Free Motion for Order - District Court of Colorado - Colorado

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

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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.

STATE FARM' MOTION FOR ENTRY OF A SCHEDULING ORDER S

Defendant State Farm Mutual Automobile Insurance Company (" State Farm" moves the ) Court for entry of a Scheduling Order establishing a modified briefing schedule for the recentlyfiled Motion to Intervene and Motion for Class Certification, authorizing certain limited discovery on the Motion for Class Certification, should it become appropriate, and setting an evidentiary hearing on the Motion for Class Certification. As grounds in support of this Motion, State Farm states as follows: CERTIFICATE OF CONFERRAL Counsel for State Farm hereby certify, pursuant to D.C.COLO.LCivR 7.1(A), that they have conferred with opposing counsel regarding the relief requested by this Motion. Counsel for Mr. Clark and the proposed Intervenors have indicated that they will oppose this Motion.

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MOTION 1. On May 14, 2007, Plaintiff filed a Motion for Class Certification.

Simultaneously, three proposed Intervenors ­ all of whom are also represented by Plaintiff' s counsel ­filed a Motion to Intervene in this action. 2. By filing the Motion to Intervene nearly seven years after this case first was

commenced on August 24, 2000, Plaintiff' counsel seek to fundamentally alter the nature of this s proceeding. More than six and a half years after this case was commenced, more than a year after Plaintiff' claims were fully adjudicated and satisfied, after three appeals to the United s States Court of Appeals for the Tenth Circuit, and on the cusp of resolving the issue of class certification in this case, Plaintiff' counsel now seek to add three new putative class s representatives to the action. 3. State Farm believes that the Motion to Intervene comes too late, and is not

permitted by either Rule 24(a) or 24(b) of the Federal Rules of Civil Procedure. State Farm will file a Response to the Motion to Intervene by June 4, 2007, in accordance with the Court' s minute order of May 15, 2007, more fully explaining its position on these issues. 4. This Court' decision on the Motion to Intervene, however, will determine s

whether the nature of this case will be significantly expanded. For that reason, State Farm believes that a phased briefing schedule ­ and potential discovery, depending on the Court' s ruling on the Motion to Intervene ­ is necessary. State Farm also submits that an evidentiary hearing on certain issues framed by the Motion for Class Certification is necessary and will assist the Court in deciding the question of class certification. The Court has wide latitude under Fed. R. Civ. P. 16(b) in entering scheduling orders. See, e.g., Burks v. Okla. Publ' Co., 81 F.3d 975, g

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978 (10th Cir. 1996). Accordingly, State Farm respectfully requests that the Court enter a Scheduling Order adopting the following proposals for future proceedings in this case. 5. As an initial matter, State Farm proposes that its Response to the Motion for Class

Certification be deferred until after the Court has ruled on the Motion to Intervene. If granted, the Motion to Intervene would add three new putative class representatives to the case. For State Farm to respond to the Motion for Class Certification at this point would be inefficient and a waste of judicial resources, in that State Farm would make, and the Court would consider, arguments regarding the proposed Intervenors that may not ultimately be relevant if the Motion to Intervene is denied. By deferring its Response to the Motion for Class Certification until the Court has determined whether there will be additional putative class representatives, however, State Farm will be able to brief more efficiently the appropriate issues for the Court' s consideration. 6. Once the Court rules on the Motion to Intervene, State Farm would then prepare

and submit its Response to the Motion for Class Certification. Should the Motion to Intervene be denied, State Farm proposes that its Response to the Motion for Class Certification be due 30 days after entry of an Order denying the Motion to Intervene. 7. Should the Motion to Intervene be granted, however, State Farm believes that it

would be unable to adequately respond to the Motion for Class Certification without first conducting some limited discovery. 8. Specifically, if the Motion to Intervene is granted in whole or in part, there could

be up to three new putative class representatives named in this action. State Farm has had no opportunity to conduct any discovery regarding those individuals. Before it could properly brief

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the issues of typicality and adequacy under Rule 23(a), for example, State Farm would need to conduct both written and deposition discovery of the proposed Intervenors and learn about each of their individual insured claims. State Farm also would need to conduct discovery into issues unique to each Intervenor relevant to the effective date of reformation for each of them. For these reasons, if the Motion to Intervene is granted, State Farm requests that a condensed discovery period of two months be permitted in order for it to conduct discovery regarding the Intervenors'claims and issues relating to their proposed status as class representatives. State Farm proposes that its Response to the Motion for Class Certification would then be due 30 days after the close of the limited discovery period. 9. Finally, State Farm requests that the Court schedule a two-day evidentiary hearing

on the Motion for Class Certification once it has been fully briefed. The Motion for Class Certification makes clear that there are some significant factual issues that bear on this Court' s consideration of certification under Rule 23. For example, shortly after the Tenth Circuit' s December 30, 2005 decision established with appellate finality the scope of State Farm' s obligations to pedestrian PIP claimants, State Farm undertook a voluntary program of paying additional PIP benefits to certain of its pedestrian insureds. State Farm believes that its actions in that regard have an impact on the eligibility of this case for class certification, and that the Court would benefit from testimony on that topic, among others. 10. State Farm believes that its proposals for a Scheduling Order and further

proceedings in this case are both logical and an efficient use of both the Court' and the parties' s time and resources. This case has a lengthy and complex procedural history, which has been further complicated by the Motion to Intervene. By adopting a phased and orderly approach to

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future proceedings in this case, the Court can minimize further complexities and unnecessary proceedings. WHEREFORE, Defendant State Farm Mutual Automobile Insurance Company respectfully requests that the Court enter a Scheduling Order in this case as follows: (1) June 4, 2007; (2) rescheduling the briefing on Plaintiff' Motion for Class Certification until after s requiring State Farm to file its Response to the Motion to Intervene no later than

the Court' ruling on the Motion to Intervene; s (3) if the Motion to Intervene is denied, requiring State Farm to file its Response to

the Motion for Class Certification no later than 30 days after such denial, with Plaintiff' Reply s Brief to be filed 15 days thereafter; (4) if the Motion to Intervene is granted in whole or in part, permitting the parties to

conduct limited discovery for two months, such discovery to include written discovery to the Intervenors and depositions of each of the Intervenors; (5) if the Motion to Intervene is granted in whole or in part, further requiring State

Farm to file its Response to the Motion for Class Certification no later than 30 days after the close of that limited discovery period, with Plaintiffs'Reply Brief to be filed 15 days thereafter; and (6) setting a two-day evidentiary hearing to be conducted at a time appropriate for the

Court' calendar, after the Motion for Class Certification is fully briefed. s

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Respectfully submitted this 18th day of May, 2007.

s/ Michael S. McCarthy Michael S. McCarthy Russell O. Stewart Marie E. Williams FAEGRE & BENSON LLP 1700 Lincoln Street, Suite 3200 Denver, Colorado 80203 Phone: (303) 607-3500 Fax: (303) 607-3600 E-mail: [email protected] [email protected] [email protected] ATTORNEYS FOR DEFENDANT STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

CERTIFICATE OF SERVICE I hereby certify that on this 18th day of May, 2007, I electronically filed the foregoing STATE FARM' MOTION FOR ENTRY OF A SCHEDULING ORDER with the Clerk of S the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
· · ·

Robert Bruce Carey [email protected],[email protected] Leif Garrison [email protected],[email protected] L. Daniel Rector [email protected],[email protected]

s/ Colleen H. Russell Colleen H. Russell
fb.us.2047014.04

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