United States District Court, D. Minnesota
IN RE CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION This Document Relates to: Civil File Nos. 17-2832, 17-4613, 17-4614, 17-4615, 17-4616, 17-4617, 17-4618, 17-4619, 17-4622, 17-4943, 17-4944, 17-4945, 17-4947, 17-5046, 18-1562, 18-1565, 18-1572, 18-1573,
MEMORANDUM OF LAW & ORDER
Michael J. Davis, United States District Court Judge
matter is before the Court on Plaintiffs' Motion for
Leave to File a Sur-Reply to Defendant and Proposed
Intervenors' Motion to Compel Arbitration and Enforce
Class-Action Waivers. [Docket No. 312] Oral argument on the
underlying motion to compel arbitration has been set for
March 6, 2019.
filed their Opposition to the motion to compel arbitration on
August 23, 2018. [Docket No. 253] Defendant filed its Reply
in support of the motion to compel arbitration on November
21. [Docket No. 295] On December 13, Plaintiffs filed the
current motion for leave to file a sur-reply.
assert that, in the Reply, Defendant changed the basis for
its motion seeking to compel arbitration from seeking relief
under § 4 of the Federal Arbitration Act
(“FAA”) to seeking relief under § 3 of the
FAA. Defendant agrees that Plaintiffs should be entitled to
file a sur-reply addressing this issue.
assert that Defendant's Reply includes new declarations,
testimony, and documents that were not in the record when
Plaintiffs submitted their Opposition. Specifically, after
Plaintiffs submitted their Opposition, Defendant produced new
documents and took the depositions of 28 Plaintiffs.
CenturyLink cites to this deposition testimony to prove that
these Plaintiffs agreed to mandatory arbitration clauses.
Plaintiffs seek to file new declarations by these same
Plaintiffs to clarify their testimony and to make their
original declarations accurate and complete.
agrees that Plaintiffs should be permitted to address certain
new declarations that it filed in conjunction with its Reply.
It further agrees that Plaintiffs should be allowed to
supplement their declarations regarding facts that they could
not address in their depositions. However, it objects to
Plaintiffs attempting to file “sham” declarations
to undo their deposition testimony.
Court grants Plaintiffs' motion. The parties agree that
Defendant has submitted a new legal theory and certain new
evidence that Plaintiffs should be permitted to address.
Additionally, the question of whether Plaintiffs agreed to
arbitration clauses is the key question in this hotly
contested motion. A party cannot rely on a sham declaration
created after damaging deposition testimony to create a fact
issue. However, the Court cannot judge the propriety of
Plaintiffs' proposed new declarations without reviewing
the declarations and comparing them to the deposition
testimony, none of which are currently before the Court.
Thus, at this point, the Court will grant Plaintiffs'
request to file the sur-reply and declarations. By permitting
Plaintiffs to file the declarations, the Court is not yet
ruling on the admissibility or evidentiary significance of
these declarations. Defendants will be permitted ample time
to respond, and the Court will rule on the parties'
arguments when a full record is before it.
the parties seek to add significant additional briefing and
evidence and to substantially extend the briefing schedule,
the Court cancels the oral argument currently set for March
6, 2019. The parties shall contact the Court to obtain a new
hearing date that will permit the parties to fully address
these new issues and allow the Court sufficient time to
prepare for oral argument.
based upon the files, records, and proceedings
herein, IT IS HEREBY ORDERED:
1. Plaintiffs' Motion for Leave to File a Sur-Reply to
Defendant and Proposed Intervenors' Motion to Compel
Arbitration and Enforce Class-Action ...