired." S&W Enters., LLC

v.

Southtrust Bank of Ala., NA., 315 F.3d 533 (5th Cir. 2003).

7

Thus, where the scheduling order precludes the filing of an amended pleading, the movant must

first demonstrate good cause for modification of the order.

FED. R. Civ. P.

16(b)(4). Only then

may the court consider whether leave to amend should be granted or withheld under the more
liberal pleading standard of Rule 15(a)(2).

See FED.

R.

CIV. P.

15(a)(2) ("The court should freely

give leave when justice so requires.")

The Fifth Circuit considers four factors in determining whether good cause exists to

modify a scheduling order: (1) the explanation for the failure to timely move for leave to amend;
(2) the importance of the amendment; (3) the potential prejudice to the nonmoving party; and (4)

the availability of a continuance to cure prejudice. S& W Enters., 315 F.3d at 536. Consideration

of these four factors demonstrates good cause exists here.
First, Plaintiff has provided an adequate explanation of his delay in moving to amend.

Plaintiff did not receive the documents in question until February 8, 2018, less than three weeks
before the deadline for filing amended pleadings. Mot. Leave ji#84- 1] at 12; Scheduling Order
[#61] at

1.

Then, prior to filing the motion for leave to amend, Plaintiff received an additional

21,000 pages of documents from Defendants on March 9, 2018. Mot. Leave [#91-1] at 7. Rather

than submit an amended complaint based on incomplete information, Plaintiff reviewed this
second document production as well before eventually filing his motion for leave to amend on

April 20, 2018. Id. By waiting until he received the remainder of Defendants' discovery, Plaintiff

reduced the likelihood he might need to file yet another motion for leave to amend in order to
incorporate information uncovered in the later document production. This strikes the Court as a

reasonable effort to avoid submitting duplicative and unnecessary filings and, on the whole, the
Court concludes Plaintiff did not unduly delay in moving for leave to amend.

[,]

Second, Plaintiff's proposed amendment is quite important. The Court's prior motion to

dismiss found Plaintiff had not pled sufficient facts to demonstrate scienter in connection with
the misstatements made about the Non-Performing Loans. Order of May 8, 2017 [#54] at 25.

Plaintiff now seeks to amend his claims to add additional facts showing scienter, and these facts
may mean the difference between viability and failure for Plaintiff's previously dismissed
claims. Mot. Leave [#84-1] at 5-6.

Third, the proposed amendments are not so prejudicial as to justify denying Plaintiff
leave to amend. Defendants argue the amendments are prejudicial because they will protract this

litigation and increase Defendants' costs. Resp. [#88-1] at 8-9. Yet the Court concludes these
effects will be minimal. Plaintiff filed his motion seeking to revive his dismissed claims less than
two months after the deadline for the filing of amended pleadings, and this case does not go to
trial until June 2019. Scheduling Order [#61] at 3. Further, Plaintiff's amended complaint does
not seek to add any new parties or

claimsit seeks

only to revive a claim which Defendants

previously moved to dismiss and with which Defendants are intimately familiar. As a result, the
Court anticipates that the parties will be able to adapt their pleadings and arguments to take into

account Plaintiff's revived claim with relative ease.
Fourth, the Court retains the ability to issue a continuance if necessary. The Court does
not believe a continuance is needed at this time but will entertain future requests from the parties.
In sum, the Court finds good cause exists to modify the scheduling order to allow

Plaintiff to file his amended complaint.

III.

Leave to Amend
As an initial matter, Defendants contend Plaintiff's motion to amend must meet the

standard for reconsideration set out in Rule 54(b) because, according to Defendants, the Court

previously dismissed Plaintiff's Non-Performing Loan claims with prejudice. Resp. [#88-1] at 89. But the Court's prior dismissal
8, 2017 [#54] at

of Plaintiff's claims was not with prejudice. See Order of May

24-25. Indeed, the Court's order made no mention of prejudice, nor did it give

any other indication it intended its dismissal to be with

prejudice.6

Thus, Rule 54(b) does not

apply.

Plaintiff's motion for leave to amend is correctly considered under Rule 15(a)(2), which
states the court "should freely give leave when justice so requires." Unlike Rule 16(b)(4), this
standard "evinces a bias in favor of granting leave to amend," and courts may only deny leave

when faced with a substantial reason for doing so, such as undue delay, bad faith, dilatory

motive, repeated failures to cure deficiencies, futility, or undue prejudice to the opposing party.
Mayeaux

v.

La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004); Stripling v.

Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000). Here, Defendants suggest there are three
substantial reasons to deny Plaintiff leave to amend.

Defendants' first two arguments against granting leave to amend are easily disposed of.
First, Defendants argue Plaintiff unduly delayed before filing his motion for leave to amend.
Resp. [#88-1] at 18-22. But as addressed above, the Court finds Plaintiff did not unnecessarily

dawdle in filing their motion for leave to amend. Second, Defendants assert Plaintiff seeks the
amendment in bad faith. Id. at 20-21. Yet Defendants point to no evidence supporting this
accusation, and the Court thus lacks sufficient basis to deny the amendment on this basis.

Third and finally, Defendants argue amendment would be futile. A motion for leave to
amend is futile under Rule 1 5(a)(2)

if the amended complaint would fail to state a claim upon

which relief could be granted. Stripling, 234 F.3d at 873. The Court proceeds by first laying out
Tellingly, the Court did not address whether further amendment would be futile. Cf Richter v. Nationstar
Mortg., LLC, No. H-17--2O21, 2017 WL 4155477, at *1 (S.D. Tex. Sept. 19, 2017) (granting motion to dismiss with
prejudice "because further amendment would be futile").
6

10

the applicable legal standards. It then reviews the pleading deficiencies previously identified by

the Court in connection with the Non-Performing Loan statements

and considers whether

Plaintiff's new allegations remedy those deficiencies.
A.

Legal StandardFutility

In determining whether the amended complaint would fail to state a claim upon which

relief could be granted, courts apply "the same standard of legal sufficiency as applies under
Rule 12(b)(6)." Id. (internal quotation marks and citations omitted). Thus, the court must assess

"whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf,
the complaint states any valid claim for relief" Id. (internal quotation marks and citation
omitted). As applied here, this standard requires the court deny a motion for leave to amend on
the basis of futility only if "it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief" Id. (internal quotation marks and citation

omitted).
In addition to the general Rule 1 2(b)(6) standard, Plaintiff must also meet two heightened

pleading requirements.

See

Order of May 8, 2017 [#54] at 13-16 (concluding Plaintiff's

§

10(b)

claims must meet heightened pleadings standards). First, under Rule 9(b), plaintiffs alleging
fraud or mistake must "state with particularity the circumstances constituting fraud or mistake."
FED.

R.

CIV. P.

9(b). Second, the PSLRA imposes heightened pleading requirements in securities

fraud actions. 15 U.S.C.

§

78u-4(b). Relevant here,

if the plaintiff's claims require proof of the

defendant's state of mind, the plaintiff must "state with particularity facts giving rise to a strong
inference that the defendant acted with the required state of mind." Id.

§

78u-4(b)(2)(A). The

scienter inference need not be irrefutable, nor even the most compelling of all competing

inferences, but must be "cogent and at least as compelling as any opposing inference one could

11

draw from the facts alleged." Tellabs, Inc.

v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 324

(2007).
B.

The Previous Order

In its previous order, the Court concluded Plaintiff had failed to allege specific facts

giving rise to a strong inference Kuehenrither acted knowingly or recklessly in connection with
the Non-Performing Loan misstatements made between 2013 and 2015. Order of May 8, 2017
[#54] at 2 1-25. Plaintiff had primarily alleged Kuchenrither knew of accounting concerns

regarding the Non-Performing Loans because CW1 had informed Kuchenrither of these concerns

in a "series of meetings" held at EZCORP headquarters between October 2013 and November
2013. Id. at 23-24. Plaintiff further alleged CW1 had been informed of these accounting

concerns by CW2. Id. The Court found these allegations unreliable because Plaintiff did not
adequately explain what CW2 told CW1 and because the allegations were "hearsay-withinhearsay." Id.
C.

The New Allegations

Plaintiffs new allegations attempt to remedy these deficiencies. Though many of the new
allegations are of little value, at least two of the allegations are sufficient to give rise to a strong

inference that Kuchenrither acted knowingly or recklessly when he certified the accuracy of
statements made in EZCORP's financials relating to Grupo Finmart's loan portfolio.
First, Plaintiff alleges Kuchenrither received an email from Jeff Byal in April 2014 which
discussed Grupo Finmart's accounting deficiencies. Third Am. Compl. [#84-3] at 10-11. Byal's
email informed Kuchenrither that Grupo Finmart was in many instances "not even keeping their

books according to Mexican GAAP." Id. Byal also told Kuchenrither that EZCORP was
"working on getting the data pulled together so we have a better view on what our bad debt

12

reserves should be." Id. Finally, Byal stated Grupo Finmart would likely need to increase its bad
debt reserves because Byal believed Grupo Finmart was understating the number of nonperforming loans in the company's loan portfolio. Id.
Second, Plaintiff alleges Kuchenrither likely received

a report on accounting

shortcomings at Grupo Finmart before making at least some of the misstatements identified by
Plaintiff. Id. at 17-18. EZCORP commissioned this

reportthe

"Minglewood

Assessment"

from Minglewood Administrative Services in July 2014 after learning EZCORP had

inadvertently sold non-performing Grupo Finmart loans to a third party. Id. at 10, 12-13, 72.

After conducting an on-site visit to Grupo Finmart's headquarters in August, Minglewood issued
its assessment sometime in October 2014. Id. at 13.

The Minglewood Assessment raised serious questions regarding the health of Grupo

Finmart's loan portfolio and the integrity of the company's accounting practices. For example,
the Assessment found Grupo Finmart was not keeping adequate "aging" or "vintage reports" on
its loan portfolio. ld. at 13. The absence

of these reports inhibited Grupo Finmart's ability to

track and write off Non-Performing Loans. Id. at 13, 15-16. More generally, the Minglewood

Assessment concluded Grupo Finmart' s "credit quality indicators do not appear to accurately
reflect the true performance of the loan portfolio." Id.
Moreover, there is reason to believe Kuchenrither received the Minglewood Assessment

shortly after it was issued. For one, Kuchenrither exchanged emails with Minglewood in July
2014 regarding the scheduling of the on-site assessment. Id. at 12. This indicates Kuchenrither

was aware of Minglewood's involvement and actively facilitating the assessment prior to
issuance of the final report. What's more, at the time of the assessment Kuchenrither was serving
on the Board of Directors of Grupo Finmart in addition to his role as CEO of EZCORP. Id. at

13

23-24. Together, Kuchenrither's positions with the two companies and prior involvement in
scheduling the assessment support the inference that Kuchenrither was likely informed of

Minglewood's findings either prior to or shortly after issuance of the report.7
In sum, Plaintiff's new allegations have remedied the pleading shortcomings previously

identified by the Court. The new allegations support a strong inference that Kuchenrither knew
or had reason to believe that deficiencies in Grupo Finmart's accounting practices were
obscuring weaknesses in the company's loan portfolio. The allegations also suggest Kuchenrither
knew of these deficiencies prior to making at least some of the misstatements identified by

Plaintiff in late 2014 and early 2015. Thus, because Plaintiff's new allegations succeed in
establishing a strong inference of scienter, the Court concludes amendment would not be futile.
Further, because the Court finds there is no substantial reason to deny leave to amend, it
GRANTS Plaintiff's Motion for Leave to File Third Amended Class Action Complaint [#84].

Conclusion
Though the Court grants Plaintiff's motion for leave to amend, it is mindful of

Defendants' desire to avoid unduly delaying this litigation. Therefore, as laid out in the orders
below, the Court establishes a number of briefing deadlines aimed at keeping this litigation on
schedule.

Accordingly,
IT IS ORDERED that Defendants shall have until August 3, 2018 to file an

amended answer, if necessary; and

Subsequent discovery confirms Kuchenrither discussed the report with Minglewood in October 2014 in
New Orleans. See Advisory [#98-2] at 2. However, because Plaintiff has not amended his complaint to incorporate
this new information, the Court does not consider it here.

14

IT IS FURTHER ORDERED that Plaintiff's pending motion for class
certification is DISMISSED WITHOUT PREJUDICE and that Plaintiff shall have until

August 31, 2018 to file an amended motion for class certification.

SIGNED this the

5 day of July 2018.
SENIOR UNITED STATES DISTRICT JUDGE

15