Free Response in Opposition to Motion - District Court of Arizona - Arizona

Case 2:03#md—01541-PGR Document 205-6 Filed 10/19/2007 Page1 014

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7 UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
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10 ) l\/[DLNo: l54l
IN RE ALLSTATE INSURANCE CO. FAIR ) ALL CASES
ll LABOR STANDARDS ACT LITIGATION
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I2 I ] onnnn RE n1s1vnssAL
P ) OF NATTBOY ACTION
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\I I5 ) Assigned to the I-Ion. Paul G. Rosenblatt
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l8 Based upon the Parties’ JOINT PROPOSED BRIEFING SCHEDULE RE MOTION TO
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7 FACILITATE NOTICE AND STIPULATION RE DISMISSAL OF NATTBOY ACTION llled
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21 with this Court on Monday, July 26, 2004, this Court finds:
22 The parties to this action have stipulated to the dismissal ofthe Nattboy action as
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specified in the JOINT PROPOSED BRIEFING SCHEDULE RE MOTION TO FACILITATE
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25 NOTICE AND STIPULATION RE DISMISSAL OF NATTBOY ACTION and the
26 [PROPOSED] ORDER RE BRIEFING SCHEDULE OF MOTION TO FACILITATE NOTICE
27 filed concurrently herewith.
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Case 2:03—md—01541-PGR Document 205-6 Filed 10/19/2007 Pag@2ief4
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J THEREFORE, IT IS HEREBY ORDERED that the @b9y action will be dismissed
2 pursuant to the following terms and conditions:
3 l. Plaintiff Nattboy will be able to refile his action in the Southern District of _
4 Florida, as an individual FLSA action only (not a FLSA collective action), and
5 2. Allstate acknowledges that Mr. Nattboy’s decision to dismiss his current action
6 pending in Arizona as part of MDL action number 1541 is expressly conditioned
7_ upon Allstate's representation and express agreement that it will not raise a statute
8 of limitations defense based upon the passage of time from the date that Mr. »
9 Nattboy initially filed his current FLSA case on January 15, 2004, until such date
10 as Mr. Nattboy iles a new individual action in Florida (subject to subsection 3
ll below), and Allstate further agrees that the statute of limitations for any such
I2 individual action brought by Mr. Nattboy will be equitably tolled as of January 15 ,
13 2004, and that any such subsequently filed action will, for statute of limitations
14 purposes, be treated as if it had been filed on January 15, 2004, and
I5 3. Mr. Nattboy shall have a reasonable period to refile his individual action in the
i6 Southern District of Florida and, specifically, shall have 60 days from the date that
l7 this Court orders the dismissal without prejudice of 1jI;1t@ from this MDL
18 action, or 60 days from the date that any further action required to be taken by the
19 Southern District of Florida (the transferor court) to effect such dismissal is taken.
20 whichever is- later, and
21 4. Mr. Nattboy may remain in possession of the disclosed discovery material
22 provided to him to date in this MDL action (but will not be provided discovery
23 from the MDL action from this date forward) and he is entitled to use such
24 discovery in his individual action (subject to evidentiary objections such as
25 relevance) if Mr. Nattboy and his counsel sign the protective order already in
26 place in this MDL action and if, in any individual action to be filed by Mr.
27 Nattboy, he signs a protective order in substantially similar form vis-a-vis all such
28 discovery material provided to him to date in this MDL, and
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l 5. The Parties recognize, and agree, that neither the signing of the protective order
2 referenced in the previous Paragraph, nor the receipt of certain discovery to date
3 by Mr. Nattboy’s counsel, shall affect either Mr. Nattboy’s right to conduct,
4 I obtain, or make appropriate use of, additional discovery in the individual action
5 that he intends to file and pursue against Allstate in the Southern District of
6 Florida, or Allstate’s right to oppose any additional discovery requests by Mr. _
7 Nattboy, and _
8 6. Although all Parties recognize that a Notice of Tag Along Action may need- to be
9 filed with the MDL panel as to Mr. Nattboy’s new complaint, the parties agrce that
I0 they will not seek to have Mr. Nattboy’s individual claim transferred and
ll consolidated with the MDL proceedings and, in fact, will oppose such transfer and
l2 consolidation, provided that Mr. Nattboy does not at any time amend his action to
l3 include collective or class action status, and
I4 7. Mr. Nattboy will not participate in the Plaintiffs’ Motion to Facilitate Notice, filed
15 with this Court on Iuly 12, 2004.
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17 IT IS SO ORDERED.
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19 DATED this £ day of , 2004
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21 g ié E g g E
22 PAUL G. ROSENBLATT l
23 UNITED STATES DISTRICT JUDGE
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