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Reversing himself, a federal magistrate judge has ruled that the plaintiffs seeking class action status in a two-year-old race discrimination suit against the Adams Mark hotel chain are not entitled to proceed as a class because their lawyers dragged their feet too long in seeking class certification. “Had plaintiffs put forth at least some reason that they could not have previously moved for class certification or, at minimum, sought an extension of time, the court would have perhaps been more lenient with the time restrictions. Having received no justification for such delay, though, the court cannot act as plaintiffs’ advocate and search for some reason to maintain the class action,” U.S. Magistrate Judge Charles B. Smith wrote in his 12-page opinion in Wilson v. Seven Seventeen HB Philadelphia Corp. But the impact of the ruling is unclear because plaintiffs’ lawyers say that another, more recent suit seeking class action status has been filed that will include all of the plaintiffs in the Wilson case. In Vinson v. Seven Seventeen HB Philadelphia Corp., the same team of plaintiffs’ lawyers allege that black employees at the 21 Adams Mark hotels around the country are routinely relegated to the lowest-paying jobs and work in racially hostile environments. A third suit alleges that black patrons of Adams Mark hotels are routinely discriminated against and that the hotel chain’s owner, Fred Krummer, has personally insisted that the hotels’ nightclubs take efforts to ensure that the clientele is not predominantly black. The plaintiffs’ team in all three cases includes attorneys Samuel A. Dion and Benson Goldberger of Dion-Goldberger; W.D. Masterson, Thomas C. Anderson and Dorothy Elizabeth Masteron of Kilgore & Kilgore in Dallas, Texas; Louis Ginsberg of New York; and Alan Lescht of Washington, D.C. But the first of the three cases has now been permanently denied class status. Smith found that under Federal Rule of Civil Procedure 23, the plaintiffs in a proposed class action must move for class certification within 90 days of filing suit unless granted an extension. The Wilson case was filed in April 1999. After extensive motions and an amendment of the suit, defense lawyers asked in October 1999 that the plaintiffs’ class allegations be stricken for failure to comply with the 90-day rule. Plaintiffs’ lawyers responded four days later with their first motion asking for an extension of time, and U.S. District Judge Jay C. Waldman granted it, extending the deadline to Jan. 31, 2000. The motion was filed on time, and defense lawyers opposed it. But the plaintiffs had also filed a motion to compel certain discovery. Judge Waldman ruled on both motions at once and ordered the defendants to provide specified discovery to the plaintiffs by June 30, 2000. Waldman then denied the motion for class certification “without prejudice” and ordered that the plaintiffs could renew the motion within 20 days of the completion of the court-ordered discovery. In July 2000, the plaintiffs again moved to compel discovery. The case was reassigned to U.S. District Judge Barclay Surrick, who referred the discovery motion to U.S. Magistrate Judge Arnold Rapoport. In December 2000, Rapoport denied the motion to compel. At that point, defense attorneys Michael M. Baylson, Teresa N. Cavenagh and Stephen A. Mallozzi of Duane Morris & Heckscher filed a motion asking that class certification be denied with prejudice due to the plaintiffs’ failure to comply with Waldman’s order that set a 20-day deadline for renewing the motion. The file landed on the desk of a fourth judge, Magistrate Judge Smith, who held a conference and issued an order that denied the defense motion as “unripe.” But the defense lawyers pressed the point, filing a motion for reconsideration that urged Smith to take a harder look at the rules. “The law is clear that defendants’ cross-motion was ripe and should have been resolved,” they wrote. Rule 23, they said, “is party-neutral and has been interpreted to permit either a plaintiff or a defendant to move for determination of the class certification issue.” Motions for reconsideration are rarely granted in the federal courts because success depends on a finding by the judge that a prior ruling was premised on a “manifest error of law.” But Smith found that his prior ruling was legally unsound because “defendants were entitled to seek a class determination, even in the absence of a motion by plaintiffs. As such, the motion was, indeed, ripe for consideration.” Turning to the merits of the motion, Smith found that the defense team was asking the court to deny class certification with prejudice on two grounds — that the plaintiffs failed to abide by Waldman’s deadline for seeking class certification; and that the plaintiffs cannot meet the requirements of a class under Rule 23. Smith focused entirely on the first reason. Although the 3rd Circuit has held that the denial of a class certification motion as untimely under the local rule falls within the trial court’s discretion, Smith found that judges in the Eastern District have shown “a reluctance to deny a motion for class certification solely for failure to seek timely certification under Rule 23.1(c), absent some additional showing of prejudice to the defendants or members of the class resulting from the delay.” But Smith also found that “in cases where the plaintiffs have violated a court order setting a deadline, as opposed to simply missing the time set forth by Local Rule 23.1, courts have been more apt to deny class certification.” In the Wilson case, Smith said, the plaintiffs’ lawyers took no action on class certification for more than six months — more than three months beyond the deadline set forth in the local rule — and sought an extension only when prompted by a defense motion. And even when they were granted an extension — with their motion due 20 days after a six-month discovery period ended — Smith found that the plaintiffs again took no action. “In light of these circumstances, the court finds itself compelled to deny class certification,” Smith wrote. At the time of his February 2001 conference with the lawyers, Smith said, “the motion was over six months late.” Following the original denial of certification, he said, “the court had given plaintiffs ample time to either renew their motion or seek an extension of time.” And the defense team waited another five months before seeking a denial of class certification with prejudice, Smith noted. “The case is now almost two years old. With only one month remaining in the rather lengthy, substantive discovery period, defendants are certainly entitled to a determination so as to allow them to properly prepare this case either as a class action suit or as an individual action,” Smith wrote. The plaintiffs, Smith said, presented “absolutely no excuse” for their noncompliance with the deadlines. “Certainly, the court has the right, indeed the duty … to fix a time limit for class determination. Plaintiffs cannot simply ignore such orders without providing some justification,” he wrote.

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