The opinion of the court was delivered by: The Honorable Dale S. Fischer, United States District Judge
Present: The Honorable DALE S. FISCHER, United States District Judge
Debra Plato Not Present Deputy Clerk Court Reporter
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: (In Chambers) Order to Show Cause Why the Court Should Not
Strike the Class Allegations; Order to Show Cause Why the Action Should Not be Dismissed and Why Counsel Should Not be Sanctioned for Failure to Follow This Court's Orders; Order to Show Cause Why Matthew J. Matern Would be Adequate Class Counsel; Order Vacating Scheduling Conference Date
Plaintiff is ordered to show cause why the class allegations should not be stricken for failure to comply with Local Rule 23-3, which requires that a motion for class certification be filed within 90 days after service of a pleading purporting to commence a class action. Even assuming, arguendo, that the 90-day period begins to run on the date of removal to this Court, that time period has expired. Plaintiff's response is due no later than April 15, 2013.
On January 7, 2013, this Court issued its Order Setting Scheduling Conference. Pursuant to the Order, and to Rules 16 and 26(f) of the Federal Rules of Civil Procedure, and Local Rules 16 and 26, the scheduling conference was set for April 8, 2013, at 11:00 a.m. and counsel were to confer and to file with the Court, no later than seven days before the scheduling conference, a Joint Rule 26(f) Report. The parties have failed to comply with the Order, which specifically requires that the parties agree to dates as set forth in Exhibit A. The date previously set for the Scheduling Conference is vacated. Plaintiff is ordered to show cause in writing no later than April 15, 2013 why this action should not be dismissed, and both counsel are ordered to show cause why sanctions should not be imposed pursuant to Local Rule 83-7.
The filing of a Joint Rule 26(f) Report by April 15, shall be deemed a sufficient response to this Order to Show Cause. If a timely Report containing a properly completed Exhibit A is filed, a scheduling conference will be held on April 22, 2013 at 11:00 a.m. in lieu of the hearing on the Order to Show Cause re Sanctions. If no response is filed, this action will be dismissed.
Although adequacy of counsel is ordinarily determined after class certification, it appears an early preliminary determination of whether Plaintiff's counsel would be adequate class counsel would serve the interests of the putative class and of judicial economy. Therefore, Plaintiff's counsel is ordered to show cause why he would be adequate counsel to represent the class if a class were certified. In appointing class counsel, the Court:
(I) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of ...