Filed: May 03, 2016
Latest Update: May 03, 2016
Summary: REPORT AND RECOMMENDATION 1 MAC R. MCCOY , Magistrate Judge . TO THE UNITED STATES DISTRICT COURT This cause is before the Court on Defendant Dyck O'Neal's Motion to Deny Class Certification ( Doc. 24 ) filed on April 11, 2016. This matter was referred to the Undersigned by the Honorable Sheri Polster Chappell. On May 2, 2016, Plaintiff Jessica Hernandez filed a Consent to Strike Class Allegations ( Doc. 28 ). Plaintiff filed this action pursuant to the Fair Debt Collection Practices Ac
Summary: REPORT AND RECOMMENDATION 1 MAC R. MCCOY , Magistrate Judge . TO THE UNITED STATES DISTRICT COURT This cause is before the Court on Defendant Dyck O'Neal's Motion to Deny Class Certification ( Doc. 24 ) filed on April 11, 2016. This matter was referred to the Undersigned by the Honorable Sheri Polster Chappell. On May 2, 2016, Plaintiff Jessica Hernandez filed a Consent to Strike Class Allegations ( Doc. 28 ). Plaintiff filed this action pursuant to the Fair Debt Collection Practices Act..
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REPORT AND RECOMMENDATION1
MAC R. MCCOY, Magistrate Judge.
TO THE UNITED STATES DISTRICT COURT
This cause is before the Court on Defendant Dyck O'Neal's Motion to Deny Class Certification (Doc. 24) filed on April 11, 2016. This matter was referred to the Undersigned by the Honorable Sheri Polster Chappell. On May 2, 2016, Plaintiff Jessica Hernandez filed a Consent to Strike Class Allegations (Doc. 28).
Plaintiff filed this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 and the Florida Consumer Collection Practices Act, Fla. Stat. § 559. In the Class Action Complaint (Doc. 1), Plaintiff asserted class (and subclass) allegations pursuant to Fed. R. Civ. P. 23. (See Doc. 1 at ¶¶ 26 — 32). In the Motion to Deny Class Certification, Defendant Dyck O'Neal, Inc ("Defendant") requests that the Court deny class certification due to Plaintiff's failure to comply with the timing provision of Local Rule 4.04(b). See M.D. Fla. R. 4.04(b). Rule 4.04(b) requires a Plaintiff to file a motion for class certification within ninety (90) days from the date the Complaint was filed. M.D. Fla. R. 4.04(b). In this case, the Class Action Complaint (Doc. 1) was filed on June 2, 2015, and the deadline to file a motion for class certification pursuant to Local Rule 4.04(b) is now long since lapsed.
In response to the Motion to Deny Class Certification, Plaintiff's filed a Consent to Strike Class Allegations (Doc. 28). Plaintiff indicated that she "consents to striking the class allegation in the Complaint." (Doc. 28). Accordingly, the Motion to Deny Class Certification (Doc. 24) is rendered moot, and the class allegations in the Complaint should be stricken.
IT IS RESPECTFULLY RECOMMENDED:
1) The Motion to Deny Class Certification be DENIED as moot.
2) The class allegations in the Class Action Complaint (Doc. 1) be stricken.
Respectfully recommended in Chambers in Ft. Myers, Florida on May 3, 2016.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
