D's Resp to Supp Relief

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 0:15-cv-60581-WPD

JANE DOE, individually and for all others

similarly situated,

Plaintiff,

v.

TEXAS A&M UNIVERSITY 12TH MAN

FOUNDATION a/k/a THE 12TH MAN

FOUNDATION,

Defendant.

____________________________________

DEFENDANT’S NOTICE RELATING TO PLAINTIFF’S “MOTION FOR ORDERS

PURSUANT TO RULE 23(d)(5) AND THE INHERENT AUTHORITY OF THE COURT”

[D.E. 8]

Subject to, and without waiver of, the jurisdictional objections and other defenses that it

will assert in response to Plaintiff’s March 19, 2015 Original Class Action Complaint for Breach

of Contract; Promissory Estoppel; and for Declaratory Judgment (“Complaint”) [D.E. 1],1

Defendant, Texas A&M University 12th Man Foundation a/k/a 12th Man Foundation

(“Foundation”), pursuant to Local Rules 7.1(a)(3) and 7.1(e), hereby notifies the Court that

Plaintiff’s March 24, 2015 “Motion for Orders Pursuant to Rule 23(d)(5) and the Inherent

Authority of the Court (“Motion”) [D.E. 8] not only is procedurally and substantively defective,

but Plaintiff also violated this Court’s Local Rules (i) by failing to comply with this Court’s

procedure regarding the filing of motions seeking expedited relief and (ii) by failing to meet and

confer prior to the filing of the Motion.

Defendant respectfully requests that it be allowed to present a complete response to the

Motion pursuant to the timetable set forth in the Local Rules. In the interim, however,

Defendant must inform the Court (i) that the Motion is a thinly-veiled, improper attempt to seek

1 Defendant was served with Plaintiff’s Complaint on March 24, 2015. Defendant will move to

dismiss the Complaint for, inter alia, lack of subject matter and personal jurisdiction.

Case 0:15-cv-60581-WPD Document 16 Entered on FLSD Docket 03/25/2015 of 9


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injunctive relief that already has been denied in a first-filed putative class action lawsuit

currently pending in the Eastern District of Texas and (ii) that there is no emergent need

warranting expedited consideration of the Motion.

Brief Introduction

This case involves a dispute over the reseating of season ticket holders in the wake of the

redevelopment and renovation of Kyle Field, the stadium that hosts, among other events, the

home games of the venerable Texas A&M University Aggies football team. Importantly, the

reseating process was announced to the public in May 2013.2

Despite being on notice of the reseating plan for over two years, on March 11, 2015—

approximately eight days prior to the commencement of the instant action—counsel for Plaintiff

here filed a virtually identical putative class action lawsuit against Defendant in the Eastern

District of Texas. See York et al. v. Texas A&M 12th Man Foundation a/k/a the 12th Man

Foundation, Case No. 2:15–cv–00352-JRG (E.D. Tex.) (the “Texas Action”).3 The Texas

Action currently is pending before the Honorable Rodney Gilstrap, who sits in the Eastern

District of Texas’s Marshall Division.

Concurrently with the filing of their 31-page putative class action complaint in the Texas

Action, the plaintiffs moved the Texas federal district court for a temporary restraining order

requesting a preliminary injunction, inter alia:

(a) restraining Defendant 12th Man Foundation from applying

its Priority Points Program and Kyle Field Reseating Plan to change the

established seating locations of any of the Foundation’s Permanently

Endowed Donors, including each Plaintiff;

(b) ordering Defendant 12th Man Foundation to cease and

desist its harassment and intimidation of the Permanently Endowed

Donors who object to the Foundation’s plan to reseat Kyle Field; and

2 See Foundation’s Opposition to Plaintiffs’ Application for Temporary Restraining Order and

for Preliminary Injunction, Subject to Its Motion to Dismiss [Texas Action D.E. 3] at 4-5 (noting

that the plaintiffs in the Texas Action conceded, in their affidavits filed in that case, that they had

received the May 2013 letters from the Foundation publicly announcing the beginning of the

reseating process).

3 A comparison of the putative class action complaint filed in the Texas Action and the

Complaint filed in the instant action is attached as Exhibit 1.



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(c) ordering Defendant 12th Man Foundation to refrain from

taking any action that would punish or disadvantage Plaintiffs or any other

Permanently Endowed Donor by reason of the bringing of this lawsuit.

Application for Temporary Restraining Order and for Preliminary Injunction [Texas Action D.E.

2]. The Foundation opposed the Texas Action plaintiffs’ motion for a temporary restraining

order [Texas Action D.E. 3].

On March 14, 2015, after considering the parties’ written arguments, and the evidence

submitted with their respective briefs, Judge Gilstrap issued an order denying the Texas Action

plaintiffs’ motion for temporary restraining order and a preliminary injunction. A copy of Judge

Gilstrap’s order is attached as Exhibit 2. Judge Gilstrap ruled, inter alia, that the plaintiffs in the

Texas Action had not satisfied their burden that the extraordinary remedy of an injunction was

warranted, in general, and that they had failed to meet their burden of demonstrating irreparable

harm, in particular. Order [Texas Action D.E. 7] at 2-3.

The Instant Case and the Motion

Apparently dissatisfied with how the Texas Action was proceeding, the same counsel

representing the plaintiffs in the Texas Action initiated the instant case on behalf of Plaintiff—

eight days after the same counsel had initiated the Texas Action and five days after Judge

Gilstrap denied the Texas Action plaintiffs’ motion for a temporary restraining and preliminary

injunction. Following a similar strategy as the one employed in the Texas Action, counsel for

Plaintiff filed the Complaint on March 19, 2015, and then filed the Motion on March 24, 2015.

In the Motion, Plaintiff seeks “expedited” relief that mirrors the relief sought in the ill-fated

motion for injunctive relief denied by Judge Gilstrap. Specifically, in the Motion, Plaintiff seeks

an emergency order from this Court:

1. requiring Defendant 12th Man Foundation to disclose in writing prior to

the time of purchase and within 48 hours of the Court’s order to the purchasers of

seating locations in the Redeveloped Kyle Field that correspond to the locations

of Plaintiffs’ [sic] established seating locations and to those of proposed Class

action members that the right to be seated at those locations this year, and for the

term of their 15-year endowment and thereafter, is disputed in this action and

subject to determination by the Court. Plaintiff asks the Court to order

Defendants to mail notice to purchasers and to provide notice in advance of

purchase via notice posted or appearing at mouse-click or hover-over selection of

a disputed seating location on the Foundation’s Seat Selection webpage;



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2. restraining Defendant 12th Man Foundation from its efforts to harass and

intimidate the Permanently Endowed Donors who object to the Foundation’s plan

to reseat Kyle Field; and

3. ordering Defendant 12th Man Foundation to refrain from taking any action

that would punish or disadvantage Plaintiff or any other Permanently Endowed

Donor by reason of the bringing of this lawsuit.

Motion at 4. According to Plaintiff, this emergency relief purportedly is appropriate under

Federal Rule of Civil Procedure 23(d)(5) and the Court’s inherent authority. Id. at 1. The

request for emergency disposition of the Motion is premised on the allegation that “Defendant’s

Seating Selection process began March 16, 2015 and is ongoing.” Id. at 2 (emphasis in

original).

Brief Legal Argument

Defendant will detail the procedural and substantive deficiencies of the Motion in its

response in opposition, but Defendant’s Motion is improper, inter alia, because (i) it is a

procedurally insufficient request for injunctive relief (Plaintiff has not even bothered to attempt

to meet its burden of demonstrating that such relief is appropriate under Federal Rule of Civil

Procedure 65); (ii) Judge Gilstrap denied a virtually identical request for injunctive relief after

considering the parties’ arguments and evidence in the first-filed Texas Action, and (iii) there is

no Federal Rule of Civil Procedure 23(d)(5),4 which Plaintiff contends supports its request for

relief in the Motion.

Plaintiff also has not shown that expedited disposition of the Motion is warranted—it is

undisputed that the Foundation announced its plan for reseating in mid-2013 (see footnote 2,

supra), yet Plaintiff only saw it fit to file suit almost two years later. Additionally, counsel for

Plaintiff could have made an emergency request for relief in the Texas Action, where Judge

Gilstrap continues to have jurisdiction—but counsel for Plaintiff failed to so move. Finally,

Plaintiff failed to comply with Local Rule 7.1(e), which provides that a motion seeking expedited

4 Federal Rule of Civil Procedure 23(d) only has two subsections—23(d)(1) and (d)(2). Neither

subsection supports the relief sought by Plaintiff in the Motion.



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relief “shall set forth in detail the necessity for such expedited procedure and be accompanied by

the form available on the Court’s website.”5 Local Rule 7.1(e) (emphasis added).

Indeed, pursuant to Local Rule 7.1(e), Plaintiff’s counsel was required to submit a

Certification of Emergency form certifying that “as a member of the Bar of this Court, I have

carefully examined this matter and it is a true emergency,” that “the necessity for this emergency

hearing has not been caused by a lack of due diligence on my part, but has been brought about

only by the circumstances of this case,” and that “I further certify that I have made a bona fide

effort to resolve this matter without the necessity of emergency action.” S.D. Fla. Certification

of Emergency Form. Plaintiff failed to file the Certification and also failed to attempt to resolve

this matter without the need for expedited disposition of the Motion. Courts in the Southern

District have not hesitated to strike improper “emergency” or “expedited” designations and have

noted that “[t]he unwarranted use of an emergency designation ‘unfairly disfavors other litigants

who, despite expeditious prosecution of each case and scrupulous attention to each local and

federal rule, must wait patiently while the court disposes of a feigned emergency.’” Medge v.

Joint Stock Company Acron, Case No. 13–22339–CIV–Williams (S.D. Fla. Aug. 6, 2013) (order

striking motion’s “emergency” designation) (citing Bravado Int’l Grp. Merch. SE Servs., Inc. v.

Smith, No. 8:12–cv–613, 2012 WL 1155858, at *1 (M.D. Fla. Mar. 27, 2012)).

Similarly, Plaintiff failed to satisfy the meet and confer requirements set forth in Local

Rule 7.1(a)(3). Plaintiff’s failure provides the Court with an additional, independent ground to

deny the Motion outright. See Local Rule 7.1(a)(3) (“[f]ailure to comply with the requirements

of this Local Rule may be cause for the Court to . . . deny the motion and impose on counsel an

appropriate sanction, which may include an order to pay the amount of the reasonable expenses

incurred because of the violation, including a reasonable attorney’s fee.”); see also Porter v.

Collecto, Inc., No. 14–21270–CIV, 2014 WL 2612317, at *2 (S.D. Fla. Jun. 11, 2014) (granting

5 Although Plaintiff did not style her submission as an emergency motion, Plaintiff does request

expedited relief and thus Local Rule 7.1(e) is applicable. Motion at 2. Specifically, Local Rule

7.1(e) states that “[t]he Court may, upon written motion and good cause shown, waive the time

requirements of this Local Rule and grant an immediate hearing on any matter requiring such

expedited procedure.” Local Rule 7.1(e) (emphasis added).



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motion to strike, inter alia, due to plaintiffs’ failure to comply with Local Rule 7.1(a)(3) and

granting defendant’s request for attorneys’ fees).6

WHEREFORE, Defendant, Foundation, respectfully requests that the Court decline to

dispose of the Motion on an expedited basis, allow the Foundation through and including April

10, 2015, to respond to the Motion, and grant Defendant any additional relief the Court deems

just and appropriate.

6 Although Local Rule 7.1(a)(3)’s meet and confer requirement does not apply to motions for

injunctive relief, Plaintiff did not style its motion as such, but instead styled it as a motion for

“orders” pursuant to the non-existent Rule 23(d)(5) and the Court’s inherent authority—not as a

motion for injunctive relief pursuant to Federal Rule of Civil Procedure 65. Consequently,

although Plaintiff in reality improperly is seeking injunctive relief, Plaintiff nevertheless was

under an obligation to meet and confer pursuant to Local Rule 7.1(a)(3).



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Dated this 25th day of March, 2015.

Respectfully submitted,

By s/Marty Steinberg

Marty Steinberg (FBN 187293)

[email protected]

Rafael R. Ribeiro (FBN 896241)

[email protected]

BILZIN SUMBERG BAENA PRICE &

AXELROD LLP

1450 Brickell Ave.

23rd Floor

Miami, FL 33131

Telephone: (305) 350-7312

Facsimile: (305) 351-2132

Counsel for Defendant

and

Layne E. Kruse

[email protected]

Anne M. Rodgers

[email protected]

Randall Richardson

[email protected]

Pro Hac Motions Forthcoming

NORTON ROSE FULBRIGHT US LLP

Fulbright Tower

1301 McKinney, Suite 5100

Houston, TX 77010-3095

Telephone: (713) 651-5194

Fax: (713) 651-5246

Counsel for Defendant


mailto:[email protected]


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by electronic

filing using the CM/ECF filing system on March 25, 2015, on all counsel or parties of record on

the Service List below.

By: s/Marty Steinberg

Marty Steinberg



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SERVICE LIST

Peter Prieto

John Gravante III

PODHURST ORSECK, P.A.

25 West Flagler Street, Suite 800

Miami, Florida 33130

Tel: (305) 358-2800

[email protected]

[email protected]

Counsel for Plaintiff

Debra Brewer Hayes

Charles Clinton Hunter

THE HAYES LAW FIRM, PC

700 Rockmead Drive, Suite 210

Houston, Texas 77339-2111

Telephone: (281) 815-4963

Fax: (832) 575-4759

[email protected]

[email protected]

Counsel for Plaintiff

MIAMI 4543634.3 73190/40485


D's Resp to Supp Relief

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