Free Motion to Withdraw Document - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 185

Filed 05/02/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02098-REB-MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, a New Jersey Corporation, Defendant.

PLAINTIFF'S MOTION TO WITHDRAWAL MOTION FOR LEAVE TO AMEND COMPLAINT DATED APRIL 4, 2006 [DOCUMENT NUMBER 170]

Rule 7.1 Certification: Counsel for Ms. Fincher has not consulted with opposing counsel pursuant to L.R. 7.1 because it would appear that Fincher does not need concurrence of opposing counsel to withdraw a motion that she filed. Comes Now the Plaintiff, Kelly Fincher, by and through her attorneys, The Carey Law Firm, and hereby motions this Court for withdrawal of her Motion for Leave to Amend Complaint; and in support thereof, advises the Court as follows: 1. Fincher filed her motion to amend solely in order to conform the

complaint to the motion for certification, which is not required.1

1 To facilitate class litigation, plaintiffs or the Court may freely amend the class definition at any time during the proceedings, including in a class-certification reply brief. Plaintiffs revised the class definition in Conant v. McCaffrey, 172 F.R.D. 681, 693 (N.D. Cal. 1997); Hammond v. Air Line Pilots Ass'n., 1988 U.S. Dist. Lexis 12574, at *14-15 (N.D. Ill. Nov. 7, 1988); Barefield v. Chevron U.S.A., Inc., 1987 U.S. Dist. Lexis 15125, at *3 n.1 (N.D. Cal. Sept. 9, 1987); Maganuco v. Leyden Community High Sch. Dist. 212, 1986 U.S. Dist. Lexis 28537, at *1 (N.D. Ill. Mar. 5, 1986). Courts also have discretion to revise the class definition. Fed. R. Civ. P. 23(c)(1); Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th Cir. 2001); Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993); Stevens v. Harper, 213 F.R.D. 358, 378 n.23 (E.D. Cal. 2002); Rendler v.

Case 1:00-cv-02098-REB-MJW

Document 185

Filed 05/02/2006

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2.

Because Fincher wishes to move her case forward expeditiously

after having been on file for over four (4) years, and in order to avoid a substantial further delay in consideration of her pending class certification motion, Fincher hereby withdraws her motion to amend the complaint which was filed on April 4, 2006. 3. The Plaintiff further requests that this Court enter an order

requiring Defendant's response to the class certification motion to be filed no later than twenty (20) days from the date of this withdrawal. WHEREFORE, the Plaintiff prays for an Order of this Court, allowing the Withdrawal of Plaintiff's Motion to Amend Complaint, and to order Defendant's Response to Plaintiff's Motion for Class Certification due no later than twenty (20) days from the date of this motion. Respectfully submitted this 2nd day of May, 2006. THE CAREY LAW FIRM s/L. Dan Rector Robert B. Carey L. Dan Rector The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Attorneys for Plaintiff

Gambone Bros. Dev. Co., 182 F.R.D. 152, 159 (E.D. Pa. 1998). Plaintiffs need not amend their complaint to modify the class definition. See Eisen, 417 U.S. at 183-84 (Douglas, J., dissenting) ("[d]efinition of the subclass would properly be accomplished by order of the District Court, as permitted by Rules 23(c)(4) and 23(c)(1), without amendment of the complaint as filed").

Case 1:00-cv-02098-REB-MJW

Document 185

Filed 05/02/2006

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on 2nd day of May, 2006, electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected]

s/L. Dan Rector L. Dan Rector The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected]