Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-01841-LTB-KLM

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Filed 05/29/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-01841-LTB-PAC RICKY EUGENE CLARK, on behalf of himself and all others similarly situated, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant

PLAINTIFF AND PROPOSED INTERVENOR PLAINTIFFS' RESPONSE TO STATE FARM'S MOTION FOR ENTRY OF A SCHEDULING ORDER ______________________________________________________________________________

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I.

INTRODUCTION

Plaintiff Ricky Eugene Clark and the proposed intervenor Plaintiffs Roy McIntosh, Florinda Reed and Matthias Hobza (collectively, "Plaintiffs") submit this response to State Farm's Motion for Entry of a Scheduling Order. Plaintiffs agree that State Farm is entitled to depose the intervenor Plaintiffs if their motion to interevene is granted. However, Plaintiffs strongly disagree with the mechanics of State Farm's proposal which would both unnecessarily delay this Court's resolution of the Class certification motion and profoundly tilt the schedule in State Farm's favor. Accordingly, for the reasons stated more fully below, Plaintiffs propose that (i) the Court first rule on the Motion to Intervene, and stay State Farm's response to the Class certification motion pending its ruling on the Motion to Intervene; (ii) if the Motion to Intervene is granted, State Farm be given a total of four weeks in which to depose the intervenor Plaintiffs and file its opposition to certification (if the motion is denied, State Farm should be given two weeks from the date of denial in which to file its opposition to certification); and (iii) Plaintiffs be given three weeks in which to file their reply papers. In this manner, the certification issues can be fairly and efficiently resolved without prejudice to any of the parties. II. ARGUMENT

All parties are in agreement that: (i) State Farm should be permitted to take the depositions of the intervenor Plaintiffs if their motion is granted, in part in order to challenge their ability to serve as Class Representatives and (ii) State Farm's opposition to Plaintiffs' motion for certification should be stayed to allow this to occur. Plaintiffs therefore join in State Farm's motion to that limited degree.

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However, the remainder of State Farm's proposal is fundamentally unfair and should be rejected. A. The Necessary Discovery Can Be Accomplished Quickly State Farm requests that, in the event that the intervention motion be granted, it be given three additional months in which to conduct discovery and prepare its responsive brief. Yet State Farm already has information about each of the proposed intervenor Plaintiffs and "each of their individual insured claims," as they are all claimants who have been paid something on their claims. See Memorandum in Support of Motion for Class Certification at 6-9. Any questions that State Farm might propound through written discovery can be just as well propounded in a deposition ­ and the intervenor Plaintiffs will make themselves available for deposition. Finally, contrary to State Farm's assertion, the Motion to Intervene will not "fundamentally alter the nature of this proceeding." Def. Mtn. at 2. To the contrary, this case was filed as a Class action seven years ago ­ and the resolution of the Class issues has been delayed at the behest of State Farm and over Plaintiff's objection. The vast majority of certification issues will be unaffected by the grant of Plaintiffs' intervention motion; there is no reason for State Farm to wait to begin drafting its response ­ and Plaintiffs are quite certain that it has not done so. Accordingly, in the event the intervention motion is granted, State Farm should have one month in which to (i) depose the intervenor Plaintiffs; (ii) make any additions to its opposition to certification; and (iii) file its opposition. If the intervention is denied, two weeks from the date of denial should be ample time for State Street to file its opposition to certification.

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B.

Plaintiffs Should Be Given Fair Opportunity To Respond While proposing that it be given many months beyond the normal scheduling rules in

which to draft its certification papers, 1 it proposes that Plaintiffs be limited to 15 days. This is patently unfair. Accordingly, Plaintiffs propose that they be given three weeks in which to file their Reply papers in support of their motion for certification. C. An Evidentiary Hearing is Unnecessary and Would Require Plaintiffs to Take Additional Discovery Finally, State Farm suggests that this Court should conduct a two day "evidentiary hearing on certain issues framed by the Motion for Class Certification." Def. Mem. at 2. The only such "issue" mentioned by State Farm is its so-called "voluntary program" through which it attempts to defeat certification by contacting (or attempting to contact) a subset of Class members and paying additional PIP benefits to some of them. Def. Mem. at 4. 2 State Farm cites no authority in support of its request for an evidentiary hearing on Plaintiffs' Motion for Class Certification; indeed, "evidentiary hearings, in contrast to oral argument, are rarely required or desirable in connection with initial class certifications." 3 NEWBERG ON CLASS ACTIONS § 7:9 (4TH ED.). The general impropriety of evidentiary hearings stems from the wellestablished prohibition on consideration of the merits of Plaintiffs' claims in connection with the certification inquiry. See, e.g., Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). If the intervention motion is granted, State Farm proposes that it have an additional 3 months from the date of the Order in which to file its opposition; if the motion is denied, State Farm proposes that it have an additional 30 days from the date of the Order in which to file its opposition. Cryptically, State Farm states that "the Court would benefit from testimony on that topic, among others." Def. Mem. at 4 (emphasis added). -3001434-11 168100 V2 2 1

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Moreover, in the event State Farm is granted permission to put on evidence concerning its "voluntary program," Plaintiffs would certainly be entitled to discovery to test State Farm's assertions concerning that "program." Indeed, State Farm did not supplement its discovery responses to describe that program until May 3, 2007. 3 In any event, State Farm's `voluntary program' goes only to its apparent plan to attack Plaintiffs' showing on numerosity pursuant to Fed. R. Civ. P. 23(a)(1)­ yet, as Plaintiffs demonstrate in their Memorandum in Support of Motion for Class Certification at 14-17, numerosity is established even assuming the truth of State Farm's assertions concerning its "voluntary program." Accordingly, State Farm has demonstrated no entitlement to an evidentiary hearing, and that request should be denied. Alternatively, the Court should wait until the Class certification briefing is complete before determining whether there are any extraordinary circumstances that warrant the scheduling of an evidentiary hearing on one or more specific topics.

3

See Memorandum in Support of Motion for Certification at 16, n. 22, and Exhibit 4 thereto. -4-

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Respectfully submitted this 29th day of May, 2007. s/ Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Colorado Springs, CO 80909 Telephone: (719) 635-0377 L. Dan Rector Franklin D. Azar & Associates, P.C. 5536 Library Lane Colorado Springs, CO 80918 Telephone: (719) 527-8000 Andrew M. Volk Hagens Berman Sobol Shapiro LLLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Attorneys for Plaintiff and intervenor Plaintiffs CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 29th day of May, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Colorado Springs, CO 80909 Telephone: (719) 635-0377

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