ADALBERTO JORDAN, District Judge
In 2004, Judith Haney, Liat Mayer, Jamie Loughner, Darcy Smith, and Amanda Wells, individually and on behalf of all persons similarly situated, sued Miami-Dade County and others for subjecting them to strip and visual body cavity searches, in violation of the Fourth and Fourteenth Amendments. The plaintiffs sought declaratory and injunctive relief, as well as monetary damages. pursuant to 42 U.S.C. §§ 1983 and 1988. On March 14, 2005, the parties reached a tentative settlement of this case. See Joint Status Report [D.E.44]. Following a hearing on April 18, 2005, I entered an order granting preliminary approval for settlement of the class action. See Order [D.E. 56]. In that same order, the class members were given through September 1, 2005, to opt-out of the settlement, object to the settlement, or file claims. See id. at 5. That order also noticed a fairness hearing on the proposed settlement for September 23, 2005. See id. at 6.
On September 20, 2005, class member Ana Martin filed a motion to opt-out of the class action settlement out of time. For the reasons set forth below, Ms. Martin's motion to opt-out [D.E. 67] is DENIED.
Ms. Martin is a member of the class in this case. She is also an individual plaintiff in another case before this court, Ana Martin Jose Salvatierra, et al., Case No. 05-21174-CIV-JORDAN/KLEIN, in which she alleges a statutory strip search claim and a § 1983 claim against Miami-Dade County. Ms. Mart in seeks to opt-out of this class settlement after the September 1. 2005, deadline pursuant to Fed.R.Civ.P. 6(b) and Local Rule 7.1(C). Specifically, Ms. Martin contends that I should allow her to opt-out past the deadline due to excusable neglect because her attorney failed to understand that she needed to affirmatively opt-out from the class action settlement. See Motion to Opt-Out at 7.
According to Ms. Martin, she advised her attorney on April 6, 2005, that she received a class action claim form concerning her claim as part of this class action suit. See Motion to Opt-Out at 3. She had already filled out the claim form, but neither Ms. Martin nor her attorney ever submitted it to the claims administrator. See id. According to Ms. Martin, no opt-out instructions were included with the claim form, although she acknowledges that the claim form provided that the deadline for submitting the claim form was September 1, 2005. See idi at 4.
Ms. Martin's attorney noted her membership in this class action in her response to the County's motion to dismiss in her individual lawsuit against the County. See id. at 4. Her attorney also stated that, upon receipt of the County's motion to dismiss (on or about May 31, 2005), he printed approximately 100 pages of various pleadings in this case, including the April 13, 2005, stipulated motion for preliminary approval of provisional settlement class and settlement of class action [D.E. 49], which included a description of the process for claims submission, opt-outs, and administration. Ms. Martin's attorney states, however, that he did not focus on the opt-out procedure when reviewing these pleadings and was therefore unaware of the provisions for opting out of the class settlement. See Motion to Opt-Out at 7.
Rule 6 (b) provides that the court may allow for a motion to be made after the expiration of a specified period where the failure to act was the result of excusable neglect. See FED.R.CIV.P. 6(b). The Supreme Court in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd P'ship. 507 U.S. 380, 395 (1993), stated that the determination of excusable neglect is an "equitable one, taking into account of all relevant circumstances surrounding the party's omission." The Supreme Court further identified four pertinent factors to determine excusable neglect: (1) the danger of prejudice to the other party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See id. at 395. See also Walter v. Blue Cross Blue Shield United of Wisconsin, 181 F.3d 1198, 1201 (11th Cir. 1999) (applying the four factors from Pioneer). The Eleventh Circuit, in Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996). explained that "[i]n Pioneer, the Supreme Court accorded primary importance to the absence of prejudice to the nonmoving party and to the interest of efficient judicial administration" in determining excusable neglect. The Eleventh Circuit further held in Advanced Estimating System, Inc. v. Riney, 130F.3d 996, 998 (11th Cir. 1997), 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." See also Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (affirming district court's determination that attorney oversight was not excusable neglect).
Under the factors set forth in Pioneer, Cheney and other Eleventh Circuit cases, Ms. Martin has not shown excusable neglect. Notably, Ms. Martin's attorney's failure to understand that she needed to affirmatively opt-out of this class settlement — as well as his failure to investigate any requirement to opt-out — constitute attorney misunderstanding and therefore does not constitute excusable neglect. See Riney, 130 F.3d at 99S. See also Pioneer, 507 U.S. at 396 ("inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect . . ."). Moreover, the delay in seeking to opt-out was solely within the reasonable control of Ms. Martin and her attorney. See Pioneer, 507 U.S. at 395. Indeed, Ms. Martin and her attorney acknowledge that Ms. Martin actually completed the claim form and advised her attorney of the claim form as early as April 6, 2005. See Motion to Opt-Out at 3. Ms. Martin does not state in her motion whether she intended to opt-out of the class action at the time she completed the claim form. Furthermore, shortly after May 31, 2005, when the County filed its motion to dismiss Ms. Martin's individual claims, her attorney printed approximately 100 pages of various pleadings in this case, including pleadings containing a description of the process for claims submission. opt-outs, and administration. Thus, Ms. Martin and her attorney were aware of the class action, and proposed settlement, months before the September 1, 2005, deadline, and any delay to opt-out was within their control. This is unlike the circumstances in Walter, where the Eleventh Circuit found excusable neglect due to a secretary's failure to record the applicable deadline, which was deemed an "innocent oversight." See Walter, 181 F.3d at 1202.
Despite having filed this motion to opt-out a few days before the fairness hearing, neither Ms. Martin nor her attorney appeared at that hearing on September 23, 2005, to voice any objections to the proposed settlement.
The other remaining factors in Pioneer also weigh in favor of denying the motion to opt-out. In its response to the motion to opt-out, the County does not discuss whether it would be prejudiced by Ms. Martin's late opt-out. Even if there would be little or no prejudice to the County, courts have denied an extension of time to opt-out despite chronological proximity to the deadline. See In re The Prudential Ins. Co. of Am. Ales Practices Litigation, 177 F.R.D. 216, 236 (D.N.J. 1997) (citing cases) (denying extension to opt out even where there was no prejudice to the defendants). Nevertheless, I conclude that allowing Ms. Martin to opt-out after the deadline would delay and adversely impact this case, as I would potentially have to allow the other individual class members, which could potentially number several thousand individuals, to opt-out after the deadline and to provide notice to those class members of an extended deadline to opt-out. This would delay the class settlement and require further expense and time on behalf of the parties and the court. Finally, although Ms. Martin and her attorney may have been acting in good faith, her attorney's misunderstanding or lack of understanding of the opt-out procedure simply does not constitute excusable neglect as a matter of law. See Riney, 130 F.3d at 998. Although this may appear to be a harsh result, Ms. Martin did have the benefit of counsel, unlike many of the individual class members who did not have the guidance of an attorney throughout the course of the class action.
No other class members chose to opt-out or filed objections aside from Ms. Martin.
In addition, courts have found the procedure requiring class members to opt-out before the fairness hearing to be appropriate. See, e.g., Weinberger v. Kendrick, 698 F.2d 61, 71 (2d. 1982).
Accordingly, Ms. Martin's motion to opt-out [D.E. 67] is DENIED
DONE and ORDERED.