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Rose v. Bank of America Corp.

United States District Court, N.D. California, San Jose Division

July 14, 2014

STEPHANIE ROSE, on behalf of herself and others similarly situated, Plaintiff,


EDWARD J. DAVILA, District Judge.

Presently before the Court is Thomas Thomas' motion for an extension of time within which to opt out of the class settlement reached by the parties in the above-captioned cases. The Court finds this matter suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and vacates the hearing scheduled for July 25, 2014. Having fully reviewed the parties' briefings, and for the following reasons, the Court GRANTS Mr. Thomas' motion.


The instant motion concerns two separate actions: the above-captioned class action lawsuit currently awaiting final approval of settlement ("the Class Action"), and an individual lawsuit currently pending in the Circuit Court in and for Broward County, Florida ("the Florida Action") brought by Mr. Thomas against Bank of America, N.A. Both actions allege, inter alia, that Bank of America violated the Telephone Consumer Protection Act, 47 U.S.C. ยง 227 ("TCPA").

Mr. Thomas filed the Florida Action on March 5, 2013. Bank of America filed its Answer and Affirmative Defenses on June 13, 2013. Mr. Thomas later agreed to allow Bank of America to amend its Affirmative Defenses on October 25, 2013. The parties have each propounded discovery and Mr. Thomas had an opportunity to depose Bank of America's corporate representative on March 4, 2014.

A second deposition of Bank of America's corporate representative specifically regarding the telephone and computer systems used to place the calls to Mr. Thomas' cellular telephone was scheduled with counsel for Bank of America for May 28, 2014, to take place in Bank of America's counsel's office. Bank of America's outstanding responses to Mr. Thomas' discovery were due on May 27, 2014.

On May 27, 2014, counsel for Bank of America filed a motion to stay proceedings in the Florida Action alleging that Mr. Thomas had failed to timely opt-out of the Class Action, thus barring his TCPA claims in the Florida Action. Mr. Thomas' attorney, Yechezkel Rodal, claims that this was when he was first made aware that Mr. Thomas' opt-out letter had not been timely received. Mr. Thomas filed this motion thereafter.


Under Rule 6(b) of the Federal Rules of Civil Procedure, where the specified period for the performance of an act has elapsed, a district court may enlarge the period and permit the tardy act where the omission is the "result of excusable neglect."

To determine whether a party's failure to meet a deadline constitutes "excusable neglect, " courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship , 507 U.S. 380, 395 (1993). Because Congress has not provided guidance to determine what sorts of actions constitute excusable neglect, the Court's "determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id.


"Factors one, two and four will almost always cut one way: Delays are seldom long, so prejudice is typically minimal. Bad-faith delay is rare, given that we're only dealing with neglect, ' not deliberate flouting of the rules-though flouting does happen on occasion. Most of the work, then, is done by factor three, the most important one." Pincay v. Andrews , 389 F.3d 853, 861 (9th Cir. 2004) (dissent).

For the most part, the same is true of the instant motion. With respect to the second factor, the parties agree that Mr. Thomas' motion should have "zero impact" on the class settlement, and therefore a delay of slightly over two months does not appear excessive.

As to the fourth factor, Bank of America contends that Mr. Thomas fails to demonstrate good faith. Mr. Thomas' motion is primarily based on the claim that his attorney, Mr. Rodal, assigned the task of mailing Mr. Thomas' opt-out letter to a paralegal, who apparently failed to mail the letter. Bank of America suggests a possible lack of good faith due to the fact that Mr. Thomas did not identify the paralegal in the moving papers, did not include testimony from the paralegal to support the motion, and did not provide Bank of America with the paralegal's contact information until shortly before the filing of Bank of America's response brief. However, the late disclosure of the paralegal's contact information does not obviously appear to have been in bad faith: Bank of America requested the paralegal's information on June 13, 2014 and received it on June 16, 2014, while Mr. Thomas' motion was filed on June 2, 2014. Although Mr. Rodal waited until the day Bank of America's response was due (June 16) ...

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