Stejic v. Aurora Loan Services, LLC et al

MOTION for Leave to File Sur-Reply in Opposition to Plaintiff's Motion for Class Certification

D. Ariz.September 18, 2015

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Jason L. Sanders Locke Lord LLP 2200 Ross Avenue Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8437 P. Russell Perdew (pro hac vice) LOCKE LORD LLP 111 South Wacker Drive Chicago, Illinois 60606 Telephone: (312) 443-0700 Attorneys for Defendant Aurora Loan Services, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA IN RE MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) LITIGATION THIS DOCUMENT RELATES TO: CV 10-1547-PHX-JAT (Stejic) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:09-md-02119 JAT AURORA LOAN SERVICES, LLC’S MOTION FOR LEAVE TO FILE SUR-REPLY IN OPPOSITION TO PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Defendant Aurora Loan Services, LLC respectfully requests that this Court grant Aurora leave to file its proposed sur-reply in opposition to plaintiff Milan Stejic’s motion for class certification to address an argument raised for the first time in Stejic’s reply. Stejic filed his motion for class certification on August 17, 2015. MDL Doc. 1914. The motion argued that the numerosity requirement has been satisfied because plaintiffs’ expert identified over 50,000 potential plaintiffs in the class. Id. at p. 7:9-14, n.12. Aurora filed its opposition on September 3, 2015, and argued that Stejic had not demonstrated numerosity as to Aurora because Stejic’s experts had not identified any documents that involved Aurora. MDL Doc. 1918, p. 5:22-7:15. Stejic filed his reply on September 14, 2015 and argued—for the first time—that Aurora had stipulated that it was not contesting numerosity. MDL Doc. 1940, p. 2:20-4:4. But, as addressed in Aurora’s proposed sur- Case 2:10-cv-01547-JAT Document 50 Filed 09/18/15 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 reply, this argument is factually incorrect because Aurora never agreed not to contest the numerosity of the class as defined in Stejic’s motion. Aurora recognizes that this Court’s local rules do not provide for sur-replies, but Aurora submits that this Court has discretion to permit a sur-reply and that a sur-reply is necessary in this instance to address the new—and factually incorrect—argument raised in Stejic’s response. See U.S.A. v. Mahon, No. CR09-0712-02-PHX-DGC, 2011 WL 2493652, at *1 (D. Ariz. June 23, 2011) (noting that plaintiff had been given leave to file a sur-reply to address new arguments raised in defendant’s reply brief); Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 843 n.6 (9th Cir. 2004) (declining to consider argument raised for the first time in a reply because “the appellee has not been given the opportunity to respond”). Here, Aurora has not had an opportunity to respond to Stejic’s argument regarding its purported stipulation because Stejic’s motion did not raise that argument, and instead argued that Stejic satisfied the numerosity requirement based on the estimates of his expert. For these reasons, Aurora respectfully asks this Court to grant its motion for leave to file a sur-reply in opposition to plaintiff Milan Stejic’s motion for class certification for the limited purpose of clarifying the alleged stipulation raised in Stejic’s reply. // // // Case 2:10-cv-01547-JAT Document 50 Filed 09/18/15 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DATED: September 18, 2015 Respectfully submitted, /s/ P. Russell Perdew P. Russell Perdew (pro hac vice) Locke Lord LLP 111 S. Wacker Dr. Chicago, IL 60606 T: 312-443-1712 F: 312-896-6712 rperdew@lockelord.com Jason L. Sanders Locke Lord LLP 2200 Ross Avenue Suite 2200 Dallas, TX 75201 Telephone: (214) 740-8437 jsanders@lockelord.com Attorneys for Defendant Aurora Loan Services, LLC Case 2:10-cv-01547-JAT Document 50 Filed 09/18/15 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CERTIFICATE OF SERVICE I hereby certify that on September 18, 2015, I electronically filed the foregoing with the Clerk of the United States District Court for the District of Arizona using the CM/ECF system, which will send notification of such filing to all counsel of record. For those counsel of record who are not registered through ECF, a copy has been mailed by First Class U.S. Mail. /s/ P. Russell Perdew Attorneys for Defendant Aurora Loan Services, LLC Case 2:10-cv-01547-JAT Document 50 Filed 09/18/15 Page 4 of 4