Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JAMES ARTHUR JONES, SR, MARY ANN JONES, OZIAH CARSON JONES, SHANTELL

SHAMEA JONES, KEVIN KENNEDY, MURIELLE KELLY KENNEDY, SANDRA WATTS

KENNEDY, FARINDA OSTEEN, MARIA PARSONS, MICHAEL PARSONS, AARON

JONES STEPHENSON, CARLOS UDAE STEPHENSON,

Plaintiffs,

v. CASE NO. 1:10-cv-00071-MP -GRJ

BEAZER EAST INC, CABOT CORPORATION, KOPPERS INC,

Defendants.

_____________________________/

O R D E R

This matter is before the Court on Doc. 23, First Motion for Extension of Time to File

Motion for Class Certification and Incorporated Memorandum of Law by Plaintiffs. Local Rule

23.1(B) requires that within ninety (90) days after the filing of a class action, the plaintiff shall

move for a determination as to whether the case is to be maintained as a class action, unless this

period is extended on motion for good cause appearing. The original Complaint in this case was

filed on April 20, 2010. Plaintiff’s motion for class certification, however, was not filed by July

19, 2010, ninety days later. Plaintiffs did not move for the present nunc pro tunc extension of

time to move for class certification until September 22, 2010, sixty-four (64) days after the

original deadline. As Judge Smoak noted in Jones v. Hartford Ins. Co. of Midwest, “The plain

language of Local Rule 23.1(B) is clear and unambiguous. The rule commands that the motion

Case 1:10-cv-00071-MP -GRJ Document 63 Filed 12/06/10 Page 1 of 4
Page 2 of 4

Case No: 1:10-cv-00071-MP -GRJ

for class determination must be filed within ninety days after filing a complaint, not after filing a

subsequent amended complaint.” 243 F.R.D. 694, 695 (N.D.Fla. 2006). The question for this

Court, then, is whether Plaintiffs can show their neglect in failing to comply with Local Rule

23.1(B) is excusable, or for good cause. A hearing was held on November 30, 2010, at 10:30

a.m. to address this question.

Whether neglect is excusable is to be determined by a four-factor test: “the danger of

prejudice to the [nonmovant], the length of delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was in the reasonable control of the

movant, and whether the movant acted in good faith.” Pioneer Investment Services v.

Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993). Defendants have suffered no

legal prejudice from Plaintiffs’ failure timely to file their motion for class certification. The

length of delay from the original July 19, 2010 due date for the motion continues to grow, with

the potential effect that possible class members are not protected should these named plaintiffs

be denied class certification. 

Delay by a representative plaintiff impedes the court’s consideration of the issue

and may prejudice the rights of the class members. Judge Frankel of the Southern

District of New York has observed: ‘...pertinent statutes of limitation may be

running and important interests may be exposed to injury or destruction. There is

no limitations problem, of course, if the suit is eventually held properly

maintainable as a class action. But that can be known only after, not before, the

determination under [Fed.R.Civ.P. 23](c)(1). And while the determination is

delayed, members of a putative plaintiff class may be led by the very existence of

the lawsuit to neglect their rights until after a negative ruling on this question- by

which time it may be too late for the filing of independent actions.’ 

Williams v. Southern Bell Telephone and Telegraph Co., 1978 WL 73, *2-3 (S.D.Fla. 1978)

(quoting Frankel, J., Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D.. 39,

40 (1968)). 

Case 1:10-cv-00071-MP -GRJ Document 63 Filed 12/06/10 Page 2 of 4
Page 3 of 4

Case No: 1:10-cv-00071-MP -GRJ

As to the reason for the delay, the Eleventh Circuit has held that, as a matter of law, “an

attorney’s misunderstanding of the plain language of a rule cannot constitute excusable neglect

such that a party is relieved of the consequences of failing to comply with a statutory deadline.” 

Advanced Estimating System, Inc. v. Riney, 130 F.3d 996 (11th Cir. 1997). If it were otherwise,

“almost every appellant’s lawyer would plead his own inability to understand the law when he

fails to comply with a deadline. We do not believe the [Supreme] Court intended a practice that

would require courts to be that lenient about disobedience to plain law.” Id. This Court applies

the same reasoning to the enforcement of the Northern District of Florida’s local rules under the

particular circumstances of the instant motion. 

Here, Plaintiffs’ current counsel, Mr. Montoya, argued that he and his partner Mr.

Gonzalez filed the instant motion for an extension of time as soon as they were retained by

Plaintiffs. He argued that Plaintiffs’ prior counsel were the ones responsible for the failure to

comply with Local Rule 23.1(B), and that Plaintiffs themselves have been proceeding in good

faith and ought not be punished for prior counsel’s failure or inexperience with complex

litigation. Mr. Montoya and Mr. Gonzalez’ ability and experience as counsel in complex

litigation, which Defendants do not dispute, is not the concern underlying Local Rule 23.1(b),

however. 

Six attorneys from five separate law firms signed the original Complaint in April of 2010. 

Even represented by five different firms, Plaintiffs did not file their motion to extend time to

submit their class certification motion until sixty-four days after the class certification motion

was due. Plaintiffs are not at liberty to avoid deadlines clearly imposed by the local rules by

hiring new counsel whenever a deadline has been ignored, who then argues that Plaintiff’s

previous neglect of the deadline should be forgiven. Failure of Plaintiffs’ counsel to timely file a

Case 1:10-cv-00071-MP -GRJ Document 63 Filed 12/06/10 Page 3 of 4
Page 4 of 4

Case No: 1:10-cv-00071-MP -GRJ

motion for class certification does reflect on their ability to represent a class of plaintiffs, even

when they have since hired new counsel who are more experienced in complex litigation and

more respectful of the local rules of this District. This Court therefore declines to excuse

Plaintiffs’ neglect in failing to meet the deadline imposed by Local Rule 23.1(B). 

Failing to move for class certification constitutes a “failure to protect the interests of

class members” and “surely bears strongly on the adequacy of the representation that those class

members might expect to receive.” East Texas Motor Freight System, Inc. v. Rodriguez, 431

U.S. 395, 405 (1977). This reasoning applies as well to inexcusable delay in moving for class

certification. See Williams v. Southern Bell 1978 WL 73. Even if defendants have not been

prejudiced by the delay, “the public business of the court ... has been hampered and delayed.” 

Walker v. Columbia University, 62 F.R.D. 63, 64 (S.D.N.Y. 1973). 

Accordingly, it is

ORDERED AND ADJUDGED:

1. First Motion for Extension of Time to File Motion for Class Certification, Doc.

23, is DENIED. 

2. This Court DENIES class certification to Plaintiffs under Fed.R.Civ.P. 23(c)(1).

DONE AND ORDERED this 6th day of December, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

Case 1:10-cv-00071-MP -GRJ Document 63 Filed 12/06/10 Page 4 of 4