Kelly et al v. State Farm Mutual Automobile Insurance Company

MOTION for extension of time to file Motion for Class Certification

M.D. Fla.December 10, 2010

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION METRY KELLY and EUGENIE KELLY, ) his wife, and all others similarly situated, ) ) Plaintiffs, ) Case No.: 5:10-CV-00194-TJC-TEM ) v. ) ) STATE FARM MUTUAL AUTOMOBILE ) INSURANCE COMPANY, a foreign ) insurance corporation, ) ) Defendant. ) ____________________________________) PLAINTIFFS’ MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR CLASS CERTIFICATION COME NOW, Plaintiffs Metry Kelly and Eugenie Kelly (“Plaintiffs”), on behalf of themselves and all others similarly situated, by and through their undersigned counsel, and files this Plaintiffs’ Motion for Extension of Time to File Motion for Class Certification, pursuant to Middle District of Florida Local Rule 4.04(b) (“Local Rule 4.04(b)”), and in support thereof state: 1. Plaintiffs filed Plaintiffs’ First Amended Class Action Complaint in the Fifth Judicial Circuit, in Marion County, Florida on March 18, 2010. On May 7, 2010 Defendant State Farm removed the action to this Court. On May 14, 2010 Defendant State Farm filed its answer to Plaintiffs’ First Amended Class Action Complaint and Defendant State Farm Mutual Automobile Insurance Company’s Motion to Dismiss, For a More Definite Statement and/or to Strike Plaintiffs’ Claims Under Fed. R. Civ. P. 12 (“Defendant’s Motion to Dismiss”). 1 Case 5:10-cv-00194-TJC-TEM Document 31 Filed 12/10/10 Page 1 of 4 2. On May 25, 2010 Plaintiffs filed Plaintiffs’ Unopposed Motion to Stay Determination of Defendant’s Motion to Dismiss, based on Plaintiffs’ intention to file a motion to remand the action to state court. In its order dated May 27, 2010 this Court granted Plaintiffs’ Unopposed Motion to Stay Determination of Defendant’s Motion to Dismiss. 3. On June 7, 2010 Plaintiffs timely filed their Motion to Remand. Plaintiffs’ Motion to Remand was referred to Magistrate Judge Gary R. Jones for a Report and Recommendation, which Report and Recommendation, recommending that Plaintiffs’ Motion to Remand be denied, was entered on September 23, 2010. On November 9, 2010 this Court entered an Order denying Plaintiffs’ Motion to Remand. 1 4. Local Rule 4.04(b) requires that a motion for class certification be filed within 90 days of filing the initial complaint. Defendant State Farm’s removal, and Plaintiffs’ Motion to Remand, as detailed above, made Plaintiffs’ compliance with Local Rule 4.04(b) impracticable. 5. Plaintiffs’ not filing the motion for class certification was for good cause, as set forth above. Defendant State Farm was in no way prejudiced by Plaintiffs not filing a motion for class certification. 6. Plaintiffs and Defendant State Farm are negotiating a date by which Plaintiffs will file a motion for class certification. Defendant State Farm is not opposed to Plaintiffs obtaining On November 12, 2010 Plaintiffs filed Plaintiffs’ Unopposed Motion for Leave to File1 Plaintiffs’ Second Amended Class Action Complaint, upon which this Court has not yet ruled. Plaintiffs’ Response to Defendant State Farm Mutual Automobile Insurance Company’s Motion to Dismiss, For a More Definite Statement and/or to Strike Plaintiffs’ Claims Under Fed. R. Civ. P. 12, filed on November 29, 2010, requested that this Court consider Plaintiffs’ Unopposed Motion for Leave to File Plaintiffs’ Second Amended Class Action Complaint, and Plaintiffs’ Second Amended Class Action Complaint, which was attached thereto, as Plaintiffs’ response to Defendant’s Motion to Dismiss. 2 Case 5:10-cv-00194-TJC-TEM Document 31 Filed 12/10/10 Page 2 of 4 an extension of time to file their motion for class certification. Plaintiffs request that this Court grant them an extension of time until May 6, 2011 to file a motion for class certification. Parties will jointly request that the Court set the deadline for filing the motion for class certification on a date that will be submitted with the case management conference report due December 15, 2010. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order granting Plaintiffs an extension of time until May 6, 2011 to file their motion for class certification. Respectfully submitted this 10 day of December, 2010.th /s/ Paul S. Rothstein PAUL S. ROTHSTEIN 3 Case 5:10-cv-00194-TJC-TEM Document 31 Filed 12/10/10 Page 3 of 4 CERTIFICATE OF SERVICE I certify I presented the foregoing PLAINTIFFS’ MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR CLASS CERTIFICATION to the Clerk of Court for filing and uploading to the EM/ECF system, which will send a Notice of Electronic Filing to the following: John W Weihmuller weihmuller@butlerpappas.com Brian D. Webb bwebb@butlerpappas.com Butler Pappas, LLP Suite 500 777 S Harbour Island Blvd Tampa, FL 33602-5723 813/281-1900 813/281-0900 (fax) Cari K. Dawson cari.dawson@alston.com Kyle G.A. Wallace kyle.wallace@alston.com Allison S. Thompson allison.thompson@alston.com Alston & Bird, LLP Suite 4200 1201 W Peachtree St NE Atlanta, GA 30309-3424 404/881-7000 404/881-7777 (fax) This 10 day of December, 2010.th /s/ Paul S. Rothstein Paul S. Rothstein Attorney for Plaintiffs Florida Bar No.: 310123 626 N. E. First Street Gainesville, Florida 32601 Phone: (352) 376-7650 Fax: (352) 374-7133 4 Case 5:10-cv-00194-TJC-TEM Document 31 Filed 12/10/10 Page 4 of 4