Summary
affirming denial of fourth stipulated order extending deadline for filing class certification motion where third extension advised that no further extensions would be granted and noting that"[t]he responsibility and consequence of failing to meet a deadline falls upon the party that missed the deadline."
Summary of this case from PYKE v. CUOMOOpinion
02-CV-0847
October 20, 2003
ELMER R. KEACH, III, ESQ., LAW OFFICES OF ELMER ROBERT KEACH, III Albany NY, for Plaintiff's
THOMAS J. O'CONNOR, ESQ., O'CONNOR YOQUINTO LAW FIRM, Troy NY, for Defendants
MEMORANDUM — DECISION and ORDER
I. INTRODUCTION
Plaintiff's object to the Magistrate Judge's denial of their request for an extension of time within which to file a motion for class certification.
II. FACTS
Plaintiff's commenced the instant action on June 27, 2002. As it became clear that Plaintiff's wished to proceed as a class action, the Magistrate Judge held a conference on October 22, 2002 establishing deadlines for, among other things, the completion of discovery concerning class certification (March 3, 2003) and the filing of a motion for class certification (April 1, 2003). Dkt. No. 5. On April 7, 2003, after the deadline passed and without any showing of excusable neglect, Plaintiff's requested and were granted an extension of time to file their motion for class certification. Dkt No. 31. On May 19, 2003, the Magistrate Judge held a conference with the parties at which time the deadline for filing the motion for class certification was again extended, this time until August 1, 2003. Dkt. No. 33. On July 24, 2003, Plaintiff's again requested additional time within which to file the motion for class certification. This request was granted and Plaintiff's were given until September 1, 2003. Dkt. No. 39. During the telephone conference and in the ensuing Order, "Plaintiff's were advised . . . that no further extensions of this deadline would be granted." Id. Because September 1, 2003 fell on a legal holiday, the filing deadline was extended by operation of law until September 2, 2003. Fed.R.Civ.P. 6(a).
By letter dated September 2, 2003, at approximately 1:30 p.m., Plaintiff's requested another adjournment of the deadline for filing the motion for class certification. Dkt. No. 44. The purported reason for the extension request was that the parties wished to explore the possibilities of settlement before filing a motion for class certification. In the letter, Plaintiff's wrote that they
The letter was faxed to Magistrate Judge Homer. This timing information is taken from the header on Plaintiff's counsel's fax. The letter was faxed a mere three and one-half hours before the motion was required to be filed.
understand that the Court has previously ordered that the present deadline would be the final deadline for the filing of such papers, and ask the Court's indulgence given these very recent developments and the possibility of resolving this litigation. Should the Court not be inclined to grant such a request, counsel requests that the Court immediately telephone counsel so the certification papers can be filed as soon as practicable.
The Magistrate Judge denied the request for an extension of time and telephoned Attorney Keach to inform him of the decision. On September 3, 2003, Plaintiff's requested a telephone conference with the Magistrate Judge, which was held that same day. At that time, Plaintiff's requested that the Magistrate Judge reconsider the order denying the request for an extension of time. The request was denied. Dkt. No. 46. Plaintiff's also apparently represented that the motion papers were ready to be filed and requested to file their papers one day late because "Plaintiff's had learned of the denial after the close of business on the date of the expiration of the deadline." Dkt. No. 50 at ¶ 11. That request also was denied. Plaintiff's now object to the denial of their motion for an extension of the deadlines.
III. DISCUSSION
a. Plaintiff's Had Adequate Notice of the Deadline and Cannot Claim Surprise
Magistate Judge Homer's July 25, 2003 Order is clear and unmistakable. Dkt No. 33. It sets forth in no uncertain terms that the motion had to be filed on September 1, 2003 and that "no further extensions of this deadline [to file a motion for class certification] would be granted." There is nothing ambiguous or uncertain about this order. Accordingly, Plaintiff's had ample notice of the deadline. Further, the July 25 Order left no room for discussion. It, thus, should come to no surprise to Plaintiff's that their fourth request for an extension of that deadline was denied.
September 2 because of Rule 6.
b. Plaintiff's Failed to Comply with Rule 23(c)(1)
Fed.R.Civ.P. 23(c)(1) and N.D.N.Y.L.R. 23.2 require that motions for class certification be filed "[a]s soon as practicable" after the action is filed. The phrase "as soon as practicable" does not establish a definite time and, thus, is flexible. In this case, however, Plaintiff's were provided with definite times by the Magistrate Judge's scheduling orders. Thus, for all intents and purposes, as far as Plaintiff's were concerned, the date "September 2, 2003" was substituted in for the phrase "as soon as practicable."
The Court has the power to establish reasonable times for the filing of documents. See Grandson v. Univ. of Minn., 272 F.3d 568, 574 (8th Cir. 2001), cert. denied, 535 U.S. 1054 (2002); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (and cases cited therein); see also Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442-43 (1st Cir. 1991); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 472 (7th Cir. 1984) ("in this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them."). The responsibility and consequence of failing to meet a deadline falls upon the party that missed the deadline. A party takes significant risks when it seeks an extension of a deadline late on the day of the deadline; that is, at the proverbial eleventh hour. The risks include: (1) that the Judge may not be available to entertain the motion; (2) that the Judge may not be able to adjudicate the motion that same day; (3) that the motion will be denied and, thus, the party will have little or no time to meet the deadline; and (4) that the party will not receive timely notice of a decision and, thus, be unable to meet the deadline. The filing of a request for an extension on the final day of the time period does not act as an automatic stay of the deadline, nor does it provide good cause for an extension of the deadline. To the contrary, it is evidence of being remiss in one's duties. Waiting until the proverbial eleventh hour to take action is always risky business, as evidenced by the negative outcome in this case. Here, Plaintiff's failed to comply with the clear deadline for filing the motion for class certification and, as a result, they are now precluded from moving for class certification. See Grandson, 272 F.3d at 574; McCarthy v. Kleindienst, 741 F.2d 1406 (D.C. Cir. 1984); Burkhalter v. Montgomery Ward Co., Inc., 676 F.2d 291 (8th Cir. 1982) (failure to file motion for class certification by the time set by the court justified striking of class allegations); Walton v. Eaton Corp., 563 F.2d 66, 75 n. 11 (3d Cir. 1977) (it was not an abuse of discretion to deny a motion for class certification that was untimely under the local rules); Wilson v. Seven Seventeenth HP Phila. Corp., 2001 WL 484193, at *3 (E.D. Pa. 2001) (denying class certification where Plaintiff's violated court order setting a filing deadline); Nicolas v. Deposit Guaranty Nat'l Bank, 182 F.R.D. 226, 235 (S.D. Miss. 1998); Joshlin v. Gannett River States Pub. Corp., 152 F.R.D. 577, 579 (E.D. Ark. 1993); Coffin v. Secretary of Health. Education Welfare, 400 F. Supp. 953, 956-57 (D.D.C. 1975) (refusal to certify class because Plaintiff's motion for class action certification was not timely filed pursuant to the local rules); Walker v. Columbia Univ., 62 F.R.D. 63 (S.D.N.Y. 1973).
The customary procedure for the Court is to serve decisions by mail. Plaintiff's' counsel, Attorney Keach, requested that the Court telephone him as soon as it rendered a decision on the request for an extension of time. It was quite presumptuous for Attorney Keach to request or expect immediate notification of a decision on the motion. If Attorney Keach is anxious about the timing of a decision, he has several options available. The safest and most preferable option is to file the motion well in advance of the deadline. This would give everyone ample time to reduce the previously discussed risks. Another option includes logging onto the Court's PACER system to check the status of the motion.
In any event, someone from Judge Homer's Chambers did notify Attorney Keach that his request for an extension of time was denied. According to Keach's affidavit, "[s]hortly after the close of business, [he] telephoned [his] office voicemail and received a message from Judge Homer's chambers indicating that [the] request for enlargement had been denied." Sept. 13, 2003 Keach Aff. at ¶ 9. It was Attorney Keach's own fault that he was not in his office or otherwise did not make proper arrangements to timely receive Judge Homer's message, particularly in light of the fact that it is he who asked to be immediately notified of the Court's decision.
In connection with the instant objections to the Magistrate Judge's order, Attorney Keach again requested that the Court immediately telephone him with the decision on the motion. It is unclear what the rush is. In any event, that request is emphatically DENIED. It is not the Court's obligation to provide Plaintiff's counsel with super fast notice of its decisions. The Court intends to treat all litigants equally and to adhere to its policies and practices regarding the notice and the service of decisions. Again, Attorney Keach can log on to PACER through the Court's website for up-to-date information about the Court's docket.
In addition, many courts have recognized that "[a]side from the fact that a delay in moving may violate local rules and/or a court order, failure to move in a timely fashion for certification of a class 'bears strongly on the adequacy of representation that those class members might expect to receive.'" Wilson, 2001 WL 484193, at *4 (quoting East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 405 (1977)). Here, the adequacy of representation is in serious doubt in light of counsel's disregard of a clear deadline, the Court's directive that there would be no further extensions and his ill-advised decision to seek such improbable relief at the proverbial eleventh hour without taking adequate measures to protect their clients' (or the putative class's) rights, and his failure to make appropriate arrangements to receive Judge Homer's call regarding the disposition of the motion for an extension of time. See Walker, 62 F.R.D. at 64 ("the failure of Plaintiff's' attorneys to make a timely motion, despite the clear and unambiguous language of the rule, leads us to the conclusion that they will not 'fairly and adequately protect the interests of the class,' as required by" Rule 23.).
For example, counsel could have filed the motion to preserve their clients' rights and later withdrawn the motion if they learned that the Court was inclined to grant an extension of time.
This failure is particularly troublesome here where Attorney Keach specifically requested that Judge Homer immediately telephone his office regarding the outcome of the motion.
c. Plaintiff's Have Not Shown Good Cause for an Extension of Time
Several factors lead to the conclusion that Plaintiff's have not shown good cause for a fourth extension of time. First, Plaintiff's could have requested the extension on August 29, 2003 and, thus, possibly avoided the predicaments of (1) having the motion denied on the date the motion was due; and/or (2) receiving a copy of the decision after the deadline passed. In his September 2, 2003 letter, Attorney Keach admits that he learned of Defendants' purported interest in settlement negotiations on Friday, August 29, 2003 and that, on that same day, "Defendants suggested that . . . Plaintiff's forego service of their class certification . . . until such a meeting could be held." Sept. 13, 2003 Keach Aff. at Ex. D. Thus, Plaintiff's could have sought an extension on August 29, 2003.
Second, as previously discussed, Judge Homer was kind enough to grant Attorney Keach's request that his Chambers immediately notify Attorney Keach by telephone of the disposition of the motion for an extension of time. It was Attorney Keach's own fault that he did not make proper arrangements to timely receive the message from Judge Homer so that he could then take proper action in response thereto.
Third, Plaintiff's' attorneys determined, as a matter of litigation strategy, that "it [was] in the best interests of the class to explore settlement prior to filing the motion for certification." See id. at ¶ 6 ("Class counsel believed, since their motion papers would reveal damaging information about the management of the Rensselaer County Jail that could potentially put the parties in a more adversarial posture, that delaying the submission of the class certification papers was in the best interests of the proposed class and named Plaintiff's.") Plaintiff's' litigation strategy and the decision to forego the filing of a motion in the hopes of encouraging settlement are not good cause for an extension of time, particularly in light of the Court's interest in maintaining control over its docket, the three prior extensions and the stern warning that there would be no further extensions. See Wells v. Rockefeller, 728 F.2d 209, 213-14 (3d Cir. 1983); Whitehead v. Malone, 2002 WL 849583, at M (N.D. III. 2002) (holding that litigation strategy is not good cause for failing to serve a complaint and summons and will not extend the time for service);Downing v. American Airlines. Inc., 1988 WL 49211 at *1 n. 1 (E.D.N.Y. 1988) ("litigation strategy cannot be deemed 'good cause.'"). In Wells, for example, the Third Circuit rejected a claim that there was good cause for vacating a default judgment where the defendant allowed the default to occur as a matter of litigation strategy. The court stated that
[Defendant] followed this tactic as a matter of strategy; that being so, he must now live with its consequences. . . . [Defendant] argues that the default occurred because of his counsel's reasonable error in not anticipating the district court's holding that [his] claims were compulsory counterclaims. However, the decision to gamble against that eventuality does not justify reopening the judgment in the circumstances of this case. [Defendant] could have taken other, more prudent steps. He might, for example, have filed the counterclaim in the eviction suit and awaited a decision by the district court on whether that procedure was proper. He could also have promptly filed his separate suit and moved to consolidate it with the eviction action before the default was taken. . . . In any event, [defendant's] explanation does not justify his failure to present any semblance of a defense against the suit. . . . He clearly had the opportunity and the time to file an answer, as well as a counterclaim, as demonstrated by the independent action he filed two weeks before entry of the default judgment. [Defendant] deliberately chose to ignore filing a response and invited a default judgment. The district court properly refused the motion to open the judgment in the circumstances.Wells, 728 F.2d at 213-14. Here, Plaintiff's were faced with the choice of filing the motion and pursuing settlement negotiations or foregoing the filing of the motion and pursuing settlement negotiations. Understandably, Plaintiff's might have felt that they had a lower probability of settlement if they filed the motion that contained "bad" information concerning Defendants. However, Plaintiff's chose this latter approach at the great risk of being foreclosed from filing a motion for certification. Again, Plaintiff's balanced these risks and made a knowing and voluntary strategy choice. Having made that choice, they must now live with the results. See Wells, 728 F.2d at 214 (parties must live with the consequences of litigation strategy choices). As previously noted, Plaintiff's could have undertaken more prudent steps such as filing the motion for an extension of time on August 29 or filing the motion for class certification to preserve their rights and later withdrawing the motion if they learned that the Court was inclined to grant an extension of time.
The risk was "great" based upon the plain language of the order that no further extensions would be granted.
IV. CONCLUSION
Based on the facts and circumstances of this case, including that Plaintiff's had more than one year from the filing of the Complaint to file a motion for certification, Plaintiff's' received three extensions of the motion filing deadline, Plaintiff's were placed on specific notice that there would be no further extensions of that deadline, Attorney Keach failed to make appropriate arrangements to receive Judge Homer's message concerning the disposition of the motion for an extension of time, and the decision to forego filing the motion was a matter of litigation strategy, it was entirely reasonable for the Magistrate Judge to have denied the request for an extension of time. Thus, the Court finds no error. Even reviewing this matter de novo, this Court would have done, and is doing, the same thing.
For the foregoing reasons, Plaintiff's' objections are OVERRULED and the decision of the Magistrate Judge is AFFIRMED.
IT IS SO ORDERED.