Free Request - District Court of Arizona - Arizona

1 Kelly McInerney, Esq., NV SBN 7443 Charles A. Jones, Esq., NV SBN 6698 2 MCINERNEY & JONES 18124 Wedge Parkway #503 3 Reno, NV 89511 Telephone: (775) 849-3811 4 Facsimile: (775) 849-3866 5 Attorneys for Plaintiff Rosa 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs respectfully request that this Court rule on Plaintiffs' Motion to Facilitate Notice which was filed in July 2004 and submitted in September 2004, well over a year ago.1 On July 5, 2005, Plaintiffs filed a request for a status conference regarding this issue, but no response was received. Although the Plaintiffs are aware of the Court's busy docket and realize there are other possible reasons for the delay, Plaintiffs are concerned that these cases which were coordinated by the MDL Panel have been languishing in the Courts without judicial administration. For example, Defendants filed a Motion for Summary Judgment against the three named plaintiffs in the Gaglione action in August 2004 and that motion was submitted before this Court in October 2004. No ruling has been issued on that motion either, but Plaintiffs request that motion be ruled upon as well, even if to state that the motion is premature or that any decision applies only to those three particular plaintiffs. Case 2:03-cv-01741-PGR Document 95 1 Filed 12/06/2005 PLAINTIFFS' REQUEST FOR RULING Page 1 of 4
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IN RE ALLSTATE INSURANCE CO FAIR LABOR STANDARDS ACT LITIGATION ROSA, et al. v. ALLSTATE INSURANCE COMPANY, et al.

MDL Docket No. 1541 Case No.: CV-03-1741-PHX-PGR PLAINTIFFS' REQUEST FOR RULING Judge: Room: Hon. Paul G. Rosenblatt Suite 621

1 the Rosa action was filed almost four years ago in March 2002. The Gaglione action and the 2 Montano action were filed on October 7, 2002 and December 17, 2002, repectively.2 3 The case has been effectively stayed since these two motions were submitted. Time is of

4 the essence with respect to Plaintiffs' Motion to Facilitate Notice because there are literally 5 thousands of potential class members who have never received Notice and there is a wasting 6 statute of limitations. 7 Of the tens of thousands of putative class members, over six hundred class members have

8 already opted-in to this action, even though Notice has not yet been sent out. These hundreds of 9 class members regularly write, email, phone and fax Plaintiffs' counsel inquiring about progress 10 in the case. This is especially true because they are aware that in California, Allstate settled for 11 one hundred and twenty million dollars ($120,000,000) on a claims-made basis in a similar case 12 brought on behalf of adjusters in California seeking overtime. See Exhibit A, Notice of Class 13 Action Settlement in Sekly/Bednar et al. v. Allstate Insurance Company and Exhibit B, article 14 dated September 2, 2005 from the LA Times discussing the settlement. Likewise, Allstate has 15 reclassified all of its California adjusters as non-exempt and has reclassified certain adjuster 16 positions as non-exempt on a nationwide basis. See Exhibit C, memorandum sent on October 7, 17 2004 by Allstate to all of its adjusters discussing the reclassification. 18 The Allstate adjusters are also aware that other overtime collective actions brought on

19 behalf of adjusters have proceeded much more quickly. For example, in the In re Farmers 20 Insurance Exchange Claims Representatives' Overtime Pay Litigation. (U.S. District Court 21 Oregon, MDL docket number 1439), the MDL Panel coordinated eight actions in Oregon on 22 March 12, 2002 and plaintiffs' motion to facilitate notice was granted on September 26, 2002, just 23 six months later. See Exhibit D, the decision at 196 F.Supp.2d 1373 centralizing the actions by 24 the MDL Panel and Exhibit E, the Order directing notice and the consent to join form to be sent 25 26 27 28 The original Motion to Facilitate Notice was filed October 1, 2002 in the Rosa action in Nevada. The Judge in that case never ruled on the motion. In April 2003, Plaintiff Rosa filed an MDL Motion for Coordination. The MDL hearing took place in July 2003. The cases were coordinated before this Court pursuant to MDL transfer in January 2004. The parties had their first and only appearance before this Court in March 2004. Case 2:03-cv-01741-PGR Document 95 2 Filed 12/06/2005 PLAINTIFFS' REQUEST FOR RULING Page 2 of 4
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1 out. 2 It has been eighteen months since the parties had their one and only appearance before this

3 Court, it has been fifteen months since Plaintiffs' Motion to Facilitate Notice was submitted, and 4 it has been fourteen months since Defendants' Motion for Summary Judgment was submitted. 5 This delay in a ruling may prejudice the Plaintiffs, not only because of the wasting statute of 6 limitations, but because other problems caused by delay such as memories becoming stale, may 7 have intensified. In order to get this case back on track, Plaintiffs respectfully request this Court 8 rule on Plaintiffs' Motion to Facilitate Notice. Without such a ruling, the parties and their counsel 9 cannot move forward with this case or have any hope of resolution. 10 11 12 Dated: December 6, 2005 13 14 By: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Kelly McInerney Kelly McInerney, Esq. MCINERNEY & JONES Attorneys for Plaintiff Rosa

Case 2:03-cv-01741-PGR

Document 95 3 Filed 12/06/2005 PLAINTIFFS' REQUEST FOR RULING

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CERTIFICATE OF MAILING Pursuant to FRCP 5(b), I certify that I am an employee of McInerney & Jones and that on

3 this date I sent, via U.S. Mail, a true copy of the foregoing document(s): 4 1. Plaintiffs' Request for Ruling

5 addressed to: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Dated this 6th day of December, 2005 21 22 23 24 25 26 27 28 /s/ Belinda Watson Belinda Watson Andrew Paley Seyfarth Shaw One Century Plaza, Suite 3300 2029 Century Park East Los Angeles, CA 90067 Telephone: 310-277-7200 Facsimile: 310-201-5219 Andrea Elisabeth Watters, Esq. Watters & Watters, PC 2807 East Broadway Blvd. Tucson, AZ 85716 Telephone: (520) 323-5910 Facsimile: (520) 323-5912 Joel E. Krischer Latham & Watkins 633 West Fifth Street, Suite 4000 Los Angeles, CA 90071 Telephone: 213-891-7939 Facsimile: 213-891-8763 Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, Ohio 44113 Telephone: (216) 696-0606 Facsimile: (216) 696-0679

Hal Gillespie, Esq. Gillespie, Rosen & Watsky 3402 Oak Grove Ave. #200 Dallas, TX 75204 Telephone: 214-720-2009 Facsimile: 214-720-2291

Case 2:03-cv-01741-PGR

Document 95 4 Filed 12/06/2005 PLAINTIFFS' REQUEST FOR RULING

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