Free Motion to Vacate - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD

Document 174

Filed 04/05/2006

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CLARENCE R. COLLINS, JR., et al Plaintiffs, VS. OLIN CORPORATION, et al Defendants

: : : : : : : :

3:03-CV-945 (CFD)

APRIL 5, 2006

EMERGENCY MOTION TO VACATE ORDER The Plaintiffs respectfully request that the Court act on an emergency basis to vacate, nunc pro tunc, the Order it entered on March 29, 2006, denying their motion for class certification without prejudice. In support of this motion, Plaintiffs state as follows: 1. On March 29, 2006, the Court entered an Order denying the Plaintiffs' pending

Motion for Class Certification without prejudice. The Plaintiffs assume that the Court took this step as a housekeeping measure, because the Plaintiffs had indicated in a prior pleading that they might seek to file an amended class certification motion (plaintiffs had not yet decided to do so). 2. What the Court perhaps did not appreciate, however, is that its Order of March

29, 2006 might have unintended legal consequences for absent members of the putative plaintiff class. In particular, under the holding of American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756 (1974), the filing of a class action complaint tolls the statute of limitations for all members of the putative class. It has been held, however, that the limitations period begins to run again when a motion to certify a class is denied. See Crown, Cork & Seal v. Parker, 462 U.S. 345, 103 S.Ct. 2392 (1983).

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Case 3:03-cv-00945-CFD

Document 174

Filed 04/05/2006

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3.

Normally, when a motion for class certification is denied, it is done on the merits,

and Plaintiffs believe that the rule of Crown, Cork & Seal would not apply to this Court's Order of March 29, 2006 (which was made without prejudice). However, given the potential importance of this issue to absent members of the class, Plaintiffs request that the Court take a more protective approach, and vacate its Order, nunc pro tunc, at least until the parties can be heard on the issue at the status conference already scheduled for April 11, 2006. 4. Plaintiffs have already taken one action to protect absent class members, by filing

an Amended Motion for Class Certification on March 30, 2006, the day they received the Court's Order. We believe that the filing of this amended motion operates to again toll the limitations period. A further protective step Plaintiffs could take would be to seek an appeal from the Court's Order under Fed. R. Civ. P. 23(f), but such an appeal would need to be filed by April 10, the day before the scheduled status conference. Certainly, it would be an enormous waste of resources to appeal from an Order that was, Plaintiffs expect, intended to have no effect on any substantive rights. 5. Plaintiffs requested Olin's assent to this Motion, and Olin's counsel indicated in a

telephone call today that Olin would not assent.

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Case 3:03-cv-00945-CFD

Document 174

Filed 04/05/2006

Page 3 of 4

WHEREFORE, Plaintiffs respectfully that the Court vacate, nunc pro tunc, its Order of March 29, 2006 denying class certification without prejudice, at least until the Court has an opportunity to hear from counsel about the issue at the status conference scheduled for April 11, 2006. PLAINTIFFS REQUEST THAT THE COURT EITHER HOLD A TELEPHONE CONFERENCE WITH COUNSEL OR ACT ON THIS REQUEST PRIOR TO APRIL 10, 2006, IN ORDER TO VITIATE ANY NEED FOR AN APPEAL UNDER RULE 23(F). Respectfully submitted, By_/s/ Andrew Rainer Mark Roberts, Esq. [email protected] Andrew Rainer, Esq. #ct25938 [email protected] McRoberts, Roberts & Rainer LLP 53 State Street Boston, Massachusetts 02109 Tele: (617) 722-8222 Fax: (617) 720-2320 David B. Zabel, Esq. ct01382 [email protected] Monte E. Frank, Esq. ct13666 [email protected] Adam Blank [email protected] Cohen and Wolf, PC 1115 Broad Street Bridgeport, Connecticut 06604 Tele: (203) 368-0211 Fax: (203) 394-9901 Neil T. Leifer, Esq. [email protected] David C. Strouss, Esq. [email protected] Thornton & Naumes L.L.P 100 Summer Street, 30th Floor Boston, Massachusetts 02110 Tele: (617) 720-1333 Fax: (617) 720-2445

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Case 3:03-cv-00945-CFD

Document 174

Filed 04/05/2006

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CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified in the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as nonregistered participants on this 5th day of April, 2006.

___/s/ Andrew Rainer_______ Andrew Rainer

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