Fitzgerald v. Pollard ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 RHONDA FITZGERALD, an individual, Case No.: 20cv848 JM(SBC) and on behalf of all persons similarly 10 situated, ORDER ON DEFENDANTS’ 11 APPLICATION FOR LEAVE TO Plaintiff, FILE A MOTIN TO DECERTIFY 12 v. THE CLASS 13 MARCUS POLLARD, et al., 14 Defendants. 15 16 Presently before the court is Defendants’ Application for Leave to File a Motion to 17 Decertify the Class (Doc. No. 120). 18 I. Relevant Procedural History 19 After holding oral argument on October 17, 2022, this court issued an Order on 20 November 3, 2022 certifying the following class: 21 Those visitors, from May 5, 2018 to the present, to the Richard J. Donovan Correctional Facility who were required to submit to an unclothed search as a 22 condition to visiting an inmate and were so searched in the absence of 23 individualized reasonable suspicion to believe that the visitor intended to smuggle contraband into the Prison, as evidenced by a failure to provide the 24 basis for the search on a Form 888 – Notice of Request For Search. 25 Doc. No. 82 at 5. 26 On November 17, 2022, Defendants filed a Motion for Reconsideration of Order on 27 Motion for Class Certification. (Doc. No. 85.) After the motion was fully briefed, this 28 court took the motion under submission, without oral argument, in accordance with Civil 1 Local Rule 7.1(d)(1). The court found Defendants’ arguments surrounding the modified 2 class definition baseless and their assertions related to how this court “erred in certifying 3 the class under Rule 23 as simply rehashing “arguments already made, although now 4 rewritten as though the Court was the opposing party and its Order the brief to be opposed.” 5 Strobel v. Morgan Stanley Dean Witter, No. 04CV1069 BEN(BLM), 2007 WL 1053454, 6 at *3 (S.D. Cal. Apr. 10, 2007). Doc. No. 91 at 10. Accordingly, Defendants’ Motion for 7 Reconsideration of Order on Motion for Class Certification was denied. Id. at 13. 8 On March 30, 2023, the Ninth Circuit Court of Appeals, in its discretion, denied 9 Defendants’ petition for permission to appeal this court’s November 3, 2022 order granting 10 class action certification. (Doc. No. 97.) 11 Subsequently, on May 17, 2023, Magistrate Judge Stormes issued a Scheduling 12 Order (Doc. No. 103) relating to discovery and pretrial proceedings which states: “all other 13 pretrial motions must be filed by January 15, 2024.” Doc. No. 103 at 2. 14 On January 15, 2024, Plaintiff filed a Motion for Partial Summary Judgment. (Doc. 15 No. 116.) 16 On January 23, 2024, Defendants filed an Application for Leave to File a Motion to 17 Decertify the Class (Doc. No. 120) and Plaintiff duly opposed (Doc. No. 128). 18 Discussion 19 Scheduling orders are entered by district courts to “limit the time to join other parties, 20 amend the pleadings, complete discovery, and file motions. Fed. R, Civ. P. 16(b)(3). A 21 Scheduling order is intended to “control[] the course of the action unless the court modifies 22 it.” Fed. R. Civ. P. 16(d). Its purpose is to alleviate case management problems. Johnson 23 v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). Thus, good cause must 24 be shown by counsel for modification of a scheduling order. Fed. R. Civ. P. 16(b)(4). As 25 the Ninth Circuit has explained: 26 Rule 16b’s “good cause” standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial 27 schedule if it cannot reasonably be met despite the diligence of the party 28 seeking the extension. Moreover, carelessness is not compatible with a 1 finding of diligence and offers no reason for a grant of relief. Although the existence of a degree of prejudice to the party opposing the modification might 2 supply additional reasons to deny a motion, the focus of the inquiry is upon 3 the moving party’s reasons for modification. If that party was not diligent, the inquiry should end. 4 5 Johnson, 975 F.2d at 609 (internal quotation marks and citation omitted). District courts 6 have broad discretion in managing their dockets and enforcing their scheduling orders. See 7 id. at 609-10. 8 Defendants filed their Application eight (8) days after the dispositive motion cutoff, 9 and over eighteen (18) months after the initial briefing on class certification occurred. 10 Defendants assert: (1) Defense counsel was cognizant of the scheduling order’s pretrial 11 motion deadline of January 15, 2024 but assumed that deadline applied to dispositive 12 motions and discovery motions; (2) motions to decertify a class can be filed at any time; 13 and (3) recently conducted discovery shows that the class should be decertified. 14 Defendants’ position that motions regarding class certification are not considered 15 pretrial motions is unsupported. Indeed, the Ninth Circuit has held a party can properly 16 file a motion to deny class certification “before the close of discovery and before the 17 pretrial motion deadline.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 18 (9th Cir. 2009) (emphasis added), Indeed, the court notes a motion for class certification 19 may even be dispositive where “a denial of class status means that the stakes are too low 20 for the named plaintiffs to continue the matter, or where the grant of class status raises the 21 cost and stakes of the litigation so substantially that a rational defendant would feel 22 irresistible pressure to settle.” Prado-Steiman v. Bush, 221 F.3d 1266, 1274 (11th Cir. 23 2000); see also, e.g., Bennett v. N. Am. Bancard, LLC, No. 17-CV-00586 AJB-KSC, 24 2022 WL 17972168, at *1 (S.D. Cal. Feb. 15, 2022) (finding class certification motion to 25 be dispositive where denial would wound “death knell” of litigation as plaintiffs only 26 alleged de minimis individual damages). 27 Regardless, Defense Counsel declares that “had he realized that the scheduling 28 order’s deadline applied to a decertification motion, [he] would have requested a one-week 1 extension of time to file the motion.” Doc. No. 120 at ¶ 3. Further, Defense Counsel 2 attests: 3 he believed that a decertification motion could be filed after the January 15, 2024 pretrial motion deadline. [He] was not disregarding the Court’s 4 scheduling order. [He] was operating under the belief that a decertification 5 motion could be filed any time up to before the entry of judgment in this case. Nonetheless, [he] did work to have this Motion filed as soon as possible. 6 7 Id. ¶ 4. 8 Taking these circumstances into account, the court gives Defense Counsel the 9 benefit of the doubt on the matter and finds that his delay was not, arguably, unreasonable 10 per se. Thus, the requisite good cause standard for Rule 16 has been demonstrated and the 11 Motion for Decertification will be entertained. 12 This conclusion is buttressed by Fed. R. Civ. P. 23(c)(1)(C) which provides that a 13 motion to decertify must be made “before final judgment.” Fed. R. Civ. P. 23(c)(1)(C) 14 (“An order that grants or denies class certification may be altered or amended before final 15 judgment.”). See also Officers for Justice v. Civil Serv. Comm'n of the City & Cnty. of 16 S. F., 688 F.2d 615, 633 (9th Cir. 1982) (“before entry of a final judgment on the merits, a 17 district court's order respecting class status is not final or irrevocable, but rather, it is 18 inherently tentative.”). “District courts have broad discretion to control the class 19 certification process.” Vinole, 571 F.3d at 942. Thus, district courts retain “the flexibility 20 to address problems with a certified class as they arise, including the ability to decertify. 21 ‘Even after a certification order is entered, the judge remains free to modify it in the light 22 of subsequent developments in the litigation.’” United Steel, Paper & Forestry, Rubber, 23 Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union v. ConocoPhillips Co., 593 F.3d 24 802, 809 (9th Cir. 2010) (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 25 (1982)). Consequently, “[a] district court may decertify a class at any time.” Rodriguez v. 26 West Publ'g Corp., 563 F.3d 948, 966 (9th Cir. 2009) (citing Falcon, 457 U.S. at 160). 27 Here, the newly discovered evidence cited by Defense Counsel may have consequential 28 ramifications for the certified class. Accordingly, in light of the flexibility and freedom 1 ||the court has in the class certification area, it exercises its discretion and GRANTS 2 || Defendants’ Application for Leave to File a Motion to Decertify the Class. 3 Conclusion 4 In accordance with the foregoing, the court GRANTS Defendants’ Application for 5 || Leave to File a Motion to Decertify the Class (Doc. No. 120) and ORDERS as follows: 6 1. Defendants have up to an including February 14, 2024, to file their Motion 7 to Decertify the Class, 8 2. Plaintiff □□□ up to and including February 28, 2024, to file an opposition, and 9 3. Defendants have up to and including March 6, 2024, to file a reply. 10 The matter will then be taken under submission and a written order will issue in due 11 || course. 12 IT IS SO ORDERED. 13 || Dated: February 12, 2024 PYhicols 14 ff poo 15 n. Jeffreyl. Miller nited States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28