Opinion
CASE NO. 06-20115-CIV-MORENO/SIMONTON.
January 24, 2008
Presently pending before the Court are Plaintiffs' Motion for Class Certification (DE # 36). This motion is referred to the undersigned Magistrate Judge (DE # 37). In connection with this underlying motion, Defendants have filed a Motion To Strike New Material Raised In Support of Motion For Class Certification Filed With Reply Memorandum and Alternative Motion For Leave To File Sur-reply Addressing New Material Filed With Reply Memorandum (DE # 97). The motion is fully briefed (DE ## 100, 101, 102). On January 23, 2008, the undersigned heard oral argument.
In brief, Defendants contend that Plaintiffs have relied upon new evidence, including an expert report and a passenger survey, in their Reply in support of their Motion for Class Certification, and they request the Court to either strike the new evidence or to permit them to take discovery and file a sur-reply. Plaintiffs respond that, even though this evidence was not presented in their initial motion, it is proper to present it in reply to Defendants' arguments, and that Defendants have had sufficient opportunity to take discovery. In the alternative, Plaintiffs request leave to file a response to the sur-reply. Defendants reply, inter alia, that they felt no need to take discovery, particularly with respect to the expert, where Plaintiffs had not relied upon those matters to support their class certification motion.
At the hearing, the parties concurred with the suggestion of the undersigned Magistrate Judge that it made sense to require Plaintiffs to include all the facts and argument upon which they rely in an Amended Motion for Class Certification, to permit Defendants to respond after taking further discovery, and to permit Plaintiffs to reply. Plaintiffs requested, without opposition, that they be given until February 15, 2008 to file their Amended Motion for Class Certification. Therefore, for the reasons stated on the record, and based upon the agreement of the parties it is hereby
ORDERED AND ADJUDGED that:
1. Plaintiffs' pending Motion for Class Certification (DE # 36) is administratively DENIED WITHOUT PREJUDICE to file an Amended Motion for Class Certification on or before February 15, 2008.
2. Defendants' Motion To Strike New Material Raised In Support of Motion For Class Certification Filed With Reply Memorandum and Alternative Motion For Leave To File Sur-reply Addressing New Material Filed With Reply Memorandum (DE # 97), is GRANTED in part, as follows:
a. On or before February 15, 2008, Plaintiffs shall file an Amended Motion For Class Certification which includes all information contained in their reply memorandum which they wish the Court to consider. Plaintiffs may rely upon and refer to exhibits contained in the existing record, by docket entry number, without the need to refile them.
b. On or before March 31, 2008, Defendants shall file a Response in opposition to the Amended Motion for Class Certification, and Defendants may take any appropriate discovery prior to filing their response. Defendants may rely upon and refer to exhibits contained in the existing record, by docket entry number, without the need to refile them.
c. On or before April 10, 2008, Plaintiffs may file a reply in support of their class certification motion.
3. Oral argument on Plaintiffs' Amended Motion for Class Certification is set for Thursday, April 17, 2008 at 10:00 a.m. before the undersigned Magistrate Judge, in Courtroom XI, at 300 N.E. 1st Avenue, Miami, Florida 33132.
DONE AND ORDERED in chambers in Miami, Florida.