Only One Inc, The et al v. State Farm Mutual Auto Insurance Company et al

MOTION to Strike 42 Amended Complaint

M.D. Fla.October 9, 2015

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION THE ONLY ONE, INC., et al. Case No. 6:14-cv-06009-GAP-TBS (Originally filed in N.D. Alabama) MDL Docket No. 6:14-md-2557-GAP-TBS Plaintiffs, v. DISPOSITIVE MOTION STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants. CERTAIN DEFENDANTS’ MOTION TO STRIKE THE AMENDED COMPLAINT AND SUPPORTING MEMORANDUM OF LAW The undersigned Defendants respectively file this Motion to Strike (“Motion”) the untimely Amended Complaint brought by certain Alabama auto body repair shops (“Plaintiffs”).1 PRELIMINARY STATEMENT On August 17, 2015, this Court dismissed the Complaint2 in this action and set a date certain by which an amended complaint would be due - September 8, 2015. See Doc. 40. On August 21, 2015, Plaintiffs filed for an extension of time to file their Amended Complaint in the Alabama Action. See Motion, In re Auto Body Shop Antitrust Litig., No. 6:14-md- 2557 (M.D. Fla. Aug. 21, 2015) (Doc. 225). On August 24, 2015, the Court granted Plaintiffs’ motion, extended the deadline for Plaintiffs to file their Amended Complaint in the 1 Amended Complaint, The Only One, Inc., et al., v. State Farm Mut. Auto. Ins. Co., et al., No. 6:14- cv-06009-GAP-TBS (M.D. Fla. Sept. 19, 2015) (“Alabama Action”) (Doc. 42). 2 Complaint, No. 6:14-cv-06009-GAP-TBS (N.D. Ala. Nov. 2, 2014) (Doc. 1). Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 1 of 15 PageID 614 2 Alabama Action by ten days, and set a new date certain of September 18, 2015. See Endorsed Order, In re Auto Body Shop Antitrust Litigation, No. 6:14-md-2557 (M.D. Fla. Aug. 24, 2015) (Doc. 228). Yet, Plaintiffs failed to file the Amended Complaint in the Alabama Action until September 19, 2015. See Doc. 42. The issue of timeliness of the pleadings filed by auto body repair shops asserting antitrust claims in this multidistrict litigation (“MDL”) is not new. Pending before the Court are three fully briefed motions to strike other untimely antitrust actions in this MDL.3 However, despite being on notice of these motions to strike, having a full month to prepare the Amended Complaint in the Alabama Action for filing, and requesting and receiving extra time from the Court, Plaintiffs missed the deadline set for a date certain by this Court for filing their Amended Complaint. The cut-off set by the Court came and went without Plaintiffs seeking a further extension from this Court and without notifying Defendants of any grounds for excusable neglect (legitimate or otherwise). As a result of Plaintiffs’ untimely filing, under governing Eleventh Circuit case law and Federal Rule of Civil Procedure 15(a)(2), at midnight Eastern Standard Time on September 18, 2015, the Court’s August 17, 2015 Order dismissing the Complaint in the Alabama Action without prejudice was converted to a dismissal with prejudice. 3 Motions to strike were filed and are fully briefed in Alpine Straightening Systems, Inc. d/b/a Alpine Body Shop, et al., v. State Farm Mut. Auto. Ins. Co., et al., No. 6:14-cv-06003-GAP-TBS (M.D. Fla. May 20, 2015) (the “Utah Action”) (Docs. 105, 112, 114); Parker Auto Body, Inc., et al., v. State Farm Mut. Auto. Ins. Co., et al., No. 6:14-cv-06004-GAP-TBS (M.D. Fla. May 21, 2015) (the “Louisiana Action”) (Docs. 124, 136, 141); and Indiana AutoBody Assoc., Inc. v. State Farm Mutual, et al., No. 6:14-cv-06001-GAP-TBS (M.D. Fla. Apr. 14, 2015) (the “Indiana Action”) (Docs. 153, 158, 161). Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 2 of 15 PageID 615 3 Accordingly, Defendants respectfully request that the Court strike the untimely Amended Complaint. ARGUMENT In its Order extending the deadline for the Amended Complaint in the Alabama Action, the Court required Plaintiffs to file an amended pleading by September 18, 2015. See Endorsed Order, In re Auto Body Shop Antitrust Litig., No. 6:14-md-2557 (M.D. Fla. Aug. 24, 2015) (Doc. 228). The Court was well within its judicial authority to set such a deadline. See, e.g., Schuurman v. M/V Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) (stating that a district court may “provide for a stated period within which the plaintiff may amend the complaint”). It is undisputed from the public docket that Plaintiffs failed to file the Amended Complaint until September 19, 2015. See Doc. 42. Under Federal Rule of Civil Procedure 6(d), “[w]hen the Court sets a date certain in a Court order for a document to be filed, the respondent filing the document is not entitled to add three days for ‘service’ of the document.”4 United States v. Hennigan, No. 6:13-CV- 1609-ORL-31, 2015 WL 2084729, at *2 n.3 (M.D. Fla. Apr. 30, 2015) (Presnell, J.) (rejecting party’s contention that he was granted an additional three days to respond under Rule 6(d), which is “simply inapplicable to orders of the Court which set filing deadlines”). See also Estate of Miller ex rel Miller v. Ford Motor Co., No. 2:01-CV-545-FTM-29, 2004 WL 6235323, at *1 (M.D. Fla. Dec. 17, 2004) (rejecting argument that party had an additional three days for response to judgment served electronically where response was required “not later than fourteen (14) days following the entry of judgment,” since “[t]he 4 Rule 6(e) was renumbered as Rule 6(d) in the 2007 amendments to the Federal Rules of Civil Procedure. Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 3 of 15 PageID 616 4 Eleventh Circuit [has] found that ‘[Rule 6(d)] does not apply to time periods that are triggered by the entry of a judgment or an order’”) (quoting Staib v. Preprint Publ’g Co., Inc., 220 F.3d 589 (11th Cir. 2000)); Hialeah Hosp., Inc. v. Aguiar, No. 97-0038-CIV., 1997 WL 579168, at *3 (S.D. Fla. July 7, 1997) (stating that the Rule “applies only when a party is required to take some act within a prescribed period after service of notice by mail” and closing the case: “The Court’s Order Granting Motion to Dismiss did not give Hialeah the right to file an amended complaint within a prescribed period after service of notice by mail. Instead, the Order Granting Motion to Dismiss gave Hialeah the right to file an amended complaint within a prescribed period after the date of the Order. Thus, Rule 6(e) is inapplicable, and Hialeah was not entitled to the three additional days for mailing described in that Rule.”) (emphasis in original).5 The Court’s August 24, 2015 Endorsed Order gave the Plaintiffs an extension “to September 18, 2015.” See In re Auto Body Shop Antitrust Litig., No. 6:14-md-2557 (M.D. Fla. Aug. 24, 2015) (Doc. 228). Indeed, in response to motions to strike untimely complaints in two of the other antitrust actions in this MDL, Plaintiffs’ counsel conceded that when the Court sets a date certain, it “actually mean[s] a date certain.” Ps’ Resp. to Mot. to Strike the 5See also Clements v. Florida E. Coast Ry. Co., 473 F.2d 668, 670 (5th Cir. 1973) (“[A]gree[ing] with defendant that 6(e) has no application, because the action required of plaintiff was not within a prescribed period after service of the order upon him.”); Hong v. Smith, 129 F.3d 824, 825 (5th Cir. 1997) (holding that three days were not added to the time to respond to a letter from the Court Clerk where the “time for filing a response ran from the date of the Clerk’s letter”); Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. 303, 304 (D.N.M. 2000) (“The Stipulated Order of Dismissal required Plaintiffs to re-file their complaint ‘within 90 days of the date of this order...’ The 90 days commenced running from the date the order was filed by the court clerk, not from the date of service. Hence, a plain meaning interpretation of the rule favors the non-application of Rule 6(e).”); 1-6 Moore’s Federal Practice - Civil § 6.05 (Matthew Bender 3d. Ed.) (“The automatic three-day extension of Rule 6(d) applies only when a party’s time to act is measured from the date of service of a motion, notice, or other paper. There is no extension in connection with time periods that are keyed to some event other than service.”). Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 4 of 15 PageID 617 5 Second Am. Compl., Utah Action, Doc. 112.6 Here, Plaintiffs had to (and did not) file the Amended Complaint in the Alabama Action by the Court-ordered deadline. After that point, pursuant to governing Eleventh Circuit law, and the law of this Court, the Court’s August 17, 2015 Order dismissing the initial Complaint became final and appealable. See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1132 (11th Cir. 1994) (“[O]nce the court has identified the date upon which the leave to amend expires, that expiration date becomes the date of the final order unless the court grants an extension of time upon consideration of a motion filed before the expiration date has passed.”) (emphasis in original); Dependable Component Supply, Inc. v. Carrefour Informatique Tremblant, Inc., 572 F. App’x 796, 799 (11th Cir. 2014) (“The law of this Circuit is clear that a dismissal with leave to amend becomes final for purposes of appeal at the expiration of the window to amend.”); Schuurman v. Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) (“In dismissing the complaint, the district court may also provide for a stated period within which the plaintiff may amend the complaint. If the plaintiff does not amend the complaint within the time allowed, no amendment may be made absent leave of court, and the dismissal order becomes final at the end of the stated period. For appeal purposes, we hold that the order of dismissal in this situation becomes final upon the expiration of the time allowed for amendment.”); Bell v. Florida Highway Patrol, No. 6:05-CV-1806-ORL-31, 2014 WL 542939, at *1 (M.D. Fla. Feb. 11, 2014) (Presnell, J.), aff’d, 589 F. App’x 473 (11th Cir. 6 As Defendants made clear, Plaintiffs are mistaken and no extra time is afforded either when the court sets a date certain upon which leave to amend expires or when a court gives a specific period of time after which leave to amend expires. See Mot. to Strike the Second Am. Compl., Utah Action, Doc. 105; Mot. to Strike the First Am. Compl., Louisiana Action, Doc. 124; Mot. to Strike Pls. Second Am. Compl., Indiana Action, Doc. 153. Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 5 of 15 PageID 618 6 2014) (“When a district court dismisses a complaint with leave to amend within a certain period, the dismissal order becomes final (and therefore appealable) at the end of the stated period.”). The Alabama Action is one of 22 copycat actions in this MDL, and has procedurally lagged behind the lead action, A&E Auto Body Inc., et al., v. 21st Century Centennial Ins. Co., et al., No. 6:14-cv-00310 (M.D. Fla. Feb. 24, 2014) (the “Florida Action”). The Amended Complaint in the Florida Action was dismissed without prejudice on January 22, 2015, and the Court granted Plaintiffs leave to amend. See Order, Florida Action, No. 6:14- cv-00310 (M.D. Fla. Jan. 22, 2015) (Doc. 293) (the “Jan. 22, 2015 Order”). The initial Complaint in the Alabama Action was essentially a carbon copy of the Amended Complaint in the Florida Action. Compare Doc. 1, with Amended Complaint, Florida Action, 6:14-cv- 00310 (M.D. Fla. June 28, 2014) (Doc. 167). Thus, the Court’s Jan. 22, 2015 Order put the Plaintiffs in the Alabama Action on notice that, in the event their initial Complaint was similarly dismissed (as it likely would be, considering it was nearly identical to the Amended Complaint in the Florida Action), they would have to amend their pleading. Indeed, in the Alabama Action, Magistrate Judge Smith recommended dismissal of the initial Complaint with leave to amend on June 3, 2015 (the “June 3, 2015 R&R”). See Doc. 32. Judge Presnell granted the motion to dismiss the Alabama Action on August 17, 2015. See Doc. 40. Plaintiffs therefore had over three months from Magistrate Judge Smith’s June 3, 2015 R&R to prepare the Amended Complaint and simply have no excuse as to why their filing was late. Plaintiffs sought and received an extension of time to file their Amended Complaint to September 18, 2015. Moreover, Plaintiffs failed to request a second extension to file their Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 6 of 15 PageID 619 7 Amended Complaint after the September 18, 2015 deadline. Therefore, at midnight on September 18, 2015, the Court’s August 17, 2015 Order adopting the June 3, 2015 R&R became final and was converted from a dismissal without prejudice to a dismissal with prejudice. See Hertz, 16 F.3d at 1127 n.3 (stating that a dismissal without prejudice under Fed. R. Civ. P. 12(b)(6) becomes a “dismissal with prejudice when no timely amendment was filed and no request for an extension was submitted”); see also Wilson v. Arizona Classic Auto, No. 09-80344-CIV, 2010 WL 1655811, at *1 (S.D. Fla. Apr. 23, 2010) (“[w]ithout a request for an extension of time or an amendment having been filed, the dismissal order becomes a final, appealable order”). The Court should accordingly strike Plaintiffs’ Amended Complaint. See id. (striking an amended complaint and closing case where the amended complaint was filed two days late). Finally, Plaintiffs’ untimely filing of the Amended Complaint also violated the requirements set forth in the Federal Rules of Civil Procedure, as Plaintiffs did not seek Defendants’ consent to file after the deadline. See Fed. R. Civ. P. 15(a)(2) (“[A] party may amend its pleading only with the opposing party’s written consent or the court’s leave.”).7 Plaintiffs’ court-ordered leave to amend expressly expired on September 18, 2015, and Plaintiffs neither sought nor obtained Defendants’ consent or the Court’s leave to file the Amended Complaint late on September 19, 2015. Plaintiffs’ untimely filing of the Amended Complaint therefore contravenes the plain language of the applicable Rule. The Court should 7 Plaintiffs’ attorneys were well aware of the September 18, 2015 deadline. However, even if Plaintiffs’ counsel misunderstood the court’s order, or the applicable rules, such misunderstanding would not suffice as “excusable neglect.” Estate of Miller ex rel Miller, 2004 WL 6235323, at *4 (“an attorney’s misunderstanding … cannot constitute excusable neglect such that a party is relieved of the consequences of failing to comply with a statutory deadline’”). Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 7 of 15 PageID 620 8 accordingly strike Plaintiffs’ Amended Complaint. See Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257-CIV, 2012 WL 5410948, at *2 (S.D. Fla. Nov. 6, 2012) (“Striking is appropriate where … a party fails to seek leave of court before filing an unauthorized pleading.”). CONCLUSION For the foregoing reasons the Court should grant Certain Defendants’ Motion to Strike the untimely Amended Complaint and close the Alabama Action. Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 8 of 15 PageID 621 Dated: October 9, 2015 /s/ David L. Yohai David L. Yohai (admitted pro hac vice) John P. Mastando III (admitted pro hac vice) Eric Hochstadt (admitted pro hac vice) WEIL GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: 212-310-8000 Facsimile: 212-310-8007 Email: david.yohai@weil.com Email: john.mastando@weil.com Email: eric.hochstadt@weil.com Counsel for Defendant Farmers Insurance Exchange /s/ Jeffrey S. Cashdan Jeffrey S. Cashdan, admitted pro hac vice Claire C. Oates, admitted pro hac vice KING & SPALDING LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309 Telephone: (404) 572-4600 Facsimile: (404) 472-5139 jcashdan@kslaw.com coates@kslaw.com /s/ Michael R. Nelson Michael R. Nelson, admitted pro hac vice Kymberly Kochis, admitted pro hac vice Francis X. Nolan, admitted pro hac vice Sutherland Asbill & Brennan LLP 1114 Avenue of the Americas, 40th Floor New York, NY 10036-7703 Telephone: (212) 389-5068 michael.nelson@sutherland.com kymberly.kochis@sutherland.com frank.nolan@sutherland.com Counsel for Progressive Direct Insurance Company and Progressive Specialty Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 9 of 15 PageID 622 /s/ Timothy J. Rooney Timothy J. Rooney (admitted pro hac vice) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 trooney@winston.com Laura Besvinick STROOCK & STROOCK & LAVAN LLP 200 South Biscayne Boulevard Suite 3100 Miami, Florida 33131 Telephone: (305) 789-9300 Facsimile: (305) 789-9302 lbesvinick@stroock.com Fla. Bar No. 391158 Counsel for The Travelers Home and Marine Insurance Company, Travelers Property Casualty Insurance Company, and Travelers Commercial Insurance Company /s/ Michael E. Mumford Ernest E. Vargo, Admitted Pro Hac Vice evargo@bakerlaw.com Michael E. Mumford, Admitted Pro Hac Vice mmumford@bakerlaw.com BAKERHOSTETLER LLP PNC Center, Suite 3200 1900 East 9th Street Cleveland, OH 44114-3482 Telephone (216) 621-0200 Facsimile (216) 696-0740 Counsel for Defendants Liberty Mutual Fire Insurance Company, LM General Insurance Company, First Liberty Insurance Corporation, Safeco Insurance Company of Illinois, State Automobile Mutual Insurance Company, and State Auto Property and Casualty Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 10 of 15 PageID 623 /s/ Richard L. Fenton Richard L. Fenton (admitted pro hac vice) Mark L. Hanover (admitted pro hac vice) Dentons US LLP 233 South Wacker Drive, Suite 5900 Chicago, Illinois 60606 Tel: (312) 876-8000 Fax: (312) 876-7934 Email: richard.fenton@dentons.com Email: mark.hanover@dentons.com Bonnie Lau Dentons US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 bonnie.lau@dentons.com Lori J. Caldwell (Florida Bar No. 026874) Rumberger, Kirk & Caldwell, PA 300 S Orange Ave, Suite 1400 PO Box 1873 Orlando, FL 32802-1873 Tel: (407) 839-4511 Fax: (407) 835-2011 Email: lcaldwell@rumberger.com Attorneys for Defendants Allstate Indemnity Company, Allstate Insurance Company, Allstate Northbrook Indemnity Company, Allstate Property and Casualty Insurance Company, Esurance Insurance Company, and Esurance Property and Casualty Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 11 of 15 PageID 624 /s/ Johanna W. Clark Johanna W. Clark CARLTON FIELDS JORDEN BURT, P.A. 450 S. Orange Ave., Suite 500 Orlando, Florida 32801 Telephone: (407) 849-0300 Facsimile: (407) 648-9099 Email: jclark@cfjblaw.com Michael L. McCluggage EIMER STAHL LLP 224 South Michigan Avenue, Suite 1100 Chicago, Illinois 60604 Telephone: (312) 660-7600 Facsimile: (312) 692-1718 E-mail: mmcluggage@eimerstahl.com Michael P. Kenny ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 Telephone: 404-881-7000 Facsimile: 404-881-7777 Email: mike.kenny@alston.com Attorneys for Defendants State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company /s/ Michael R. Pennington MICHAEL R. PENNINGTON Bradley Arant Boult Cummings LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203 Phone: 205.521.8000 Fax: 205.521.8800 Email: mpennington@babc.com Counsel for Defendant First Acceptance Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 12 of 15 PageID 625 /s/ P. Bruce Converse P. Bruce Converse Az Bar No. 005868 bconverse@steptoe.com Floyd P. Bienstock Az Bar No. 006299 fbienstock@steptoe.com 602-257-5210 602-257-5274 STEPTOE & JOHNSON, LLP 201 E. Washington St, Suite 1600 Phoenix, AZ 85004 Fax No. 602-257-5299 Attorneys for Defendants Metropolitan Property and Casualty Insurance Company, Metropolitan Group Property and Casualty Insurance Company, Metropolitan General Insurance Company, and Metropolitan Casualty Insurance Company /s Lori McAllister LORI McALLISTER (P39501) THEODORE J. GREELEY (P77862) Dykema Gossett PLLC 201 Townsend, Suite 900 Lansing, MI 48933 Phone: 517.374.9150 lmcallister@dykema.com Counsel for Auto-Owners Insurance Company, Owners Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 13 of 15 PageID 626 /s/ Christopher C. Skambis CHRISTOPHER C. SKAMBIS Florida Bar No. 0262358 THE SKAMBIS LAW FIRM 720 Rugby Street, Suite 120 Orlando, Florida 32804 Telephone: (407) 649-0090 Facsimile: (407) 649-0191 Email: cskambis@skambislaw.com Attorneys for Defendants Safeway Insurance Company of Alabama /s/ Edward R. McNees Edward R. McNees R. Bradley Best HOLCOMB, DUNBAR, WATTS, BEST, MASTERS & GOLMON, P.A. P.O. Drawer 707 400 South Lamar, Suite A Oxford, MS 38655 (662) 234-8775 Telephone (662) 238-7552 Facsimile rmcnees@holcombdunbar.com bradbest@holcombdunbar.com Counsel for Defendant ACCC Insurance Company s/William J. Kelly III William J. Kelly III KELLY & WALKER LLC (Colorado Bar No. 38749) (Louisiana Bar No. 21662) 1512 Larimer Street, Suite 200 Denver, Colorado 80202 Tel: (720) 236-1800 Fax: (720) 236-1799 Email: wkelly@kellywalkerlaw.com Counsel for Defendant COUNTRY Mutual Insurance Company Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 14 of 15 PageID 627 CERTIFICATE OF CONFERENCE Pursuant to Local Rule 3.01(g), on October 8, 2015, counsel for Defendant Farmers Insurance Exchange conferred via telephone on behalf of the moving Defendants (“Defendants”) with Eric Zard, designated liaison counsel for Plaintiffs by Allison Fry in Allison Fry’s absence, in a good-faith effort to resolve the issues raised by this Motion. Defendants and liaison counsel for Plaintiffs were unable to agree on a resolution of this Motion. /s/ David Yohai CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 9th day of October, 2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a Notice of Electronic Filing to all counsel of record that are registered with the Court’s CM/ECF system. /s/David Yohai Case 6:14-cv-06009-GAP-TBS Document 44 Filed 10/09/15 Page 15 of 15 PageID 628