Northrup v. Itg Insurance Agency LLC et al

Middle District of Florida, flmd-8:2017-cv-01890

Unopposed MOTION for miscellaneous relief, specifically for Leave to Extend Dispositive Motion Deadline by CyberX Group, LLC, Independent Truckers Group, Inc., Innovative Health Insurance Partners, LLC, David E Lindsey.

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PageID 835 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN NORTHRUP, Individually and on behalf § of a Class of Similarly Situated Individuals, § § Plaintiff, § § v. § Civil Action No. 8:17-cv-01890-CEH-JSS § Innovative Health Insurance Partners, LLC, § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § Defendants. DEFENDANTS' UNOPPOSED MOTION FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE Defendants respectfully move for leave to extend the dispositive motion deadline by 28 days to April 5, 2019 pursuant to this Court's oral order at the March 13, 2019 hearing on class administration. Plaintiff is unopposed to the extension. FACTUAL BACKGROUND The Court entered its Scheduling Order on February 27, 2018, which included a deadline for dispositive motions of March 8, 2019. [Dkt. 48.] On June 26, 2018, Defendants filed a motion for summary judgment on the grounds that the text messages at issue in this case were not sent using an automatic telephone dialing system ("ATDS") [Dkt. 63], which is a required element for Plaintiff's sole cause of action in this case. The Court denied the motion without prejudice on January 3, 2019, on the grounds that it was DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 1 PageID 836 "premature" due to a lack of discovery, an argument Plaintiff raised in its response to the motion. [Dkt. 80, Order, at 11.] On February 8, 2019, the last day of the fact discovery deadline, Plaintiff filed a motion for leave to depose Defendant CyberX Group, LLC ("CyberX") "on issues relating to whether the system used to send the text messages at issue qualifies as an ATDS." [Dkt. 84.] Given the deposition's potential implications on summary judgment, Defendants did not oppose [id.], and this Court granted the extension on February 11, 2019. [Dkt. 86.] Defendants proposed dates of March 5 and March 11, 2019 for the deposition of CyberX's corporate representative, from which Plaintiff selected March 11. The parties conducted the deposition on the scheduled date, and the standard turnaround for the deposition transcript is fourteen days. ARGUMENT Under Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). The Eleventh Circuit has explained that Rule 16(b)(4) "precludes modification unless the schedule cannot be met despite the diligence of the party seeking the extension." Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998). Defendants were diligent and good cause exists for this unopposed extension because (1) all parties reasonably expected summary judgment briefing after the CyberX deposition, (2) such motion could not have been timely filed because the deposition took place after said deadline, and (3) the deposition testimony of CyberX supports the filing DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 2 PageID 837 of a new summary judgment motion that would be dispositive at this relatively early stage of the case. 1. All Parties Reasonably Expected Additional Summary Judgment Briefing This Court's Order denying summary judgment expressly relied on the absence of adequate fact discovery on "how CyberX provided the phone numbers to Twilio or further describe[s] the instructions [CyberX] allegedly gave to Twilio to send the text message." [Dkt. 80, Order, at 9-10 (emphasis in original).] The Order concluded by denying the summary judgment motion as "premature" while noting the "parties may move for summary judgment at a later stage in these proceedings, but prior to the dispositive motion deadline." [Id. at 11.] Given that whether an ATDS was used or not is a dispositive issue in this case, it is no surprise that the Court expressly allowed the parties to move for summary judgment at a later stage and allowed Plaintiff to take his requested deposition after the discovery deadline. 2. Post-Deadline Deposition was Diligently Procured but Precluded a Timely MSJ The parties diligently cooperated in scheduling the CyberX deposition, which involved a deponent from Idaho being deposed in Texas by Plaintiff's counsel from Florida. By sheer coincidence of coordinating those calendars, the finalized deposition date (March 11) fell three days after the current summary judgment deadline (March 8). Neither party anticipated any issue with the deadline, which was simply an oversight during the back and forth over scheduling—hence this motion is being presented as unopposed. In the same vein, there is no prejudice to either party, nor the Court. This case DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 3 PageID 838 is at a relatively early stage in which fact discovery is closed but class notice has not been sent—resolving a dispositive motion at this stage would benefit all involved. 3. The Deposition Answers the "ATDS" Question Federal district courts in Florida have repeatedly set out the factors relevant to whether a texting system has sufficient human intervention to exclude it from the definition of an ATDS under the TCPA, which this Court referred to in its MSJ Order as unanswered without more discovery. To that end, Plaintiff sought one deposition—of CyberX—regarding those issues as set out in the topics of his notice, which included: 5. How You operated the hardware, software and equipment contemplated in topic three to send the text messages that are the subject of this action. 6. Your use of Twilio to send text messages to telephone numbers on the Call Logs, including how You sent instructions to Twilio to send each text message, and the precise nature of any human intervention involved in your providing these instructions to Twilio to send each text message. 7. All facts, information, and circumstances known and/or reasonably ascertainable by You relating to the allegations the Complaint concerning allegations that you sent text messages to Plaintiff and/or Class Members through the use of an ATDS. (DE 38, Paragraphs 37, 46, and 73). A true and correct copy of the deposition notice is attached hereto as Exhibit A. At the March 11, 2019 deposition, the president of CyberX did just that, answering the detailed questions of Plaintiff and Defendants about each of the steps CyberX took in sending the text messages in question, as well as on the other topics. Now that the missing, requested discovery has taken place, it rightfully deserves this Court's consideration so that justice may be done. DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 4 PageID 839 WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request a 28-day extension of the dispositive motion deadline to adequately utilize the Court's offer to take a second look at summary judgment with the benefit of additional fact discovery, as well as for an order granting to Defendants all relief at law and equity to which they are entitled. Respectfully Submitted, s/ Bill S. Richmond WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, TX 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com -and- s/ David J. DePiano DAVID J. DePIANO, ESQ. Florida Bar No. 0055699 SHAPIRO BLASI WASSERMAN & HERMANN, P.A. 7777 Glades Road, Suite 400 Boca Raton, FL 33434 Telephone: 561.477.7800 Facsimile: 561.477.7722 ddepiano@sbwh.law COUNSEL FOR DEFENDANTS DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 5 PageID 840 CERTIFICATE OF SERVICE The undersigned counsel for Defendants hereby certifies that on March 15, 2019, that the foregoing document is being sent via Electronic Mail through the CM/ECF system to all counsel of record (including Cory Fein and Seth Lehrman, each counsel for Plaintiff). s/ Bill S. Richmond WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, TX 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com COUNSEL FOR DEFENDANTS DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 6 PageID 841 CERTIFICATE OF CONFERENCE The undersigned counsel for Defendants hereby certifies that on March 14, 2019 he did confer by telephone with Cory Fein, Plaintiff's class counsel, on the relief sought and was told by Mr. Fein that Plaintiff was UNOPPOSED to the extension sought in this motion. s/ Bill S. Richmond WILLIAM S. RICHMOND, ESQ. (Trial Counsel) Texas Bar No. 24066800 (Admitted Pro Hac Vice) PLATT CHEEMA RICHMOND PLLC 1201 N. Riverfront Blvd., Suite 150 Dallas, TX 75207 Telephone: 214.559.2700 Facsimile: 214.559.4390 brichmond@pcrfirm.com COUNSEL FOR DEFENDANTS DEFS.' UNOPPOSED MOT. FOR LEAVE TO EXTEND DISPOSITIVE MOTION DEADLINE PAGE 7